Con Law I Bible

CONSTITUTIONAL LAW
PART I: JUDICIAL REVIEW
Judicial Review – the Supreme Court has the authority and duty to review the constitutionality of statutes passed
by Congress and to invalidate the statute if it violates the Constitution. The Supreme Court may review state
court decisions, but only to the extent that the decision was based on a federal law. Even if there is a federal
question in a state court case, the Supreme Court may not review the case if there was an “independent and
adequate” state ground for the state’s decision (That is, if the same result would be reached even if the state
court had made a different decision on the federal question, the Supreme Court may not decide this case). The
Theory of Judicial Review is an implied, not a substantive power. It is implied from the Court’s judicial power
to interpret cases which fall under the Constitution that come before it.
I. Marbury v. Madison (1803 – J. Marshall)
RULE: Implicitly, Article IV § 2, ¶ 2 of the Constitution gives the Supreme Court the authority to review acts of
Congress and determine their constitutionality.
2 MAJOR THINGS ACCOMPLISHED: (1) Established in dicta that high cabinet officials are subject to judicial
review - if the secretary of state breaches a legal duty to you, a federal district court can order him to perform; (2)
Established that the Supreme Court has the power to strike down laws of Congress as being unconstitutional.
A. Facts: Marbury was one of several justices-of-the-peace whom President Adams, on his last day of
office, appointed for D.C. Although acting Secretary of State, John Marshall sealed the commissions;
several were not delivered on time. Jefferson, who succeeded Adams, ordered Madison not to deliver
them. Marbury brought suit against Madison, the Secretary of State, because Madison failed to deliver
Marbury his commission to be a D.C. Justice of the Peace. Marbury brought suit seeking a writ of
mandamus.
B. Issues presented by the case:
1) Did the Supreme Court have jurisdiction?
2) Had Madison violated federal or constitutional rules?
3) Was a writ of mandamus an appropriate remedy?
C. Holding: The court did not have the constitutional authority to hear the case. Marshall got rid of the
case on jurisdiction, but took the opportunity to expound upon theory of judicial review.
D. Legal reasoning – 3 interpretive problems
1) Did congress vest the Supreme Court with original jurisdiction?
a) Yes – pursuant to the Judiciary Act of 1789
2) Is that grant of original jurisdiction consistent with Article III of the Constitution?
a) No
3) What is, therefore, the responsibility of the court?
a) The people have a right to establish principle for their government that they believe are
conducive to their happiness. These principle so established are deemed fundamental.
b) The powers of the legislature are defined and limited, and these limits may not be
mistaken.
c) The distinction between a government of limited and unlimited powers is abolished if
those limits do not confine the person on whom they are imposed.
Constitutional Law 1
Professor Bloom
Spring, 2000
d) If the courts are to regard the constitution, and the constitution is superior to any
ordinary act of the legislature, the constitution, and not the ordinary act must govern
the case to which they both apply.
E. Jefferson was upset with Marshall’s approach – Marshall seemed to be suggesting that the Supreme
Court has the right to determine whether the Secretary of State was doing his job and then to serve
processed on high government officers and force then to do it. Under the Constitution, they are equals
– thinks Marshall is exceeding the scope of his authority.
2. First Issue in Marbury: Is there a right?

A. Yes – signed and sealed rationale
1) The commission was signed by the president and sealed by the secretary of state.
2) This is a legal right to which Marbury has been denied.
3) Marshall does not site any authority to support this conclusion.
B. BUT Court could have decided this differently because it was not ‘delivered’; the commission may not
have been an enforceable agreement – “signed, sealed, and delivered”
1) In property law deeds must be signed, sealed, and delivered to vest.
2) Marshall could have drawn this analogy since there was no authority.
3) Ruling this way (on narrow, non-constitutional grounds) would have permitted Marshall to
avoid ruling on 3 constitutional issues
a) Is a high cabinet member subject to the judiciary? Can the Secretary of State be sued?
b) Is the statute constitutional?
c) Does the Supreme Court have to enforce the law if it isn’t?
4) Evidently Marshall wanted to rule on these issues. He felt the role of the Supreme Court
needed to be defined.
5) Should a judge seek constitutional issues to address?
a) No – if you can decide the case on a non-constitutional issue – do so.
(1) This is Judicial Restraint
(2) If you have a statutory ground and a constitutional ground – the statutory
ground should be dealt with. BUT when dealing with a federal statute, it IS
prudent to decide the case on constitutionality.
(a) If there is a way to construe the statute to where it’s constitutional –
construe it that way.
(b) A good judge would not decide a constitutional issue unless it was
necessary.
(c) Avoidance device – avoid constitutional issues when there is a
reasonable means to do so.
b) Reasons why courts should not decide constitutional issues before their time (Reasons
for Judicial Restraint)
(1) Judicial Review is Counter-majoritarian and should be used sparingly
(a) Invalidates a law passed by the democratic process
(b) In conflict with democracy
(c) It should not happen often
(2) Slower evolution of the law is desirable
(a) Difficult to amend the constitution
(b) This was intended by the founders
(3) Theory of Moral Capital
(a) The legitimacy of the court comes from the moral capital of the court
(b) If the court is too active it will lose its legitimacy and therefore its
authority. The court should therefore choose its battles wisely
(c) May have other effect – people just get used to it
Professor Bloom
Spring, 2000
(4) The more focused the issue the more likely the line of authority will be
properly cited. The incremental judicial process works best when the
focus is as narrow as possible.
(a) Courts operate better on a micro level
(5) Easier to correct mistakes with respect to common law or statutory
interpretation than to correct constitutional mistakes
(a) With a statutory interpretation error the congress can just change the
legislation through the ordinary legislative process.
(b) With a constitutional mistake –
(i) The court must admit error, or
(ii) The constitution must be amended
3. Second issue: Is there a remedy?

A. When there is a specific duty by law, there must be a remedy -- “If we have a government by laws and
not men then there must be a remedy if you have a right and that right is violated.” EXCEPTION:
unless the issue is committed to the peculiar discretion of the President or his agents (but not the case
here)
B. Marshall recognizes the difference between actions, which are political actions and those, which are
legal duties.
1) The president does have some significant legal discretion in his political decisions.
2) Political Question Doctrine – there are some constitutional questions, which are political in
nature, and there is no legal remedy. Court will not interfere with a discretionary or political
duty. In these cases, the President or his agents are accountable to the people and public
conscience.
a) Sometimes it is not the Supreme Court’s business to 2nd guess the president.
b) Examples: Foreign Affairs (court is unwilling to second-guess Congress + no judicial
remedy), Impeachment (court will say this is not their call).
3) This case involves a clear legal duty – a ministerial duty to deliver a commission.
C. If a high cabinet member has violated your right you can seek remedy through the courts including
mandamus.
1) The Supreme Court can say to the secretary of state that he must do something.
2) Jefferson was disturbed that the court said it could serve judicial process on executive officials.
4. What should the court do when a law comes up that is in conflict with the constitution?
A. The law can’t stand if it’s inconsistent with the constitution.
B. Why does the court have this power?
1) There is no judicial review explicit in the constitution
2) There is no original understanding on judicial review
a) It wasn’t discussed at the constitutional convention
b) There was a proposal for a Council of Revision
(1) Review laws by congress
(2) Framers rejected having such a council
(3) Argue either way
(a) The framers thought about someone 2nd guessing congress and
rejected it
(b) They decided they didn’t need the council because it was understood
the court would do the job.
3) The constitution clearly gives federal law supremacy over state law and the court has the power
to enforce federal law – Supremacy Clause
a) This is different. This is an act of congress – an internal problem within the federal
government
Professor Bloom
Spring, 2000
b) Why isn’t congress constitutionally every bit as powerful as the court? This is the key
question for Marshall.
4) Marshall’s argument for Judicial Review - Took it from Alexander Hamilton’s Federalist
Papers
a) The constitution is the foundation document originated by the people themselves,
making sure that the government they were creating would be sufficiently restrained.
(1) How the gov’t is set up
(2) What the powers of the branches are
(3) The core of our political system
(4) Intended to be enduring and successfully structure our gov’t for generations
(5) This is the vision that has taken hold
b) The point of the constitution according to Marshall is to limit government power
(1) The reason why we went to the trouble of passing a constitution was to provide
real limitation to the abuse of power.
(2) It’s a significant part of the argument that this constitution is in writing and
it’s law, the Supreme Law of the Land. Since the Constitution is written, we
can have something solid to abide by, authorize and define power – inference
made from the fact that the Constitution is written.
(3) We wanted to create a structure with an enduring power to limit the power of
gov’t.
(4) How we did this:
(a) Wrote it down – the English constitution was not in writing
(b) Intended it to be law – not a set of goals or values
(c) Not only law, but the Supreme Law
c) Why can the Supreme Court overturn law?
(1) Marshall does not suggest that the Supreme Court should go out and look for
laws to invalidate.
(2) The substantive power of the Fed Courts is in Art III, § 2, paragraph 1
(a) The power is limited to cases and controversies
(b) It can not issue advisory opinions
(c) There must be a real live dispute
(3) The Constitution is the Supreme Law
(a) Modest Proposal – If a case comes before the court, the court must
decide the case. When a justice looks at a case he must resolve a
dispute between the law of Congress and the constitution. If it turns
out there’s a conflict between the constitution and statute, the
constitution is the supreme law.
(b) If the Supreme Court couldn’t do that because the congress is a co-
equal branch, then the constitution wouldn’t be effective to do what
it’s suppose to do.
(c) Judicial review is the check, which enforces the limitations on power
imposed by the constitution.
Marshall’s primary justification for judicial review is a structural argument – In order to decide whether it is
legitimate for a court to invalidate legislation, look to the big picture as to where the Constitution comes from and
look at what naturally follows from that – logic would say…
C. The counter-arguments to Judicial Review

1) Jefferson
a) Why should the framers be able to impose their vision on generations to come?
b) Each generation should be able to come up with their own rules
Professor Bloom
Spring, 2000
(1) New experiences
(2) New learning
c) This vision has not taken hold
2) Co-equal branch counter-argument
a) Each of the other two branches are under the same oath of office to uphold the
constitution as the justices
b) Why is the Supreme Court’s interpretation superior to that of congress if they are co-
equal branches of government?
D. Marshall’s argument is a Structural Argument
1) This is not the sort of argument we’ve seen so far – he does NOTrely on:
a) Text
b) Original intent
c) Precedent
2) He simply looks to the sort of government the constitution sets up – if it is intended to:
a) Limit government
b) Check power
c) And give the court the power to resolve conflict
Then judicial review is implied
3) Marshall looks at the nature of government created by the constitution. In order for it to work
with real limits on power, there must be some check on legislative power
4) Without judicial review, the constitution would be ineffective – judicial review is necessary.
5) Marshall’s essential definition of judicial review
a) The people set out fundamental principle
b) The constitution is designed to limit power
c) It’s written
d) It’s the supreme law
e) The court must apply all related law
f) If the statute is inconsistent with the constitution, then the supreme law must be
applied
g) Otherwise there would be no effective check on legislative power.
5. Judicial Restraint vs. Judicial Activism – 2 Faces of Marbury

A. Judicial activism – Broad view
1) Emphasis on limiting power and enforcing the rights in the constitution
2) Judicial review is the court doing it’s job as the check against the power of congress
B. Judicial restraint Reading
1) Judicial review is simply the court doing its job on resolving disputes.
2) Decisions should be made on non-constitutional grounds if possible.
6. Why vest this power of constitutional interpretation in the court?

A. Would the legislature not follow the constitution or just interpret it in any way that serves their political
purposes
B. Marshall argues that judges insulated from the political pressure are necessary to have effective
limitations
C. The legislature would follow the constitution, but it would not be as good as judicial review.
7. Is judicial review necessary to effectively limit power?

A. Not necessarily – the constitution could also:
1) Be a benchmark on the conscious of the legislature
2) Be a benchmark for the public to check the legislature by
3) Be a useful tool in the political debate
4) Provide aspirational goals
Professor Bloom
Spring, 2000
5) The political alternative is not as effective as judicial review, but Marshall might overstate the
case
B. The framers feared abuse of power and widespread majoritarian democracy
1) The framers wanted protection of minorities
2) The more checks on the popular the better
a) Civic republicanism
b) Gentlemen farmers – meritocracy
C. The court should act as a brake
1) They are backward looking
2) They are put in for life and could serve 30 + years
3) So there’s a time lag
4) Things move on politically, but the same justices stay there
5) Therefore the court tends to be more conservative
Martin v. Hunter’s Lessee (1808, J. Story) Story was a solid Federalist. Wrote the opinion in a responsive-type
manner. Marshall was unable to participate in this case due to personal interests (appropriately recused himself).
1. Background - complicated dispute over a valuable piece of property – involved interpreting a federal
treaty and a statute.
A. FACTS: Hunter attempted to confiscate land in VA owned by Martin. Claimed that he owned the
land pursuant to a grant from the commonwealth of VA, which confiscated land owned by British
subjects. Martin claimed that the confiscation was ineffective under anti-confiscation clauses of
treaties between the US and England. VA ruled for Hunter, US Supreme Court reversed and
remanded. The VA Court of Appeals again held for Hunter stating that the Judiciary Act of 1789
was unconstitutional to the extent that it granted the US Supreme Court appellate jurisdiction over
the highest court of the state. That decision was appealed to the US Supreme Court.
B. ISSUE: Does the Supreme Court have appellate jurisdiction over Constitutional decisions made by
state courts?
1) Court held that the Supreme Court DOES have jurisdiction over Constitutional decisions
made by the states.
C. Justice Story relies on a Textual Argument to support the fact that the Supreme Court does
have this power.
1) Article III extends judicial power to “all cases” and then provides that the Supreme Court
will have appellate jurisdiction – It is the case that gives them power, not the court it
comes from. Article II gives appellate jurisdiction to all cases arising under the
Constitution.
2) Logical, textual argument that surely the framers contemplated that the Supreme Court
could exercise appellate jurisdiction over the highest state courts.
3) Story suggests that Congress could give jurisdiction over all federal questions BUT this
is too intrusive on state autonomy, certainly the framers didn’t want this.
4) Article IV says that federal law is the supreme law of the land.
5) If national supremacy is to be maintained, the highest court must possess the power to
override state action contrary to federal law. There must be a central revising authority
to control the discordant judgments of the state judiciaries and harmonize them w/ the
laws and treaties and Constitution.
6) Doctrine of National Supremacy – critics say that the power to review state court
decisions is contrary to the true spirit of federalism.
7) Lack of judicial review would give forum-shopping advantage to plaintiffs. To rectify
this advantage, would have to install automatic removal or give Supreme Court exclusive
jurisdiction, both of which intrude on state sovereignty more than judicial review does.
Professor Bloom
Spring, 2000
D. Next Argument by VA – the Constitution was not intended to permit the federal government
(including the federal courts) to act on states as states (as opposed to simply upon individuals
on states). They contend that this is inconsistent with state sovereignty.
1) VA was standing solidly on a conception of state sovereignty. They saw themselves as
similar to being a separate country.
2) VA says that the Court should trust them to adjudicate responsibly.
3) Story contends that VA misunderstood the framers’ intent – Again, textually speaking,
just look to the Constitution for proof
a) You are not a separate country – you are part of ONE great nation. VA clearly has
overstated their degree of sovereignty
b) Article I lists several prohibitions of what a state can and cannot do – VA’s view
undercuts the text of the Constitution
c) Court has already exercised appellate jurisdiction over state legislatures – it is too
late to raise this argument now.
d) Story says to VA, “you are not as sovereign as you think.” By ratifying the
Constitution, you gave up some of that sovereignty.
E. VA finally contends that it is insulting to review state court decisions – the states are capable
of applying constitutional law – Argument is for deference to be given to the state courts.
1) Story responds by saying that it is necessary for uniformity of decisions, reasonable
minds always disagree – someone has to harmonize the law.
2) The Constitution itself presumes that state courts may be biased in favor of their own
citizens; hence cases involving citizens of different states or between 2 states can be
brought in federal court.
3) Federal jurisdiction may also be justified because of the national importance of these
cases.
F. Following Martin – The Supreme Court invalidated state legislation on constitutional

grounds in Fletcher v. Peck (1810) and held that the Court could exercise appellate
jurisdiction over a state court criminal decision in Cohen v. Virginia (1821). Both cases,
along with Martin, consolidated federal judicial power as against the states.
Professor Bloom
Spring, 2000
PART III – FEDERALISM
1. 3 different types of constitutional issues derive from the federal form of government
A. Under what circumstances can the federal government act?
1) Federal government can only act pursuant to one of the enumerated powers in Article I
2) Proponents try to fit the actions into one of these enumerated powers.
B. Under what circumstances can the state government act?
1) Pre-emptive doctrine
a) State regulation violates the supremacy clause if it interferes with national regulation
2) “Dormant Commerce Clause” Doctrine
a) State laws that are unduly burdensome to interstate commerce are invalid
C. Assuming the national or state sovereign is otherwise acting within its constitutionally assigned
authority, can it impose obligations on the other sovereign?
1) The court has historically inferred from the constitutional structure doctrines of
“intergovernmental immunity”
2. McCulloch v. Maryland (1819, J. Marshall) – crucial case in defining the scope of congressional
powers and the relationship of federal and state governments. Marshall used this case to broadly
construe Congress’ powers and narrowly limit the authority of the state government to impede on
the federal government.
RULE: The Supreme Court, as the ultimate interpreter of the Constitution, is fit to speak both on the
relative powers of the 3 branches of government and on the supremacy of federal over state government.
A. Facts
1) Congress charted the 2nd Bank of the United States in 1816, which established an active
branch in Maryland.
2) Maryland imposed a tax on all banks not chartered by the state and demanded payment by the
branches of the 2nd Bank of the US.
3) The bank refused to pay the taxes and Maryland brought suit against James McCulloch, the
cashier of the Baltimore branch of the bank. McCulloch argued that the tax constituted a
wrongful interference with Congress’ lawmaking.
B. ISSUE 1 – Does Congress have the power to incorporate a bank?
1) This issue was not the focus of the dispute
a) Marshall included it because once he established Congress’s power to create a bank, it
would be easier to explain why states can’t tax or regulate it.
b) Marshall also recognized this case as an ideal opportunity to articulate a broad vision
of federal power.
c) Historical practice established the power of Congress to incorporate a bank – had one
before, it is a long and continued practice. BUT no one ever reviewed this
establishment the first time.
d) BUT NOTE: early opposers to the bank the first time helped to re-enact it
2) Marshall begins to answer this question by stating that the federal government and the
constitution come from the people and not from the sovereign states
a) “The government of the Union then is, emphatically, and truly, a government of the
people.” The people are the real source of the power.
b) The people have in express terms decided the federal government is the supreme law
by saying, “this constitution, and the laws of the United States, which shall be made in
pursuance thereof, shall be the supreme law of the land.”
Professor Bloom
Spring, 2000
c) Maryland thinks of the Constitution as a K between the states – Compact Theory – so
states kept their sovereignty (more later)
3) Even though creating a bank is not an “enumerated power”, it may be implied in Article I
(Nature of Federal Power)
a) The 10th Amendment did not use the word “expressly” on purpose
(1) The nature of the constitution requires only its great outlines to be marked
b) The government is given enumerated powers to
(1) Lay and collect taxes
(2) Borrow money
(3) Regulate commerce
(4) Declare war
(5) Raise and support armies
c) The government must necessarily also be entrusted with ample means to carry out
these duties. Congress can create a bank as a means to carry out many of its other
powers – gives Congress an infinite range of options that can become law. – Doctrine
of Implied Powers.
d) To its enumerated powers is added that of the power to make all laws necessary and
proper for carrying into execution the enumerated powers. The Constitution is a
general outline – can’t be too specific and narrow if it will last for a long time. The
10th Amendment does not limit either. Can’t have a document so detailed that it
cannot e understood by the people.
4) “Necessary and Proper” Article I § 8 Congress may choose any means, not prohibited by the
Constitution to carry out its express authority.
a) The clause is placed among the powers given to Congress, not among the limitations of
that power
(1) Since the clause is placed among the powers of congress, it should be
construed broadly
b) Its terms purport to enlarge, not diminish, the powers of congress
c) A sound construction of the clause must allow congress discretion in the means by
which it executes its powers to enable it to perform its duties in the manner most
beneficial to the people.
d) Incorporation of a bank is not prohibited by the constitution and it is in furtherance of
the objectives entrusted to the national government
e) Marshall’s arguments that congress had the power to create the bank
(1) Marshall relied heavily on Hamilton’s Federalist Papers and Hamilton’s
original argument in favor of the bank.
(2) Historical practice – the history of the 1st bank was used to support the
constitutionality of the 2nd
(a) The 1st Congress incorporated the 1st Bank after rigorous debate
(b) Many framers of the constitution were in the first Congress
(c) The charter expired, then congress reenacted it
(d) Thus, constitutional issues were seriously considered by the congress
and by the presidents who signed the charters
(e) The acts did not just sneak by – they had been seriously debated
(f) The signors and congress had made a good faith attempt to make a
good constitutional judgment
(3) Marshall refuted the notion that states retain ultimate sovereignty because they
ratified the constitution
(a) Marshall contended that the people, not the states, ratified the
constitution and thus the people are sovereign
(i) The people voted in the conventions
Professor Bloom
Spring, 2000
(ii) It’s not the state governments – it’s the people who ratify the
constitution
(b) The constitution comes from the people
(i) Delegates from the states drafted the constitution, but it was
only given operative effect when ratified by the people in the
conventions in the various states
(ii) Popular Sovereignty Principle
(c) Maryland propounded the Compact Theory
(d) Compact Theory – the Constitution is essentially a contract between
the individual sovereign states under which they voluntarily relinquish
some of their sovereignty
(i) This theory led to the Southern Succession and the Civil War
(e) Art. VII clearly indicates, however, that the states, not the people,
ratified the Constitution.
(4) Congress is not limited only to those acts specified in the constitution.
Congress may choose any means, not prohibited by the constitution, to carry
out its lawful authority.
(a) Marshall wrote the famous word, “We must never forget it is a
Constitution we are expounding.”
(b) His point was that a constitution should be interpreted differently from
a statute.
(c) Whenever a judge quotes this phrase, we may be sure that he is
preparing to disregard text, original intent, and structure.
(5) The “necessary and proper” clause makes it clear that congress may choose
any means not prohibited by the constitution to carry out its express authority
(a) Marshall says “necessary” in this context means useful or desirable,
not indispensable or essential.
C. ISSUE 2 – Whether the State of Maryland may, without violating the constitution, tax the Bank
of the U.S.
1) The court lays down the principle that the constitution and the laws made in pursuance thereof
are supreme; that they control the constitution and laws of the respective states, and cannot be
controlled by them.
2) The power to tax is the power to destroy
a) State laws cannot be used to render ineffective the laws of the national government
when the constitution declares the national laws are supreme.
3) An unavoidable consequence of the supremacy clause is that the states have no power, by
taxation or otherwise, to retard, impede, burden or in any manner control the operations of the
constitutional laws enacted by congress to carry into execution the powers vested in the
national government.
4) Are there any limits to Marshall’s test?
a) “Let the end be legitimate and all means that are appropriate, which are plainly adapted
to that end, which are not prohibited by the constitution.”
D. Nature of Federal Power
1) Structural Interpretation
a) Federal Law is Supreme
b) The constitutional has delegated and enumerated powers
c) Powers are limited, but the federal government is supreme
2) Can Congress Incorporate a bank?
a) It’s implicit
b) The constitution does not exclude incidental or implied powers
c) The 10th Amendment does not limit the Federal Government to those powers
expressly granted, as did the Articles of Confederation.
Professor Bloom
Spring, 2000
3) Nature and Structure of the Constitution according to Marshall
a) It’s a great outline that states only the most important objectives
b) It could not be too complicated because of the need to be understood by the people
(1) Relatively short, simple, and easily understood
c) A constitution is supposed to endure
d) If everything were laid out, Congress’s hands would be tied. Congress must be able to
adapt the laws to the times
e) “We must never forget it is a constitution we are expounding”
(1) It must be flexible and simple in order to endure
(2) It should be interpreted liberally and flexibly since it’s supposed to be
enduring
4) What enumerated powers are relevant to the incorporation of a bank?
a) Power to tax
b) Power to spend
(1) Need a banking system to move the money
c) Regulation of interstate commerce
d) Declare and conduct war
e) Raise and support armies and navies
5) Great powers imply the means to carry them out
E. Textual Argument – means to achieve an end
1) “Necessary and proper clause”
a) Maryland argued that “necessary” means “essential”
b) It gives the congress the power to legislate – Marshall said this is implicit
c) Marshall said that “necessary” means “convenient”
(1) When necessary is put together with proper, then necessary should be
interpreted more broadly
2) Since the constitution was meant to endure, the framers must have intended to provide
congress with sufficient discretion and flexibility to effectively execute the great powers
3) In Article I, Section 10 the framers modify “necessary” with “absolutely.”
a) Therefore “necessary” does not mean “essential” or the framers would not have needed
to modify it with “absolutely”.
b) This supports Marshall’s reading of the word because of the different contexts in
which it is used
c) If the drafters of a document use the same word more than once it means the same
throughout the document unless the drafters say otherwise
d) Obviously they didn’t mean for “necessary” to mean “essential” if they had to modify
it with “absolutely”.
4) Marshall gives the postal system as an example of things congress has done that were not
essential
5) “Proper” suggests flexibility
a) Thus, a strict construction of “necessary” would undermine the more discretionary
“proper”
b) The clause should be construed in a way that gives both terms meaning
6) The clause is placed among affirmative grants of power rather than the prohibitions in Art I
a) If “necessary and proper” were meant to be restrictive it would have been put in the
prohibitions
7) Is there another reading of “proper”?
a) “Proper” might simply mean legal – not prohibited by law
b) This is not inconsistent with the “essential” construction of “necessary”
F. Marshall – the “necessary and proper” clause was meant to allow congress to carry out the enumerated
powers
1) Marshall’s test for judicial review
Professor Bloom
Spring, 2000
a) If congress purports to exercise a power that is not enumerated in order to carry out a
power that is enumerated – the test is used
b) The test for a law that is a means to an end – sort of a rational basis test
(1) Let the end be legitimate
(2) Within the scope of the constitution
(3) All means appropriate
(4) Plainly adapted to that end
(5) Not prohibited
(6) But consistent with the spirit and letter of the constitution
c) Laws that pass this 6 part test are constitutional
2) How does Marshall apply the test?
a) He just kind of rubber stamps the law without really applying the test
b) Marshall indicates the court should be deferential
(1) Won’t inquire to the degree of necessity
(2) Will be deferential to congressional judgment if not pretextual
(3) Didn’t explain the connection of the bank to the enumerated powers as
explicitly as Hamilton could have
G. Jefferson’s Response
1) Marshall made a “House that Jack” built argument
2) One could argue based on Marshall’s opinion that congress could create a mining company on
the grounds that congress needs to raise a navy, it’s necessary for a navy to have cannon, and
it’s necessary to have iron to build cannons, and to get iron, it’s necessary to have a mine.
3) Jefferson found the broad reading of the “necessary and proper” clause useful when he needed
authority for the Louisiana Purchase
H. Marshall concludes the bank is constitutional and Maryland may not tax it
1) Congress has the power to create the bank
a) Structural argument
b) Textual argument – “necessary and proper”
c) Either argument could have carried the day
2) Maryland does not have the power to tax the bank
a) It was a specific tax directed at the bank
b) A state does not have the power to tax a federal instrumentality
c) As a general rule – as long as the tax is imposed by a legislature whose constituents are
taxed – there’s a check against confiscatory abuse
(1) The legislature of Maryland shouldn’t be able to tax the whole country
(2) Political safeguards of federalism argument – Wexler
(3) The people of Maryland might say, “Let’s beat up on the Bank of the US
instead of taxing ourselves”
I. Governmental Immunity
1) Because state taxing authority on federal institutions could be abused – there should be
immunity
2) Alternatives to Immunity
a) Allow the states to tax and if they abuse their power – file a lawsuit. Judicial check on
a case by case basis
b) Under the Supremacy Clause the congress could legislatively create a complete or
qualified immunity. Congress can protect itself
3) Marshall suggests that if there was a nondiscriminatory tax, then that’s OK
a) The political checks work
b) Tax on all banks
c) Tax on all property
d) The Bank of the US was singled out in this case
J. Importance of McCulloch v. Maryland
Professor Bloom
Spring, 2000
1) Foundation for broad federal power – empowers congress to do a lot without worry of judicial
review
2) Established the theory of Popular Sovereignty over the Compact Theory
3) Leading example of constitutional interpretation
4) Introduced the notion of constitutional safeguards of federalism
5) It set a standard for judicial craftsmanship
14th AMENDMENT
14TH AMENDMENT OVERVIEW:
Equal Protection Clause – Prohibits a state from denying anyone within its jurisdiction the equal protection of the
laws. Requires that people under like circumstances be given Equal Protection in the enjoyment of personal rights
and the prevention and redress of personal wrongs. One person or one group claims that they are being afforded
disparate treatment under a law as compared to another person or group who is similarly situated.
Due Process Clause – Two Clauses in the Constitution – one in the 5th Amendment, which pertains to the federal
government, and one in the 14th Amendment, which protects persons from state actions. Due process is claimed by
an individual that he alone is receiving unfair procedural rights. Two aspects:
1. Procedural Due Process – By which a person is guaranteed fair procedures. Minimal procedural due
process requires that parties whose rights are to be affected are entitled to be heard and that in order that
they have that right, they must be notified. For the guarantees to apply, it must first be shown that a
deprivation of a significant life, liberty, or property interest has occurred. How the process works.
2. Substantive Due Process – One function of the Due Process Clause is to limit the substantive power of the
states to regulate certain areas of human life. That is, certain types of state limits on human conduct are
held to so unreasonably interfere with important human rights that they amount to an unconstitutional
denial of liberty. Substantive Due Process protects a person’s life, liberty, and property from unfair
governmental interference or taking. This requires that legislation be fair and reasonable in content as well
as in application. Broadly defined as Constitutional guarantee that no person shall be arbitrarily deprived
of life, liberty, or property. And the essence of substantive due process is protection from arbitrary and
unreasonable government action. How the process affects people. Can’t infringe upon rights – this is the
primary vehicle of the court until Carolene Products (1937) and the increased use of Equal Protection
Professor Bloom
Spring, 2000
PART V: 14TH AMENDMENT
EQUALITY AND THE CONSTITUTION
There are 2 main time periods when the Constitution was made (1) Framers and (2) Following the Civil War when
the 13th, 14th, and 15th Amendments were added which significantly altered the federal structure and provided a
foundation for modern civil rights jurisprudence. This section starts the jurisprudence under the 14th Amendment.
I. Slavery/Race in the Constitution – Reconstruction Era
A. Race in the Constitution – Controversy over the legal status of African Americans has been central to US
politics since the founding of the Republic
1. Judicial decisions have shaped this controversy
2. Court’s analysis of discrimination against African Americans has served as a prototype for the
development of other Constitutional doctrines
3. History influences Constitutional adjudication
B. Slavery 1789
1. 3 Provisions in the Constitution
a) Article I, section 3 – Enumeration 3/5 Clause
b) Article I, section 9, para 1 – Prohibition of abolition of the slave trade prior to 1808
c) Article IV, Section 2, para 3 – Fugitive Salve Clause
2. Southerners played a large role in framing the Constitution – Madison was from Virginia
3. Framers compromised w/ measures aimed at preventing friction over slavery between states – there
was no way to come to a national consensus on issue of slavery.
4. Slavery was an important social and political issue. Every discussion of the relationship between
the federal and state governments was directly or indirectly about the slavery question.
5. At no point prior to the Civil War did the Supreme Court significantly limit slavery or even raise
serious questions about its constitutionality.
6. State v. Post (1845) – this case typifies judicial analysis of slavery prior to the Civil War
a) Supreme Court of NJ rejected a claim that the state constitution abolished slavery
b) It has been often adjudged, both by state and federal courts, that slavery still exists, that
the master’s right of property in the slave has not been affected either by the Declaration
of Independence or the Constitution.
7. Slavery in the Territories – As new states were added, question arose of whether they were
designated as slave states or non-slave states. Tension over slavery increased throughout the first
half of the 19th century. The primary battle was fought over the introduction of slavery into the
territories. Congress attempted to address this w/ the Missouri Compromise of 1820, which
permitted slavery in the Missouri territory and territories to the south. The MO Compromise lasted
until 1850’s.
Professor Bloom
Spring, 2000
8. Fugitive Slave Clause – There was also much dispute and litigation over the duties of states under
the Fugitive Slave Clause. Some states w/ strong anti-slavery movements (PA, WI) attempted to
obstruct the return of fugitive slaves through legislative, executive and judicial action.
9. Prigg v. Pennsylvania (1842, J. Story) – Fugitive Slave Clause case where the Court invalidated a
state rendition act, holding that the return of slaves was subject to exclusive determination by
Congress.
a) This was a double-edged sword preventing free states from aiding free blacks and
escaped slaves but also preventing slave states from passing laws making the recapture
and return of slaves easier.
10. Dred Scott v. Sandford (1857, CJ Taney) – Decision in Dred Scott becomes a focal point in the
debate over slavery and by striking down the MO Compromise, helped to precipitate the Civil War.
*Section I of the 14th Amendment overrules Dred Scott – “all persons are citizens”
a) Supreme Court declared the MO Compromise unconstitutional and broadly held that
slaves were property, not citizens.
b) As a slave, Dred Scott was purchased in Missouri where he lived with his owner. Scott
accompanied his owner, an army officer, when he was transferred to Illinois, a free state
and to the Louisiana territory (free under the MO Compromise). They returned to
Missouri and Scott was sold to Sanford as a slave.
c) The Court issued a decision with a series of long and complicated opinions by the
individual justices.
d) CJ Taney wrote what is considered the opinion of the Court although he did not have the
support of a majority on several points.
e) Taney might have resolved the case on far narrower grounds either by holding that
1) Scott’s status was a question of MO law (and MO considered him a slave) OR
2) That Illinois did not have the power to bestow citizenship on Scott.
f) Taney argued on Original Understanding grounds, that as a matter of constitutional law,
neither a slave nor a descendent of a slave could ever become a citizen of the US. Hence
there was no diversity jurisdiction b/c Scott could not be a citizen of a state w/in Article
III. – Slaves are not citizens and could not invoke federal court diversity of citizenship
jurisdiction. Slaves held no rights or privileges.
g) Even though the Court concluded that it lacked jurisdiction to hear Scott’s suit, it went
further and declared the MO Compromise unconstitutional and ruled that Congress could
not grant citizenship to slaves or their descendents (this would be a taking of property to
slave owners w/out due process or just compensation – a right which is expressly
affirmed in the Constitution).
h) This aspect of the case was totally gratuitous since Taney had already found that there
was no federal jurisdiction. It was the first instance of an assertion of “substantive”
due process by the Court. The first federal statute invalidated by the Court since
Marbury v. Madison, 53 years earlier.
i) And it was a devastating blow to the efforts to further resolve the slavery in the territories
issue through compromise since the Court had effectively constitutionalized the issue.
The only way to affect slavery issue, you have to amend the Constitution.
j) Justice Curtis wrote a powerful dissent effectively rebutting all of the Court’s
arguments
k) The Court seemed to have believed that it could resolve the slavery issue as a matter of
constitutional law but its decision was extraordinarily divisive and made matters much
worse. The decision heated up the political debate over slavery (Lincoln/Douglas
debates – Lincoln saying that the Supreme Court Justices don’t have the right to
foreclose the issue on slavery based on this one case)
l) Scott v. Sanford can’t be blamed for the Civil War, however it did serious damage to the
reputation of the Court for decades.
Professor Bloom
Spring, 2000
11. Reconstruction Era – As the Civil War came to an end, Congress addressed the issue of
Reconstruction – that is, putting the shattered union back together again and providing effective
protection for civil rights of former slaves.
a) Congress passed much legislation and drafted and obtained the ratification of 3
constitutional amendments (the 13th, 14th, & 15th), which ultimately resulted in
significant changes to the constitutional structure of the nation.
b) 13th AMENDMENT – The Emancipation Proclamation had freed slaves in the union
controlled territory.
1) The 13th Amendment, passed in 1865, bans slavery in the US and gives Congress
the power to enforce it w. appropriate legislation.
2) NOTE: the 13th Amendment does NOT require “state action”
3) Ironically, in a last ditch effort to save the Union, Lincoln was prepared to support
a 13th Amendment prior to the outbreak of the Civil War, which would have
constitutionalized the right to HOLD slaves.
c) Civil Rights Act of 1866 – The following year, Congress passed the Civil Rights Act of
1866, which granted citizenship to all persons born in the US (excluding Indians) ad
granted all citizens “the same right to make and enforce contracts, sue, give evidence,
acquire property and to the full and equal benefit of all laws…for the security of property
and persons as enjoyed by white citizens.”
1) The Act was intended to protect what were considered at the time to be “civil” (K,
property, access to courts) as opposed to “political” (voting) or “social” (non-
discriminatory access to private businesses) rights.
d) 14TH AMENDMENT – Because of doubts regarding the constitutional power of
Congress to pass the Civil Rights Act of 1866, Congress debated and ultimately drafted
the 14th Amendment, which has become the centerpiece of modern constitutional civil
rights jurisprudence.
1) The original understanding of the 14th Amendment has been and continues to be
one of the most hotly debated issues in constitutional law.
2) Some of the framers intended it to be a broad guarantee of racial equality; others
wanted it to be narrow and ineffective and others intended some middle ground.
3) Dred Scott was overruled by Section I, sentence 1 of the 14th Amendment – “All
persons born or naturalized in the US, and subject to its jurisdiction thereof, are
citizens of the US and of the State wherein they reside.”
4) It is one of 4 Constitutional Amendments overruling a prior Supreme Court case.
5) The Core of the 14th Amendment is Section I, sentence 2 – “No state shall
make or enforce any law which shall abridge the privileges and immunities of
citizens of the US, nor shall any state deprive any person of life, liberty or property
without due process of law, nor deny any person within its jurisdiction equal
protection of the laws.”
6) Substantive Guarantees: 3 substantive provisions

