Con Law Outline (New)

Constitutional Law – P.
Manian Spring 2023

Intro to the Constitution.............................................................................................................................................................................. 1
Constitution’s Goals.................................................................................................................................................................................1
Constitution’s Functions.......................................................................................................................................................................... 1
Horizontal Division of Power: The Three Branches.........................................................................................................................1
Vertical Division of Power: Federalism and State’s Rights.............................................................................................................. 2
Protection of Individual Liberties: An Overview..............................................................................................................................2
Constitution’s Division of Power.................................................................................................................................................................3
Judicial Branch........................................................................................................................................................................................ 3
Marbury v. Madison: Foundations of Judicial Review..................................................................................................................... 3
Limits of Judicial Interpretation........................................................................................................................................................4
Interpretive Limits: Originalism v. Nonoriginalism................................................................................................................... 4
Justiciability Limits:................................................................................................................................................................... 5
Legislative Branch................................................................................................................................................................................. 11
Federalism & the Scope of Congressional Power...........................................................................................................................11
Requirements for Constitutional Congressional Action........................................................................................................... 11
Federalism or State Sovereignty?............................................................................................................................................. 12
Necessary & Proper Clause...................................................................................................................................................... 12
Congress’ Constitutional Powers.................................................................................................................................................... 13
Commerce Power..................................................................................................................................................................... 13
The Four Eras of Commerce Clause Jurisprudence...........................................................................................................13
First Era: Gibbons Defines the Commerce Power...................................................................................................... 14
Second Era: The Lochner Era (1890s-1937)............................................................................................................... 15
Third Era: Broad Federal Commerce Power (1937-1990s)........................................................................................ 16
Fourth Era: Present Rules............................................................................................................................................17
Limits on Congress’ Commerce Power: States’ Rights.....................................................................................................19
Taxing & Spending Power........................................................................................................................................................19
Limits on Congress’ Spending Power: The 10th Amendment.......................................................................................... 20
§ 5 XIV Amendment & Post-Civil War Amendments............................................................................................................. 20
Post-Civil War Amendments..............................................................................................................................................21
Congress’ Ability to Enforce Post-Civil War Amendments.............................................................................................. 21
Who may Congress Regulate?.....................................................................................................................................21
What is the Scope of Congress’ Authority Under Post-Civil War Amendments?...................................................... 22
Executive Branch...................................................................................................................................................................................23
Inherent Presidential Power: The Four Models.............................................................................................................................. 23
Separation of Powers & Foreign Policy: The War Powers............................................................................................................. 25
Issue One: Are foreign policy and domestic affairs different under the Constitution?............................................................ 26
Issue Two: What are the Constitutional limits on Treaties & Executive Agreements?............................................................26
Issue Three: How is Decision-Making Power over War Powers Allocated?........................................................................... 26
War on Terrorism............................................................................................................................................................... 27
Checks on the President: Civil Lawsuits.........................................................................................................................................27
Suing & Prosecuting the President........................................................................................................................................... 27
Limits on State Regulatory & Taxing Power...........................................................................................................................................28
Preemption of State & Local Laws........................................................................................................................................................28
Dormant Commerce Clause...................................................................................................................................................................29
Privileges & Immunities Clause (Art. IV, § 2)...................................................................................................................................... 29
Protection of Individual Liberties.............................................................................................................................................................30
Constitutional Structure of Civil Right Protection................................................................................................................................ 30
The Importance of Governmental Structure................................................................................................................................... 30
Sources of Rights............................................................................................................................................................................ 30
Bill of Rights............................................................................................................................................................................ 30
14th Amendment...................................................................................................................................................................... 31
Applying Rights as a Limit to Conduct................................................................................................................................................. 31
Application of Rights as a limit to Federal Conduct................................................................................................................ 31
Application of Rights as a limit to State Conduct................................................................................................................... 31
Application of Rights as a limit to Private Conduct: The State Action Doctrine.....................................................................32
Rational Basis Test...................................................................................................................................................... 35
Intermediate Scrutiny Test...........................................................................................................................................35
Strict Scrutiny Test...................................................................................................................................................... 36
On Substantive Due Process........................................................................................................................................37
Economic Substantive Due Process: The Lochner Era............................................................................................... 38
Equal Protection......................................................................................................................................................................................... 39
Brief History & Development............................................................................................................................................................... 39
Equal Protection Framework................................................................................................................................................................. 39
Equal Protection Applied.......................................................................................................................................................................41
Rational Basis in Equal Protection..................................................................................................................................................41
Legitimate Purpose................................................................................................................................................................... 41
“Reasonable Relationship”....................................................................................................................................................... 42
Tolerance for Underinclusive Laws................................................................................................................................... 42
Arbitrary & Unreasonable Laws: Rational Basis “with bite”............................................................................................ 42
Miscellaneous Classifications Under Rational Basis............................................................................................................... 43
Strict Scrutiny: Race & National Origin Classifications.................................................................................................................44
Facially Discriminatory Laws.................................................................................................................................................. 44
Unilateral Burden Laws..................................................................................................................................................... 44
Bilateral Burden Laws....................................................................................................................................................... 45
Segregation Laws...............................................................................................................................................................45
Racial Classifications Benefiting Minorities: Affirmative Action........................................................................................... 47
Facially Neutral Laws: Disparate Impact and Discriminatory Purpose................................................................................... 52
Intermediate Scrutiny: Gender Classifications................................................................................................................................53
Proving Gender Classifications: Facial & Neutral Laws..........................................................................................................54
Finding “Discrimination” in Implied Classifications............................................................................................................... 54
Gender Classifications Benefitting Women..............................................................................................................................55
Benefiting Classifications Based on Role Stereotypes...................................................................................................... 55
Benefiting Classifications as Remedies............................................................................................................................. 55
Benefiting Classifications Based on Biological Differences............................................................................................. 55
Fundamental Rights Under Due Process................................................................................................................................................. 56
Brief History & Incorporation............................................................................................................................................................... 56
Initial Bill of Rights Incorporation Cases....................................................................................................................................... 56
Incorporation of Unenumerated Rights...........................................................................................................................................56
Due Process Framework........................................................................................................................................................................ 57
Analyzing Unenumerated Rights...........................................................................................................................................................59
Constitutional Protection for Family Autonomy.............................................................................................................................59
Right to Marry.......................................................................................................................................................................... 60
Identifying the Right.......................................................................................................................................................... 60
Applying Scrutiny.............................................................................................................................................................. 60
The Right to Custody of One’s Children.................................................................................................................................. 61
Applying Scrutiny.............................................................................................................................................................. 61
Constitutional Protection for Reproductive Autonomy.................................................................................................................. 62
Right to Procreate..................................................................................................................................................................... 62
Right to Purchase & Use Contraceptives................................................................................................................................. 63
Applying Scritiny to Expand the Right..............................................................................................................................63
Right to Abortion......................................................................................................................................................................64
Pre-Dobbs...........................................................................................................................................................................64
Post-Dobbs......................................................................................................................................................................... 64
Constitutional Protection for Sexual Activity and Sexual Orientation........................................................................................... 65
Right to Privacy Adult Sexual Activity....................................................................................................................................65
Constitutional Protection for Medical Care Decisions....................................................................................................................66
Right to Refuse Treatment........................................................................................................................................................66
Right to “Death with Dignity”..................................................................................................................................................67
Constitutional Protection for Voting............................................................................................................................................... 67
Laws Denying Some the Right to Vote.................................................................................................................................... 68
Poll Taxes........................................................................................................................................................................... 68
Laws Diluting Voting Power.................................................................................................................................................... 68
Inequalities in Vote Counts.......................................................................................................................................................68
Laws Limiting Access to Ballots..............................................................................................................................................69
Racial Discrimination in Voting............................................................................................................................................... 69
Constitutional Protection for Guns..................................................................................................................................................70
Right to Bear Arms...................................................................................................................................................................70
First Amendment Analysis.................................................................................................................................................................... 71
Freedom of Speech..........................................................................................................................................................................71
Methodology: Content-Based v. Content-Neutral.................................................................................................................... 71
Content-Based Regulations................................................................................................................................................72
Content-Neutral Regulations..............................................................................................................................................72
Vagueness & Overbreadth........................................................................................................................................................ 73
Conduct that Communicates.....................................................................................................................................................73
Limits of Freedom of Speech................................................................................................................................................... 74
Incitement to Illegal Activity............................................................................................................................................. 74
Student Speech...................................................................................................................................................................74
Freedom of Religion & Establishment Clause................................................................................................................................76
Free Exercise of Religion......................................................................................................................................................... 76
Establishment Clause................................................................................................................................................................76
Intro to the Constitution
Constitution’s Goals
The Preamble lists the core values that the Constitution seeks to achieve: (1) democratic governance; (2) effective governance; (3) justice; and (4) liberty –– note that
(5) equality is not listed.
(1) Democratic Governance
➢ “We the people…”
(2) Effective Governance
➢ Provisions essential for effective governance:
○ Create a peaceful society → “ensure domestic Tranquility”
○ Ensure protection from external threats → “provide for the common defence”
○ Act to benefit its citizens → “promote the general welfare”
(3) Justice
➢ “establish justice”; desire as expressed in the Decl. of Indep.
○ Goal to ensure fair processes of government and just outcomes from government actions.
(4) Liberty
➢ “Secure the Blessings of Liberty to ourselves and our Posterity”
○ Goal to protect individual liberties
(5) Equality → MISSING VALUE
➢ The Constitution is a document that explicitly protected the institution of slavery and gave women no rights.
Constitution’s Functions
The Constitution functions to effectuate its goals by establishing (1) a federalist government, (2) separated by a system of checks and balances and (3) limited by
protection of individual liberties.
Horizontal Division of Power: The Three Branches