a. Privileges & Immunities of US Citizenship
b. Due Process of Law
c. Equal Protection of the Laws
7) Enforcement Clause – Section 5 gives Congress the power to enforce the
amendment by appropriate legislation. It was contemplated by the Framers that
Congress, rather than the Courts would be the primary protector of 14th
Amendment rights.
8) Controversial Ratification – Since the Civil War was fought on the theory that
the union was indestructible and secession illegal, the Republican Congress needed
the votes of the Southern States for the ratification. They were strong-armed into
Professor Bloom
Spring, 2000
ratification by making ratification of the 14th Amendment a condition of re-
admission (although they technically had not left).
e) 15TH AMENDMENT – In 1870, Congress drafted and obtained the ratification of the
15th Amendment providing that the right to vote shall not be denied because of race,
color, or previous condition of servitude.
1) This tends to confirm that the 14th Amendment was not intended to reach racial
discrimination in voting.
f) OTHER CIVIL RIGHTS ACTS – to combat discrimination in the South, Congress
passed several other Civil Rights Acts including:
1) Re-enacting the Civil Rights of 1866
2) The Enforcement Act of 1870
3) The Ku Klux Klan Act of 1871
4) In 1876, Congress passed civil rights legislation prohibiting racial discrimination
in certain places of public accommodation such as hotels, restaurants, and facilities
of public transportation in the private sector.
a. The Supreme Court invalidated this Act in the Civil Rights Cases (1883).
12. End of Reconstruction – Reconstruction came to an end with a compromise to resolve the
disputed election of 1876 (Hayes).
a) The court read the 14th Amendment very narrowly in several late 19th century cases
including the Slaughterhouse Cases (1873), The Civil Rights Cases (1883), and Plessy v.
Ferguson (1896).
13. The Slaughterhouse Cases (1873, J. Miller) – This was the 1st significant interpretation of the
14th Amendment coming to the Court 5 years after the ratification. P&I Clause was
rendered a nullity by this case!
a) A Louisiana law, which granted an exclusive monopoly of the butchering trade within
New Orleans to a specific slaughterhouse, was challenged under the 14th Amendment.
b) Several butchers challenged the monopoly b/c the law violated their right to practice
their trade. They also used the recently adopted amendments as part of their argument
(created involuntary servitude, deprived them of property w/out due process, denied
equal protection, and abridged privileges and immunities).
a. Whose privileges or immunities are protected by the 14th Amendment

according to the Court?
i. 14th Amendment P&I Clause is modeled after the Article IV, section 2 P&I
Clause.
ii. The 1st Sentence of the 14th refers to citizens of US and the states while the
second sentence (containing the P&I Clause) refers only to US citizens.
b. What is the purpose of the Article IV P&I Clause according to the Court?
i. Article IV P&I does not create rights but merely guarantees that non-
citizens are roughly entitled to the same rights as state citizens.
ii. Article IV protects state created rather than federally created rights.
c. Why does the Court believe that the 14th Amendment P&I Clause was not
intended to protect basic civil rights of citizens (such as the right to
practice a trade) against state infringement?
i. Not Basic Civil Rights – It would result in too great of an alteration of
the federal constitutional structure since basic civil rights have
traditionally been protected by the state and not the federal
government.
d. What types of rights are protected as privileges or immunities of US
citizenship under the 14th Amendment?
Professor Bloom
Spring, 2000
i. Right of Habeas Corpus
ii. Right of Interstate Travel
iii. Right of Assembly & Petition
iv. Right to use Navigable Waters
v. Right to avail oneself to treaties
vi. Right to come to the seat of government
vii. Right to share in its offices
viii. Right to have free access to seaports
These rights listed were already provided for in the Constitution and existed
before the 14th Amendment P&I Clause was even adopted. So, interpreting
differently cannot be right b/c these rights were already provided for.
c) Field Dissent – Why does Justice Field reject the Court’s interpretation of the 14th
Amendment P&I Clause and what type of rights does he believe that it protects? Field
says this ought to be a P or I. Framers intended to provide basic civil rights protection
against the states and views the 14th Amendment as a significant change in civil rights
protection.
1) Majority renders P&I Clause meaningless since all of the rights cited are
independently protected anyway.
2) Rather P&I are the rights of citizens of all free governments.
3) Such as the type of rights guaranteed by the Civil Rights Act of 1866.
4) The right to pursue a lawful calling is the type of civil right protected as a P or I of
the US citizenship. Source of P or I is the natural law, rights don’t come from the
government, they come from a higher power and the government is there to make
sure they are not infringed upon – besides, it doesn’t really matter where the rights
come from, the purpose of the 14th Amendment is to simply protect them.
5) 14th Amendment P&I protects rights of citizens of the US just as Article IV P&I
protects citizens of other states.
d) Bradley Dissent – What does Justice Bradley conclude in dissent?
1) The right to pursue a lawful calling is a P or I of national citizenship protected
against arbitrary interference by the states but it is also a fundamental component
of liberty protected by the Due Process Clause, as well. NOTE: This is the same
argument made by Taney in Dred Scott.
2) [This, along with Dred Scott is the beginning of Substantive Due Process]
e) Was the Court’s conclusion that the 14th Amendment (especially the P&I Clause) was
not intended to alter the balance between the federal and state governments with respect
to protection of civil rights correct?
1) Arguably the 14th Amendment was in fact intended to radically change the
relationship of the federal and state governments with respect to civil rights
protection, and indeed it has certainly had that effect.
2) While the 14th Amendment was not intended to replace state civil rights
enforcement with federal, it was intended to supplement it.
f) Dual Sovereignty – the Court had difficulty seeing this because it operated on an
assumption of dual sovereignty, that is that the spheres of state and federal power were
mutually exclusive and thus power to enforce civil rights must reside either in the states
or I the federal government but not in both at the same time.
1) The working assumption of the generation of 1789 was that the states could be
trusted to protect civil rights but that the new national government couldn’t be.
2) In the aftermath of the civil war, the assumption was reversed; the states now
seemed to pose the greatest threat.
3) The Congress that drafted the 14th Amendment was the national government.
4) It undoubtedly trusted itself mote than it trusted the states.
Professor Bloom
Spring, 2000
g) General Critique – Arguably, the P&I Clause was intended to be the workhorse of the
14th Amendment providing protection of most if not all fundamental constitutional rights
against the states.
1) The Slaughterhouse Cases all but read it out of the Constitution and it never
has been effectively revived.
14. The Civil Rights Cases (1883, J. Bradley) – see also again in State Action
1st Significant Supreme Court articulation that these 14th Amendment rights are applicable only where
state action is present.
A. The Civil Rights Act of 1875 made it illegal to deny blacks service in hotels, theaters, and other places
of public amusement. Why did the Supreme Court conclude that Congress lacked the power to enact
this legislation under section 5 of the 14th Amendment? The Supreme Court invalidated the Act as
beyond Congressional power since Congress could not reach private conduct under § 5 of the 14th
Amendment.
B. There were 5 cases where blacks had been excluded from hotels, theaters and railroads. Four cases
were criminal prosecutions and a fifth was for the $500 dollar civil penalty.
C. The substantive provisions of the amendment (privileges or immunities, equal protection and due
process) prohibit violation by the state; in other words, they require some “state action.” Congress does
not have the power under section 5 to enforce against purely private action absent some showing of
state default. This holding is still valid today.
D. The court made three principle holdings in the case
1) The struck down the law since the 14th Amendment only applies to state action
a) 14th Amendment – “No state shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States; nor shall any state deprive
any person of life, liberty, and property without due process of law; nor deny any
person within its jurisdiction the equal protection of the laws.”
b) The amendment granted the federal government the right to adopt appropriate
legislation for correcting the effects of such prohibited state law and state acts, and
thus render them effectively null, void, and innocuous. This is the legislative power
conferred upon congress and that’s the whole of it.
2) The 14th Amendment does not grant Congress the power to regulate private conduct. Eg.
John Rocker and MLB.
a) This law steps into the domain of local jurisprudence, and lays down rules for the
conduct of individuals in society towards each other, and imposes sanctions for the
enforcement of those rules, without referring in any manner to any supposed action of
the state or its authorities.
b) The court goes on to say that the law assumes that if the states are prohibited in acting
in such manner, congress is entitled to legislate on the subject generally. This,
according to the court violates the 10th Amendment.
(1) 10th amendment – …Powers not delegated to the United States by the
constitution, nor prohibited by it to the states, are reserved to the states.
(2) Unless the acts are in some way sanctioned by the state, the wrong must be
addressed by state law.
c) The constitution seeks to protect the rights of citizens against discrimination and unjust
laws of the state.
3) Why doesn’t section 2 of the 13th Amendment provide adequate constitutional power? The
Court acknowledges that the 13th Amendment prohibits “primary conduct”; that is a private
activity so Congress is not limited to state action under the 13th Amendment. However,
Congress may only address the badges and incidents of slavery under the 13th and the Court
did not believe that racial discrimination qualified. The court held that the law is not justified
under the 13th Amendment, which prohibits slavery. This holding was overruled in 1968.
Professor Bloom
Spring, 2000
a) The act of an individual innkeeper cannot justly be regarded as “imposing a badge of
slavery” upon someone.
b) Such an act as refusal to grant accommodations at a private inn has nothing to do with
slavery.
4) Implicit holdings in the case
a) State action does not encompass the actions of government chartered, government
regulated, or quasi-public establishments like common carriers or places of public
amusement
b) State action encompasses only positive government activity, not passive activity, as
when the state acquiesces in discriminatory private conduct
E. Harlan’s dissent in the Civil Rights Cases - Harlan would have upheld the law on three grounds.
1) 13th Amendment view – Broad reading of the 13th Amendment. Racial discrimination is a
badge and incident of slavery under the 13th
a) Freedom from slavery necessarily entails not only the liberation from physical
bondage, but also the eradication of all burdens and disabilities suffered by black
people because of their race.
b) Congress can therefore enact laws to protect blacks from being denied, because of their
race, those “civil rights” granted to other free men of the same state
c) Such legislation may be directed at the states, their officers and agents, and such
individuals as corporations that exercise public power and wield power and authority
under the state.
2) 14th Amendment view – Section 5 of the 14th can be used to enforce US Citizenship in the
first sentence of section 1 which is an affirmative grant not limited by state action.
a) § 1 of the 14th Amendment states that all citizens of the US are citizens of the state in
which they reside.
b) He believed this section gave blacks state citizenship and thus entitled them to
exemption from race discrimination in respect on any civil right belonging to citizens
of the white race in the same state.
c) These civil rights include access to public accommodations.
3) Harlan also argued that if state action was required, it could be found in this case since the
businesses in question, especially common carriers and inns, had long been considered to have
public responsibilities and obligations at common law and thus were sufficiently public to be
considered state action. Harlan also contended that since RR companies, innkeepers, etc serve
the public and are subject to state regulation, they should be viewed as agents of the state, so
their conduct constitutes state action for the purposes of Equal Protection.
F. Consequences: Case had a devastating effect on Congress’ ability to prevent emergence of apartheid
in the South. In the 1940s – finally some meaningful limits on unofficial racial discrimination were
imposed. This happened through the broadening concept of state action.
G. The Civil Rights Cases and Plessy
1) Both decisions believed in the primacy of private conduct and the market, with a strong
presumption against state interferences with the operations of private preferences
2) Both refused to view the antidiscrimination principle from the perspective of blacks, or
examine functionally their exclusion from public accommodations
3) Both seem to be uncomfortable with the idea of racial mixing
H. The Civil Rights Cases and Washington v. Davis
1) So long as a statute is facially neutral and not shown to be impermissibly motivated, any
discriminatory effects resulting from it are seen as attributable to private discrimination and
other factors for which the state is not responsible
2) The equal protection clause places no affirmative duty on the states to attack societal
inequalities because the state is under no duty to act at all.
Professor Bloom
Spring, 2000
3) Even when the state does act in matters that make things worse for blacks, the equal protection
clause will invalidate state action only if it were facially discriminatory or intended to
disadvantage minorities.
4) Societal inequalities don’t matter constitutionally unless the government acted in a non-neutral
fashion.
EQUAL PROTECTION
Equal Protection Generally – The Equal Protection Clause of the 14th Amendment prevents
government from making certain types of classifications, mainly ones that unfairly treat similarly situated
people differently.
Example: The Equal Protection Clause is what prohibits governments from running racially segregated
schools.
Three Standards of Review – There are 3 standards of review, which reappear constantly throughout
Constitutional Law. When a court reviews the constitutionality of government action, it is likely to be
choosing from among one of these standards.
1. Mere Rationality – The easiest one to satisfy. When the Court applies the mere rationality
standard, the court will uphold the governmental action so long as (1) the government is pursuing
a legitimate governmental objective and (2) there has to be a minimally rational relation between
the means chosen by the government and the state objective. Only if the government has acted in
an arbitrary and irrational way will this rational link between the means and end not be found.
When Used:
a) Dormant Commerce Clause – state regulation has to pursue a legitimate state
end and be rationally related to that end.
b) Substantive Due Process – so long as no fundamental right is affected, the test
fro determining whether a governmental act violated SDP is mere rationality.
Vast bulk of economic regulations are tested by this standard.
c) Equal Protection – Used so long as no suspect class or quasi-suspect class is
being used and no fundamental right is being impaired (almost all economic
regulations, some classifications based on alienage, rights not fundamental even
though they are important (food, housing, and free public education))
2. Strict Scrutiny – The hardest to satisfy. This standard will only be satisfied if the governmental
act satisfies 2 tough requirements: (1) the objective being pursued by the government must be
compelling and (2) the means chosen by the government must be necessary to achieve that
compelling end. The fit between the means and the end must be extremely tight. Also, necessary
means that there is no less onerous means that would accomplish the government’s objective.
When Used:
a) Substantive Due Process/Fundamental Rights – where a governmental action
affects fundamental rights and the plaintiff claims that his substantive due
process rights are being violated (privacy – marriage, child-bearing, and child-
rearing, use of contraceptives).
b) Equal Protection – If the classification relates either to a suspect class (race,
national origin, and sometimes alienage) or a fundamental right (vote, access to
the courts, travel interstate)
Professor Bloom
Spring, 2000
3. Middle-level Review/Intermediate Scrutiny – The governmental objective has to be important
and the means chosen by the government must be substantially related to the important
government objective
When Used:
a) Equal Protection/Semi-suspect – where the classification being challenged involves a semi-
suspect class (gender, illegitimacy)
PART VIII: 14TH AMENDMENT
COURT BEGINS TO USE EQUAL PROTECTION
SCHOOL DESEGREGATION CASES
Period where the Court begins to use Equal Protection in terms of thinking about racial discrimination. The
NAACP was founded in the 1920’s and their main goal was to undermine Plessy v. Ferguson. A line of cases
developed concerning segregation in schools. Court looked at the tangibles and intangibles and decided that a
separate facility can never be equal. Following WWII, NAACP started to attack segregation in schools at the
elementary level. Felt the whole system would follow if the Court decided in their favor here.
1. Bowling v. Sharpe – Segregation in D.C. schools – How was Bowling v. Sharpe different than Brown?
A. It involved segregation in D.C. schools by Congress thus the 14th Amendment did not apply since
D.C. is not a state.
B. Court found an equality component in the 5th Amendment Due Process Clause
C. It is unthinkable that the Constitution would impose a lesser duty on the federal government
D. The court had to forbid segregation in D.C. if it hoped to get compliance in the South
E. Equal protection component in the 5th Amendment
i. 14th Amendment equal protection does not apply to the federal government as it does to
the states
ii. But the case law has worked out to include the federal government
1. The 5th Amendment is used in all equal protection claims against the federal
government
iii. This is one of those constitutional decisions where the Supreme Court has to render a
decision whether it makes sense or not.
iv. Arguments against
1. If the due process clause means equal protection, is the 14th Amendment
redundant?
2. Words in the constitution mean the same in all parts of the constitution
3. The 5th Amendment was inserted in the Bill of Rights in 1791 – during slavery
a. That’s a serious original understanding problem!
v. There may not have been an equal protection clause in the 5th Amendment because
Congress didn’t see themselves as a threat to equal protection. They were the protectors of
equal protection. Congress trusted itself and not the states.
III. BROWN AND THE REMEDY
1. Gradualism
A. How should the court tailor the remedy?
1) Should the court mandate require that students be admitted forthwith to the school of their
choice? Or
2) Should the court require gradual adjustment through the equity power?
Professor Bloom
Spring, 2000
B. The court chose gradualism – “All deliberate speed”
2. Fashioning the remedies

A. Who should be responsible for overseeing the implementation of the remedy?
1) Should the remedy be administered by detailed decrees from the Supreme Court?
2) Should the court appoint a special master to study the problem and report back?
3) Should the court remand back to the district court for the fashioning of decrees?
B. The court chose gradualism rather than immediacy and remand to the lower district courts for the
district courts to work out the remedy – The Court chose this option of remand because it allows states
to be more participative in the decision and not be told what to do. Took into account the fact that each
school district is unique.
1) This was a controversial decision
2) For the first ten years nothing really happened
3. Why did the court choose gradualism with a remand rather than issuing a decree to desegregate
immediately?
A. The court was worried about the logistical problems at the local level; it may have needed to take time
to consider these local logistical problems
B. From a federalism standpoint, it’s healthier for the states to work it out for themselves
C. Sending it down to the lower courts would be more politically palatable
1) Assumed that the local judges would have a better appreciation of what could be achieved
2) The local judge would be a respected member of the community, and orders from him would
be easier to swallow
D. Moral Capital – there may turn out to be an incredible resistance from the people, congress and the
president. If the court throws it back down to the district courts, then they can preserve moral capital
and step in when necessary
E. Necessary to build a unanimous agreement within the court. Arguably gradualism was the price of
achieving unanimity in Brown I.
F. The court did not know what it wanted to do and wanted to think about it.
4. Was the Court’s approach a mistake? Was gradualism an error?

A. Arguably Yes, because it was unprincipled to sacrifice the rights of the plaintiff who had brought the
litigation (as well as other similarly situated children) to political expediency – if there is a violation of
a right, there should be a real and personal remedy (Marbury v. Madison). There is a lack of
commitment and certainty with respect to all deliberate speed.
1) The Court’s approach allowed southern resistance to gather momentum – a mandate to
desegregate immediately might have been more successful.
B. Arguably NO, because the Court must make political calculation to be effective even if it means
sacrificing the rights of individuals from time to time.
1) There may have been no Brown I absent the prospect of a gradual remedy.
2) There would have been massive resistance no matter what the Court did.
5. Summary of the decisions in Brown II
A. Gradualism over immediacy
B. Remand details to the lower courts
C. The plaintiffs in Brown got nothing
1) The court did not order those 4 schools to desegregate
2) The cases were remanded for the district courts to pursue all deliberate speed in desegregating
the school systems
6. Brown and Marbury

A. Marshall stated that if a legal right is violated, there must be a remedy
B. Brown seems to argue that the individual can be sacrificed for society as a whole
Professor Bloom
Spring, 2000
1) The remedy in Brown is a group remedy
2) This is more of a public interest type of litigation
3) One of the most significant changes that Brown made was the legitimization of public interest
litigation. Set the stage for plaintiffs to bring lawsuits for public interest issues
4) Structural litigation – trying to change the structure of society
C. Should the court be wholly principled or can it be pragmatic and principled
1) Enforcement falls on the executive, if the executive drops the ball, that’s not the court’s
concern
2) Some argue that that’s too principled – the court is a political institution and must be aware of
its moral capital and therefore some strategic thinking is necessary
3) Gerald Gunther – The court can’t run and hide from the issues, but must call them like they
see them. One year after Brown, the supreme court refused to hear a case challenging a law
that prohibited mixed marriages – Court is supposed to interpret the Constitution
4) Bickel – pragmatist argument – The court must choose the right time to hear a case – Court
does have to make strategic judgments in order to survive politically.
5) The Supreme Court is the institution that’s supposed to act in a practical manner. That’s why
they have life tenure.
7. Cooper v. Aaron (1958)

A. The governor and legislature of Arkansas challenged the Supreme Court’s power to enforce its court
orders in the state. The governor and the legislature claimed they were not bound by the court’s
decision in Brown v. Board of Education
B. The court ruled that the states are bound by the Supreme Court’s interpretation of the Constitution –
can’t deprive children of their rights to education because fear that there would be a political response.
Students were admitted with help of National Guard. Court would not tolerate an outright resistance to
a mandate – Court said that they have the final word on the meaning of the Constitution – attacked the
defiance from Brown (each Justice signed this opinion)
1) Art. III of the constitution makes the constitution the supreme law of the land
2) In Marbury, the Supreme Court declared, “It is emphatically the province and duty of the
judicial department to say what the law is.”
3) The decision declared the basic principle that the Federal Judiciary is supreme in the exposition
of the law of the constitution
C. Southern Manifesto – A group of Southern Senators declare that Brown was wrong in 1956. Resisted
decision in Brown.
1) Doctrine of Imposition – asserted that state public officials are under a duty to protect their
citizens from unconstitutional acts by the federal government
2) The country was afraid of the federal government when the country was founded
3) This doctrine was originally laid to rest by the civil war
4) This came to a head in the Little Rock school desegregation
a) The school decided to comply with the court order
b) The governor discovered the doctrine and decided to interpose himself to prevent the
integration of Central High in Little Rock
c) The governor called out the state national guard
d) The district court said he must comply and he did – the mob took over
e) Eisenhower decided to call in federal troops to protect the black schoolchildren
5) Cooper v. Aaron is signed by all 9 justices. The court was trying to put forth a sense of unity
D. What is the court saying in the opinion?
1) Its authority and power have been threatened
2) It uses some strong language
3) The court says:
a) The constitution is paramount
b) The court is supreme in the exposition of the constitution
Professor Bloom
Spring, 2000
c) Therefore the court’s opinion and interpretation is the supreme law of the land
d) The oath taken pursuant to Art. VI by public officials applies to the court’s
interpretation as well as to the constitution itself
4) The Court possibly over reads Marbury in several respects
a) One could read Cooper that the court is saying its pinions are virtually the same as the
constitution itself
b) A public official may not act inconsistently with constitutional decision of the court
even though the official is not subject to the court’s mandate
c) There is a gap between the constitution and the supreme court’s interpretation of the
constitution
(1) If they were the same thing – how could the court change its mind about the
proper interpretation
(2) They are not the same thing
d) Is the Supreme Court’s interpretation of the constitution binding on parties not privy to
the litigation, especially public figures who have taken the Art. VI oath?
(1) Bickel suggested that the court overstepped Marbury
(2) Even if there were no such obligation, it wouldn’t have helped Gov. Faubus
since the Little Rock School Board was bound by a specific district court order
and not simply the general rule in Brown.
E. Lincoln and Dred Scott
1) Lincoln opposed the Dred Scott decision as a political rule
2) Lincoln wanted to get it overturned
3) If he were in congress he said he would vote for legislation to uphold the Missouri
Compromise
4) As a member of congress you’re under a duty to interpret the constitution and shouldn’t simply
buck that issue to the court
5) Issue of Judicial Exclusivity
a) Lincoln argues for a narrow interpretation of Marbury
b) When deciding if Dred Scott should be free – look at all the law – that is the law of that
case.
c) But the matter is not settled for everyone and all time.
d) When the court has decided an issue, is it appropriate for a public official who thinks
the decision is wrong to act consistent with his interpretation until he is sued – Lincoln
thought so
F. Bickel – The Least Dangerous Branch
1) Alexander Bickel is critical of what Cooper seems to say
2) “Under Marbury, ran the reply, the court is empowered to lay down the law of the land and
citizen must accept it uncritically. Whatever the court lays down is right, even if it is wrong,
because the court’s decisions are not subject to comment. The court has spoken. There must
be good order and peaceable submission to lawful order.”
3) We do in fact need public officials to act in defiance of the constitution to test the decisions.
Otherwise, a case would never come up to allow the court to change its mind.
G. Alexander and Shaver – H.L.R. Article
1) Cooper has some good policy
a) The country needs the law to be settled – stability
b) Coordination – if every official is free to defy the Supreme Court until a court order
forces that individual to comply, institutions collide with each other
H. Farber’s Response
1) Serious legal consequences, including damages and injunctive relief, routinely follow from
violations of judicial rulings not directed at the public official in question
2) Permitting violation of judicial rules is not consistent with the common law tradition
3) The Supremacy Clause makes a broad range of federal action supreme
Professor Bloom
Spring, 2000
4) Bickel underplays the role judicial decisions play in our society
8. Developments after Brown - School Desegregation from Brown

A. The Supreme Court seemed to go out of its way to stay out of desegregation for the ten years after
Brown.
B. The 4th and 5th Circuits are where much of the litigation was taking place.
C. There was fear that the lower courts would side with the local communities
1) Occurred in a few instances
2) Exception rather than the rule
3) Most district judges showed great courage and fidelity to the supreme court at great cost to
themselves
D. This particular chapter in our history is a good case for appointment for life
1) 1956 – Southern Manifesto – declared Brown illegitimate
2) 1956 – Gayle v. Browder – bus integration case overruled Plessy without mention
3) Cooper v. Aaron
4) 1962 – Barnett attempt to bar admission of Meredith to Mississippi
5) 1962 – Goss v. Board of Education – minority to majority transfers prohibited – social system
and pressure kept everything the same.
6) 1964 – Griffin v. School Board – can’t close public schools to avoid integration
a) County was subsidizing the white academies
b) Prevented the students from receiving the court ordered remedy
7) 1964 – Title VI of the Civil Rights Act of 1964 bans federal funding to districts that
discriminate and authorizes suits by the Justice Department
a) Civil Rights Act of 1964
(1) If you want federal funds – you can’t discriminate
(2) Authorizes the Justice Department to bring desegregation lawsuits
b) Rosenberg – Hollow Hope
(1) Critiques Warren court
(2) Argues that without significant support from the political system nothing tends
to happen when the supreme court announces major changes in the law
(3) Until the executive branch and the legislature get going on the issue, nothing
really happens
(4) Rosenberg uses the HEW guidelines as an example
8) 1965 – Dept of Health, Education, and Welfare issues guidelines under Title VI to receive
federal funds
9) 1967 – US v. Jefferson County (5th Cir.) The court uses the HEW guidelines as a benchmark
for desegregation – very detailed in telling schools what to do.
10) 1968 – Green v. County School Board (Sort of a Brown III)
a) Must eliminate dual system “root and branch” and it must be done now – no more
deliberate speed. Court finally attempts to describe what it is asking the schools to do
– Completes Brown II. Under a duty to dismantle a dual school system – turn into
unitary system – have to affirmatively integrate.
b) The Supreme Court hadn’t really defined the remedy in Brown – desegregate or
integrate?
c) Narrow reading – stop legally requiring schools to be segregated.
(1) A southern state might simply say, “Ok, we’ll no longer enforce the law and
we now have a neutral neighborhood policy or a freedom of choice plan.”
(2) That wouldn’t lead to much desegregation
d) Broader reading – Integration
(1) The districts must create schools which are racially integrated
(2) Green is the case that makes it clear that schools must integrate.
e) Green put “all deliberate speed” to rest
Professor Bloom
Spring, 2000
(1) Clarified the duty of the states – If you were operating a dual school system
when Brown was decided, you must tear down the dual system “root and
branch” and replace it with a unitary system.
(2) Until the court can find the school is unitary, it must supervise the district
f) Significance of Green
(1) Ends era of “all deliberate speed”
(2) Interprets Brown to require a duty to integrate rather than merely stop
segregating
(3) A dual system must become unitary to end federal judicial supervision
11) 1969 – Alexander v. Holmes County
a) The court required the school to implement a desegregation plan in the middle of the
semester – No More Delay – means that the Court is saying NO to “all deliberate
speed”
b) “You’ve had 15 years to do it – do it now”
9. Swann v. Charlotte – Mecklenberg Board of Ed. – The scope of the remedy is determined by the
scope of the wrong.
A. Facts
1) 2/3 of black students attended schools which were 99% black
2) The school submitted a desegregation plan in 1969 that the district court found inadequate.
The court appointed an outside expert to come up with a plan and the court then adopted the
expert’s plan.
3) The expert’s plan called for busing black kids to white schools and white kids to black schools.
The result would be schools from 9% - 38% black.
B. The court ruled that busing was constitutional
C. The district courts have broad equitable powers
1) If the school authorities fail in their affirmative obligations under Brown, judicial authority
may be invoked
2) Once a right and a violation have been shown, the scope of the district court’s equitable powers
to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies
3) The district court judge has substantial discretion to fashion a remedy – you can go as far as
you need to go remedially as long as it cures what you are trying to fix.
4) The court cited Green in saying that school authorities are charged with the affirmative duty to
take whatever steps might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch.
D. Structural Constitutional Issues in Swann
1) While it is appropriate for the federal government to enforce individual 14th amendment rights
– it may not be appropriate for the federal government to micromanage the state’s response to a
constitutional violation.
a) Was it appropriate for the federal district courts to intrude into the details of local
decision making?
b) Was it appropriate for the federal court to be making essentially political judgments in
the remedial orders?
2) The supreme court said to the district courts – as a practical matter – solving these
desegregation problems are up to you and we are not going to second guess you
a) Gave the district court wide discretion
b) Sacrifices predictability and uniformity for flexibility
c) The scope of the remedy is determined by the scope of the wrong – relying on the
district court’s broad equitable discretion
d) The courts can employ many techniques to achieve desegregation, including busing,
numerical goals, altering attendance zones, and magnet schools. In large urban
districts where there is a large degree of racial segregation, may not be possible to
Professor Bloom
Spring, 2000
achieve desegregation so bussing is permissible – BUT there comes a point when it
becomes overly burdensome for children and schools.
3) The most controversial aspect of Swann is how far Chief Justice Burger would go in imposing
equity-based remedies on a school system that is moving too slowly.
4) In N.C. State Board of Ed. v. Swann the Supreme Court invalidated a law prohibiting
assignment to schools based on race.
a) This is anomalous – Brown’s mandate is to end classification based on race
(segregation), yet it has begotten an array of classifications based on race (quotas and
assignments).
b) This controversy goes back to the debate over Harlan’s dissent in Plessy. Anti-
subordination Theory vs. Anti-discrimination Theory
10. The Nature of Constitutional Adjudication

A. Traditional liberal vision of constitutional litigation in Marbury
1) Constitutional litigation is a simple exercise in which a plaintiff sues the government to enforce
the plaintiff’s constitutional rights.
2) If the court agrees, then injunctive relief is issued preventing the government from violating
those rights
B. The newer version of institutional reform litigation
1) Sees constitutional litigation as the assertion of group rights
2) Seeks an injunction restructuring the status quo
C. It’s a given under Marbury that a plaintiff is entitled to a remedy
D. However, the remedy in Brown cases are intrusive and far-reaching
1) In Brown, there is a global institutional type of remedy
2) The court plays a different role – fundamentally changing the institution
3) Requires the court to get involved – micromanage
11. The Tailoring Principle

A. A basic principle of equity is that the remedy must be tailored to the violation
B. Under the Washington v. Davis Standard, if the school board is currently acting in good faith, any
constitutional violation has to be found in the past, when the board’s motives were malign.
C. The remedy must be tailored to the violation that occurred in the past
D. Before initiating a remedy, the court must find the conditions are traceable to past discrimination, and
once the remedy is implemented, must determine when the remedy has actually eliminated those
effects so that judicial interference may terminate.
12. What must a Plaintiff prove in order to show that a school district that was never segregated by law
(de jure segregation) is nonetheless in violation of Brown?
A. Plaintiffs from western and northern schools where there was never segregation by law, but the schools
were nonetheless segregated
1) Why shouldn’t that violate the 14th Amendment as well?
2) Is de facto segregation a constitutional violation? No, must show that it is intentional (de jure
segregation)
3) Plaintiff will have to show that a substantial portion of the school district was intentionally
segregating – if they can show this, then all are presumed to be intentionally segregated.
B. Keyes v. School Dist. of Denver
1) Up to this point the court had not addressed the issue of whether intentional conduct by the
state or simply impact or effect are required
a) In the South there was all the intent in the world – segregation was generally required
by law.
2) Western and northern districts said there was just a natural pattern of the residences. Northern
cities had never mandated segregation.
Professor Bloom
Spring, 2000
a) Neutral policy
b) They built the schools where the people were
3) Plaintiffs in Keyes wanted a system-wide busing plan
4) In Keyes the Supreme Court said the plaintiffs must show intentional segregation with respect
to a substantial portion (10%) of the school district in order to obtain a system-wide remedy.
Only de jure segregation could be redressed by court action. De jure segregation is found only
where there was a purpose or intent to segregate.
a) You must prove intent – purpose to discriminate
b) The administration meant for segregation to result from the racially neutral decision
5) Example – need 2 new schools
a) Build on the border of the racially divided neighborhoods
b) Build one in the white neighborhood and build one in the black neighborhood
c) If the state built the schools in the black and white neighborhoods, the plaintiff can
show that it was done to separate races.
C. Tailoring - If 10% of the school district was segregated, the remedy should address that 10%
D. The Supreme Court created 2 presumptions
1) Presumption of Effects – If a substantial portion of the school district was substantially
segregated in the past then the impact of that spreads to other areas and times.
2) Presumption of Intent – segregation acts in one time and place may suggest that there were
other segregation acts at other times and other places. Patterns of segregation are not
coincidental
a) If you show there were discrete instances in the past, that suggests there were others
b) If there were 1 or 2, there were probably more – the intent is presumed to be broader
than the plaintiff showed
E. There is presumed to be segregation now because there was segregation in the past
1) If 10% was intentional segregation 40 years ago, you are entitled to district-wide busing now
2) Burden shifts to state to reply – school board can rebut this and say that no effects were created
3) State must show: Not easy to do – dealing with complicated geographic and demographic
patterns
a) The segregating impact did not spread to other parts of the district and are not still
present
b) Segregation intent did not contribute to present de facto segregation
c) The state must show that other factors have caused the segregation
(1) Residential patterns
(2) Industrial growth
(3) City grew a certain way
(4) Employment opportunities developed a certain way
F. In any other area if you made a prima facie case that the state discriminated on race that state can say
there was a legitimate purpose, and if proven legitimate, the state is off the hook.
1) Not so with segregation cases
2) If discrimination played any role, the state is in violation
G. Impact of the presumptions
1) Plaintiff must prove some degree of intent as to a substantial portion of the school district
2) Heavy burden to rebut the presumption
3) The presumptions are often outcome-determinative since it is extraordinarily difficult to prove
exactly why a school district has developed a pattern of de facto discrimination.
a) Thus, whoever has the burden of proof is at a severe disadvantage
* Court was willing to allow proof of segregation in one part of a city to establish that there were segregated
effects in other parts of the city.
H. The court set up a procedural system that put the North at about the same burden as the South
1) Equitable remedies
Professor Bloom
Spring, 2000
a) Equitable discretion is very broad
b) The facts and remedies found by the district courts are hard to overturn
c) The Supreme Court basically leaves the decisions to the lower courts
(1) Extreme disparities between the cities
(2) Sometimes the remedies are too broad and sometimes they are too narrow.
The Supreme Court defers to the lower court both ways
2) 2 Court Rule
a) The Supreme Court starts by deferring to the district court
b) If the court of appeals agrees with the district court, now you have 2 courts
c) The Supreme Court will not go into a detailed review of a decision that two courts
have already reviewed -- Must be a clear error of law
I. Rehnquist’s Dissent in Keyes – Proof of something in one school zone should not have wide-
sweeping implications for an entire district.
1) Affirmative means to guarantee racial mixing isn’t the solution
2) Remedy should be merely drawing racially neutral boundary lines
13. Modern Limits on the Duty to Desegregate - White Flight (whites abandoned public schools which
created more segregation)
A. 50s and 60s white movement to the suburbs
B. Cities ended up with a minority majority
C. Fleeing from busing was a significant contribution
D. Milliken v. Bradley – intentional segregation found in Detroit
1) By the time the court got involved, the school was 80% black
2) There weren’t enough white students to go around
3) The district court tried to implement cross district busing with the suburbs
4) There was no evidence that the suburban school districts had ever intentionally discriminated
5) The Supreme Court disallowed the plan
6) There must be proof of intentional discrimination by all of the districts involved
7) Theories rejected by the court
a) The state is responsible for education in the state as well as the conduct of the local
districts. The court rejected this argument on the ground that local school boards have
substantial discretion and there was no proof that the state engaged in segregating
action
b) The court rejected the theory that the education system was really controlled by the
state.
c) The state has a duty to remedy segregation. The duty lies with the district that
discriminated
8) The court ordered the district to spend significant amounts of money to improve the quality of
the schools even though it doesn’t lead to integration.
9) Milliken II – although integration not possible, could spend a lot of money to improve the
school districts to provide something of a remedy.
E. Jenkins v. Missouri
1) The district court in Kansas City ordered a tax increase to finance improvements in the K.C.
schools
2) The Supreme Court said that the courts can’t order a tax increase to finance improvements, but
can order the improvement and then it’s the district’s problem to find a way to get the money.
3) Jenkins I – taxing is a legislative function and ordering a tax increase is an abuse of discretion
a) The district court wanted to build such a good school that it would reverse white flight
b) The state of Missouri had to pump millions of dollars into the school
c) It didn’t work – there was no reversal of white flight
d) The district judge ordered teachers’ salaries raised and then the case came back to the
Supreme Court
Professor Bloom
Spring, 2000
4) Jenkins II – A Court cannot order the district to spend money to create an urban district that
will be so strong that it will reverse white flight where there has been no proof of intentional
segregation by the suburban districts – not a permissible remedy, abuse of discretion
a) The focus was on the order to raise salaries
b) The Supreme Court rejected the theory that the judge had the power to impose these
burdens on the state and the city to lure suburban kids back into the schools
c) There was no proof that the state or the suburban schools had ever segregated – only
the inner-city school.
F. When should a minority-majority school be off federal district court supervision?
1) As long as test scores in the inner city are below state average, that is evidence of past
discrimination and the district court should maintain oversight.
a) That’s been rejected everywhere
b) Judges do not know how to raise test scores
G. Freeman v. Pitts – District Court cannot give up continuing jurisdiction until school has achieved
unitary status. Court may conclude that the school has achieved partial unitary status. The district is
not responsible for voluntary changes in residential patterns (white flight) leading to resegregation after
the unitary status is achieved.
H. US. v. Fordice – What is a sufficient remedy at the university level?
1) Brown principles do apply at the college level. However, coming up with a remedy is trickier
since students have total choice over where they want to go to school.
2) Also, there is a legitimate interest in preserving traditionally all black colleges
3) It is difficult to determine what the problem is – Court says that similar programs in white and
black colleges seem separate but equal and evidence of segregation could be found by white
and black schools teaching different things. So, whatever they do, seems to be problematic.
4) Justice Thomas supports the maintaining of black colleges.
I. Busing
1) Often worked better in the South when the district was spread out and kids rode buses to school
anyway
a) There wasn’t much of a burden
2) In the inner city, busing was much more burdensome
a) In a large urban area with neighborhood schools kids could usually walk
b) With busing, the kids would then have a 45 minute bus ride
(1) There was a lot of resistance
(2) It is also harder for parents to be involved when the schools are farther away
3) Factors contributing to the failure of busing
a) Continued white flight
(1) The urban school became even more minority
(2) There weren’t enough white kids to go around
b) More minority parents were asking if it was really worth it -- “Wouldn’t we be better
off by just making our own schools better?”
Professor Bloom
Spring, 2000
14TH AMENDMENT
EQUAL PROTECTION
RACE AS A SUSPECT CLASS/RACIAL DISCRIMINATION
Equal Protection guarantees that people who are similarly situated will be treated similarly. Court speaks in terms
of classifications.
Suspect Class – a group that has historically been the victim of discrimination (1) Historically subjected to
discrimination, (2) Obvious, immutable or distinguishing characteristics that define them as a discrete group, (3)
Minority, (4) politically powerless.
Purposeful Discrimination – not suspect unless Court finds that there was a legislative intent to discriminate –
Need Proof of intentional discrimination
- Law discriminates on its face – explicit terms, risk of discriminatory impact is sufficient
- The law, although neutral on its face, is administered in a discriminatory way
- Law was enacted w/ a purpose of discriminating (show by circumstantial evidence) – supports an inference of
intentional discrimination.
* A statute will not be held to establish an impermissible suspect classification merely because of a
disproportionately harsh impact on blacks or other minorities.
** A discriminatory purpose need not be the sole purpose of the statute – it is enough that the purpose was a
motivating factor
*** Causation – statute must have been enacted because of a desire to bring about a discriminatory impact, not
merely in spite of
Immutable Trait – cannot change
Stereotypes – prevalence of – more likely to find that classifications disadvantaging that group will be found to be
suspect.
1. Laws that Expressly Classify by Race

A. Race and the Equal Protection Clause
1) Context and history establish that it was intended to attack discrimination against blacks
2) The court has since applied it to other races
a) In Hirabayashi and Korematsu the court adopted the strict scrutiny approach
(1) All legal restrictions that curtail the civil rights of a single racial group are
immediately suspect.
(2) That is not to say all such restrictions are unconstitutional
(3) It is to say that the courts must subject them to the most rigid scrutiny
B. Legacy of Brown
1) 2 views
a) Anti-discrimination means that race should not be taken into account when the state
makes a decision
b) Anti-subordination - Race must be taken into account because the situation of blacks
today is a consequence of racial discrimination long rooted in American history and
the only way to rectify that is through state action helping subordinated racial groups
C. Race as a Suspect Classification