➢ The Constitution creates a national government and divides power horizontally among three branches: Judicial Branch, Legislative Branch, and
Executive Branch.
○ Article I → Legislative Power
■ Area of Authority: Commerce Power; Taxing Power; Spending Power; Section 5 of 14th Amendment
○ Article II → Executive Power
■ Area of Authority: Broad War Power; Debate on Inherent Powers
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○Article III → Judicial Power
■ Area of Authority: Judicial Interpretation
➢ System is designed to create checks and balances to prevent tyrannical rule.
○ In general, at least two branches must agree for the federal government to act.
Vertical Division of Power: Federalism and State’s Rights

Federalism is the “vertical” division of power/authority between federal and state governments.
➢ Through federalist principles, the Constitution establishes a hierarchical relationship between the federal and state governments.
○ Supremacy Clause → state and local laws are preempted if they conflict with federal law.
➢ Through federalist principles, the Constitution establishes and protects States’ rights.
○ Function is implicitly stated through limitations from Article I and the 10th Amendment
■ Article → “all legislative Powers herein granted shall be vested in a Congress”
■ 10th Amendment → “The powers not delegated to the United States by the Constitution, nor prohibited by [the Constitution] to the
States, are reserved to the States respectively, or to the people.”
➢ Through federalist principles, the Constitution limits the States’ abilities to impose burdens on each other
○ Dormant Commerce Clause → Congress’ power to regulate interstate commerce limits the States’ ability to regulate or tax their commerce
in a way that places an undue burden on interstate commerce.
Protection of Individual Liberties: An Overview

➢ Although the third function of the Constitution is to protect individual liberties, few parts of the Constitution pertain to individual rights.
○ The Bill of Rights is the main source of individual right protection.
*We focus on 1st Amendment Free Speech & Freedom of Religion Protections
○ The Fourteenth Amendment has been construed by SCOTUS to enforce individual liberties through Equal Protection and Due Process.
➢ Important Characteristics about the Constitution’s Protections of Individual Rights:
○ State Action Doctrine: Constitution’s protections of individual liberties apply only to the government, not to private conduct.
■ Two important exceptions covered later (public function & entanglement)
○ Bill of Rights protections were only applied to the federal government until the 20th Century when they were extended to state/local
governments.
■ Applied to state/local governments through the 14th Amendment’s Due Process Clause.
○ Unenumerated Fundamental Rights (those not included in the Bill) are applied to Federal, State, and Local actions through Substantive Due
Process.
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Constitution’s Division of Power
➢ Basic Structure of Authority
○ Supremacy Clause: State/local law is preempted by federal law where:
■ Congress has acted → Supremacy Clause states that federal law is the supreme law of the land
■ Congress has not acted → Dormant Commerce Clause & Privileges & Immunities Clause (14th Amendment)
➢ State Action Doctrine
○ The Constitution's limitations/restrictions only apply to government action, not private conduct; EXCEPT:
■ Public Function Exception (Marsh v. Alabama; Jackson v. Metropolitan Edison Co.)
● Where a private area functions as a public space, it is treated as state actions
● Requirements → Traditionally & Exclusively (Jackson v. Metropolitan Edison Co.)
○ A public function will only be treated as a state action if it is one that has traditionally and exclusively performed by the
state.
○ Court rejects expansion to any area "affected with a public interest"
■ Entanglement Exception ()
● If the government affirmatively authorizes, facilitates, or encourages the action, it will be treated as a state action.
● There must be CLOSE NEXUS
➢ Limitations on Government Actions:
○ 10th Amendment → protects state’s rights.
○ 14th Amendment → ensures Equal Protection & fundamental rights through Due Process.
○ Checks & Balances → Individual branches are limited by checks from other branches (especially important for Exec./President analysis)
Judicial Branch
Authorities: Authority to conduct judicial review of the constitutionality over federal executive and legislative actions and overstate court decisions. (state laws?)
➢ Marbury v. Madison → established judicial authority to conduct judicial review over the actions of the other branches of government.
○ Regarded as the single most important decision in American Constitutional Law.
➢ Martin v. Hunter’s Lessee & Cohens v. Virginia → established authority for judicial review over state actions.
Marbury v. Madison: Foundations of Judicial Review