1) Brown did not apply tests, analysis, or criterion that the court normally applies. The court was
simply deciding the case in a reactive mode. There was no clear analytical framework or
conception is where it was going
2) Background on the Standard of Review
Professor Bloom
Spring, 2000
a) A law that classifies or treats some people differently than others, as virtually all laws
do in some respects, is subject to judicial review under the Equal Protection Clause
b) Thus, an Equal Protection argument is an easy argument to make, but not necessarily
to win
c) Examples of classifications
(1) 16 or older for a DL
(2) Must reside in a state for 3 months to vote
(3) Drug addicts can’t work for the transit authority
(4) Visibly pregnant girls can’t be cheerleaders
d) These could all be challenged under equal protection grounds but that doesn’t mean
you’ll win
e) Normally a court will apply a deferential review when a legitimate classification is
challenged – meaning that it will be asked whether there is a rational relationship
between the classification and a legitimate state purpose
(1) Is the state sensibly going about something it has the right to do?
(2) The courts will give the states a very strong benefit of the doubt on this
question
(3) Generally a court will not invalidate a law simply because it is over-inclusive or
under-inclusive on a deferential standard
(4) For instance, a law that requires all police officers to retire at 50 on the grounds
that a person’s health and physical fitness begins to deteriorate around this age
is both over and under inclusive. But the Supreme Court upheld just such a law
– doesn’t matter under a rational basis test.
(5) There is nothing wrong with legislation that treats people as members of a
group – even though in the individual case, someone could show otherwise.
This indicates that we are not entitled to individualized consideration by the
government; rather we can be and usually are treated as members of a large
group or class.
f) Korematsu v. US (1944, J. Black) – Racial classifications are suspect, and as such,
are subject to strict scrutiny by the courts. This was the last case where a racial or
ethnic group survived strict scrutiny.
(1) Post-Pearl Harbor bombing – a military order excluding all persons of Japanese
ancestry from certain areas of West Coast and resulted in their effective
imprisonment. This order applied to all citizens and non-citizens.
(2) Court upheld the order on the theory that there was a compelling need to
prevent espionage and sabotage.
(3) Also, there was no practical and sufficiently rapid way for the military to
distinguish the loyal from the disloyal
(4) War-time – Court acknowledged that hardships are a part of war
(5) Criticism – government used race ALONE as the basis for predicting who was
a threat and who would remain free. This was over/under inclusive. The
means chosen was not necessary to achieve the compelling state interest of
winning the war.
g) What does strict scrutiny entail?
(1) Raises the level of interest necessary to use the classification
(a) Must be a compelling state interest
(b) Must be narrowly tailored (means to an end criteria is very demanding)
(c) Must be the least discriminating option available
(2) To satisfy strict scrutiny
(a) A classification must serve a compelling state interest
(b) The means must be narrowly tailored to serve its ends
(c) There can be no less discriminatory alternatives
Professor Bloom
Spring, 2000
h)
Unlike deferential rational basis review, strict scrutiny is difficult to satisfy; thus the
state usually loses and the classification is invalidated
i) Gunther – “Strict in theory, fatal in fact”
D. Why Strict Scrutiny?
1) Unfairness/irrelevance
a) Unfair to penalize or benefit people based on immutable characteristics
b) BUT if there is a legitimate state interest, then it is OK (eg. Blind guy who wants to be
a pilot)
2) Anti-discrimination Theory - The history of the country is that we have taken race into
account in the past to oppress blacks, Asians, etc.
a) Race has been so misused that it should be off limits as a factor in government decision
making
b) The 14th Amendment was intended to eliminate race as a factor in decision making
c) Strict scrutiny says the constitution is almost colorblind – the strict scrutiny review is
the escape hatch
3) Anti-subordination Theory – laws taking account of race are only unconstitutional if they are
used to continue the subordination of a protected group
4) Process based representation reinforcement – defects in the political process – racial groups
have suffered from political powerlessness (discrete and insular minorities)
5) Stigma – If the classification tends to stigmatize one of the groups, then it is unconstitutional –
conveys a message of racial inferiority
6) Original Understanding – whole point of the 14th Amendment
a) Racial classifications violate the 14th Amendment
b) The 14th Amendment was passed to prohibit racial discrimination
c) BUT implication of this is that under original understanding, other classes aren’t
suspect classes
7) Race is constitutionally forbidden as a practical matter – based on inaccurate stereotypes
8) Moral Consciousness – ought to consider race, moral to do so, value shared by a majority of
society
9) Racism – Smoking out
a) Strict scrutiny smokes out the real motivation behind the classification
b) The real motivation might be racist
10) Racialism
a) It is morally or pragmatically wrong to send out the message that it’s good to take
account of race.
b) The government should not say that race matters
c) Racialism is divisive
d) Race is rarely relevant to a legitimate state interest
2. Carolene Products & Stigma – Carolene Products footnote 4 – classifications based on characteristics like
race are subject to strict review because they are likely to be the product of prejudice against discrete and
insular minorities which tends to seriously curtail the operation of the political process. Racial
classifications should be strictly scrutinized because they are stigmatizing.
*YOU SHOULD KNOW CAROLENE PRODUCTS FOOTNOTE 4 – BLOOM LOVES THIS!
A. Three Theories of Carolene Products

1) Paragraph 1 – Prohibited by the Bill of Rights – infringement of rights protected by the BOR
2) Paragraph 2 – Restricts political process
3) Paragraph 3 – Prejudice against discrete and insular minorities curtails the political process
B. What factors must be present for the paragraph 3 theory to apply?
1) Prejudice against a
2) Discrete &
Professor Bloom
Spring, 2000
3) Insular
4) Minority
5) Which curtails the political process
C. When is a minority “discrete” and “insular”?
1) Discrete – readily identifiable
2) Insular – isolated or unable to build protective political coalitions
D. Why might prejudice against a discrete and insular minority curtail the political process?
1) Arguably, according to Ely, prejudice would blind legislators to common interests with the
minority group and hence the minority group would be unable to build the type of political
coalitions, which other minority groups use to build majorities and exert power.
2) Thus, prejudice is like a market imperfection (in the political process), which must be corrected
externally (in this case by judicial intervention) just as the antitrust cure imperfections in the
economic market place.
E. The theory would seem to ring true at least when it was written in 1938 given overt racial exclusion
from the political process in many jurisdictions along with the presence of hard core bigotry and
intimidation but does it remain an accurate description of the political process today at either the state
or federal level?
1) Arguably YES because
a) Racial prejudice is still very real
b) Racial minorities are generally under-represented in the political process
c) Racial minorities are disadvantaged in other ways that undermine influence including
access to capital and the levers of private power.
d) The political process has not responded favorably to many issues that are important to
a significant portion of some racial minority communities such as affirmative action
and public assistance.
2) Arguably NO because
a) The type of hard core prejudice that footnote 4 assumes has declined significantly
b) The theory of footnote 4 is backwards – discrete and insular minorities exert a
disproportionate amount of political influence because they have a common agenda
and can easily organize (Ackerman)
c) Minority groups have been quite successful both at the national and local level in
obtaining much beneficial legislation including civil rights legislation which couldn’t
possibly have been passed without the very types of coalitions that footnote 4 seems to
suggest are impossible.
d) At least some and perhaps much of the rejection of policies favored by some minority
groups such as affirmative action is attributable to legitimate disagreement on the
merits rather than racial prejudice
F. Ackerman’s Critique – The diffuse and anonymous have a harder time exerting political influence
than the discrete and insular since they are more difficult to identify, organize, energize, and discipline.
Discrete and insular minorities tend to be able to exercise disproportionate influence in the political
process.
G. Brilmayer’s Critique – If prejudice distorts it probably distorts race neutral laws, as well. If
minorities are excluded from participation either the legal system should not bind them at all or
alternatively the exclusion should be irrelevant to the legitimacy of the law (as would be the case with
aliens) thus the theory goes too far or not far enough.
3. Facially Neutral Classifications (Discriminatory Intent and Effects)

A. Yick Wo v. Hopkins (1886) – only covered in passing
1) City of S.F. passed an ordinance requiring any laundry operated out of a wooden building to
obtain consent of the city. Yick Wo was imprisoned for operating a laundry in a wooden
building without the city’s consent. 199 out of 200 Chinese applications were denied. All of
the 80 or so applications by non-Chinese were granted.
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Spring, 2000
2) The court held that the law was unconstitutional
3) The power to grant consent in his case is purely arbitrary, and acknowledges neither guidance
or restraint
4) 14th Amendment -- “Nor shall any state deprive any person of life, liberty, or property without
due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.”
5) Under the theory of our institutions of government, there is no room for purely personal and
arbitrary power.
6) A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on
the basis of race.
a) The facts show that the law was administered exclusively against a particular class of
persons as to warrant the conclusion that they are applied with a mind so unequal and
oppressive as to amount to a denial by the state of the equal protection of the laws
which is secured to petitioners by the 14th Amendment
b) No reason for the law can be shown except hostility to the Chinese. The
discrimination is, therefore, illegal, and a denial of the equal protection clause of the
14th amendment
B. Should enactment of legislation for bad reasons, standing alone, justify judicial invalidation?
Cases relevant to Washington v. Davis
1) US v. O’Brien – legally required to have draft card in possession at all times. O’Brien burned
his card and was criminally prosecuted. Claimed amendment to draft law was punishment for
Vietnam protestors. Congress said the law was necessary given the times.
a) The court would not let a challenger to a law requiring persons to have their draft cards
with them at all times to impeach stated congressional purpose of military necessity
with proof that some legislators favored the law because it allowed for the prosecution
of was protestors
2) Palmer v. Thompson (1971)
a) The city of Jackson, Mississippi once ran 4 white and 1 black swimming pools and
closed them all instead of integrating them.
b) Justice Black, writing for the majority, stated, “no case in this court has held that a
legislative act may violate the equal protection clause solely because of the motivations
of the men who voted for it.”
c) Court seemed disinterested in P’s attempt to show that refusal for desegregation was
racially motivated.
d) Closing the pools affects both races.
3) O’Brien and Palmer support 3 reasons why courts should not inquire about discriminatory
motive – Why did the Court resist the use of legislative motive to impeach neutral purpose?
a) Deference to the legislature – too intrusive into the legislative process (Congress could
just pass the law again with right reasons only)
b) Evidentiary problems – hard to figure out what the motive is
(1) What kind of proof?
(2) How much proof?
c) Remedial and judicial futility -- The same statute if reenacted with pure motives would
be valid.
4) Another reason not to inquire about legislative motive is that it will inhibit debate
a) Legislators will be much more circumspect in what they say if it can be used against
them.
b) We want to know the real reason for legislation – we don’t want legislators hiding their
motives
C. What can be said in favor of inquiry into legislative motive?
1) Due process of law-making (Tribe)
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Spring, 2000
a) Example – if you did pass laws for the wrong reason – you shouldn’t be able to say it
serves a purpose and that we could possibly pass it for the right reason.
b) The people have a right to legislation passed for the right reason – legislative process
should not be infected by unconstitutional motives
c) There is something valuable about an untainted process in and of itself
2) The law might not have been passed if the legislature could only take account of proper
considerations
3) We can often discover improper motives
4) Courts routinely look closely at the legislative record in interpreting statutes, thus it is not too
intrusive
D. Alternative rationale for Palmer -- The court could have and probably should have invalidated the pool
closings as an explicit attempt to undermine a judicial desegregation order similar to the Prince Edward
County school closing case. (Griffin)
4. What standard of review does the court apply to race neutral legislation challenged under the equal
protection clause as discriminatory
A. Standards of Review
1) Rational basis review
2) Strict scrutiny – only if there is proof of discriminatory motive
B. Washington v. Davis (1976, J. White)
1) Applicants for the police force in Washington DC were required to take a test, and statistics
revealed that blacks failed the exam much more often than whites.
2) Does the proof of discriminatory impact alone show the existence of racial discrimination?
3) Justice White for the majority – There must be proof of discriminatory purpose for such
laws to be treated as racial or national origin classifications. While a showing of
disproportionate racial impact is a factor in ascertaining intent, it can never by itself be
sufficient to prove intent. Affirmative efforts to recruit blacks negated any showing of
disparate impact.
4) Discriminatory impact, standing alone, does not trigger the rule that racial classifications are to
be subjected to the most strict scrutiny
a) Laws that are facially neutral will receive more than rational basis review only if there
is proof of discriminatory motive.
b) While disproportionate impact is a factor in ascertaining intent, it can never by itself be
sufficient to prove discriminatory intent
5) The rule in this case is neutral and rationally may be said to serve a purpose the government is
constitutionally empowered to pursue.
a) The test was a standard civil service test
b) The police force did not come up with it itself
c) Despite the city’s desire to hire black police officers, it felt that verbal skills were too
important to ignore despite the disparate impact.
C. Distinguishing Davis from Palmer v. Thompson
1) Presumably every statute has some point to it. That’s what the law is concerned with.
2) If there’s a statute passed by a legislature, different lawmakers will vote for the law for
different reasons. In Palmer & O’Brien the court is saying it doesn’t want to get into that.
3) But - If the only possible motive for the law is discrimination, then there is strict scrutiny.
D. Civil Rights Act of 1964 Title VII
1) Extended racial discrimination prohibition to private sector businesses involved in interstate
commerce
2) You don’t have to show discriminatory intent
3) Businesses must show that their methods are necessary
4) Title VII was relied on prior to Washington v. Davis to assume that discriminatory intent was
not necessary in discrimination cases against the government
Professor Bloom
Spring, 2000
5) A Title VII action is much more desirable for plaintiffs
a) Procedural advantages
b) Lower standard
E. When there is a race neutral law being challenged, the plaintiff must show discriminatory intent to have
strict scrutiny
1) Intent may be inferred from the totality of the circumstances including the disparate impact
2) Gross statistical disparities may still establish discriminatory intent
a) Arbitrary decisions are more likely to show intent
b) Yick Wo
3) Ways to Prove Intent (Arlington Heights v. Metro Housing Corp.)
a) The specific sequence of events leading up to the challenged decision
(1) Historical background – particularly if it reveals a series of official actions
taken for invidious purposes
b) Departures from the normal procedural sequence
c) The ignoring of facts usually considered important to the decision maker
d) The act’s legislative or administrative history
e) In some extraordinary circumstances – testimony by legislators
F. “But for” not merely “in spite of”

1) Personal Administrator of Mass. v. Feeney
2) The statute must have been enacted because of a desire to bring about a discriminatory impact,
not merely in spite of the probability of such an impact.
G. What happens if P shows that racial discrimination was at least one purpose of the legislation?
1) The burden then shifts to the state to show that there was also a legitimate race-neutral purpose
and that the legislature was passed in spite of and not because of the disparate impact.
2) The court has never acknowledged the difference, much less explained it
H. 3 ways to view intent
1) Impact is irrelevant
2) Impact is evidence of intent
a) Creating an inference (the Court’s approach)
b) Creating a presumption, or
c) Shifting the burden of proof
3) Impact is a violation
a) Intent doesn’t matter, or
b) Intent is the key, but disparate impact is overwhelming evidence of intent
5. Why might the Court have resisted adopting a Disparate Impact Approach?
A. The court largely relied on the fact that blacks are worse off economically and educationally. There are
a lot of laws which affect the poor and therefore disproportionately affect blacks
B. Process oriented theory – (Carolene Products)
1) Equal protection is about a fair process, not about equal results
2) Davis is a very strong argument that the court is very process oriented.
3) Commentators were very surprised by Davis because 6 years earlier the court said in Palmer
legislative intent did not matter.
4) A disparate impact approach is a results oriented approach
5) When you focus on intent – you focus on fault. Under the impact standard there does not have
to be fault.
C. All the disparate impact is not the result of past discrimination but it is difficult if not impossible to sort
out causation.
D. A race neutral law with no discriminatory purpose is far less likely to stigmatize
E. It would give minorities the benefits, but not the burdens of legislative compromise
Professor Bloom
Spring, 2000
6. Arguments for Disparate Impact Approach
A. An intent standard ignores the patterns of unconscious racism (Lawrence) such as reliance of
stereotypes & indifference (Brest)
B. Intent is too hard to prove
C. Judicial intrusion is appropriate if the legislature has relied on improper considerations
D. Intent standard ignores the effects of past discrimination
E. Intent standard can ignore the cultural or symbiotic meaning that laws with disparate impact can have
F. Fault/perpetrator oriented
Professor Bloom
Spring, 2000
PART X: 14TH AMENDMENT
EQUAL PROTECTION
AFFIRMATIVE ACTION/BENIGN DISCRIMINATION
1. Defunis v. Odegard
A. A rejected white applicant sued the Univ. of Washington law school for reverse discrimination on the
grounds that he would have been admitted but for the school’s affirmative action plan
B. He won at the state courts and was admitted
C. The Supreme Court granted cert. but by the time it got there he was in the 2nd semester of his third
year. So the court dismissed the case as moot. Win or lose, he was still going to get his degree.
2. Regents of the University of California v. Bakke (1978)

A. Facts
1) The faculty of Cal – Davis medical school, which had no history of past discrimination,
adopted an affirmative action plan where 16 out of 100 of the entering spots were set aside for
minorities.
2) Bakke, a white guy, was denied admission twice, even though his evaluation scores were
substantially higher than those of minority students admitted pursuant to the set aside. Bakke
was an older student who openly criticized the affirmative action plan in his interviews.
B. The California Supreme Court invalidated the set-aside and ordered Bakke admitted
C. The Supreme Court granted cert. and asked the parties to address Title VI and Equal Protection
D. Title VI – no discrimination is allowed in any program receiving federal assistance
E. Powell, The Stevens Four, and The Brennan Four
1) Powell and the Brennan Four held that the same standards apply under equal protection and
Title VI
a) If it’s a violation under Title VI – it’s also an Equal Protection violation
b) If a university takes federal funds, even a private one, then it is held to Equal
Protection under Title VI.
2) Brennan Four – A racial set-aside violates neither Title VI nor Equal Protection.
3) Powell – A racial set-aside violates Title VI and Equal Protection, but an institution can
consider race as a plus in the file.
4) The Stevens Four relied totally on Title VI and held that the set-aside clearly violated Title VI
a) A racial set-aside violates Title VI and it is unnecessary to reach the question of Equal
Protection
5) Powell and the Stevens Four are the five votes that strike down the Cal – Davis set-aside.
6) Powell and the Brennan Four uphold using race as a criteria
F. Powell and Brennan disagree vigorously about when race can be considered
1) Why did Justice Powell believe that the Court should apply the strict standard to benign racial
considerations?
a) Equal protection should apply the same standards to all “persons”
(1) Equal protection applies to persons not groups
(2) Brennan takes a group approach
b) Neither stigma nor prejudice against discrete and insular minorities is controlling
(1) Ely says if whites pass a law which discriminates against whites, there’s no
need for strict scrutiny under Carolene Products
(2) Powell says it has already been decided that race is a suspect classification
c) There is no principled basis for deciding which races to prefer
d) They may reinforce stereotypes that minorities can not succeed without assistance
e) Racial preferences may harm members of the minority group
f) It is unfair to burden the innocent
g) They may exacerbate racial antagonism
2) Justice Brennan applies an intermediate standard
Professor Bloom
Spring, 2000
a) Race can be considered to provide a remedy for past discrimination – not for diversity
b) There must be a substantial purpose in remedying the effects of past discrimination
c) Preferences can not stigmatize in Brennan’s view
d) There can be no other means of achieving minority access
e) Why Brennan believes an intermediate standard is best
(1) The legislature can decide which groups to favor
(2) The preferences do not stigmatize the majority or stereotype the minority
(3) It shouldn’t be suspect if a majority burdens itself
(4) Whites are not a historically subordinated group
G. What were the state justifications in Bakke
1) Wanted more minorities in the school and in the medical community
2) Provide greater service to the minority community
3) Provide a remedy for past societal discrimination
4) Promoting diversity of viewpoint and perspective in the student body
H. Powell dismissed the first two reasons quickly
1) Increasing minority representation for its own sake is discrimination and not only is that not a
compelling state interest, but it is an illegal goal.
2) Providing more health care to underserved minority communities may be a compelling state
interest, but racial preferences in admissions are not finely tailored nor the least discriminatory
means of achieving that goal.
I. Powell – Providing a remedy for past discrimination may be a compelling state interest, but there was
no fact finding of past discrimination here, nor was the medical school faculty institutionally competent
to make such a finding and assertions of societal discrimination were simply too amorphous to support
a remedy
1) The court is not going to allow a government entity to rely on a remedial justification without
some finding of past discrimination, how it occurred, when it occurred, and its effect.
2) Swann – the scope of the remedy is tied to the scope of the wrong
3) Even if the Cal – Davis faculty had made a finding of past discrimination it would not have
been adequate. That is beyond the scope of what the medical school faculty are capable of
doing.
a) The faculty was too politically insulated to weigh effectively the competing interests
(1) Cannot judge the large-scale societal interests
(2) Very politically insulated - tenure
b) It was not institutionally competent to make a record and a finding of fact
c) Tribe – institutional due process/structural due process
4) Who could make such a finding
a) Courts
b) Legislature
c) Administrative agency – such as the state civil rights agency
5) Should the Supreme Court tell California how to delegate authority within its system?
6) Will there be political accountability in the extreme case?
a) Is Proposition 209 an example of such political accountability in California?
b) If some seemingly insulated bodies push it too far there is indeed political
accountability
7) Why must there be a fact-finding of discrimination
a) It provides a definition and a means for supervision
b) As Swann indicated, the scope of the remedy is determined by the nature and scope of
the violation
c) If the violation is not clearly specified, it is impossible to tell if it is remedied
J. Diversity - Powell
1) Race as a factor to admit a diverse student body
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Spring, 2000
2) Diversity will contribute to the academic and social interchange and further the educational
process
3) Academic freedom requires that an institution be permitted to select its own student body and
academic freedom is supported by the 1st Amendment
K. Why doesn’t Powell think the Cal – Davis plan is justified by the diversity rationale?
1) A flat-out set-aside undermines true diversity by considering only one diversifying factor
2) It fails to treat persons like unique individuals
3) Race cannot be considered an adequate proxy for other characteristics
L. According to Powell, race can only be taken account of as part of other characteristics. How can race
be taken account of according to Powell?
1) As a “plus in the file” that is one of the diversifying factors such as economic background,
special talents, hardships overcome, geographic background, work experience, leadership
potential, etc. – as is done in the Harvard Plan.
M. Why can’t a university decide that it values racial diversity but doesn’t care about broader based
diversity promoted by the Harvard Plan?
1) Apparently because race is constitutionally different than any other factor – it is a suspect
classification
2) There must be individualized treatment with regard to race
a) A university can still employ GMAT, LSAT, GPA cut-offs or limit the number of out
of state students
b) The state must provide individualized consideration only with respect to race
N. Brennan’s Response
1) Race is still the determinative factor under Powell’s “plus in the file” consideration
2) It can be used as a smokescreen for employing quotas
3) The Harvard Plan may have originated as a means for limiting the number of Jews at Harvard
and diversity has also been used to discriminate against Asians in California
4) Academic freedom should permit the university to determine what type of diversity is
important to its mission
5) The diversity justification is based on racial stereotypes – that viewpoints and perspectives are
associated with race.
6) It focuses on the good of the institution rather than the good of the student
O. Powell’s opinion was written to provide guidance -- During the 80’s most universities thought that if
they followed Powell, everything would be alright
P. Summary of Bakke
1) Powell and Brennan 4 -- It is constitutional to competitively consider race and ethnic origin
2) Powell and Stevens 4 -- Quotas are unconstitutional
3) If Brennan had said that the primary rationale is past discrimination, but diversity is also
sufficient, the Bakke diversity rationale would be good precedent – but he didn’t.
a) Brennan expressed cynicism of the diversity rationale
b) Racial classifications are only acceptable to Brennan as a remedy for past
discrimination. In footnote 1 Brennan ever says a plan like the Harvard Plan would be
OK to correct lingering discrimination
4) For Powell, diversity and remediation are separate justifications
5) Powell and Brennan agree on the result – use of race. But they disagree significantly on the
reason why.
3. Fullilove v. Klutznik (1980)

A. The court upheld against a facial challenge a federal program providing federal funds to state and local
building projects that required that, unless an administrative waiver was granted, at least 10% of the
money had to be spent procuring goods and services from MBEs
B. The court upheld the program 6-3 applying a deferential standard of review
Professor Bloom
Spring, 2000
C. Congress was ruled to have more power than the states to provide a remedy for past discrimination
relying on §5 of the 14th Amendment.
D. Powell, writing separately, argued that the statute survived under his approach in Bakke because it
serves the compelling government interest in eradicating the continued effects of pass discrimination
identified by Congress
E. Stevens wrote a dissent noting that under strict scrutiny – there is no way the program would pass
F. For most of the 80’s and 90’s the assumption was Congress and the states played under different rules
1) Burger stressed that Congress has the most comprehensive power and is expressly charged by
the constitution with competence and authority to enforce equal protection
2) Burger concluded that the objective of the statute – attacking the perpetuation of past
discrimination – was constitutionally permissible
G. Congress made no finding on perpetuation of discrimination
1) The court relied on past congressional reports to say congress had enough information to
conclude MBEs had been denied participation
2) There were also waiver provisions when a qualified MBE couldn’t be found
4. Wygant v. Jackson Board of Ed. (1986)

A. The court invalidated a plan which based teacher layoffs on the racial proportionality of the student
body
B. The court distinguished layoffs from hiring and rejected the role model justification for the action
1) With layoffs, the burden is much more targeted
2) The burden on ensuring diversity should not fall squarely on the shoulders of white teachers
C. Role Model Theory
1) The state said it wanted to make sure there were enough black role models.
2) Only Justice Stevens agreed at all with this justification
3) Somewhat of a diversity theory
4) Does this suggest that the court is not as wild about diversity as people seemed to think Bakke
indicated? O’Connor dropped a footnote distinguishing Bakke’s diversity argument from
Wygant.
5) Role Model Theory was rejected for 2 reasons
a) The statistical disparity between students and teachers had no probative value in
determining the kind of prior discrimination in hiring and promoting that would justify
race-based relief
b) Because the role model theory had no relation to some basis for believing a
constitutional violation had occurred, it could not be used to justify race-based decision
making essentially limitless in scope and duration
5. City of Richmond v. J.A. Croson Co. (1989)

A. Introduction
1) Richmond City Counsel adopted a 30% set aside of city contracts for MBEs
2) Blacks were 50% of the population, but MBEs only received .67% of city contracts
3) The law was challenged by a white-owned contractor that lost a contract under the program
B. Part II (O’Connor, Rehnquist, White, Kennedy)
1) This case is different from Fullilove because Congress has §5 of the 14th Amendment to
remedy discrimination
2) A city like Richmond can come up with a plan to remedy past discrimination it itself has
perpetuated
a) The city may use its procurement policies to remedy private discrimination if it
identifies that discrimination with particularity required by the 14th Amendment
b) If a city had become a “passive participant” in a system of racial exclusion, the city
could take steps to dismantle that system
Professor Bloom
Spring, 2000
c) The state has a compelling interest to assure that its tax dollars do not serve to finance
private prejudice
C. Part III-A (O’Connor, Rehnquist, White, Kennedy, Scalia)
1) The first opinion where a whole majority agrees that strict scrutiny is the standard of review
a) The purpose of strict scrutiny is to smoke out illegitimate uses of race by assuring that
the legislative body is pursuing a goal important enough to use a highly suspect tool.
b) Societal discrimination, without more, is too amorphous a basis for imposing a racially
classified remedy
2) The standard of review is not dependent on the race of those burdened or benefited by a
particular classification.
D. III-B (O’Connor, Rehnquist, White, Kennedy, Stevens)
1) A generalized assertion of past discrimination in an industry provides no guidance for a
legislative body to determine the precise scope of the injury it seeks to remedy.
2) The mere recitation of a legitimate purpose for a racial classification carries no weight – there
must be a precise finding of discrimination
3) A racial preference must be based on the relevant labor pool which in this case would be the
qualified minority contractors in Richmond
E. IV
1) The program is not narrowly tailored to remedy prior discrimination
2) There does not appear to have been any consideration to the use of a race-neutral means to
increase minority participation – the state must consider a race-neutral means first
3) A goal, quota or preference must be narrowly tailored to the achievement of a compelling
interest
a) A 30% quota cannot be said to have been narrowly tailored to any goal, except perhaps
outright racial balancing.
b) In Fullilove, congress had allowed a waiver if the MBEs higher price could not be
attributed to the effects of past discrimination
c) MBEs who have not suffered discrimination must be excluded
d) In Richmond’s plan, the waiver was only available if an MBE could not be found.
There is no inquiry into whether an MBE had ever suffered from any discrimination.
F. V (O’Connor, Rehnquist, White, Kennedy)
1) A city could provide a remedy if there is evidence of systematic discrimination by the industry
2) An inference of discrimination can arise from significant statistical disparity between the
number of minority contractors willing and able to perform a particular service and the number
of such contractors actually engaged by the locality.
3) In that case, eliminating the effects of this discrimination might be a compelling objective, and
some sort of race conscious plan might be a sufficiently narrowly tailored means of correcting
that discrimination.
G. Steven’s Concurrence in Croson
1) The court should encourage forward-looking approaches over backward looking
2) Remedial programs will rarely be sufficiently tailored unless limited to specific victims and
perpetrators
a) Too much over and under inclusiveness in remedial programs
(1) Burdens the innocent
(2) Benefits people who haven’t been victims
(3) Entitlement type thinking
b) The Richmond plan was over-inclusive because it included people who have never
been discriminated against – it could include firms that had never been in business in
Richmond.
3) Courts are more suited to provide remedies than legislatures –remediation is better left to the
courts
4) Stevens likes forward looking justifications
Professor Bloom
Spring, 2000
a) Diversity
b) He liked the role model approach in Wygant
c) Example: Police force in a town that had had race riots – a more diversified police
force would serve a compelling state interest in quieting civil unrest.
H. Kennedy’s Concurrence in Croson
1) The court should not speculate on the powers of congress
2) Congress shouldn’t have any more power in this area than the states
3) Kennedy indicated he liked Scalia’s per se rule and indicated he might go that way in the future
I. Scalia’s Concurrence in Croson
1) Per se rule of unconstitutionality of racial classifications
a) The benign purpose of remedying past discrimination cannot be pursued by the
illegitimate means of racial classification
b) “Our constitution is color-blind and neither knows nor tolerates classes among
citizens.” (Harlan’s dissent in Plessy)
2) A state may only use a racial remedy to address its own discrimination. For instance if a police
force had a policy of paying blacks 20% less – it could correct this by raising black salaries
20%.
3) Nothing prohibits Richmond from according preferences to identified victims of
discrimination. While most, if not all, beneficiaries would be black, they would be receiving
the benefit because they were victims of discrimination – not because of their race.
J. Marshall Dissent in Croson
1) The court should apply intermediate scrutiny to race conscious remedial plans
a) Important government objectives
b) Substantially related to those objectives
2) The power of the states is not limited by §5 of the 14th Amendment
3) Providing a remedy for past discrimination and preventing city spending from perpetuating
past discrimination are compelling state objectives
4) There was sufficient evidence of discrimination
a) .67% of contracts went to blacks
b) No minority membership in the trade organizations
c) The evidence must be assessed in the aggregate and in the general context
5) The plan was sufficiently tailored
a) Temporary
b) Prospective – didn’t take any rights from anyone – it worked with future contracts
c) Sound basis for the percentage
6. Is the court correct in requiring a fact-finding or solid proof of discrimination?

A. A state must
1) Show victims
2) Show effects
3) Show perpetrators
B. Argument for specific fact-finding requirement
1) Otherwise there is no basis for molding a remedy or determining whether it has been successful
2) Otherwise there is too much danger that racial preferences will be used as a political reward
3) Racial preferences can be harmful if loosely used
a) Divisive
b) Political handouts
c) Corruption
4) Racial preferences are too divisive and should be used only where essential
5) Without the discipline of fact findings that will eventually justify ending racial preference,
there is too much danger that the racial preferences will become an entrenched entitlement
Professor Bloom
Spring, 2000
6) Remedial preferences will rarely benefit those who have been victimized the most be past
discrimination.
a) Unless there is a strict standard of proof, the remedy is too broad
b) It benefits people who have not been victimized
7) Individualistic anti-discrimination model of equal protection
C. Arguments against a requirement of a specific fact-finding
1) A focus on fault, victims, and perpetrators makes it more difficult to achieve racial
reconciliation in society
2) Institutions will be hesitant to comply voluntarily because they will be embarrassed to admit
that they discriminated or fear liability
3) Requiring a fact-finding of discrimination and a qualified labor pool ignores the debilitating
effect of pervasive societal discrimination
4) If the standard must rely on the number of qualified contractors, the more severe the past
discrimination, the higher the standard
D. Assessing Croson’s Impact

1) Optimistic – It provided a blueprint for drafting constitutional preference plans in contracting,
but it does not impose impossible standards
2) Pessimistic – It imposes requirements that few if any cities can meet, and suggests a spirit of
hostility by the courts to affirmative action plans
7. Metro Broadcasting v. FCC (1990)

A. The court applied an intermediate standard and upheld two FCC programs approved by congress (one
was a set-aside, the other was a “plus in the file” program), which gave racial minorities an advantage
in obtaining broadcast licenses.
1) Only minority owned companies can benefit from the distress sale of licenses
2) Congress did not create the programs, but Congress approved them and did not permit the FCC
from abandoning them.
B. Brennan, writing for the majority, relied on the justification that the programs serve the 1st Amendment
interest of promoting diversity viewpoints over public airwaves
1) Relying on Fullilove, the court deferred to Congress by applying an intermediate standard of
review.
2) In reliance on Powell’s opinion in Bakke, Brennan concluded that enhancing broadcasting
diversity was an important state interest and the programs were substantially related to that
end.
C. Justice Stevens added a short concurrence pointing out that the court’s decision clearly rejected the
notion that racial classifications could only be legitimately employed by the government for remedial
purposes.
D. O’Connor’s Dissent in Metro Broadcasting (joined by Rehnquist, Scalia, and Kennedy)
1) The use of racial classifications endorses race-based reasoning and the conception of a nation
divided into racial blocs, thus contributing to an escalation of racial hostility and conflict
2) As a consequence, O’Connor argued the standard of review must be strict scrutiny
3) O’Connor challenged the rationale as a forbidden racial stereotype (which must raise questions
about the validity of a Bakke-type diversity argument)
a) A remedy for past discrimination was the only previously recognized state interest
capable of supporting a racial classification
b) Broadcast diversity was not such an interest
c) She zeros in hard on the theory that minority ownership leads to more minority
programming
4) O’Connor is a key player in affirmative action
a) O’Connor’s opinions
(1) Wygant
Professor Bloom
Spring, 2000
(2) Croson
(3) Adarand
b) O’Connor’s dissent attacks the diversity argument in Bakke
c) The Hopwood court seizes on O’Connor’s dissent to defeat the diversity justification
E. Kennedy’s Dissent in Metro Broadcasting (joined by Scalia)
1) Compared the court’s analytical approach to the court’s approach in Plessy v. Ferguson
2) Argued that an interest as trivial as broadcast diversity could never justify a racial preference
F. Metro Broadcasting must be carefully considered in evaluating the continuing validity of Powell’s
diversity justification in the educational context of Bakke.
8. Adarand Contractors v. Pena (1995)

A. A challenge brought by a contractor who lost a project to a complicated federal program which gave
members of qualified minority groups an advantage in receiving federally funded contracts
B. O’Connor held that a strict standard of review applied to a complex, federally funded construction
program -- “Federal classifications, like that of a state, must serve a compelling government interest,
and must be narrowly tailored to further that interest”
C. The court adopted three principles for assessing racial preferences
1) Skepticism – Must apply strict scrutiny
2) Consistency – Doesn’t matter which race is benefited or whether the classification is benign or
invidious
3) Congruence – The same standard applied to Congress under the 5th Amendment as to the
states under equal protection
D. How does the court treat Metro Broadcasting?
1) Overruled Metro to the extent that it applied an intermediate standard rather than strict scrutiny
2) Metro was inconsistent with Croson and the Powell analysis in Bakke
a) The Equal Protection principle protects persons – not groups
b) Metro’s holding ignored the justification for strict scrutiny in Croson – “There is
simply no way of determining what classifications are benign or remedial and what
classifications are in fact motivated by illegitimate notions of racial inferiority or
simple racial politics.”
c) Metro was inconsistent with Congruence – the 5th and 14th amendments protect
individuals – not groups
E. What dos the court suggest about future affirmative action plans?
1) O’Connor stressed that strict scrutiny was not “fatal in fact”
a) Suggested instead that racial classifications can sometimes be sustained
b) She cites an Alabama case where the Alabama DPS had discriminated against blacks,
and a 1-to-1 promotion quota was upheld
2) The court remanded the case for reconsideration under strict scrutiny – the DC Circuit
invalidated it on remand.
F. Scalia Concurrence
1) Scalia reiterated his strong colorblind approach to equal protection
2) “The state can never have a compelling interest in discriminating on the basis of race in order
to make up for past racial discrimination in the opposite direction”
3) There is no creditor or debtor race
G. Thomas’s Concurrence
1) Took issue with the dissenting justices’ (Stevens & Ginsburg) “racial paternalism exception” to
equal protection
2) “Benign discrimination teaches that, because of chronic and apparently immutable handicaps,
minorities cannot compete with them without their patronizing indulgences.”
H. Stevens Dissent (joined by Ginsburg)
1) The court’s principle of Consistency “would disregard the difference between a no trespassing
sign and a welcome mat.”
Professor Bloom
Spring, 2000
2) Congruence is inconsistent with precedent – Congress has more authority than the states do in
this area based on § 5 of the 14th Amendment.
3) Stevens interpreted the court’s overruling of Metro as merely a rejection of the application of
strict scrutiny and by no means a denial of the significance of the state interest in promoting
diversity
I. Adarand and Methods of Constitutional Interpretation
1) Textualism – The Equal Protection clause only applied to the states
2) Formalism – The constitution does not contain an equal protection clause applicable to the
federal government
3) Original Intent – In the Freedman’s Bureau Acts, Congress engaged in race-based affirmative
action by providing land, education, medical care, and other benefits to newly freed slaves.
9. Hopwood v. Texas (5th Cir. – 1996)

A. Facts of Hopwood
1) UT Law School had a history of discrimination (Sweatt v. Painter)
2) The school was subject to the supervision of the Office of Education pursuant to Title VI with
respect to increasing minority enrollment
3) The law school adopted a series of plans to increase minority enrollment culminating in the one
in place in 1992 that was challenged in Hopwood
4) 4 white applicant who were denied admission challenged the selection process
a) There were separate admissions committees to evaluate the files of black and white
applicants
b) The minority admissions scores required of minorities to be admitted were adjusted up
or down during the course of the year to ensure that the number of minority students
desired would be admitted
c) The presumptive denial score for whites was higher then the presumptive admit score
for minorities
B. The court stated that the central purpose of the 14th Amendment Equal Protection Clause is to prevent
the states from purposely discriminating between individuals on the basis of race
1) It seeks to ultimately render the issue of race irrelevant in government decisions
2) O’Connor in Croson
a) Strict scrutiny is necessary because the mere labeling of a classification by the
government as benign or remedial is meaningless
b) The purpose of strict scrutiny is to smoke out illegitimate uses of race by assuring that
the legislative body is pursuing a goal important enough to warrant the use of a highly
suspect tool
3) Strict Scrutiny
a) Does the racial classification serve a compelling state interest?
b) Is it narrowly tailored to the achievement of that goal?
C. 2 judges concluded that Bakke does not provide proper guidance
D. 3 reasons Bakke’s diversity justification is not good law
1) There never was precedent for diversity
a) Justice Powell’s argument in Bakke garnered only his vote and has never represented
the view of the majority
b) Bakke – 2 majorities
(1) One majority held that flat-out set-asides are unconstitutional
(2) Another majority held that race can be used as a factor in decision making
c) Brennan 4 – race can only be used as a remedy for past discrimination
(1) The Brennan 4 explicitly rejected Powell’s diversity argument
d) Powell
(1) As a remedy you need a specific fact finding by a qualified body
(2) Diversity is a compelling interest
Professor Bloom
Spring, 2000
e) Powell & Brennan’s theories on using race as a factor are in conflict
f) The 5th Circuit decided that Bakke is too confusing to be good law
(1) Powell said diversity, but no one joined in the opinion
(2) There’s never been a majority holding that diversity is a compelling state
interest
g) Metro did have a diversity justification – but under an intermediate standard of review.
Adarand overruled Metro only in that it held that the standard of review is strict
scrutiny.
2) Even if Bakke was precedent for a diversity justification, it’s inconsistent with precedent
since then
a) Opinions inconsistent
(1) Croson - stated that remedying past wrongs was the only compelling state
interest to justify racial classification under strict scrutiny
(2) O’Connor’s dissent in Metro
(3) Adarand – O’Connor, joined by 3 other justices, stated that remedying past
discrimination is the only compelling state interest.
b) Metro dissent looms large
(1) O’Connor really raked the diversity jurisdiction over the coals at least with
respect to broadcasting
(2) She said that diversity justification is just the kind of stereotyping the 14th
Amendment was intended to prohibit
(3) The views of one member of a race do not represent that race
(4) The 14th Amendment is individualistic and not group oriented
(5) 5 members of the current court likely share her opinion
(a) 4 in the Metro dissent
(b) Thomas who has since joined the court - Thomas condemned benign
discrimination in his Adarand concurrence
3) Diversity is inconsistent with the equal protection principle
a) Individualistic nature of Equal Protection
b) People of the same race do not necessarily share the same viewpoints and experiences
c) There are other ways to define diversity other than by race.
d) Fear of stigmatizing
e) Entrenching racialism
(1) If the point of equal protection is to de-emphasize race, a diversity justification
is not justified because it will go on forever
f) They use Powell’s argument in favor of strict scrutiny to undermine Powell’s argument
for diversity justification
E. Anticipatory Overrule
1) If the 5th Circuit relied on its 2nd and 3rd justifications, the Supreme Court has ruled that
lower courts cannot anticipatorily overrule the Supreme Court
2) If the 5th Circuit used the 1st justification (that Bakke was never really good precedent) then
there’s nothing it’s overruling
3) So, if Hopwood is good law – the 5th Circuit had to base its decision on the first justification
F. Remedial Claim in Hopwood
1) UT had discriminated in the past (Sweatt v. Painter)
2) But over the last several decades, UT had made efforts to recruit blacks and Hispanics and the
court found that the current under-representation was not due to past discrimination
3) In Croson, a majority held that remediation is a compelling state interest, but the state does not
have a compelling interest to remedy the effects of societal discrimination – The discrimination
and its effects must be identified.
4) 3 questions must be answered
Professor Bloom
Spring, 2000
a) What is the relevant government entity to analyze – the law school or the state
education system?
(1) The state’s use of remedial racial classifications is limited to the harm caused
by a specific state actor
(2) In Croson, the court held that there must be present effects of past
discrimination “in the Richmond construction industry.”
(3) The law school can only use remedial racial classifications to correct the
present effects of discrimination by the law school
(a) One state actor is not competent to determine the scope of harm and
the appropriate remedy for the discriminatory actions of another
agency
(b) The specific agency involved is best able to measure the harm of its
own past discrimination.
(4) It was argued that any discrimination by the state, state education agency or
the university could be grounds for a remedy
(a) The court rejects this argument
(b) The law school can only design a remedy to address the discrimination
it has done itself
(c) The UT law faculty cannot design a remedy for the university as a
whole
b) What type of present effects are necessary under strict scrutiny?
(1) Test to determine if there are present effects of discrimination sufficient under
strict scrutiny
(a) The present effect must be caused by discrimination
(b) The effect is of sufficient magnitude to justify the program
(2) Mexican-Americans have never been excluded from the law school
(3) Blacks were admitted in the 1950’s after Sweatt v. Painter
(4) By the 1960’s, the school had implemented its first program designed to
recruit minorities, and it now engages in extensive minority recruiting that
includes a significant amount of minority scholarship money.
c) Is remedial action necessary and is it narrowly tailored?
(1) The court does not discuss whether the school’s admission program was
narrowly tailored because there was not a compelling state interest.
G. Summary – Race cannot be used as a factor in admissions.
Professor Bloom
Spring, 2000
PART XI: 14TH AMENDMENT
EQUAL PROTECTION
RATIONAL BASIS TO INTERMEDIATE REVIEW/GENDER CASES
1. The Rational Basis Standard of Review

A. The 14th Amendment protects “any person” against the denial of the “equal protection of the laws.”
B. One way to think about equal protection is as a generalized requirement, the state must treat all
similarly situated people the same
C. Any general protection standard evaluating whether there is a rational basis for a classification must
somehow identify a goal for the statute and decide whether the mans chosen in the statute to effectuate
that goal are rational
D. Rational basis review as requiring that a statute be justified as furthering through reasonable
means some constitutionally permissible goal that plausibly serves the general public interest
E. State legislatures are presumed to have acted within their constitutional power.
F. Requirement for a legitimate purpose
1) Has to advance a traditional police power of protecting safety, public health or public morals
2) Virtually any goal that is not forbidden by the Constitution
G. Purpose for the law
1) Actual v. Conceivable purpose: Enormous judicial deference supports any conceivable
purpose
2) Law should be upheld if some conceivable purpose even if it is not the actual purpose.
3) PP – different legislators support a law for a variety of reasons – very rarely is there one actual
purpose
H. Reasonable Relationship – whether the classifications drawn in a statute are reasonable in light of its
purpose. Laws will be upheld UNLESS:
1) Governmental action is clearly wrong
2) A display of arbitrary power
3) Not an exercise of judgment
2. Heightened Scrutiny – From rational basis to Intermediate Scrutiny in Gender cases

A. Until the early to mid - 1970s, the court applied a deferential review to gender based classifications and
readily upheld laws based on the most blatant sexual stereotypes and the court seemed to
wholeheartedly endorse such stereotypes
B. Reed v. Reed (1971)
1) An Idaho law provided a tiebreaker preference for males over females of equal degrees of
relationship to be appointed administrator of estates on the ground that men are more likely to
have business experience.
2) Burger, writing for the majority, purported to use a rational basis, but struck the law down.
a) The court seemed to be using a “rational basis with a bite” standard as Gunther put it.
b) The review was clearly tougher – the court required more of a reason to justify the law
3) Gunther suggests that in these cases the court was taking the rational basis a bite more
seriously. Gunther argued that rational basis should always be applied with a bite
4) The court stated that the classification “must be reasonable, not arbitrary, and must rest on
some ground of difference having a fair and substantial relation to the object of the legislation,
so that all persons similarly situated shall be treated alike.”
a) The state relied on the justification of administrative convenience
b) In rejecting the state’s contention that the preference reduced the workload of the
probate courts by eliminating hearings on the merits, the court was clearly putting
more bite into the traditional standard than it had done previously
5) Was this a new rational basis, or was the court coming up with a new less deferential standard
to apply in certain cases?
Professor Bloom
Spring, 2000
3. Frontiero v. Richardson (1973)
A. The case involved the military’s policy that allowed men to claim their wives as dependent without
regard to whether she is in fact dependent, while requiring servicewomen to prove their husbands in
fact rely on them for at least 50% of their support
B. Brennan wrote a plurality opinion (Brennan, Douglas, White, Marshall) announcing the decision of the
court in which he struck down the law applying strict scrutiny to gender cases.
C. Powell wrote a concurring opinion that rejected the use of strict scrutiny in gender cases
1) Powell said it was possible to resolve the issue under Reed without using strict scrutiny
2) Powell also noted that at the this time the Equal Rights Amendment was being considered by
the states – It is not proper for the judiciary to preempt a major political decision currently in
the process of resolution.
4. Craig v. Boren (1974)

A. An Oklahoma statute prohibited the sale of 3.2% beer to men under 21 and women under 18, but did
not prohibit men18-21 from drinking 3.2% beer. The state argued that the law was justified in that men
are more likely to drive drunk.
B. Brennan, writing for the majority, applied an Intermediate Standard
1) Citing Reed, the court adopted an intermediate standard
2) Classifications by gender must serve important governmental objectives and must be
substantially related to those objectives
3) The nature of the interest does not have to be as significant as under strict scrutiny
a) Important interest – not compelling
b) Substantially related – not narrowly tailored – but better than mere rationally related
4) Enhancement of traffic safety is an important government interest, but the law in this case is
not substantially related to that objective
C. Rehnquist’s Dissent in Craig
1) The court’s conclusion that laws treating men less favorably than women “must serve
important governmental objectives and must be substantially related to the achievement of
those objectives” apparently came out of thin air.
2) What is “important” is a legislative question
3) The requirement that the court decide if a law is “substantially related” to the important
objective requires the court to make subjective judgments as to the operational effects
a) Courts do not have the expertise
b) Courts do not have the data to make the determination
D. Brennan talks about “the normative philosophy of the equal protection clause.”
1) Should the court make decisions based on the way things ought to be?
2) Women really are less likely to drive drunk.
5. As a practical matter, how is the intermediate standard different from the deferential standard?
A. Obviously the interest must be more important and the means-ends fit must be tighter
B. The state must identify and define the actual purpose of the law
1) Similar to what Gunther identified in rational basis with a bite
2) Actual purpose means the state must come forth and say what the law is intended to do today
C. The state may have to provide a sufficient empirical basis for the means-end nexus as it was unable to
do in Craig
D. The state must explain:
1) Why gender must be used as a proxy for another characteristic
2) Why would a non-gender based classification not serve the state purpose
E. But the gender-based classification need not be the least discriminatory alternative
F. Providing a remedy for past discrimination can be an important purpose
G. Examples -- Reed v. Reed
Professor Bloom
Spring, 2000
1) Under a rational basis standard of review, the law would be justified.
2) But under an intermediate standard, administrative convenience is not an important state
interest that can justify the classification
H. Administrative convenience will rarely, if ever, be an important state interest
I. The state would have to explain why discrimination against women instead of simply a test to carry a
fire hose up a flight of stairs
J. Gender based stereotyping will usually be an improper purpose
6. What can be said for and against the intermediate standard

A. Intermediate standard gives the court more flexibility
B. Greater flexibility is both a strength and a weakness
1) Strength - It is not as outcome determinative, thus it allows the court to uphold or invalidate
the law as may be appropriate to the specific case
2) Weakness – The intermediate standard is less predictable and readily subject to manipulation
a) Predictability is an important thing in the law
b) Won’t know until you litigate it
c) Administrative disadvantage
d) Easily manipulated
e) Allows the judges to reach whatever decision they want
7. Argument for and against recognizing gender as a suspect classification and therefore applying strict
scrutiny
A. Against strict scrutiny in gender cases
1) “Real differences” – There are more situations where there is a good reason for the gender
classification
2) Original Intent – Women argued for inclusion of women at the time of the 14th Amendment
and it was rejected
3) Slaughter House Cases – the 14th Amendment is limited to racial classifications
4) Fails under the Carolene Products approach
a) Women are discrete
b) Not insular – wherever you find men – you find women
c) Women are in the majority
5) Immutability/Privacy
a) Gender like race is immutable
b) This argues for protection
c) But sometimes this immutability creates differences that do matter
d) Privacy – bathrooms for example
6) Discrimination has not been invidious
a) There is a qualitative difference between the pedestal and the auction block
7) There is not the same societal consensus on gender as there is on race
8) There were not enough cases to see what strict scrutiny would mean in 1974
9) ERA would have applied strict scrutiny to gender
a) No good reason for the court to come in and do what was trying to be done by
amendment
b) The political process was addressing the issue
10) Women do not suffer the severe depravation economically and socially
11) Recent societal changes show that women can be fairly represented in the political process
B. Arguments for strict scrutiny in gender cases
1) Stereotypes are deeply entrenched in the law and society. There is a history of pervasive
discrimination
2) Women were excluded from all relevant debate about the original constitution and the 14th
Amendment. The system was set up by men and women did not participate
Professor Bloom
Spring, 2000
3) There is always the possibility that laws could be upheld, even under strict scrutiny.
a) Real differences that matter can overcome strict scrutiny
b) Privacy for example
4) Immutability – sex is an immutable characteristic
5) A strict scrutiny standard of review would be able to single out instances where the
classification is based on real differences and where it is based on a stereotype.
8. Real Differences Between Men and Women

A. Michael M (1981)
1) Unlawful intercourse involves “an act of sexual intercourse accomplished with a female not the
wife of the perpetrator, where the female is under the age of 18.”
2) Petitioner set aside the indictment on the constitutional ground that it unlawfully discriminated
on the basis of gender.
3) What standard of review did Justice Rehnquist purport to apply?
a) Rational basis with a sharper focus
b) Rehnquist refuses to accept the intermediate standard of review
c) Rehnquist never liked the idea of an intermediate standard
d) He also hated men using equal protection to strike down laws – He thought laws
should only be struck down when women are being disadvantaged in some way.
4) If you have similarly situated people who are treated differently, then you have an equal
protection problem
a) You have to decide at the outset if people are similarly situated
b) Rehnquist decides they aren’t
(1) Girls can get pregnant
(2) Boys can’t
c) The state wants to reduce teen pregnancy without discouraging girls from reporting the
incident.
5) Men and women are not similarly situated because there is a real difference – women can get
pregnant and men cannot
6) Thus the state can provide man with an extra disincentive against engaging in premarital sex at
an age when the consequences are particularly severe
7) The court concluded that
a) Preventing illegitimate pregnancy is the purpose of the statute
b) The state has a strong interest in preventing pregnancy
c) Young men and women are not similarly situated with respects to the problems and
risks of intercourse
d) The statute is sufficiently related to the state objective to pass constitutional muster
8) Brennan dissent in Michael M
a) California should have the burden of showing that a gender neutral law would be a less
effective means of achieving fewer illegitimate pregnancies
b) California failed to do this
B. Rostker v. Goldberg (1981)