○ Judicial Review over the Executive
■ Justification: Review of executive action is to ensure that they are carrying out Congress' will rather than imposing their own.
■ Limitation on Judicial Review: Political Question Doctrine
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● Non-political/Non-discretionary Actions
○ Court can review if the president does not follow the law.
○ Court can review anything that is within a legally imposed duty.
■ Executive had a duty to act/not act.
● Political/Discretionary Actions
○ Appointing judges, veto power, pardon power, etc.
○ However, they are still liable to the public via public opinion.
Tricky Line: where is the line drawn between political and legally imposed (ministerial) actions?
○ Judicial Review over the Legislature
■ Judiciary has the power to declare federal laws unconstitutional (later state laws as well) because of the following:
● Constitution’s Text & Intent
● Checks & Balances
● Arising Under
● Oath
● Supremacy Clause
Limits of Judicial Interpretation

➢ Limits to judicial interpretation are important to contain the anti-majoritarian dilemma
○ Anti-majoritarian Dilemma → Should we allow an anti-majoritarian institution to make decisions that affect the entire country when it is
very hard for the population to amend the constitution or make changes/fight against SCOTUS decisions that they do not agree with.
■ SCOTUS is an anti-majoritarian institution because they are not popularly elected → therefore not responsive to the population.
➢ Three primary limits on judicial authority to “say what the law is”
1. Interpretive limits → theories of interpretation
2. Congressional limits → federal courts are courts of limited jurisdiction; Congress decides how much Art. III power they can have.
3. Justiciability limits → five major doctrines (exam focuses on standing, if anything at all)
Interpretive Limits: Originalism v. Nonoriginalism

➢ All Constitutional Interpretation begins with the text of the Constitution. There are two main theories on how to interpret that text:
○ Originalism: Belief that the Court should find a protectable right in the Constitution only if it is expressly states in the text or was
clearly intended by the framers.
○ Nonoriginalism: Belief that it is permissible for the court to interpret the Constitution to protect rights that are not expressly stated or
clearly intended.
¡Note! For both interpretations, remember to consider the fact that EQUALITY was left out of the Constitution’s goals & the Constitution
instead included protections for slave owners!
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➢ For and Against Originalism:
○ Strongest argument for: Originalism contains the anti-majoritarian dilemma
○ Strongest argument against: Originalism does not allow the Constitution to fit modern values.
Originalism Nonoriginalism
Defined The view that "judges deciding constitutional issues should The view that "courts should go beyond that set of references and
confine themselves to enforcing norms that are stated or clearly enforce norms that cannot be discovered within the four corners of the
implicit in the written Constitution." document.”
Argument Interpretation of unelected officials should be limited to protect It is important that the Constitution evolve by interpretation, not just by
democracy. (contains anti-majoritarian dilemma) amendment.
➔ Believe that the Court should find a right to exist in the ➔ Believe it is permissible for the Court to interpret the
Constitution only if it is expressly stated in the Constitution to protect rights that are not expressly stated or
document or it was clearly intended by the framers. clearly intended.
➔ Believe the Constitution should evolve solely by
➔ Believe the Constitution's meaning can evolve by amendment
Amendment
or interpretation.
Variations Strict Originalism (Most Narrow) Purposivism

➔ What does the text mean according to the framers' ➔ What was the purpose of this clause?
intent? ◆ Strictly: What was the Framer’s purpose in writing this
clause?
◆ Broadly: How would this purpose be served today?
Original Meaning Living Constitution (Most Broad)

➔ What did the words of the Constitution mean to the ➔ What do the words of the Constitution mean today?
common person at the time the Constitution was
enacted?
Justiciability Limits:
➢ Justiciability Doctrines determine which cases the federal courts can hear and which ones must be
dismissed. The five major doctrines are:
○ (1) Advisory Opinions Doctrine
○ (2) Standing Doctrine (focus on this one; if there is a question on the final it will be about this.)
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○ (3) Ripeness Doctrine
○ (4) Mootness Doctrine
○ (5) Political Question Doctrine
¡NOTE!All five doctrines must be met for a federal court to hear a case.
➢ Policies & Sources of Justiciability Requirements:

○ Policies Underlying Justiciability Requirements
1. Separation of Powers
● Justiciability doctrines ensure that the judicial branch does not intrude into areas designated for the other branches
2. Conservation of Judicial Resources
● Justiciability doctrines conserve judicial resources for the best suited cases
3. Adverse Parties/Improve Judicial Decision-Making
● Truly adverse parties have an incentive to litigate better.
4. Promote Fairness
➢ Source of Justiciability Doctrines: Constitutional v. Prudential
○ All doctrines were created by SCOTUS; none were explicitly required by the Constitution, but SCOTUS has based their creation on
two different sources: the Constitution & concerns for prudent judicial administration.
○ Constitutional doctrines cannot be overridden by statute because they are constitutionally required.
■ Art. III §2 authorizes the federal courts to hear several types of "cases and controversies" → Congress cannot go beyond that
ceiling.
○ Prudential doctrine can be overridden by Congress because they are based on "prudent judicial administration."
Advisory Opinions Standing Ripeness Mootness Political Question
Federal courts are not Federal courts cannot hear a case Federal courts cannot hear a Federal courts cannot hear a case Federal courts cannot
allowed to issue advisory if the plaintiff does not have case that has not ripened into an that is moot, unless it falls w/in an adjudicate a question that is
opinions. standing. actual dispute. (Q of timing) exception. (Q of timing) best left for the other branches.
Requirements: Requirements: Requirements: Requirements: Requirements:

Actual Dispute + Real Constitutional v. Prudential Harm + Occurred/Imminently Live Controversy Q Appropriate for Judicial
Effect (explored last) Will Occur Review (no encroachment)
¡Note! Principles of Avoidance: SCOTUS will follow these principles to ensure it will reach constitutional questions only when necessary. (not
important to know what they are specifically, but note that SCOUTS wants to limit Constitutional decision unless necessary)
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(1) Advisory Opinions Doctrine:
○ Requirements:
■ Actual Dispute → there must be an actual dispute among adverse litigants.
● example: Supreme Court denied Washington's request for answers to a list of questions regarding the U.S.'s
neutrality in a war between France and G.B. Insisted the Court was one of "last resort" and cannot overstep the
checks and balances built into it by the Constitution.
■ Real Effect → there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about
some substantial change or have some effect (actual, permanent change)
○ Political Objectives:
■ Separation of Powers → limiting the judicial role to actual disputes, and not advising Congress or the president, it keeps
the court out of the legislative process.
■ Conservation of Judicial Resources → prevents wasteful judicial review and stops the waste of political and financial
capital from adjudicating laws that may never pass.
■ Improvement of Judicial Decision Making → ensures that cases will be presented to the Court in terms of specific,
concrete disputes and not as hypothetical questions.
➢ Important Notes!
○ Many of the other justiciability doctrines (standing, ripeness, mootness) seek to ensure that there is an actual dispute between
adverse litigants
○ Exception: Declaratory Judgments
■ Declaratory judgments are justiciable as long as they meet the requirements for judicial review.
● Focus on substance, not form: Cases are justiciable so long as they retain the essentials of an adversary proceeding,
involving a real (not hypothetical) controversy.
(3) Ripeness Doctrine:
○ Requirements: Ripeness is a determination of when review is appropriate. (pre)
■ Harm → there is an actual injury in at issue
■ Occurred/Imminently Will Occur → demonstrates the injury is not speculative/may never occur
■ Because Ripeness seeks to separate matters that are premature for review from cases that are appropriate for court action, it
is best understood as the determination of whether a federal court can grant pre-enforcement review.
● There is an unfairness in requiring a person to break a law to qualify for judicial review.
● Purpose behind the Declaratory Judgement Act
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(4) Mootness Doctrine:
○Requirements: Mootness is a determination of when review is appropriate. (post)
■ Live controversy → issue cannot be moot or resolved.
● Ensures there is a live controversy (and therefore standing) throughout the federal court proceedings
○ Political Objectives
■ Rooted in Article III's prohibition of advisory opinions.
● Moot cases = no actual controversy between adverse litigants.
● Resolved case = Court cannot provide a decision that will have an effect if litigants already settled it.
➢ ¡EXCEPTION TO MOOTNESS DOCTRINE!
○ Wrongs Capable of Repetition but Evading Review
■ Evading Review → Some injuries are of such short duration that they likely will always evade review for all;
■ Capable of Repetition →If there is an injury that is likely to recur in the future and it is possible that it could happen to the
plaintiff again, a federal court may continue to exercise jurisdiction even if the case has become moot.
■ Examples:
● Moore v. Ogilvie (1969) → Ill. law required a minimum number of signatures to enter a new political party onto the
ballot.
○ Capable of Repetition–It is an ongoing issue that will continue to burden the same citizens unless it is
changed.
○ Evading Review–Elections will always happen faster than adjudication.
● Roe v. Wade (1973) → Roe was a pregnant woman in TX seeking injunctive relief from the state’s enforcement of a
law prohibiting abortion. She was no longer pregnant by the time her case reached SCOTUS.
○ Capable of Repetition–Pregnancy often comes more than once to the same woman.
○ Evading Review–A pregnancy will almost certainly come to term before the appellate process is complete
● DeFunis v. Odegard (1974) → P, a white male, was denied admission to Univ. of Wash. Law School. P filed suit
alleging that his denial was because of affirmative action. P was given a preliminary injunction and allowed to
attend UW. Case did not reach SCOTUS until P was a 3L and UW stated P would be allowed to finish regardless of
the case’s outcome
○ Capable of Repetition–P will never again be subjected to a law school admissions process that would cause
this type of injury.
○ Evading Review–Not every case with this type of injury will receive a preliminary injunction
(5) Political Question Doctrine:
○ Requirements:
■ Political question doctrine refers to allegations of constitutional violations that federal courts will not adjudicate and that the
Supreme Court has deemed inappropriate for judicial review
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● Court held that some constitutional provisions are best left for the other branches of government to interpret and
enforce
● Cases are dismissed as unenforceable
○ Political Objectives: Underlying question as to whether there should be a political question doctrine
■ Argument One: Constitution is meant to insulate matters from the political process and therefore it is wrong to leave
constitutional provisions to the elected government to interpret and enforce
■ Argument Two: Argument that it minimizes judicial intrusion into the operations of other branches of government and ti
allocates decisions to the branches of government that have superior expertise in the area
(2) Standing Doctrine (focus on this one; if there is a question on the final it will be about this.):
○ Requirements: Constitutional v. Prudential
■ Constitutional Requirements:
● Actual Injury → P must allege that he/she personally suffered or imminently will suffer an injury.
○ Claim for Relief from Personal Injury: Any injury you can imagine (tort, K breach, violation of right,
etc.) but it must be personally suffered by the party bringing the suit.
■ Mere interest in the issue is insufficient.
○ Claim for Injunctive Relief from an Imminent Injury: Imminent injury must be particularized &
concrete.
■ Factually Specific Likelihood of an Imminent Injury when:
● Injury is particularized → injury would affect the person in a personal and individual way.
● Injury is concrete → de facto injury; injury would be a kind that actually exists
○ Injury CAN BE tangible OR intangible, it just must actually happen.
■ Mere possibility of future injury is insufficient.
○ City of Los Angeles v. Lyons → LAPD used a chokehold on Lyons who brought a suit to enjoin as
unconstitutional chokeholds by the LAPD where there was no risk of serious injury/death.
■ Standing rejected because Lyons did not plead an actual injury.
● Lyons did not sue for the chokehold he suffered (he would have standing for that)
● To prove an imminent injury Lyons would need to (1) prove he was going to have another
encounter with the police and (2) all officers choke any citizen during every encounter or
the City ordered/authorized police officers to do so.
Although Causation and Redressability are separate requirements, they are substantially related and often treated as a
single test.
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The personal injury must be “fairly traceable to the Defendant’s allegedly unlawful conduct (causation) and likely to be redressed by the
requested relief (redressability).”
● Causation → P’s injury must be fairly traceable to D’s conduct
○ Look at the links in the chain of causation; essentially “but for” causation
● Redressability → P must allege that a favorable federal court decision is likely to redress the injury.
○ Relief doesn’t need to be perfect, but must have some effect to alleviate the injury.
○ Linda v. Richard → Unwed mother sued to have father prosecuted for failure to pay child support. Texas
statutes allowed prosecution for fathers of legitimate children, but not illegitimate ones.
■ No Standing for lack of redressability.
● Even if Court commanded the state to prosecute, there was no guarantee that she would
receive the money she sought because it would only result in the father being in jail.
○ Warth v. Deldin → Ps challenged the constitutionality of zoning practices, claiming that they could not
move to the city of Penfield because zoning practices prevented the construction of multifamily and
low-income homes
■ No standing for lack of causation and redressability
● An injunction (to zone) would not guarantee that P would be able to afford to live in the
area through the construction of low-income housing. (Therefore the zoning practices
would not be the cause and injunctive relief would not solve the issue)
○ Duke Power Co. v. Carolina Environmental Study Group Inc. → Forty individuals and two organizations
sued in response to the Price-Anderson Act, which limited the company's liability in the case of a nuclear meltdown.
Company challenged the injury was not imminent and was purely speculative. (Causation & Redressability)
■ Standing found because there was causation and redressability.
● Ps suffered an actual injury because Ps would subjected to nuclear radiation, thermal pollution and
would experience an ongoing fear of nuclear meltdown and the magnitude of the fear does have
some effect
¡Note! It is argued that causation and redressability are inappropriate determinations to make at
the pleading stage.
■ Prudential Requirements:
● Prohibition of 3rd Parties → A party can only assert their own rights, not the rights of 3rd parties who are not
before the Court.
● Prohibition of General Grievances → P may not sue as a taxpayer who shares a grievance in common with all
other taxpayers
¡NOTE! When analyzing Justiciability → REMEMBER THAT IN THE PLEADING STAGE YOU DO NOT LOOK AT THE
MERITS → Consider everything as true in the light most favorable to P.
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■ Separation of Powers → (1) prevents overexpansion of the judiciary’s role and (2) limits the matters the judiciary will hear
and minimizes judicial review over the actions of the other branches.
● Standing is especially rigorous when adjudicating the matter results in declaring unconstitutional the actions of
another branch of government.
■ Conservation of Judicial Resources → prevents a flood of litigants who only have an ideological stake in the outcome of the
litigation.
■ Improvement of Judicial Decision Making/Adverse Parties → by limiting standing to those with a personal stake in the
matter, standing improves judicial decision making because truly adverse parties will have an incentive to litigate better.
Legislative Branch
Authorities: Commerce Power; Taxing & Spending Power; §5 XIV Amendment
Federalism & the Scope of Congressional Power