1) The draft was challenged on equal protection grounds since women are not required to register
for the draft. Women are barred from combat. The President and the Department of Defense
supported having women register for the draft – Congress said no.
2) Rehnquist, writing for the majority, purported to use a rational basis with a sharper focus.
a) Rehnquist – “Announced degrees of legislative judgments, just as levels of scrutiny
which this court announces that it applies to particular classifications made by a
legislative body, may all too readily become facial abstractions used to justify a
result.”
3) The justification was largely administrative convenience
Professor Bloom
Spring, 2000
a) Women are barred from combat
b) The draft is generally for a supply of combat troops
4) There was not an underlying challenge to the exclusion of women in combat
5) The court used the exclusion to show that men and women are not similarly situated without
questioning the constitutionality of the combat exclusion.
a) Applying Craig v. Boren, the government’s interest in raising an army is an “important
governmental interest.”
b) Women are not eligible for combat
c) The existence of combat restrictions clearly indicates the basis for Congress’s decision
to exempt women from registration
d) Men and women, because of the combat restrictions on women, are simply not
similarly situated for the purposes of the draft.
6) This case may simply be deference to Congress with respect to a military decision.
7) Marshall’s Dissent in Roster
a) Even assuming excluding women from combat is an important government interest,
the exclusion of women from registration is not substantially related to that goal
b) Legislative classifications b gender carry the inherent risk of reinforcing sexual
stereotypes about the “proper place” of women and their need for special protection
c) If a gender neutral law would serve the purpose just as well, the gender classification
cannot be permitted.
(1) Just because they register, that doesn’t mean they have to be called
(2) If all the army needs is combat troops – it could still only call men.
d) The court has repeatedly said that administrative convenience is not an adequate
objective under Craig v. Boren.
C. Arguments for and against women in combat
1) Arguments against women in combat – Policy has loosened up a little now
a) Most women lack the strength and stamina required
b) There would be inadequate protection of women’s health & hygiene under adverse
circumstances
c) There would be a potential of disruption through pregnancy
d) There would be interference with bonding and mission completion because of romantic
involvement – probably the best argument, everyone should treat each other as equals
and sacrifice equally
e) The nation couldn’t handle the death, rape, and torture of women that would occur,
which in turn would undermine the war effort.
There is no empirical data for the above, mostly based on speculation taken from previous wartime experiences.
2) Counter-arguments
a) Individual testing can scan for strength and stamina
b) Soldiers are tough and can deal with health and hygiene problems, already providing
medical care for soldiers, can easily provide for women, too.
c) Other nations seem to integrate women into combat (Israel, the Soviet Union)
d) The male bonding stereotype is nothing more than prejudice and stereotyping
D. Personal Administrator of Ma. v. Feeney (1979)
1) A woman challenged a Massachusetts civil service statute, which gave an absolute hiring
preference to any veteran who obtained a passing score on a competitive exam. Over 98% of
veterans were men so the preference operated overwhelmingly to benefit men.
2) The court held that the statute was not intentionally gender based. A significant number of
men were also adversely affected by the preference to permit an inference that the statute was
but a pretext for preferring men over women
3) Awareness of the consequences is not sufficient to prove discriminatory intent.
4) Only if the legislature chose the this course of action because of and not in spite of its adverse
effects on women, could there have been intentional discrimination.
Professor Bloom
Spring, 2000
E. Johnson v. Transportation Agency (1987)
1) Title VII case – case spoke clearly about remedying past discrimination in gender.
2) California Transportation Agency voluntarily adopted a plan which allowed for the
consideration of gender as a factor in deciding on promotions to traditionally male occupations
a) Women were over-represented in office and clerical jobs
b) The plaintiff applied for a job as a road dispatcher and scored 2 points higher than the
woman who got the job
3) Brennan upheld the program based on a liberal interpretation of Title VII to permit affirmative
action plans when there is a “manifest imbalance” in the workforce.
4) An employer can employ gender as a factor if it identifies that a “manifest imbalance” in the
workforce existed with respect to traditionally segregated job categories
a) The program was not a set-aside
b) Not an attempt to achieve a permanent balance
c) Not a denial of settled expectations (not a layoff Wygant)
d) Gender was only one of the many factors considered.
e) The goal was reasonable and realistic
5) O’Connor concurring – employers are not under a duty to have a proportionate amount of
women in every job category.
a) Argued Title VII and equal protection standards are the same
b) Affirmative action is justified when the employer has a firma basis for deciding that
under-representation of women is the result of prior discrimination
6) Scalia dissenting – No affirmative action is allowed under Title VII. Proportionality would not
occur in a discrimination free society. Plan is concerned with altering social attitudes not past
discrimination.
An employer can use gender as a factor if it identifies that a manifest imbalance in the work force existed with
respect to traditionally segregated job categories in comparison with women in the labor market. It need not prove
a prima facie case of discrimination.
F. Mississippi University for Women v. Hogan (1982)
1) MWU’s nursing school allowed men to audit courses but not take them for credit. Hogan was
denied admission to the degree program at the nursing school because he was a man.
2) University says that they did this because of the past discrimination against women and they
were trying to remedy this. Court said could use remedy of past discrimination as a reason for
gender classifications, but no proof of disadvantage to women in the nursing context. Needs to
be an understandable relationship between the gender and the past discrimination you are
trying to remedy.
3) O’Connor wrote for the 5 Justice majority striking down the women-only admission policy.
The majority opinion applied the intermediate level of scrutiny prescribed by Craig v. Boren.
4) O’Connor said that for a gender classification to be justified as compensating for past
discrimination, members of the gender benefited by the classification must “actually suffer a
disadvantage related to the classification, this would require a showing that women are
disadvantaged in the field on nursing.”
5) O’Connor talked about intent – MWU v. Hogan seems to say that in cases involving
intermediate scrutiny, the “important government purpose” to which the means must be
substantially related must be an actual purpose of the legislation.
Issue of gender-based education still exists. Question has not been answered.
G. US v. Virginia (1996) – most significant recent gender discrimination case
1) Background
a) VMI was founded in 1839
b) Its role is to produce citizen soldiers – men trained for leadership in military and
civilian life.
c) It is the only service institute in the state – but only 15% of the graduates actually enter
the military.
Professor Bloom
Spring, 2000
d) It uses the adversarial method – men are stripped of all privacy and everyone is treated
the same. There is a strict class system and honor code.
e) It is successful in producing leaders.
f) VMI admitted only men – the state proposed a parallel program at Mary Baldwin
College – the Virginia Women’s Institute for Leadership (VWIL)
(1) The theory behind VMI and the adversarial method is that men are arrogant
and need to be broken down
(2) The theory behind VWIL is that women lack self-confidence and need to be
built up.
2) Justice Ginsburg purports to apply “skeptical scrutiny” which requires “exceedingly
persuasive” justification. Not your typical gender case. Adds a twist to intermediate scrutiny
– more demanding that intermediate.
a) The state failed to show an exceedingly persuasive justification.
b) Scalia seems to say in his dissent that Ginsburg is threatening to use strict scrutiny.
3) Ginsburg’s test
a) The reviewing court must determine if the proffered justification is exceedingly
persuasive – Court has used this standard before in Hogan
b) The state must show “at least that the challenged classification serves important
objectives and that the discriminatory means employed are substantially related to the
achievement of those objectives.” – at the very least.
c) The justification must be genuine, not invented post hoc in response to litigation.
d) It must not rely on overly broad generalizations about the different talents, capacities,
or preferences of males and females.
4) Diversity among public education alternatives may be important, but Virginia did not show that
it adopted the program for diversity. Diversity seemed to be an ad hoc justification in response
to litigation. Slightly different take on diversity from Bakke.
5) Why isn’t VWIL sufficient to serve women in Virginia who desire public military leadership
training? Tangibles and intangibles are not equal, plus not enough women who might be
interested in the program to make the program workable – low demand
a) VWIL is qualitatively different in that it does not offer military training and doesn’t
offer the adversarial method
b) Unequal endowment, different course offerings, different academic standards.
c) VWIL does not have the traditions of VMI or the alumni network.
d) Similar to court’s reasoning in Sweatt v. Painter.
6) Rehnquist’s Concurrence
a) Perhaps if VWIL employed the adversarial method and invested enormous amounts of
money, but even then, the reputation and traditions would never catch up. It is unfair
to ask Virginia to do something they cannot do overnight. Virginia was not on notice
that they would even have to build a comparable female institution (except maybe with
Hogan).
b) There seems to be insufficient demand for the adversarial method among women to
justify such expenditures
c) Rehnquist opposed the use of exceedingly persuasive justification
(1) It seems to alter the intermediate scrutiny test - Important government
objective & substantially related.
7) Scalia’s Dissent in VMI
a) The virtue of the democratic process is that it enables the people to decide to change
their laws based on a change in their values.
b) Majority ignores the “real differences” argument; VMI would have to change its whole
program. Would create new concerns about sexual harassment so would have to
modify its programs. Not really an integration, it is a change.
Professor Bloom
Spring, 2000
c) Court is random in applying standard of review. Thinks majority created a new one.
d) That democratic system is destroyed if the smug assurances of each age are removed
from the democratic process and written into the constitution. History is ruined.
Shouldn’t decide constitutional issues in the abstract – look to history.
e) This is the elite class imposing its own values in a controversial area. Makes this point
in a lot of other cases, too. See f.
f) The illiberal court has embarked on a course of inscribing the current counter-
majoritarian preferences of the law-trained elite into the constitution. The court has
inscribed the preferences of the law-trained elite into the constitution. And it uses
intermediate scrutiny to load the dice.
g) When a practice not expressly prohibited by the Bill of Rights bears the endorsement
of a long tradition of open, widespread, and unchallenged use that dates back to the
beginning of the Republic, we have no proper basis for striking it down.
h) People may decide to change one tradition through the democratic process, but the
assertion that the tradition is unconstitutional is not law, but politics-smuggled-into-
law.
Does Virginia keep the door open for all-female schools? If empirical evidence show that women are successful
there and no classes are different than those offered to men elsewhere? Look to standard of review, would not
survive Ginsburg’s tough standard.
Professor Bloom
Spring, 2000
PART XII: 14TH AMENDMENT
EQUAL PROTECTION
OTHER SUSPECT CLASSES
1. Non-citizens
A. Under longstanding precedent, the federal authority over foreign relations and immigration has
included nearly plenary power over aliens. Accordingly, federal regulation of non-citizens is ordinarily
subject at most to rationality review when challenged on 5th Amendment equal protection grounds.
Mathews v. Diaz (1976).
B. States have no substantial justification for treating non-citizens differently from citizens.
1) Graham v. Richardson (1971)
a) The court held that equal protection was violated by states that denied welfare benefits
to non-citizens lawfully present in the country.
b) “Classifications based on alienage, like those based on nationality or race, are
inherently suspect and subject to close judicial scrutiny. Non-citizens as a class are a
prime example of a ‘discrete and insular’ minority (Carolene Products n. 4) for whom
such heightened judicial solicitude is appropriate.”
2) If non-citizens can achieve citizenship and the right to vote, is alienage an immutable
characteristic?
3) Are they really insular? Many of them are Anglos and pass unnoticed in the social scene
4) The court applies strict scrutiny when state laws are protectionist – reserving economic benefits
for citizens (Graham)
5) But the court has backed away from strict scrutiny with regard to laws rationally related to
reserving the sovereign functions of citizens (holding office)
2. Illegitimacy
A. The court applies “intermediate scrutiny” to illegitimacy cases. Clark v. Jeter (1988)
B. In essence, the decisions are based on the premise that persons born outside of wedlock have suffered
from irrational discrimination that imposes burdens upon them bearing no relation to their own
responsibility or wrongdoing.
C. Wrongful death suits
1) Levy v. Louisiana (1968) – EP violated when state does not allow illegitimate children to sue
for wrongful death of a parent.
2) Glona v. America Guarantee & Liability (1968) – EP violated when parent is not allowed to
sue for wrongful death of an illegitimate child.
D. Inheritance
1) Trimble v. Gordon (1977) – The court cannot categorically deny intestate inheritance to
illegitimate children.
2) Lalli v. Lalli (1978) – The court can limit inheritance to children who established paternity
during the life of the deceased.
3. Age
A. The court has been unwilling to apply any form of heightened scrutiny to age classifications.
B. The court has upheld mandatory retirement for state employees and an ordinance not allowing people
over 18 in certain dance halls.
4. Sexual Orientation
A. The Supreme Court has never held that legal classifications based upon sexual orientation are subject to
strict scrutiny.
B. Bowers v. Hardwick (1986)
1) The court rejected a due process attack on a Georgia sodomy law.
Professor Bloom
Spring, 2000
2) Although the statute on its face applied to both hetero and homo sodomy, the court said that its
approval of the statute only applied to homo sodomy.
3) Although the court claimed not to address equal protection, Blackmun’s dissent stated that the
EP clause may be violated by the state’s singling out of gay men.
C. Carolene Products n. 4 Analysis
1) Gay and lesbians are not entirely discrete and insular
a) Most people don’t know a gay person when they see one
b) Gays mingle and prosper in mainstream culture
2) On the other hand, gays have been subject to vicious discrimination
5. Wealth
A. There is no heightened Equal Protection scrutiny of wealth classifications as such.
B. Decisions striking down laws requiring fees for governments services or licenses or requiring the state
to provide an attorney have been based not on equal protection, but on the notion of “fundamental
rights”
1) Criminal cases
a) Griffin v. Illinois (1956) – The state may not impose appellate filing fees or charge for
a transcript on appeal if that would preclude access to the appellate process.
b) Douglas v. California (1963) – A poor person charged with a crime has a right to free
counsel at trial and on appeal.
2) Marriage
3) Divorce
a) Boddie v. Connecticut (1971) – Outlawed imposing a filing fee on a poor person
seeking to file a divorce action.
4) Voting
a) Harper v. Virginia Bd. Of Elections (1966) – the court struck down a $1.50 poll tax.
C. In 1970 the court rules that the equal protection clause does not require states to provide meaningful
welfare assistance to the poor or to draw distinctions among welfare recipients carefully. Dandridge v.
Williams (1970).
6. Mental Disability - City of Cleburne v. Cleburne Living Center (1985)

A. The Supreme Court refused to treat mental retardation as a quasi-suspect classification.
B. Reasons cited why the court should not apply a higher standard of review.
1) Judicial second guessing is undesirable
a) There are legitimate reasons to treat the mentally retarded differently
b) The treatment to be given to the mentally retarded is a difficult and often technical
matter, very much a task for the legislature guided by qualified professionals and not
by the perhaps ill-informed opinions of the judiciary.
2) No antipathy by lawmakers toward the retarded. Laws are passed to benefit the retarded
population.
3) Not politically powerless – The laws that have been passed to benefit the mentally retarded
negate the claims that they are politically powerless.
4) Impact of Quasi-suspect status on other groups – If quasi-suspect class was given to the large
and amorphous class of mentally retarded people then there would be no principled way to
deny quasi-suspect class to a large number of other groups.
C. The court purported to be applying a “mere rationality test” but struck down the town’s refusal to grant
the special use permit to the home.
1) The court appeared to apply more rigor to the test than usual.
2) The refusal to grant the permit was found not to be even rationally related to any legitimate
state purpose.
3) Rather, the denial was of the permit rested on an irrational prejudice against the mentally
retarded
Professor Bloom
Spring, 2000
D. Dissent in Cleburne (Marshall, Brennan, Blackmun)
1) Contended that mental retardation deserved quasi-suspect classification.
2) Mentally retarded people have the subject of a “lengthy and tragic history… of segregation and
discrimination that can only be called grotesque.”
3) They contended that the right to establish a home is a fundamental liberty.
4) Responding to the legislation with regard to the mentally retarded, the dissent pointed out that
race did not become any less suspect once the legislature began to deal with the concerns of
blacks.
5) While retardation is indeed relevant is some circumstances, it is not relevant in all
circumstances. Strict scrutiny would help smoke out where it was not relevant. The fact that
retardation is irrelevant in some circumstances, when coupled with a history of discrimination
against the retarded, was enough to require heightened scrutiny.
E. Significance of Cleburne
1) The case probably indicates that a majority of the present court is reluctant to establish
additional “quasi-suspect classes”
2) The case also seems to confirm the Burger/Rehnquist Court’s reluctance to treat a classification
as more suspicious when it is used to burden a groups than when it is used to benefit a
particular group. The court gives the same level of scrutiny regardless of benefit or burden.
3) Preference for “as applied” disposition – The court did not strike down the ordinance itself.
Instead, it held that as applied to the particular group home in this case, the ordinance violated
equal protection.
4) After Cleburne, for a majority of the court there may now be four tiers of scrutiny.
a) “anything goes” rational basis
b) Rational basis with a bite
c) Intermediate scrutiny
d) Strict scrutiny
Professor Bloom
Spring, 2000
PART XIII: FUNDAMENTAL RIGHTS
VOTING/TRAVEL
1. During the sixties, the Court indicated that there were certain interests or rights that were fundamental
under the Equal Protection Clause.
A. If a state classification challenged on Equal Protection grounds affected such an interest, it would be
tested by strict scrutiny.
B. The Court identified voting in a state election, certain rights in the criminal process such as the right to
appeal and the right to travel interstate as fundamental interests.
C. At the same time, the Court seemed to indicate that there might be suspect classifications other than
race and alienage, which could give rise to strict scrutiny.
D. In several cases, the Court seemed to suggest that wealth or ability to pay might be a suspect
classification, which could give rise to strict scrutiny.
2. Voting
A. As the nation grew increasingly more urban, legislative districts often became grossly mal-apportioned.
B. The legislatures were generally unwilling to reapportion themselves since that would mean that many
incumbents would be reapportioning themselves out of power or even out of office.
C. Colegrove v Green (1946)
1) The mal-apportionment of the Illinois legislature was challenged under the Guarantee of a
Republican Form of Government Clause
2) The Supreme Court determined that the case presented a political question because there were
no judicially manageable standards under the Guarantee Clause.
D. Baker v Carr (1962) Warren Court
State requires reapportionment by state constitution. Issue was whether the fact that
Tennessee did not reapportion per the state constitution violated the Equal Protection Clause.
Was not a political question.
Concept of political question – areas in which even though you are making a claim of legal
right, nevertheless, if it is a political question, Court may not do anything about it. Certain
constitutional issues that will be resolved by another branch of the government.
Standards for determining political questions: Basic principle is separation of powers
6 principles:
1. Textual commitment to another branch of the government – impeachment
2. Lack of judicially manageable standards
3. Policy decision requiring non judicial discretion
4. Lack of respect for coordinate branch
5. p. 679 Emanuel’s
The question of whether a war is legal implicates all 6 criteria
1) The mal-apportionment of the Tennessee legislature was challenged under the Equal Protection
Clause
2) The Court held that the political question doctrine did not preclude the suit because there were
judicially manageable standards under the Equal Protection Clause.
Luther v. Borden (1849) p. 682 Emanuel
1. Case grew out of a rebellion by some dissatisfied Rhode Island citizens
2. Required the federal courts to decide which of 2 competing governments was the lawful government of the
state.
3. Case was decided under the Guaranty Clause
4. Non-justiciable political question – applies to all Guaranty Clause cases like the apportionment cases
5. Guaranty Clause would have been a convenient way of disposing of the apportionment cases, but they
relied on Equal Protection instead.
6. Case was all about lack of judicially manageable standards – reason why automatic denial of Guaranty
Clause claims – turns on the nature of the legal theory
Professor Bloom
Spring, 2000
Colgrove v. Green (1946)
Guaranty Claim that was denied because of precedent of Luther v. Borden
It’s the issue not the theory that ought to be decisive – courts should not legislate
Guaranty v. Equal Protection
Guaranty Clause provides no judicially manageable standards but that is not a problem
here because there are well-developed standards under Equal Protection
Problem is with the legal theory not the underlying problem of reapportionment.
Other Avoidance Doctrines and their relation to Political Question Doctrine – why Court declines to hear
constitutional cases
1. No standing – it will suffer no particularized injury regardless of how the case is
decided.
2. No injury yet – not ripe
3. It is moot – there was an injury but it no longer exists (Defunis case is a good
example)
Ripeness and mootness are about timing. Standing is about the parties, whether person before the court has a
sufficient stake in the controversy. Under all 3 doctrines, presumably, somebody could – needs to be the right
person at the right time
PQ Doctrine seems to assume that there are some issues of constitutional law that a federal court cannot decide.
Nature of the issue itself. Bit more powerful doctrine in terms of its preclusive effect.
Most significant PQ case is US v. (Judge) Nixon – impeachment case, Court rejected his challenge on political
question grounds
Court really focuses on #1 factor in Baker v. Carr – textual commitment to another branch is the best reason
b. Reynolds v. Sims (1964)
i. In a suit brought by residents of a large Alabama county against state officials and political
party officers, the federal district court concluded that the population inequality among
state congressional and senatorial districts violated the equal protection clause.
ii. The Court concluded that the standard that it had alluded to in Baker v Carr was one person
one vote. The Court concluded "with respect to the allocation of legislative
representatives, all voters…stand in the same relation regardless of where they live."
iii. Chief Justice Warren struck down Alabama’s apportionment scheme on equal protection
grounds. Warren relies on the text of the Constitution.
1. The equal protection clause requires that the seats in both houses of a bicameral
legislature must be apportioned on a population basis.
a. The Court rejected the federal analogy under which the US Senate is
grossly mal-apportioned on the grounds that states unlike state
subdivisions were independent sovereigns when the Constitution was
adopted and the "Great Compromise" was politically essential to the
adoption of the Constitution.
b. A state can pursue bicameralism and create divergent constituencies for
the two houses by varying the size of the legislative districts however both
must be apportioned on the basis of one-person one vote.
2. An individual’s right to vote for state legislators is unconstitutionally impaired
when its weight is in a substantial fashion diluted when compared to votes of
citizens in other parts of the state.
3. The court observed that equal protection generally requires uniform treatment of
persons standing in the same relation to the governmental action questioned or
challenged.
4. Since legislators represent people, not trees, acres or pastures, there was no
apparent reason for making a rural citizen’s vote worth more than a person in a
heavily populated county.
iv. The court did not require strict mathematical equality
Professor Bloom
Spring, 2000
1. Some deviations would be allowed if they were directed towards the carrying out
of a rational state policy.
2. Population may not, however, be submerged as the controlling consideration.
v. The difficult issue in Reynolds (which the Court assumed away) was why are persons
living in different legislative districts similarly situated? If they are, one-person one vote
tends to follow but why can't geography be a legitimate differentiating factor?
vi. The Court had already applied the one-person one vote principle to Congress pursuant to
Article I (Wesberry v Sanders).
vii. It applied it to virtually all elected state and municipal bodies following Reynolds
viii. It applied it even when the voters of a state by referendum deliberately chose to employ a
degree of mal-apportionment (Lucas).
ix. One-person one vote probably had as much impact as any decision other than Brown, and
while it was controversial with some commentators, the public appeared to accept it since
it benefited majorities and seemed intuitively fair.
x. Ely uses it as Exhibit #1 under his representation reinforcing theory.
xi. In subsequent cases such as Kramer v Union School Bd (1969) & Harper v Va State Bd of
Elections (1966), the Court recognized that the right to vote in a state election was a
fundamental interest under the Equal Protection Clause giving rise to strict scrutiny.
xii. Stewart’s Concurrence
1. Stewart agreed that Alabama’s scheme was completely lacking rationality.
2. But Stewart believed the equal protection clause did not bar a state’s divergence
from mathematical equality if this was done for the purpose of providing effective
and balanced representation of all substantial interests
3. The only limit was that a plan must not permit the systematic frustration of the will
of the majority of the electorate of the state. As long as the majority was not
consistently blocked from electing a majority of the legislators, the scheme must
merely be rational.
4. Techniques such as providing that one legislative chamber (like the senate) be
smaller than the other and apportioned on some basis other than population could
be rational attempts to provide some insulation from the influence of the dominant
political currents that Madison feared might overwhelm minority rights.
xiii. Harlan’s dissent – talking about political theory rather than economic theory, don’t believe
that it is part of the Constitution, left it up to the states – not one person, one vote
1. Harlan argued that the framers did not intend the 14th Amendment to limit the
power of the states to apportion their legislative districts, historically never
imposed one person, one vote
2. Textual Problems in Reynolds
a. Why include § 2 of the 14th Amendment on voting if the § 1 equal
protection applies to voting?
b. Why adopt the 15th Amendment if the 14th Amendment applies to voting?
14th Amendment was not about voting – focused on one aspect of voting,
racial discrimination in voting.
3. Like Justice Frankfurter in Baker, Justices Harlan and Stewart argued in
dissent that the Court had simply chosen one of many rational theories of
representation and could not explain why one person one vote was any more
constitutionally required than other alternatives.
7. The Right to Travel – fundamental interest – strict scrutiny applied

a. In Shapiro v Thompson, (1969), the Court invalidated state laws that prohibited persons who had
recently moved to the state from receiving welfare benefits until they had satisfied one year
residency requirements.
Professor Bloom
Spring, 2000
i. The Court held that the right to travel from one state to another was a fundamental interest
under the Equal Protection Clause and that the residency requirements could not survive
strict scrutiny.
ii. The Court did not identify a specific source for the right to travel but indicated that it might
be derived from the commerce clause, Article IV privileges or immunities or constitutional
structure – citizens have the same rights in every state
iii. In dissent, Justice Harlan argued that if there was a right to travel, the Equal Protection
Clause was irrelevant to the analysis and if there wasn't, rational basis analysis should
apply. Said that the 5th Amendment Due Process Clause protects the right to travel –
assess under right to travel, not Equal Protection – speaks to the difference between
fundamental rights and fundamental interests (only raised in EP challenge)
b. Subsequent to Shapiro, the Court has analyzed these cases by asking whether a particular state
residency requirement "penalizes" the right to travel.
c. It has invalidated one-year residency requirements for voting and eligibility for non-emergency
medical services by the poor but upheld such a requirement for divorce.
8. The State Criminal Process

a. In a series of cases involving various rights in the criminal process, such as the right of an indigent
to receive a free transcript (Griffin) and the right of an indigent to appointed counsel on appeal, the
Court has indicated that such rights are fundamental and classifications which restrict them are
subject to strict scrutiny.
b. These cases are difficult to analyze because they turn on a combination of a fundamental interest
(criminal process) and wealth discrimination and the Court relied on a combination of Equal
Protection and Due Process (since the state can't possibly provide the indigent defendant with all
that the wealthy defendant can purchase).
9. Basic Rights for the least advantaged - Wealth as a Suspect?