Requirements for Constitutional Congressional Action
1. Authority to Legislate → Does Congress have the authority under the Constitution to legislate?
2. Proper Scope → If so, does the law violate another constitutional provision or doctrine, such as infringing separation of powers or interfering
with individual liberties?
Both of these questions require consideration of State's rights and the extent to which the federal government should care about the State's
prerogatives.
➢ The Constitution limits federal legislative power → Congressional action requires express or implied grant of authority from the Constitution.
○ Article I grants Congress with “all legislative powers herein granted”
■ Reflects notions of separation of powers (horizontal)
➢ The Constitution protects State & individual liberties → Even valid exercises of legislative power are unconstitutional when they infringe on state
sovereignty.
○ The Tenth Amendment reserves “the powers not delegated to the United States by the Constitution” to the States “or to the people.
■ Reflects notions of federalism (vertical).
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Federalism or State Sovereignty?
Historically, there is a debate regarding to what extent should concerns for states sovereignty/institutions define or limit the scope of Congressional
authority.
➢ Key Normative Issues:
(1) How important is the protection of state sovereignty and federalism?
Argument for Strong Federal Governmetn Argument for State Sovereignty
➢ National legislature is needed for national issues; ➢ Three benefits of protecting state government:
➢ Court shouldn't use the 10th amendment to limit Congress' a. Decreases the likelihood of federal tyranny
authority b. Enhances democracy as it brings the government
closer to the people
c. Allows the states to work as legal "laboratories" for
new ideas
(2) Should it be the role of the judiciary to protect state prerogatives or should this be left to the political process?
Political Process Argument Judicial intervention Argument
➢ Judicial intervention is unnecessary because the political ➢ Since senators became popularly elected, critics argue that
process will take care of it. it is uncertain whether the political process will actually
take care of state interests.
Necessary & Proper Clause

Article I, §8, ¶18; "The Congress shall have Power [t]o . . . [18] To make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States …".
➢ The Necessary & Proper clause expands the scope of federal congressional power; BUT only when Congress is acting w/in or in pursuit of a
constitutionally granted authority.
○ McCulloch v. Maryland → established that the "necessary and proper clause" was a grant of power, not a limitation.
■ Congress may choose any means not prohibited by the Constitution to carry out its express authority.
● Necessary = useful or desirable; does not have to be indispensable or essential.
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■ Court rejected that Congress has limitless power.
○ NFIB v. Sebelius → Necessary and Proper Clause must be used in conjunction with a valid exercise of another congressional power.
■ The individual mandate of the Affordable Healthcare Act was not a valid exercise of Congress’ Commerce Power, therefore the
Necessary and Proper Clause did not apply.
Congress’ Constitutional Powers

Commerce Power
Article I, §8, ¶3; "The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes."
The Four Eras of Commerce Clause Jurisprudence
Three Deciding Factors of Congress’ Commerce Power:

1. Interpretation of Commerce → What is "commerce"?
○ Is it one state of business or all aspects of business? (interpretation)
2. Scope of Congress’ Commerce Power → What does "among the several states" mean?
○ Is it limited to those actions that have a direct effect on interstate commerce or any action that has any effect on interstate
commerce? (scope)
3. 10th Amendment Limits → Does the 10th Amendment limit Congress?
○ If Congress is acting within the scope of its Congressional power, can their acts be declared unconstitutional for violating the 10th
Amendment? (limits)
➢ SCOTUS has varied in (1) its interpretation of the Commerce Clause, (2) the scope of its application, and (3) the limits imposed on it by the
10th Amendment.
First Era Second Era (Lochner Era) Third Era Fourth Era
Early America-1890s 1890s-1937 1937-1990s 1990s-Present
Commerce power is broadly Very narrow construction of Very broad construction of Congress' Scope of Commerce clause narrowed
defined, but minimally used. Congress' commerce power and commerce power and SCOTUS again and 10th Amendment revived as
the 10th Amendment used as a refused to apply the 10th Amendment an independent, enforceable limit on
VERY strong limit. as a limit. federal actions.
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Allowed for a lot of civil right Construction not as narrow as
litigation Lcohner Era
Gibbons v. Ogden Three key rulings overruled the earlier U.S. v. Lopez
era and expansively defined the scope U.S. v. Morrison
of Congress' commerce power: Gonzales v. Raich
○ NLRB v. Jones & Laughlin Steel
Corp (1937)
○ United States v. Darby (1941)
○ Wickard v. Filburn (1942)
First Era: Gibbons Defines the Commerce Power

The Supreme Court broadly construed the scope of Congress' Commerce Power as being able to regulate nearly anything that was intended for or
was the result of interstate commerce.
➢ Gibbons v. Ogden → New York granted Robert(s) Livingston and Fulton a monopoly for operating steamboats in the state’s waters; they
subsequently granted Ogden license to operate a ferry between NYC and Elizabethtown, NJ. Gibbons was operating a federally licensed
ferry in competition to Ogden, violating the monopoly. Ogden initially won and Gibbons appealed.
○ Rule: Congress’s Commerce Power is the power to regulate commerce/the ability to prescribe the rules by which commerce is to be
governed → it does not stop at jurisdictional lines.
➢ Three Defining Questions:
○ What is commerce? → Commerce is intercourse; commercial intercourse that is regulated by prescribing rules for carrying on that
intercourse.
■ In other words, commerce includes all phases of business, including navigation.
○ What is “among the states? → Among means intermingled with; commerce that is intermingled with more than one State can be
regulated by Congress.
■ External boundary lines of each State do not stop commerce that is “among the States”; therefore, Congress can regulate
commerce within a State if it concerns external commerce
● This includes commerce that has an impact on interstate activities.
■ Commerce that is completely internal to the State is out of the scope of the Commerce Clause.
○ How does the 10th Amendment affect this? → not addressed.
Second Era: The Lochner Era (1890s-1937)

Supreme Court decisions were defined by laissez-faire economics and “Dual Federalism” which sought to limit Congressional power under the
Commerce Clause.
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➢ History Background:
○ The Industrial Revolution and growth of the national economy led to Congress using their commerce power more extensively to regulate
businesses in the growing economy.
■ Intrastate Commerce Act (1887); largely meant to provide for federal regulation of railroads.
■ Sherman Antitrust Act (1890); intended to combat monopolies and restraints on trade.
○ Court controlled by conservative justices committed to laissez-faire ("hands-off") economics → the first time SCOTUS aggressively used
judicial review to invalidate federal and state laws.
■ Many federal laws were invalidated as exceeding the Commerce Power or violating the 10th Amendment.
■ Many state laws were invalidated as interfering with the freedom to contract.
○ Court espoused "Dual Federalism" philosophy → 10th amendment used as a Very strong limit to federal legislative action.
■ The view that the federal and state governments were separate sovereigns with separate zones of authority and it was the judiciary's
job, in enforcing the Constitution, to protect the zones of activity reserved for the States.