a. There is no heightened equal protection scrutiny of wealth classifications
b. But cases involving the poor have been subjected to heightened scrutiny under the notion of
“fundamental rights.”
i. Fair process in criminal procedure – right to a lawyer
ii. Marriage – fees
iii. In Harper v Va. Bd. Elec (1966), the Court invalidated a $1.50 poll tax on the basis of the
fundamental right in voting along with discrimination against the poor.
iv. In Boddie v Conn (1968), the Court invalidated a filing fee for divorce under the due
process clause as wealth discrimination burdening a fundamental right.
c. By the late sixties, it appeared that the Court was inclined to identify more fundamental rights and
suspect classifications under the Equal Protection Clause – end of the Warren Court
d. Between 1970-1971, President Nixon appointed four justices to the Court (Burger, Blackmun,
Rehnquist and Powell replacing Warren, Fortas, Black and Harlan) and the Court quickly began to
show far less enthusiasm for the discovery of new fundamental interests and suspect classifications.
i. The Court declined to recognize welfare as a fundamental interest in Dandridge v Williams
(1970) and housing as a fundamental interest in Lindsey v Normat (1972).
ii. The Court declined to invalidate filing fees for bankruptcy with regard to indigents in US v
Kras (1973) and declined to require states to appoint counsel for indigent criminal
defendants seeking discretionary review of their convictions before the state Supreme
Court or the US Supreme Court in Ross v Moffitt (1974).
e. The fundamental interest/ suspect classification controversy came to a head with judicial
challenges to property tax based financing of public education in the early seventies.
i. At the time, virtually all states financed a significant portion of local education through
local property taxes.
Professor Bloom
Spring, 2000
ii. This lead to significant disparities in resources from one school district to the next within a
state since taxable wealth was not distributed equally.
iii. Large inner city urban districts like DISD tended to be around the median, suburban
districts tended to have more taxable wealth and rural districts had less.
iv. In 1970 in the case of Serrano v Priest, the California Supreme Court invalidated the
property tax based financing scheme under the Equal Protection Clause finding education
to be a fundamental interest and wealth a suspect classification. The decision was immune
from Supreme Court review since it also relied on the state constitution.
f. San Antonio Ind. School District v. Rodriguez (1973)
i. Class action suit on behalf of poor children living in Texas districts with low property tax
bases
ii. Powell upheld the Texas school financing scheme
iii. Justice Powell used this case as a vehicle for attempting to bring some order to Equal
protection analysis. Wants to clean up the mess in the fundamental rights and suspect
classification area.
1. Justice Powell concluded that wealth was not a suspect classification at least in the
context of this case. However, wealth may matter in later cases Plyer v. Doe.
2. The financing plan did not discriminate against poor persons since they did not
necessarily live in property poor districts.
3. There was no basis for concluding that property poor districts were suspect.
4. According to Justice Powell, the precedent which gave special consideration to
discrimination on the basis of ability to pay only applied to instances in which
there was a complete deprivation of a benefit because of a total inability to pay
while here there was only a relative disadvantage since all children received a state
funded education.
5. Differentiating the case from other precedents
a. The scheme does not operate to the particular disadvantage of the indigent
or people below the poverty line
b. Lack of personal resources has not wholly deprived the group of the
desired benefits
c. Justice Powell argued that the criminal procedure cases supported his
analysis since the indigent was totally deprived of transcript or attorney on
appeal.
d. Justice Marshall argued that they did not support Justice Powell since what
the indigent was really seeking was an appeal and he got it--it simply
wasn't as effective. The kids in a poor district are getting an education –
just not a good one.
iv. Justice Powell also argued that the deprivation in Rodriguez should not give rise to strict
scrutiny since there was no empirical proof that increased educational spending lead to
better academic performance.
v. Justice Marshall replied that most people act on the assumption that more money means
better schools and better student performance, and whether that can be empirically
demonstrated parents in property poor districts ought to have the opportunity to proceed
on that assumption just as parents in wealthy districts do. If parents in better funded
districts do not believe that more money means better education, why do they oppose
redistribution of educational spending so vigorously? Wealthy districts are acting on the
assumption that more money means better school.
vi. Justice Powell rejected the argument that Education was a fundamental interest explaining
that the Court doesn’t create fundamental interests simply because the interests are
important but only applies strict scrutiny under Equal Protection to those interests that are
explicitly or implicitly protected by the Constitution. Absolute equality in education is
Professor Bloom
Spring, 2000
not guaranteed even implicitly by the Constitution. Even though it is agreed that education
is important, but it does not make it fundamental.
vii. Justice Marshall agreed in dissent that there must be a nexus between the Constitution and
a fundamental interest but argued that that was the case since education enables a person to
use his constitutional rights to free speech and to vote more effectively.
viii. Justice Powell responded that the Constitution doesn't guarantee effective utilization of
constitutional rights.
1. A person has a constitutional right to send a child to a private school or to choose
to have an abortion but the state needn't make these rights effective by paying for
them.
2. Moreover, there is no way to determine whether a less well educated person is
unable to speak and vote as effectively as a more educated person nor is it possible
to determine whether the degree of public education that Texas provides all
students is in some sense inadequate.
3. Justice Powell also noted that Justice Marshall's nexus argument would also lead to
the conclusion that welfare and housing are fundamental interests (contrary to the
Court's precedents) since a person can’t speak or vote effectively if they are
starving or freezing.
ix. If education was not a fundamental interest and wealth was not a suspect classification,
Justice Powell did not believe that the strict standard should apply simply because both
were implicated by the Texas educational financing system.
x. Justice Powell also noted that rationality review was appropriate in this type of case since
the Court is hesitant to second guess complicated legislative taxing and spending plans
which inevitably involve expertise, difficult choices among priorities and political
compromise.
1. Powell also noted the justices’ lack of competence to decide education issues and
the traditional deference to state taxing and spending schemes. Have to let the
local governments make their own choices. Plus, schools are not the only things
financed by local property taxes.
2. Invalidating the Texas financing plan would caste doubt on similar plans in most
states and the rationale might extend to the financing of other municipal social
services as well including police and fire protection. Would have to decide these
other cases if we decided it affects education.
xi. Justice White would have invalidated the financing plan under rational basis analysis since
the state caps on the maximum school tax rates prohibited local districts from raising as
much money as other districts even if they were willing to tax themselves at an extremely
high rate thus it was inconsistent with the goal of local control. If they don’t have much
property wealth, there is a point where they can’t go any higher.
xii. Justice Marshall argued for a sliding scale approach to Equal Protection review under
which the Court would vary the level of scrutiny with the importance of the right affected
as well as the nature of the classification rather than adhering to the two traditional
standards of review.
1. Justice Powell and the Court rejected the sliding scale approach on the ground that
it was so ad hoc that it lacked ability to guide, constrain or predict and would thus
be subject to result oriented manipulation.
2. Rodriguez is a good example of a rule-oriented approach (Powell) contrasted with
a standards based approach (Marshall).
xiii. Justice Marshall noted that there were many formulas under which a state could combine
equal funding opportunities with local control.
xiv. Justice Powell responded that the state need not pursue less restrictive alternatives under
the rational basis test.
g. Edgewood ISD v Kirby
Professor Bloom
Spring, 2000
i. After losing in Rodriguez, the plaintiffs challenged the Texas school financing plan in state
court under the state constitution and eventually won.
ii. The Texas Supreme Court held that the plan violated the provision that required the state to
operate an efficient (meaning "serves its purpose") system of public schools.
iii. After extended political debate and a failed referendum, the Texas legislature passed and
the Supreme Court of Texas upheld a plan under which school districts above the state
median were given the option of sending a portion of their tax revenues to the state for
redistribution or sending revenues directly to a below median district.
iv. In Rodriguez, Justice Powell seemed to be attempting to settle the argument on
fundamental interest/ suspect classification analysis once and for all but subsequent cases
suggest that he may have succeeded imperfectly if at all.
h. Plyler v. Doe (1982)
i. The Court invalidated a Texas statute that denied the children of undocumented aliens a
free education charging them instead prohibitively high tuition to attend public schools.
ii. The case is arguably consistent with Rodriguez in that it involves a complete deprivation
based on an inability to pay.
iii. The court struck down the law as a violation of equal protection
1. Brennan stated that the Equal Protection Clause was meant to abolish all caste-
based and invidious class-based regulation
2. Brennan applied a rational basis standard and struck down the law despite the
state’s 3 stated reasons
iv. Justice Brennan wrote an opinion however that emphasized the importance of education,
the impact on indigent children and the blamelessness of the children which sounded quite
like Marshall's sliding scale approach especially since he applied an intermediate standard
of review.
v. Plyler could be read as an outright rejection of Justice Powell's attempt at a categorical
rule oriented approach in Rodriguez.
vi. In light of Cleburne, it is probably better understood as a particularly appealing case in
which the Court temporarily disregarded the Rodriguez framework in order to reach an
equitable result.
vii. Powell’s Concurrence
1. Powell argued for intermediate scrutiny
2. The statute classified the children because of a violation of the law by their parents
3. Powell compared this to the intermediate scrutiny given to classifications based on
illegitimacy.
i. Cleburne v Cleburne Living Ctr. (1985)
i. The Court invalidated an ordinance, which required a home for the feeble minded,
alcoholic, drug addicted or a prison to obtain a special permit.
1. The Court rejected the plaintiff's arguments to treat mental disability as a "quasi-
suspect classification" noting that mental retardation is often a relevant legislative
consideration, the mentally retarded (at least through their lobbies are not
politically powerless, there are different degrees of retardation and stricter review
might discourage reform).
2. Thus the Court applied rational basis review instead of intermediate review urged
by the plaintiffs, however it invalidated the permit requirement on the ground that
the state's justifications did not differentiate the home from other types of multi-
person dwellings that were not covered indicating that the rule was the result of
irrational prejudice.
ii. Justice Stevens concurred arguing that there is only one Equal Protection Clause thus no
need for different standards of review.
Professor Bloom
Spring, 2000
iii. Justice Marshall argued that the Court was obviously apply a higher standard than rational
basis review thus it should be honest and admit that it is applying sliding scale or
intermediate review.
iv. Cleburne may suggest that the Court does intend to cling to Powell's Rodriguez approach
in name but that it will apply standards disingenuously from time to time to reach a desired
result.
Professor Bloom
Spring, 2000
PART XIV: 14TH AMENDMENT
SUBSTANTIVE DUE PROCESS
PROTECTION OF NON-ECONOMIC RIGHTS
CONTRACEPTION & ABORTION
1. Early non-economic due process precedent

A. Meyer v. Nebraska (1923)
1) The court struck down a law prohibiting the instruction in public schools of any language other
than English
2) The 14th Amendment protects the right of the individual to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of free men.
3) This liberty may not be interfered with by legislative action, which is arbitrary without
reasonable relation to some purpose within the competency of the state to effect.
B. Pierce v. Society of Sisters (1925) -- The court struck down a state statute requiring children to attend
public schools.
2. Poe v. Ullman (1961)

A. Connecticut statute criminalized birth control
B. The court decided not to hear the case because it was not “ripe”
C. Justice Harlan’s Dissent in Poe
1) Justice Harlan’s dissent had an important impact in Griswold and Casey
2) 14th Amendment due process is not limited to the rights spelled out in the first 8 amendments
to the constitution, but rather those concepts which embraces those rights that are fundamental;
which belong to citizens of all free governments
3) But judges are not free to roam where unguided speculation might take them. The court must
look to the country’s history and traditions.
4) “Liberty” is a rational continuum, which includes a freedom from all substantial arbitrary
impositions and purposeless restraints.
a) Here Justice Harlan cites Meyer and Pierce
5) Each new claim of constitutional protection must be considered against a background of
Constitutional purposes, as they have been rationally perceived and historically developed.
6) How broad is the tradition?
a) Harlan’s Griswold & Poe opinions stop short of recognizing a general right to privacy
for sexual relations.
b) He explicitly rejected the idea that adultery, homosexuality, fornication, and incest
were protected by the same right to privacy.
c) Harlan distinguished these from the marital relations situation by noting that the state
allows (even encourages) the marital relation, and should therefore not be permitted to
use the criminal law to regulate the intimate details of that relation.
3. Griswold v. Connecticut (1965)

A. Bork wrote a law review article criticizing Griswold which cost him a spot on the Supreme Court
B. Background & Facts of Griswold
1) A Connecticut statute made it a crime to use contraceptives to prevent pregnancy – you could
use it to prevent disease.
2) The court rejected a challenge to the statute in 1943 for lack of standing. Tileston. And threw
it out again in 1961. Poe v. Ullman.
3) They had a hard time getting anyone charged under the law so they could have a case in
controversy.
4) Director of Planned Parenthood was charged as an accessory under the law.
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Spring, 2000
a) The court rules that the defendant had third party standing to assert the constitutional
rights of patients.
b) Requirements for 3rd party standing
(1) Relationship
(2) Obstacle to the 3rd party ever being able to assert their rights (i.e. unlikely
to be prosecuted)
(3) There must be some harm to the third party (chilling effect on married
couples)
C. Griswold discovers a constitutional right to privacy
D. How does Douglas find a right to privacy, which he relies on to invalidate the Connecticut law?
1) Various Zones of Privacy
a) Right of association
b) Prohibition against the quartering of soldiers
c) Prohibitions against unreasonable searches and seizures
d) 5th Amendment self-incrimination clause
e) 9th Amendment – “The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.”
2) The constitution gives penumbras and emanations of privacy
3) Examples
a) Right of association (NAACP v. Alabama)
(1) The first amendment protects the right of association with any people at
least for the purposes of free speech and political activity
(2) This right is necessary to protect the underlying freedom of speech
b) Right to educate and the right to study
(1) Pierce v. Society of Sisters
(2) Meyer v. Nebraska
(3) These were Lochner era cases; the court had rejected both of these laws
under the right to contract.
(4) Douglas takes these two Lochner era substantive due process cases and
resurrects them from the dead and re-rationalized them in Griswold as 1st
Amendment cases.
4) Where do these Bill of Rights protections of privacy and penumbras lead Douglas?
a) Douglas puts them all together and finds a right to privacy
b) Apparently he concludes that these penumbras and emanations combine to create an
independent freestanding right to privacy that is capable of protecting conduct that
would not be protected by the specific amendments.
c) Otherwise he wouldn’t need penumbras and emanations.
5) Why does this right to privacy protect the use of contraceptives by married people?
a) Douglas emphasizes the value and tradition of marriage
b) Marriage is a noble and valued association older then the Bill of Rights
c) “Would we allow the police to search the sacred precincts of marital bedrooms for
telltale signs of contraceptives?”
E. Douglas was trying to avoid Lochner
1) He was trying to find the right in the Bill of Rights and avoid Lochner
2) Douglas and Black were New Deal judges – they didn’t want to be accused of using Lochner
3) They were appointed to bury Lochner
F. Goldberg’s Concurrence
1) Don’t forget the 9th Amendment
2) The enumerated right do not preclude other rights
3) The 9th Amendment is not a source of rights – but there may be rights of constitutional
importance that aren’t in the constitution.
4) Traditional Interpretation of the 9th Amendment
Professor Bloom
Spring, 2000
a) Affirms that the BOR preempt all of the other rights derived from common law, state
statutes and state constitutions, or perhaps natural law – but it does not mean that these
rights are of federal constitutional status.
b) This traditional interpretation would make the 10th Amendment redundant.
5) The language and history of the 9th Amendment reveal that the framers of the constitution
believed that there are additional fundamental rights protected from governmental
infringement, which exist alongside those fundamental rights specifically mentioned in the first
8 amendments.
6) In determining which rights are fundamental, the court must look to the “traditions and
collective conscious of our people to determine whether a principle is o rooted there as to be
ranked as fundamental.” Issue of natural rights – don’t look to a document to create or confirm
your natural rights. This is not a lasting theory – look to documentation to find rights.
7) Just as the 9th Amendment showed that certain rights not enumerated in the constitution are
protected from federal intrusion, the 14th Amendment should be found to protect against state
action infringing on fundamental rights.
a) Goldberg found “marital privacy” among those fundamental rights.
b) Goldberg cites Harlan’s dissent in Poe to limit the right of intimacy to married couples
(1) The 9th Amendment support Justice Harlan’s approach
(2) If you can objectively find the right in the traditions of the country and
people – the 9th Amendment supports it. Some say 9th A. is a recognition
of natural rights thinking.
G. According to Stewart, the function of the 9th Amendment is to protect the states from the federal
government, not to allow the federal government to impose new rights on the states.
H. Harlan’s Concurrence in Griswold
1) Unlike Douglas, Harlan is ready to say that substantive due process is a valid doctrine so he
doesn’t need to find a right to privacy
a) The fact that substantive due process has been abused doesn’t mean it’s invalid
b) Harlan’s critique of Lochner is that the court used substantive due process to impose its
own values into the constitution – but there are rights that are there.
2) The question is whether the act is a specific aspect of liberty that receives special protection
a) Lochner got it wrong because it gave the right to contract more protection than
justified
b) But some liberties are more highly protected – these liberties must be identified on an
objective basis – includes his dissent in Poe v. Ullman as support.
(1) Look at traditions of civil rights and liberties
(2) History
(3) Values underlying our society
(4) Federalism and separation of power’s role in preserving American freedoms
3) Applying Harlan’s Fundamental Fairness Approach to Griswold
a) Tradition has fostered marriage – hard to establish or discern traditions
b) Tradition has also fostered intimacy in marriage
c) By fostering intimacy in marriage the state established that fundamental right
d) It’s objective – you can point to the tradition BUT traditions are sometimes defined
generally and could encompass more than you want. Description of the tradition can
be narrow or abstract and general. Also hard to get consensus behind the tradition,
Court will not look to abandoned traditions.
I. White’s Concurrence
1) In White’s view the law deprived married couples of “liberty” without ever having to address
due process.
2) The law simply does not make sense – It’s goofy
3) The law is in no way rationally related to the state purpose of banning illicit sexual
relationships
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Spring, 2000
4) It’s not even enforced
J. Black’s Dissent
1) Only the rights explicitly protected by a specific Bill of Rights provision are protected by the
14thAmendment
2) Total incorporation approach – The 14th Amendment was meant to apply the whole Bill of
Rights to the states – and the only rights constitutionally guaranteed are those listed in the first
8 Amendments of the Bill of Rights.
4. Bork’s Critique of Griswold

A. Douglas took rights from the 1st, 3rd, 4th, and 5th Amendments – none of which covered the case
before him – and said these various “zones of privacy” created an independent right to privacy.
B. Griswold is an unprincipled decision, both in the way it derives a new constitutional right and in the
way it fails to define that right. Do we believe in natural law and does it provide discoverable answers?
C. Where the constitution does not embody the moral or ethical choice – the judge has no basis other then
his own values upon which to set aside the community judgment embodied in the statute. Not sure
whether the courts are capable of philosophical analysis
D. The issue of the community’s ethical and moral values are matters concluded by the passage and
enforcement of the laws in question.
5. Eisenstadt v. Baird (1972) – bridge between Griswold and Roe

A. A birth control advocate was prosecuted under a Massachusetts statute, which made it illegal to
distribute contraceptives to unmarried persons. He had given a girl a free sample of a birth control
device after a lecture.
B. The court invalidated the law under Equal Protection using rational basis with a bite. Rights must be
same for married or unmarried – rights of the individual.
C. Brennan writing for a plurality – “If the right of privacy means anything it is the right of the
individual, married or single, to be free from unwanted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child.” Thus, marriage is
no longer a restricting factor.
D. Importance of marriage emphasized throughout the opinion.
6. Abortion & Roe v. Wade (1973) – most controversial decision

A. Jane Roe, an unmarried pregnant woman, brought a constitutional challenge to the Texas abortion law,
which criminally prohibited abortions except to save the mother’s life. A three judge district court
invalidated the law providing the state with an appeal right to the Supreme Court
B. Justice Blackmun engaged in a lengthy discussion of the history of abortion regulation from ancient
times to the present, which presumably was intended to show that protecting the life of the fetus as
opposed to the health of the mother was a relatively recent justification.
C. Possible state purposes in prohibiting abortion
1) Enforcing moral standards with respect to sexual conduct (not relied on in Roe.)
2) Protecting the health of the mother
3) Protecting the life of the fetus
D. What was the court’s constitutional basis for invalidating the restrictions on abortions?
1) Right to privacy derived from Due Process Liberty which the court previously interpreted as
protecting various activities with respect to
a) Marriage
b) Procreation
c) Contraception
d) Family relations
e) Child rearing
f) Education
2) What does Blackmun mean by “privacy”? p. 957
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Spring, 2000
a) Looking at the cases he refers to, “privacy” seems to mean autonomy.
b) Presumably autonomy of personal decision-making with respect to important life
decisions
c) It seems to have little to do with secrecy or confidentiality as Rehnquist points out
3) Is “privacy” a vague slogan?
a) Does the court decide what is to be protected and then call it privacy?
b) Rehnquist dissent
(1) “As Blackmun uses privacy it doesn’t seem to mean much.”
4) If there is a right to privacy, why does it protect abortion?
a) The right to privacy is broad enough to cover abortion
b) An unwanted pregnancy may cause medical harm to the woman both from pregnancy
and from having to care for an unwanted child, plus non-medical distress to the woman
and to others
c) Blackmun really seems to assume the right and jump to the burden (does the burden
outweigh the state’s interest? A bigger burden does not necessarily mean that it
warrants constitutional protection and avoid the burden)
d) Does the extent of the potential harm show that the abortion decision falls within the
privacy right?
e) Should the Court first have explained why the decision implicates a fundamental right
and then described the burden to show how the state is infringing the right?
E. Does the right to privacy mean that a person has a right to do whatever they chose with their body?
1) No--the Court explicitly rejects such a broad right of autonomy, which might include the right
to take drugs, engage in prostitution, commit suicide, drive a motorcycle without a helmet etc.
7. Personhood – Is a fetus a person within the 14th Amendment?

A. According to the Court, what would be the significance of concluding that the fetus is a "person" within
the meaning of the Fourteenth Amendment?
1) If the fetus is a person, then the challenge to abortion regulation collapses because the fetus
would be entitled to protection of life pursuant to the due process clause of the Fourteenth
amendment. Would have to give fetus Due Process Protection.
B. Why does Justice Blackmun believe that a fetus is not a constitutional person?
1) The term “person” would not seem to cover a fetus where it is used elsewhere in the
Constitution.
2) A common tool in textual interpretation is that if a word is used is used in several places, it
means the same thing throughout the document.
3) “Person” is used in several places where fetuses clearly would not apply.
4) The fetus generally has not been accorded legal rights at common law or by state statute, which
suggests that the framers f the 14th Amendment probably didn’t mean to protect a fetus as a
person. Counter to this would be an originalist argument.
C. Response to Blackmun’s Personhood argument
1) The trend at common law is certainly to extend greater rights to the fetus (but to what extent, at
least since Roe, is this done to deliberately attempt to undermine Roe?)
2) If the term liberty is capable of evolution, why isn't the term person capable of growth as well
(since in other contexts defenders of Roe are fond of the "living Constitution")?
3) Even if the fetus is a person, might the state not have a compelling interest in overriding its
right to life at least where there is a risk to the mother's life or a serious risk to her health
analogizing to the privilege of self defense?
D. Was it appropriate for the Court to conclude that a fetus cannot be a constitutional person?
1) Blackmun says, “We can’t tell when life begins” – Texas’s response to that was – “We did –
democratically – get out of the way!”
2) It seems like a standard question of textual interpretation for the Court. However, Judge Guido
Calabresi argues that it was the most divisive and destructive thing the Court could say in that
Professor Bloom
Spring, 2000
it suggests that if you disagree strongly you simply are not part of America akin to the Dred
Scott Court concluding a slave is not a citizen. There are classes of persons that do not count
under the Constitution – like Dred Scott. Personhood is a deeply moral and religious issue on
which people are divided.
E. Does the Court concede too much by concluding that it can't say when life begins? Shows that there is
not principled basis for deciding this – Texas government should not have decided it.
F. Must the Court adopt some theory of life to reach any decision at all?
1) Isn't Texas saying, if you can't tell when life begins get out of our way--we can and we have?
2) But the Court goes on to hold that no institution of government can say when life begins.
G. Why can't the state determine when life begins according to Justice Blackmun?
1) Theologians, philosophers and scientists are in disagreement on this issue so how can the Court
or the legislatures resolve it? **BUT as a practical matter, Court seems to be deciding this by
looking to viability. Court is forced to draw a line that is differently qualitative from the lines
it normally draws – perhaps cannot be defended on more of a moral or spiritual basis.
Someone has to draw the line – but why is Court more qualified than Texas legislature?
2) Blackmun obviously means the question of when "human" life begins since a fetus is
unquestionably life from the very outset.
H. What are the most obvious possibilities for dating the commencement of human life?
1) Conception - Texas
2) Quickening – fetus begins to move around
3) Viability – Court chooses here
4) Live Birth
Scientific v. Moral approach
I. How does the Court resolve the issues raised by the case?
1) It adopts an analytical framework that divides the pregnancy into three trimesters and varies the
degree of regulation accordingly.
2) First--Virtually no regulation – lower mortality rates of mothers during this trimester, so state
has no valid state interest in protecting the health of the mother.
3) Second--Regulation to protect the health and safety of the mother
4) Third--Prohibition to save the fetus. The fetus’s rights are capable of outweighing the rights of
the mother. The fetus has the capability of surviving outside of the womb. The third trimester
is determined by viability of the fetus, not timing of the pregnancy.
5) In the third trimester the fetus is viable, which happens about the third trimester.
* Trimester framework criticized for being like a hospital regulation.
J. According to the Court, why does the state's interest in protecting fetal life become paramount as of the
third trimester?
1) Because at that point, the fetus is viable – meaning it can live outside of the womb.
2) Why does that matter? The Court doesn't really explain.
3) According to Ely it mistakes a definition for a syllogism--a viable fetus can live outside of the
womb, but so what? You haven’t explained what viability means.
4) Is the Court suggesting that the protected right is a right not to be pregnant as opposed to a
right not to give birth an unwanted child?
5) Does the emphasis on viability put the Court on a collision course with itself, as Justice
O'Connor later charged, in that as science pushes viability back into earlier stages of the
pregnancy, the abortion right evaporates?
K. Ely/Bork/Epstein Criticism of Roe v. Wade
1) Roe was an illegitimate decision because the court could not decide it on a principled basis
2) Ely – The political compromise is a good one – if I were a legislator, that’s what I’d vote for –
but the court is not the right institution to decide this issue.
3) If a legislature imposes their values on people through legislation, the law can be changed if
the values change – if the court imposes its values, then value is entrenched in the constitution
– to change it, you have to amend the constitution or the court has to overrule itself.
Professor Bloom
Spring, 2000
L. How does the Court reach the conclusion that the trimester framework is the correct constitutional
approach?
1) It seems to engage in ad hoc tort law type interest balancing.
2) Is this type of interest balancing an inappropriate method for the Court to use to derive
intermediate or subsidiary rules from general constitutional language?
a) No--the Court engages in this type of analysis frequently.
b) The adoption of the three standards of review in the Equal Protection area is an
obvious example of an intermediate analytical framework that the Court has worked
out to provide structure to constitutional adjudication.
M. Why should ad hoc interest balancing be problematic then in the abortion context?
1) Arguably, because the Court has already conceded that this particular moral issue is
incapable of resolution on a principled basis, especially a principled basis derived from the
Constitution, and if that is so, then it is not the business of the Court to resolve. BUT if there is
no principled basis for enforcing the right, then maybe should not recognize at all.
2) Unlike the Supreme Court, legislatures need not resolve issues on the basis of principled rules
derived from some defensible constitutionally based source; rather they may legitimately
engage in the type of ad hoc interest balancing that is at the core of the decision in Roe v
Wade.
3) The original reason the Texas legislature passed the law was to protect the mother (1857)
a) The court is not going to make the legislature re-pass the law for a different reason
b) The state can argue a new justification different from the original justification.
4) Might it also be argued that the nature of at least one of the interests that the Court is
balancing--the commencement of human life--is qualitatively different from, in that it is more
morally or spiritually based, then the type of interests that the Court balances in virtually all
other constitutional cases.
N. What might be said in favor of the Court's interest balancing approach in Roe? Need for
Protection?
1) If the Court doesn't attempt to strike a balance, then the legislature will be able to completely
override the woman' s constitutional right to privacy with respect to the abortion decision.
2) Consequently, the Court must do the best it can even if its balance can be attacked as arbitrary
and unprincipled.
3) But might this suggest either that
a) The Court was wrong to recognize such a substantive right since it can't enforce it in a
principled manner or
b) This is a constitutionally right that exists but is not judicially enforceable (such as
would be the case with respect to the political question doctrine).
8. What is the nature of the argument that attempts to re-rationalize Roe v Wade on Equal Protection
grounds?
A. The argument tends to build on Judith Thompson's philosophical writing and has been transformed into
legal argument by Donald Regain, Laurence Tribe and others. Makes an equality-based argument that
we are under no duty to aid strangers. Fetus, who cares if it is a person or not, is a stranger and woman
should not be forced to come to its aid and save its life. State can’t order you to save this person. Duty
is imposed only on women and not on men and thus this a gender discrimination.
B. Our law generally does not impose a duty on persons to come to the aid third parties. “Bad
Samaritanism”
C. A prohibition on abortion forces a woman to be a human incubator for nine months and thus it imposes
a duty to aid the fetus.
D. This is gender discrimination in violation of Equal Protection since it can only be imposed on women.
1) The law places a special obligation on women it doesn’t place on men.
Professor Bloom
Spring, 2000
E. The seeming strength of the argument is that it eliminates the need to wrestle with the issue of the
beginning of human life since there is no duty to aid human beings as Thompson illustrates with her
violinist hypothetical.
F. Challenges to the argument
1) The no duty to rescue doctrine is one of the most criticized doctrines in Anglo-American law
so it seems like a strange choice for providing the foundation of important contemporary legal
right.
2) There are exceptions to the no duty rule
a) "Special relationship"
b) If the person is responsible for the victim's plight.
3) Might not both of these exceptions cover at least voluntary pregnancies?
G. Does the Equal Protection approach tend to relieve women of all responsibility for pregnancy, and if
so, is that in and of itself a problematic gender based stereotype? In other words is Thompson's "people
seeds" hypothetical misleading?
H. Following Roe, a number of commentators tried to analyze the case and figure out what Roe stands for.
1) Tribe – Abortion Restrictions are the result of improper religious domination of the political
process (which he later disavowed)
2) Justice Stevens was attracted to this approach in Casey
3) Tribe’s second approach – Invalidation of the Restrictive abortion laws is a legitimate attempt
to break political gridlock – Court shouldn’t have to break up political logjams. Only a limited
justification might validate eliminating existing abortion laws but does not validate the Court
coming up with their own solution. Doesn’t provide for an affirmative judicial solution.
4) Tribe’s third approach – Equal Protection rationale
5) Professor Perry – distinction between public and private morality
6) Dean Wellington – opinion is an example of Court creating fundamental values jurisprudence
that represents public consensus – BUT there is no public consensus on abortion otherwise it
would not be so controversial. Why is it the Court’s business to impose a consensus?
* Following Roe, the Court was relatively protective of the right recognized in Roe. It invalidated many
requirements imposed by state legislatures.
Refused to extend Roe to public funding of abortion. It rejected both Equal Protection and Due Process challenges
to state and federal legislation under which the government paid for the costs of childbirth but not abortion arguing
that a failure to pay did not unduly burden exercise of the right. See Casey below.
9. Planned Parenthood v Casey (1992)