Greatly influenced by “Dual Federalism”
○ What is commerce? → Commerce was a state of business that was distinct from earlier stages, such as mining, production, or
manufacturing and Congress' authority does not extend to regulate the earlier stages of commerce.
■ The Court narrowly defined the meaning of "commerce" to reserve a zone of power for the states (mining, production, or
manufacturing) because the effect on interstate commerce at these earlier stages is "indirect." (very different from Gibbons)
United States v. E.C. Knight → Court held that the Sherman Antitrust Act could not be used to stop a monopoly in the sugar
refining industry because the Constitution did not allow Congress to regulate manufacturing.
● It did not matter that the monopoly would result in the company having control of 98% of the sugar refining
industry because the monopoly was in the production of sugar, not in its commerce.
○ It would be "far-reaching" to allow Congress to interfere whenever interstate commerce may ultimately be
affected.
○
○ What is “among the states? → “Among the states” requires a substantial or direct effect on interstate commerce.
■ A meaningful and useful distinction between "direct" and "indirect" activity was never truly formulated in a clear or
consistent way.
● Courts sometimes relied on whatever was within the stream of commerce, but it was still inconsistently applied.
○ How does the 10th Amendment affect this? → The Court held that the 10th Amendment reserved an exclusive zone of authority
to the states and federal laws were unconstitutional if they intruded into that zone.
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■ Even if federal laws were within the scope of the commerce clause (regulating an activity was commerce and among the
states) they could not seek to control mining, manufacturing, or production.
● The Court again did not create a consistent rule for applying this principle.
Hammer v. Dagenhart (Child Labor Case) → Federal law prohibited shipping goods produced using child labor in interstate
commerce. Court rejected the law as unconstitutional even though it regulated interstate commerce because it would ultimately
intrude on production.
Champion v. Ames (Lottery Case) → Federal law prohibited the shipment in interstate commerce of lottery tickets. Court
upheld the law by stating that interstate commerce includes the ability to prohibit items from being interstate commerce.
● Upheld even though it had a very similar argument to the Child Labor Case. (seeking to stop interstate commerce
of something)
¡NOTE! Congress was not completely consistent in applying these principles.

(they typically upheld laws in spite of these principles when they regulated moral behavior)
Third Era: Broad Federal Commerce Power (1937-1990s)

The Supreme Court turned away from the previous era’s rulings and broadened Congress’s power under the Commerce Clause.
➢ History Background:
○ Economic crisis caused by the Great Depression created enormous pressure for the Supreme Court to change their narrow approach to
Congress’s Commerce Power.
○ FDR's New Deal and "the switch in time that saved nine."
○ Three key rulings overruled the earlier era and expansively defined the scope of Congress' commerce power: NLRB v. Jones & Laughlin
Steel Corp (1937); United States v. Darby (1941); Wickard v. Filburn (1942)

Greatly influenced by “Dual Federalism”
○ What is commerce? → broadly defined again as any activity at any stage of business.
■ No longer a distinction between stages of business
○ What is “among the states? → “Among the states” means the activity, individually or cumulatively, has a substantial effect on
interstate commerce.
■ No longer a distinction between direct/indirect
■ Wickard v. Filburn → Whether an activity is substantial can be determined in the individual activity itself or in the
cumulative effects of activity nationwide. (personal wheat case) → relaxes “substantial standard
○ How does the 10th Amendment affect this? → The 10th Amendment doesn’t reserve a zone of activities exclusive to the states,
but it serves a reminder that Congress must point to an express or implied power to claim the authority to legislate.
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➢ Meaning of "Commerce Among the States"
○ The Court considered the meaning of "commerce among the states" in three areas:
■ (1) Civil Rights Laws, (2) Regulatory Laws, and (3) Criminal Laws
○ Civil Rights Laws
■ Civil Rights Act of 1964; prohibits discrimination in private employment and by places of public accommodation (hotels &
restaurants).
Civil Rights Cases; Court held that, under §5 of the14th Amendment, Congress could only regulate government conduct, not
private behavior.
■ Heart of Atlanta Motel → “the power of Congress to promote interstate commerce also includes the power to regulate the
local incidents thereof, including local activities in both the state of origin and destination which might have a substantial
and harmful effect on that commerce.”
■ Katzenbach v. McClung → “Even if appellee's activity may be local and though it may not be regarded as commerce, it
may still whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”
(reference to Wickard v. Filburn) activities beyond Congress’s reach are “those which are completely within a particular
state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of
the general powers of the government”
● Beginnings of Rational Basis Review and Deference Principle
➢ Three Main Principles from this Era:
○ Substantial Effects Principle: Even if an activity is local and may not be regarded as commerce, Congress may regulate it if it exerts
a substantial economic effect on interstate commerce.
○ Aggregation Principle: Activity of any individual, which by itself does not affect interstate commerce, can be regulated if, in the
aggregate with all individuals like him or her, it is found to affect interstate commerce. (Wickard v. Filburn)
○ Deference Principle:”Rational basis” review on the theory that they judiciary should differ to legislative judgment of elected
representatives.
■ A Court may only invalidate Congress’s act if there is no rational basis for finding that the activity affects interstate
commerce or (2) the regulatory means are not reasonably related to the end.
Fourth Era: Present Rules

The Supreme Court again applied limits to Congress' power, beginning with United States v. Lopez, which led to dozens of more challenges.
➢ Focus on two questions (one descriptive and one normative):
● What principles does the Court articulate as to when Congress exceeds the scope of its Commerce Clause authority and when
Congress violates the 10th Amendment?
● Does the Court persuasively justify the desirability of these limits on federal powers?
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○ What is commerce? → No change from previous era; Commerce still includes all stages of business.
○ What is “among the states? → Any activity, intra or interstate, that has a substantial effect on interstate commerce.
■ Caveat to Aggregate Principal: to be aggregated, the activity must be economic.
○ How does the 10th Amendment affect this? → Reintroduction of the 10th Amendment as a check on Congress’ power.
➢ New Categories for Commerce Power Regulation (Lopez)

Congress may regulate:
○ Channels of Interstate Commerce
■ Congress may regulate the use of the channels of interstate commerce.
■ Heart of Atlanta Motel
○ Instrumentalities, Persons, or Things in Interstate Commerce
■ Congress is empowered to regulate and protect the instrumentalities of interstate commerce; including persons or things in
interstate commerce (even if the threat may come from intrastate activities).
■ Example → congressional power to regulate railroads
○ Economic Activity that Substantially have a Substantial Relation to Interstate Commerce
■ Congress can regulate an economic activity → not non-economic activity (Lopez & Morrison);
if it: not economic inactivity (NFIB v. Sebelius):
(a) has a substantial effect on interstate commerce (Wickard) or
(b) is necessary to effectuate a larger interstate regulatory scheme (Raich using Necessary & Proper Clause)
U.S. v. Lopez → the Gun Free School Zones Act Exceeds the scope of Congress’s authority.
○ Statute does not regulate an “economic activity”just because it may somehow impact the economy
■ Court draws a line between commercial & noncommercial.
■ Implication that there needs to be more than rational basis.
U.S. v. Morrison → a section of the Violence Against Women Act exceeded Congress’s authority.
● The Aggregate Principle can only be used to aggregate an activity that is already economic→ rape regulation is not
economic.
Gonzales v. Raich → CSA’s prohibition of the manufacture & possession of marijuana IS w/in Congress’ authority.
● Possession of a “commodity” falls within economic activity.
● If the failure to regulate an activity undermines a larger interstate regulatory scheme, Congress has the authority to
regulate it even if it is only intrastate or not for sale.
■ Nat’l Fed. Independent Bus. v. Sebelius → notwithstanding the Necessary & Proper Clause, the ACA individual mandate
falls outside of Congress’s authority because it regulates inactivity.
● Congress can only regulate activity not inactivity.
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¡Note! Rational Basis is still alive (sometimes).
Limits on Congress’ Commerce Power: States’ Rights
SCOTUS uses the Tenth Amendment and considerations of federalism as a rule of construction (interpretation).
➢ 10th Amendment is interpreted as an additional, judicially enforceable limit on how Congress can regulate the States.
○ A federal law that imposes a substantial burden on a state government will be applied only if Congress clearly indicated that it
wanted the law to apply.
➢ Anti-Commandeering Principle
○ Congress cannot impose affirmative duties compelling state officials to enforce a federal regulatory program or issue direct orders to
the governments of the states.
■ Printz v. United States → it violates dual sovereignty and the separation of powers to have Congress directly command state
officials to execute federal commands since the President has the power of executing Congress’ commands, but does not
have appointment power over them.
○ Congress can impose negative prohibitions on State conduct, particularly if the prohibition is “generally applicable”
■ i.e.applies to private actors as well as States
■ Reno v. Condon → DPPA prohibited states & private entities from selling private information obtained to procure driver’s
licenses; Driver’s Privacy Protection Act does not violate federalism.
● Drivers’ private information held to be a “commodity” → made up a large part of State's income in some cases.
● DPPA prohibited conduct, unlike Printz → States were not required to enact legislation, nor does it require state
officials to enforce federal statutes regulating private individuals
● DPPA applies to States AND private entities in possession of private information.
Taxing & Spending Power

Art. I, § 8 ¶ 1: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense
and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States”
General Rule of Taxing & Spending Power: Congress has broad authority to tax and spend for the general welfare so long as the regulations do
not violate any other constitutional provision
4 General Requirements of the Spending Power:
1. Regulations must be in pursuit of “the general welfare
2. If conditioned, regulations must make the condition “clear and unambiguous”
3. Regulations must be related to a federal interest in the spending program (nexus test)
4. Regulations CANNOT VIOLATE any other constitutional provisions (see 10th Amendment)
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Limits on Congress’ Spending Power: The 10th Amendment
Rules on Conditional Spending Grants:
■ Congress can place conditions on spending grants if: (same as above)
(i) spending is for the general welfare;
(ii) express statement of the condition; AND
(iii) condition is reasonably related to the federal interest in the spending program (nexus test)
AND
■ Conditions cannot exceed the limits set by the 10th Amendment → There can be no “Impermissible Coercion” (anti-coercion principle)
● A condition is coercive if:
○ It’s a “new program” that makes unforeseeable change to an existing program
○ The condition is so costly that the State has no real choice in turning down the federal grant
■ E.g., losing 10% of the state's existing overall budget is like “a gun to the hea” (NFIB v. Sebelius
➢ South Dakota v. Dole → Congress passed a law that distributed funds for highway construction among the States, but States that
allowed people under 21 to drink alcohol would receive 5% less funds.
○ The Constitution grants Congress broad taxing & spending power for the general welfare;
○ Conditional grants are ok so long as they meet the other requirements and do not amount to coercion =.
➢ Nat’l Fed. Independent Bus. v. Sebelius → ACA’s constitutionality was challenged because of the individual mandate and the
Medicaid expansion. Individual mandate was already held outside of the scope of the Commerce Power & the Medicaid expansion
was conditional on compliance; states that did not comply with the Medicaid expansion would lose all of their federal funding
○ Individual mandate held to be a constitutional exercise of Congress’ Tax Power since the “penalty” can be characterized as a
tax.
○ Conditional grants that are so costly as to effectively limit the State to compliance violates the acti-coercion principle.
§ 5 XIV Amendment & Post-Civil War Amendments

➢ Reconstruction-era amendments contain provisions that empower Congress to enact civil rights legislation → Two major questions regarding scope:
1. May Congress regulate private conduct under this authority
2. What is the scope of congress’ power under these amendments?
Post-Civil War Amendments
13th Amendment → prohibits slavery
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Sec. 1. [Slavery prohibited.] Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject to their jurisdiction.
Sec. 2. [Power to enforce amendment.] Congress shall have power to enforce this article by appropriate legislation.
14th Amendment → due process & equal protection; § 5 enables Congress to enact legislation to enforce these provisions.
Sec. 1. [Citizens of the United States.] All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; 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.
Sec. 5. [Power to enforce amendment.] The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
15th Amendment → guarantees right to vote

Sec. 1. [Right of citizens to vote—Race or color not to disqualify.] The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous condition of servitude—
Sec. 2. [Power to enforce amendment.] The Congress shall have power to enforce this article by appropriate legislation.
Congress’ Ability to Enforce Post-Civil War Amendments

Who may Congress Regulate?
State Action Doctrine: Congress may only use the Post-Civil War Amendments to regulate state conduct, not private conduct.
Civil Rights Cases → The Civil Rights Act of 1875 broadly prohibited private racial discrimination by hotels, restaurants,
transportation, and other public accommodations. The constitutionality of the statute was challenged through a number of cases,
collectively known as the Civil Rights Cases
○ The 13th Amendment has recently been “revived” → Congress has the power to determine the Badges of Slavery and prohibit
private conduct that perpetuated them.
U.S. v. Morrison (from Commerce power) → reaffirmed finding that § 5 of the 14th Amendment only applies to regulate state action,
not private actors.
➢ EXCEPTIONS:
○ Public Function Exception:
■ Marsh v. Alabama → where a private area functions as a public space, they are treated as state actions.
● Historic Rule
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■ Jackson v. Metropolitan Edison Co. → A public function will only be treated as a state action if it is one that has
traditionally and exclusively performed by the state.
● Modern Rule; Public function = Traditionally & Exclusively
● Court rejects unlimited expansion to any area "affected with a public interest"
○ Entanglement Exception:
■ Rule: If the government affirmatively authorizes, facilitates, or encourages the action, it will be treated as a state action.
● There must be a CLOSE NEXUS
What is the Scope of Congress’ Authority Under Post-Civil War Amendments?