A. During the 20 years after Roe, the court generally rejected all restrictions on abortions
B. Except in funding
1) The state will pay for childbirth, but not abortion
2) The court held that refusing to fund abortions is constitutional
3) The state has a right to take a position. It cannot deny the right to abortion, but it doesn’t have
to pay for it.
C. It appeared that there were five justices on the Court (Rehnquist, White, Scalia, Thomas and Kennedy)
prepared to overrule Roe v Wade, and a sixth (O'Connor) who might concur when Casey was argued.
D. Apparently five justices voted to overrule Roe, Rehnquist wrote the opinion but Kennedy changed his
mind.
E. What does the Joint Opinion (joined by Kennedy and O'Connor and apparently written by Souter)
purport to establish in Part I? Joint Opinion is key to the survival of Roe v. Wade.
1) It attempts to revise Roe v. Wade.
2) The essential holding of Roe is affirmed--a woman can choose to have an abortion prior to
viability without undue interference from the state. Remember, core of Roe v. Wade is
viability.
3) The state may prohibit abortion after viability if there are exceptions with respect to danger to
the woman's life and health.
Professor Bloom
Spring, 2000
4) Established an undue burden standard instead of strict scrutiny test
a) The standard came from the differential funding cases
b) It was O’Connor’s approach all along
c) The court had previously applied strict scrutiny to any attempt to regulate abortion in
the 1st trimester
5) The state has a legitimate interest from the outset in the health of the woman and the life of the
fetus.
F. What does the Joint Opinion establish in Part II? Court explains in more detail exactly what the nature
of the right of privacy is and where it comes from. It is a decisional autonomy right – ability to make a
decision one way or the other about something that is of extreme significance to a woman’s body. This
is a uniquely personal decision to the woman.
1) Due Process has a substantive component recognized since Mugler v Kansas.
2) Substantive Due process liberty is not limited to rights explicitly protected by the Bill of Rights
nor to the practices of the states at the time of the framing of the 14th Amendment.
3) Such liberties are not protected only at the most specifically defined levels.
4) Harlan in Poe described this protected liberty as a rational continuum – court has to evaluate
where the particular activity falls along that continuum.
5) Protected liberty includes intimate and personal choices central to dignity and autonomy.
6) At the heart of liberty is the right to define one's own concept of existence, meaning, the
universe and human life,
7) Abortion is fraught with consequences for others.
8) The woman's suffering is too intimate and personal for the state to insist on its own version of
her role.
9) Her destiny must be shaped by her own version of her spiritual imperatives and her place in
society.
G. How does the plurality in Casey apply its principles to abortion precedent in general (part IV)?
1) Viability should still remain the line at which the state's interest in protecting fetal life should
be capable of overriding the woman's right to choose.
2) No line other than viability is workable.
3) The trimester approach is not essential to Roe's holding and is abandoned.
4) The state may enact laws, which attempt to ensure that the woman's choice is thoughtful and
meaningful even before viability.
a) A state law violates liberty only if in purpose or effect it imposes an undue burden on
the woman's choice by putting a substantial obstacle in her path.
b) The woman's right is to make a decision--not to be insulated from information.
5) The state may enact regulation to further the health and safety of the woman at any point
during the pregnancy.
H. How does the plurality apply its principles to the Pennsylvania statute?
1) The medical emergency exception does not impose an undue burden as construed (majority).
2) Informed consent provision (requiring physician to advise of risks, nature of procedure, age of
fetus and alternatives) does not impose an undue burden (plurality)
a) Akron I & Thornburgh are overruled.
b) Pennsylvania gave the mother materials that told her of the consequences to the fetus
and did not relate at all to her health.
3) The state may express its preference for childbirth.
4) A 24-hour waiting period does not seem unreasonable on this record in and on the face
challenge. Give the woman an opportunity to digest the information the state provides, not
intended to be burdensome (financial burden for those who cannot afford to stay overnight at
clinics that they traveled to).
5) Spousal notification imposes an undue burden (majority).
Professor Bloom
Spring, 2000
6) Parental consent with judicial bypass is constitutional--Hodgson and Belloti. Minor has the
opportunity to go into court and plead why parents don’t need notification (parents are abusive
and knowledge of teen pregnancy would be detrimental to well-being of girl).
I. Stevens concurring & dissenting in Planned Parenthood v. Casey – likes things under Roe
1) The interest in potential life is not grounded in the Constitution.
2) The state should not be able to inject material into the woman's decision-making process in an
attempt to change her mind.
3) There is no showing that the 24-hour waiting period benefits the woman.
J. Blackmun concurring – defends Roe and has written most of the Court’s abortion opinions, but would
be receptive shifting the justification from due process privacy to equal protection approach
1) Gender equality is implicated in that women’s bodies are conscripted into service against their
wills.
2) The trimester framework is still workable.
3) Viability is a sensible, objective biological standard.
4) The Court has invalidated most of the provisions it now upholds.
K. Why does Rehnquist (with White, Scalia & Thomas) believe that Roe v. Wade should be
overruled?
1) There is no deep historical tradition supporting the position that the abortion decision is
fundamental.
2) The Joint Opinion won't proclaim that Roe was correct when it was first decided.
3) Its not enough that people have grown used to Roe.
4) The Court shouldn't worry about appeasing one side or the other since a decision either way
will give rise to the perception that the Court yielded to pressure.
5) The Court actually rejects much of Roe by adopting the undue burden and substantial obstacle
standards.
6) Rational basis is the proper standard.
7) Rehnquist also criticized the majority for striking down the husband notification provision
a) A husband’s interests in procreation within marriage and in the potential life of his
unborn child are certainly substantial ones.
b) The state itself has legitimate interests both in protecting these interests of the father
and in protecting the potential life of the fetus
c) Spousal notification is reasonably related to advancing those state interests.
d) The state also has a legitimate interest in promoting “the integrity of the marital
relationship.”
8) Rehnquist also brings up the debate about whether the fetus is a person
a) There is an effect on potential human life
b) To look “at [abortion] which is assuredly the subject of a liberty interest in isolation of
its effect on other people [is] like inquiring whether there is a liberty interest in firing a
gun where the case at hand happen to involve its discharge into another human’s
body.”
L. Why does Scalia (with Rehnquist, White & Thomas) believe that Roe should be overruled?
1) The whole argument of abortion opponents is that what the court calls the fetus and what others
call the unborn child is a human life.
a) There is no way to determine that as a legal matter
b) It’s a value judgment
2) The Constitution does not speak to the abortion decision and there is no long-standing tradition
supporting it.
3) The Court's adjectives--undue burden and substantial obstacles are simply attempts to conceal
its value judgments. Hard to tell what these are.
4) A state can only pursue its interest in potential life if it isn’t too successful.
5) The Court's conception of stare decisis is unprincipled in that it seems to be-- keep what you
like and throw away the rest.
Professor Bloom
Spring, 2000
6) The trimester framework seemed as essential to Roe as the viability standard.
7) The Court should not stand behind a wrongly decided case simply to prove that it can.
8) Scalia also says that the right should be narrowly defined.
10. Conservation & Tradition (Differing views on tradition)

A. The differing views of the authors of the joint opinion and the dissenters, particularly Scalia, have a
lasting importance.
B. Justice Scalia views tradition as consisting of a number of discrete, static practices and beliefs.
1) Tradition plays something of a “trade usages” role as in construing contracts
2) We know the word “liberty” does not include abortion because of a consistent history of past
legislation.
C. The joint opinion (like Frankfurter in Adamson and Harlan in Poe and Griswold) portrays tradition as a
subject of growth and reconsideration.
1) This view of tradition parallels the joint opinion’s concern about stare decisis (discussed
below)
2) The common law, with its deep respect for precedent, but also a historic ability to grow,
provides a model that connects both living tradition and stare decisis.
3) To determine the scope of “liberty”, the joint opinion relies on common law techniques like
analogy with other precedents, rather than the clear deductive logic Scalia demands in his
dissent.
11. What factors should the Court consider in deciding whether to overrule one of its precedents
according to the joint opinion? Note: the legitimacy of the Court would be undermined if it were to
overrule Roe. If the Court overruled Roe w/out a compelling reason to do so, it would be seen as
surrendering to political pressure.
A. 4 Factors – Stare decisis – doctrine says that courts should not lightly overturn precedent. Where a
constitutional decision has not proven “unworkable” and where overturning it would damage reliance
interests, stare decisis dictated that the decision should not be overturned.
1) Has the rule proved unworkable?
2) Has there been a reliance interest, which would lead to a special hardship? People like
predictability.
3) Has the doctrine been abandoned?
4) Have the underlying facts changed?
B. How does the Joint Opinion apply these principles to Roe? Apply test of stare decisis to Roe.
1) Roe is controversial but not unworkable – it works in the real world and the line of viability is
a decent enough line.
2) Reliance interests are stronger in the commercial context however two decades of women have
relied on the availability of abortion. Not your typical reliance case, could order your affairs
differently in 9 months. Reliance interest is on the right to privacy – as established in
Griswold, Roe, etc. People have assumed for 30 + years that right to privacy is a constitutional
right. The concept of taking away a constitutional right has great impact – even if one never
uses it.
3) It has not been undermined or legally abandoned.
4) Any factual change relates to the strength of the state's interest – viability is still undefined and
not been undermined.
* So, no good reason to overrule Roe.
C. How does the Joint Opinion explain the Court's decisions to overrule Plessy v Ferguson and Lochner v
New York?
1) Plessy--Brown recognized that racial segregation did stigmatize.
2) Lochner--It was proved to rest on incorrect assumptions about the capacities of unregulated
markets.
3) Thus both were overruled due to changed factual predicates.
Professor Bloom
Spring, 2000
D. Does this seem like an adequate explanation of either of these overrulings?
1) Wasn't Plessy overruled, at least in part, because Brown concluded that stigma mattered and
Plessy didn't really care
2) Wasn't Lochner overruled because the Court concluded that there was no acceptable basis for
treating the right to contract as a fundamental right; thus both reflected changes in the law
rather than the facts. Right to K is not so special.
12. What is the basis of the Court's legitimacy as a constitutional interpreter according to the Joint
Opinion?
A. The Court's legitimacy is derived from the people's acceptance of the Court, which is in turn based on
the understanding that the Court's decisions are based on principled justifications grounded in the
Constitution and not merely on political or social compromises.
B. Isn't the Joint Opinion's explanation of judicial legitimacy the very reason that Ely and other critics use
to challenge Roe’s legitimacy as a constitutional precedent; that is, the lack of a principled justification
derived from an accepted constitutional source?
1) Ely & Scalia – The court made a political compromise and cannot defend Roe or Casey on
principled constitutional grounds.
C. Why does the Joint Opinion believe that the Court must be cautious about overruling past precedent?
1) The Court has created a bond with those who have relied on and obeyed its precedents.
2) Frequent overruling would cause the public to question whether the Court was really
interpreting the law or merely creating and reworking political compromises. Don’t want to be
seen as giving in to partisan pressure.
3) Once the court takes a position on something, it has an obligation to stick to it for those people
who relied on it
a) Scalia – That’s an excuse to be stubborn
13. Does the right to privacy extend to Consensual Sexual Activity – (Homosexual Relations)?
A. Bowers v. Hardwick (1986), after, one of the Court’s more controversial issues
1) The Court rejected a substantive due process privacy challenge to the application of a Georgia
sodomy statute to a homosexual act where the charges were dropped and the plaintiff sought a
declaratory judgment that the law was unconstitutional under the right to privacy. Statue
prohibits sodomy period.
2) The issue according to the Court was "Whether the Federal Constitution confers on
homosexuals a fundamental right to engage in sodomy? " What level do you describe the
right/how general should you be?
3) No Tradition: The Court rejected the Privacy challenge because
a) There was no tradition permitting or protecting homosexual sodomy,
b) It not related to family, marriage or procreation,
c) There is no constitutional principle protecting private sexual conduct.
4) Consequently, the rational basis standard applied and enforcing public morality is a legitimate
state interest. Rejects principle that you have the liberty to do whatever you want as long as
you don’t harm anyone else.
5) Blackmun’s & Steven’s Dissents
a) Justice Blackmun dissenting would vary the level of abstraction defining the issue as
whether there is a right to "intimate association" (which he would find) rather than
asking whether there is a right of homosexual sodomy. He argued that the statute did
not support any legitimate state interest. To have a protective enumerated right, have
to describe generally to encompass some of the more eccentric practices.
b) Both Justices Blackmun and Stevens argued that enforcing majoritarian morality where
there was no showing of non-moral harm was an impermissible state purpose in that it
was nothing more than legislative protection of irrational prejudice. What’s the point
of this law? State might reply that under police power to protect health, welfare,
Professor Bloom
Spring, 2000
safety, and morals, this activity is wrong. Law has a strong moral component. Is it
OK that there is no tangible harm? BUT is state trying to impose its moral prejudices
on everyone else.
6) Libertarian vs. Moralist Approaches to the Regulation of Sodomy – Biggest issue
a) Bowers raises the much debated question of whether protecting against pure moral
harm is a legitimate state interest or merely majoritarian hostility.
b) In Paris Adult Theaters v Slaton (1973), the Court also seemed to accept pure moral
harm as a legitimate state end in the context of adult theater regulation. No
unsuspecting person would be harmed since so much notice as to the nature of the
films there.
c) The question of the legitimacy of prohibiting moral harm was the subject of a famous
philosophical debate between H L A Hart (Law, Liberty & Morality (1965)) and Lord
Patrick Devlin (The Enforcement of Morals (1965)).
(1) H.L.A. Hart (leading moral philosopher of 20th century) argued in favor of
decriminalizing sodomy in England. Echoing the libertarian philosophy of
John Stuart Mill, Hart argued that the law should not intrude into the private
sphere unless private conduct caused harm to others; the criminal law should
not seek to impose majority moral belief upon an unwilling minority.
(2) Lord Patrick Devlin (leading judge in England) responded that law and
morality were necessarily interconnected and that many crimes are only
explicable upon grounds of moralism.
d) The real issue is how you define “Harm”
7) In retrospect, many commentators have argued that an Equal Protection challenge, perhaps
casting the argument in terms of gender discrimination might have been more successful.
B. Romer v Evans (1996) Bloom covered after US v. Virginia
There seems to be a restructuring of the political process going on. Restructuring cases have
been limited to racial classifications and racial issues.
1) Aspen, Denver, and Boulder Colorado adopted local ordinances, which banned discrimination
in housing, employment, education, public accommodations and health and welfare services on
the basis of sexual orientation. Essentially includes sexual orientation with race and gender.
2) The voters of Colorado passed a referendum which provided that neither the state nor its
subdivisions may enact any regulation whereby "homosexual, lesbian or bisexual orientation,
conduct practices or relationships shall…entitle any person… to claim minority status, quota,
preferences, protected status or claim discrimination” Effect is to say local communities no
longer have the power to do what they did and the state legislature does not have this power. If
you want to pass a law that protects gay and lesbian status under Civil Rights laws, would have
to amend the state constitution. – Significant restructuring took place – decision-making moved
from local level to Constitution.
3) The state Supreme Court applied strict scrutiny and rejected the state's justifications.
4) The US Supreme Court invalidated the amendment on the ground that it could not survive
rational basis review in that the target of the ordinance was so narrow (homosexuals – targets
gays and lesbians) and the coverage was so broad (all state benefits) that it appeared to serve
no legitimate state purpose and was simply the result of prejudice. Not very often does the
court invalidate legislation on a rational basis review – does so because of tailoring (totally
arbitrary and irrational). But, here there is no legitimate state purpose at all.
5) The Court noted that – points to the restructuring
a) It repealed existing laws and made the enactment of new protective laws much more
difficult.
b) It treated homosexuals different than all other groups subject to protection by
antidiscrimination laws. – Narrowness of the law
c) It applied to the private and the public sphere – too broad
Professor Bloom
Spring, 2000
d) It seemed to preclude protection of gays under even general antidiscrimination laws
preventing arbitrary discrimination against any person.
e) It provided a special disability since only homosexuals need to amend the constitution
to obtain protection.
f) It provided a broad and undifferentiated disability on a single named group.
g) It denied one group access to government protection.
6) The Court did not
a) Repudiate Bowers v Hardwick – doesn’t even mention it
b) Suggest that sexual orientation was a suspect classification – doesn’t need to because it
relies on rational basis
c) Or rely exclusively on the cases, which hold that it is unconstitutional to restructure the
political process to the detriment of racial minorities.
7) Relevant factors in the court analysis: if not all present does a case come out a different way?
a) Narrowly targeted class
b) Breadth of coverage
c) Change in the locus of protection –move from one place of protection to another
d) Constitutional entrenchment – probably going to have to get a super majority in order
to change the rules – restructuring +
e) Apparently the result of hostility
f) Application to status rather than conduct
g) Application to a class not a classification
8) Scalia’s dissent in Romer v. Evans –perhaps this is a legitimate moral disagreement, not out
to get gays and lesbians
a) Scalia depicts gays as a group earning higher than average incomes and wielding
political power much greater than their tiny numbers would suggest. The result is
“special rights” legislation.
b) If it is constitutional to criminalize the conduct that defines the class (Bowers) – surely
it is constitutional for a state to enact other laws merely disfavoring homosexual
conduct.
c) The Court is once again imposing the views of the elite class on the country.
d) The referendum denies special but not general protection.
e) The principle seems to be that a group is denied equal protection if it is required to
appeal to a more general and difficult decision making process for relief (referring to
the state wide vote on the referendum as compared to the local votes)
f) The law is an attempt to counter the geographic concentration of homosexuals in
Aspen and Boulder by removing the issue to the state level.
g) It is indistinguishable from state constitutional bans on polygamy.
h) It is a legitimate expression of moral disapproval rather than prejudice.
Significance of Romer – applies some sort of heightened equal protection review to government action that
disfavors homosexuals.
Some say that this is an easy Equal Protection case
Some say this is like a Bill of Attainder (legislative burdening of one person or an identifiable closed class of
persons), but is it a sufficiently closed class?
Restructuring of Political Process – but not a suspect class?
When the majority writes an opinion that does not have a clear hard line rule, it becomes an easy target for a
dissenter.
A lot is arguable open after this case – voters may still do some things
Professor Bloom
Spring, 2000
PART XV: 14TH AMENDMENT
REQUIREMENT OF STATE ACTION
State Action:
Comes out of the 14th Amendment – due process of law or deny equal protection – states were denying protection
of the law to former slaves – aimed specifically at what states were doing
14th A. and BOR requires that the state be involved in denial of rights
Does not apply to private deprivation – eg. SMU does not violate rights b/c we are a private institution
Hopwood applies to SMU, but not b/c of the 14th A. – Have to abide by b/c of Title VI – we take federal funds
If we have what seems to be a private institution that seems to be denying a constitutional right – look for a
connection between state and private institution in order to apply equal protection
Civil Rights cases – Congress prohibited racial discrimination in inn – beyond Congressional power
Harlan dissent said we could find state action – under section 2 enforcement power of 13th A.
Decline of State Action – court began to feel uncomfortable w/ state action when faced w/ racial discrimination
cases – trying to find state action wherever it could
Happened to such an extent that some believed that state action doctrine was dead – but proved to be inaccurate
prophecy
Common Themes:
1. The performance of a public function by a private party or
1. Authorization or encouragement by the state
Court built on these theories in late 60’s
Marsh v. Alabama – (1946) – case involved a company town – owned and operated by a corporation
Court found state action and a 1st A. violation where Jehovah’s Witnesses were prohibited from distributing
literature on the streets of the town
Court concluded that running a town constituted a public function – if it looks like a duck and quacks like a duck
Landmark – public function doctrine
Application to Shopping Centers – equivalent to a company town

Malls didn’t like people handing out literature, can’t exercise 1st A. rights here unless we let you
Court said like a town in Marsh but later pulled back and said that there are more differences than similarities –
people don’t live there, they just seem to and doesn’t have the same characteristics of a town
Not going to recognize a shopping mall as state action
One area where states have gone on their own in their state constitutions – thought the court got it right at first (NY,
CA)
Other leading examples of public function doctrine – white primary cases

1940s Court held that local democratic party organizations in TX could not operate private racially discriminatory
primaries since running an election was clearly a state function thus state action existed and the 14th A. applied =
running an election is a public function
Shelley v. Kramer – controversial state action case – restrictive covenant case

Covenant prevented white seller from re-selling to minorities
Other homeowners sued one for breach of K
Question of state action – is this state action or is it a private K between some people? Court found state action but
difficult to explain why – if you have to go to court to debate your property rights, then that is state action
Court explains that the state does not have the right to stand between a willing buyer and seller and prevent the sell
on racial grounds. Problem is that there are 3 parties to the K – other property owners are not willing
Douglas explained Shelley as Public Function Doctrine – if private parties try to engage in zoning practices, assume
zoning of the state
Professor Bloom
Spring, 2000
Tribe – as a general rule, court is opposed to restrictive covenants
Burton v. Wilmington Parking – symbiotic relationship theory

Parking garage that rented space to a coffee shop that discriminated based on race
Court emphasized the relationship between state and private entity – garage and coffee shop were related – both
profiting from each other’s location - when the 2 support each other, sufficient to show state action
Civil Rights Act of 1964 – most of the cases where the court defined state action broadly was in civil rights cases –
however, most private institutions were controlled by federal law once the act was passed, so no more need to find
broad state action
Court hears a lot of state action cases in Procedural Due Process – Court usually has declined to find state action
when the issue is presented (starting in early 70s)
Court wants to find good reasons why state action is needed – racial discrimination presented these good reasons
Court has cut down public function doctrine – to prove a case today, have to show that this is the sort of function
that is traditionally and exclusively performed by the state (be careful with word exclusive) eg. Schools, hospitals,
parks – both state and private industry run these
No public function:
1. Operation of utilities
2. Settling debtor creditor disputes
3. Sponsoring Olympic team
4. School
Authorized and Encouraged – has to be compelled – unless state says that this is the way you HAVE to do it, it is
not state action
Heavy regulation – licensing is not enough, heavily regulated or subsidized is not enough, state created monopoly –
not enough to find state action
Court made this difficult to prove – only one symbiotic relationship found
Edmonson v. Leesville Concrete – Court found state action in jury selection process
BUT this test is not applied across the board – only here, case driven by the fact of racial discrimination in judicial
process
Professor Bloom
Spring, 2000
Professor Bloom
Spring, 2000

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CONSTITUTIONAL LAW

PART I: JUDICIAL REVIEW

I. Marbury v. Madison (1803 – J. Marshall)

2. First Issue in Marbury: Is there a right?

3. Second issue: Is there a remedy?

C. The counter-arguments to Judicial Review

5. Judicial Restraint vs. Judicial Activism – 2 Faces of Marbury

6. Why vest this power of constitutional interpretation in the court?

7. Is judicial review necessary to effectively limit power?

F. Following Martin – The Supreme Court invalidated state legislation on constitutional

I. Slavery/Race in the Constitution – Reconstruction Era

6) Substantive Guarantees: 3 substantive provisions

a. Whose privileges or immunities are protected by the 14th Amendment

III. BROWN AND THE REMEDY

2. Fashioning the remedies

4. Was the Court’s approach a mistake? Was gradualism an error?

6. Brown and Marbury

7. Cooper v. Aaron (1958)

8. Developments after Brown - School Desegregation from Brown

10. The Nature of Constitutional Adjudication

11. The Tailoring Principle

Immutable Trait – cannot change

1. Laws that Expressly Classify by Race

C. Race as a Suspect Classification

A. Three Theories of Carolene Products

3. Facially Neutral Classifications (Discriminatory Intent and Effects)

F. “But for” not merely “in spite of”

2. Regents of the University of California v. Bakke (1978)

3. Fullilove v. Klutznik (1980)

4. Wygant v. Jackson Board of Ed. (1986)

5. City of Richmond v. J.A. Croson Co. (1989)

6. Is the court correct in requiring a fact-finding or solid proof of discrimination?

D. Assessing Croson’s Impact

7. Metro Broadcasting v. FCC (1990)

8. Adarand Contractors v. Pena (1995)

9. Hopwood v. Texas (5th Cir. – 1996)

1. The Rational Basis Standard of Review

2. Heightened Scrutiny – From rational basis to Intermediate Scrutiny in Gender cases

4. Craig v. Boren (1974)

6. What can be said for and against the intermediate standard

8. Real Differences Between Men and Women

B. Rostker v. Goldberg (1981)

6. Mental Disability - City of Cleburne v. Cleburne Living Center (1985)

7. The Right to Travel – fundamental interest – strict scrutiny applied

8. The State Criminal Process

9. Basic Rights for the least advantaged - Wealth as a Suspect?

1. Early non-economic due process precedent

2. Poe v. Ullman (1961)

3. Griswold v. Connecticut (1965)

4. Bork’s Critique of Griswold

5. Eisenstadt v. Baird (1972) – bridge between Griswold and Roe

6. Abortion & Roe v. Wade (1973) – most controversial decision

7. Personhood – Is a fetus a person within the 14th Amendment?

9. Planned Parenthood v Casey (1992)

10. Conservation & Tradition (Differing views on tradition)

Application to Shopping Centers – equivalent to a company town

Other leading examples of public function doctrine – white primary cases

Shelley v. Kramer – controversial state action case – restrictive covenant case

Burton v. Wilmington Parking – symbiotic relationship theory

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