There are two major views as to the meaning of the enablement clauses granting Congress power to “enforce” the amendments’ provisions.
Nationalist Perspective Federalist Perspective
Congress may use § 5 of the 14th Amendment to expand the scope of rights. Under § 5 of the 14th Amendment, Congress can only act to prevent or remedy
violations of rights –– it cannot create new rights or expand the scope of
existing rights.
Katzenbach v. Morgan City of Boerne v. Flores; Nevada v. Hibbs
This view has been rejected by SCOTUS. Congress can pass legislation using the § 5 power to:
➔ prevent or remedy violations of the XIV Amendment (but not make
“substantive” changes to meaning of XIV Amendment) AND
➔ the legislation must be congruent and proportional to the violation
addressed (City of Boerne; Nevada v. Hibbs)
➢ Katzenbach v. Morgan (1966) → Court originally granted Congress broad power under the § 5 of the 14th Amendment.
○ N.Y. challenged the Voting rights Act of 1965, which prohibited conditioning voting on passage of English literacy tests.
○ Court ruled Congress had power to interpret the Constitution to enforce the provisions of the 14th Amendment (the Equal Protection
clause).
➢ City of Boerne v. Flores → SCOTUS rejects Katzenbach view and shifts to the federalist perspective that Congress cannot use § 5 of the
14th Amendment to expand the scope of rights or create new ones.
○ Church building expansion rejected; priest sued under religion statute…
○ Congress is limited to enacting laws that prevent or remedy violations of rights recognized by the Supreme Court AND the
provisions must be narrowly tailored to the constitutional violation (congruent and proportional)
■ Congruence → There must be evidence of an actual wrong being remedied.
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■
Proportionality → The remedial or preventative act should be clearly responsive to, or designed to prevent, unconstitutional
behavior.
● A large proportion of the laws affected by the Act should have a significant likelihood of being unconstitutional.
➢ Nevada v. Hibb → Congress implemented a valid abrogation of state sovereign immunity when it established a private cause of action under
the Family and Medical Leave Act of 1993 (FMLA). Nevada challenged the constitutionality of the statue’s provision.
○ SCOTUS held that Congress may abrogate state sovereign immunity in federal court if it makes its intention to abrogate
unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under § 5 of the Fourteenth
Amendment.
○ For remedial legislation to represent a valid exercise of Congress’s § 5 authority, the legislation must demonstrate a congruent and
proportional relationship between its regulatory mechanisms and the harm it seeks to remedy.
■ In this case, the FMLA seeks to deter gender discrimination (equal protection) and its methodology is proportional and
congruent to the achievement of that goal
Executive Branch
Authorities: Examination on the powers of the presidency & the executive branch usually focus on the tension with the legislative branch.
Art. II § 2: “The executive Power shall be vested in a President of the United States of America.”
➢ Different construction from the description of the other branches creates ambiguity as to whether the President has inherent powers apart from the ones
enumerated in the Constitution.
Inherent Presidential Power: The Four Models

When can the President Act?
➔ When there is explicit Constitutional authority:
◆ The President must be acting within the scope of the Constitutions’ explicitly granted authority.
◆ The President cannot violate another Constitutional authority.
➔ When there is statutory authority:
◆ The President can act if the law is constitutional.
➔ When there is NEITHER Constitutional or statutory authority → Must ask whether the President has INHERENT POWER from the Constitution.
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Youngstown Sheet & Tube Co. v. Sawyer gives us four models used to approach the question of the President’s inherent powers:
Youngstown Sheet & Tube Co. v. Sawyer → The President ordered the Secretary of Commerce to take possession of and operate most
of the Nation’s steel mills. The mills were on the eve of a strike, the mills followed orders but filed suit. “Their complaints charged that the seizure
was not authorized by an act of Congress or by any constitutional provisions.” Congress did not respond to the seizure.
○ SCOTUS declared the President’s seizure unconstitutional
■ M1: J. Black → neither the Constitution nor a Congressional statute gave the President authority to seize property (Majority opinion
here)
■ M2: J. Douglas → President was usurping Congress’ spending power because he used federal funds to compensate steel owners for
the seizure.
■ M3: J. Frankfurter → Congress already spoke when it rejected giving the president authority to seize industries through three
statutes; therefore President is precluded from taking this action because he cannot act outside of Congress’ expressed will.
■ M4: C.J. Vinson → as chief executive, President has duty to act quickly in cases of national emergencies; separation of powers not
at risk because Congress is free to approve or deny after; here, Congress didn’t deny.
Model 1: No Inherent Powers

➢ President may only act of there is express constitutional or statutory authority
➢ Rarely used
Model 2: Court “Checks” President’s Inherent Powers
➢ President has inherent authority unless the President interferes with the functioning of another branch of government or usurps the powers of
another branch. (e.g., US v. Nixon)
➢ Court decides what is “usurpation”
Model 3: Congress “Checks” President’s Inherent Powers
➢ President may exercise powers not manifested in the Constitution so long as the president does not violate a statute or the Constitution. (e.g.,
Hamdi)
➢ Congress is the primary chack → J. Jackson’s “Three Zones”
○ Zone One → President WITH Congress
■ When the president acts in pursuit of an express or implied authorization from Congress, the power of the President is at its
MAX
● Full weight of President’s power + all the power Congress can delegate
■ In this situation, denying the President’s power usually meant that the federal government IN GENERAL doesn’t have
authority
○ Zone Two → President & Congress is SILENT (“Twilight Zone”)
■ President relies on the authority granted to him by the Constitution, including those powers concurrent with Congress’
authority
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■ In this situation, test should be fact-driven rather than theoretical → “any actual test is likely to depend on the imperatives of
events and contemporary imponderable”
○ Zone Three → President AGAINST Congress
■ President’s powers at its LOWEST
● Can rely ONLY on the Constitutionally-granted powers minus Congress’ powers over the matter.
■ In this situation the balance of power is of utmost importance.
Model 4: President has BROAD Inherent Powers
➢ President has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated. (e.g., Curtiss-Wright;
Zivotovsky v. Kerry)
➢ ONLY applied in the context of certain foreign policy issues
Example of the Models at Use:

U.S. v. Nixon → Watergate Scandal; Executive privilege (the ability of the President to keep secret conversations) is not mentioned in the
Constitution, but was traditionally claimed by presidents. Q as to whether the President can claim it for a criminal trial.
○ SCOTUS uses Model 2 → finds that there IS an inherent power allowing for executive privilege, but it is limited by countervailing interests.
■ In this case, executive privilege would interfere with the ability of the judiciary to perform its constitutional function.
Separation of Powers & Foreign Policy: The War Powers

➢ The constitution says little about Foreign Policy decision making:
○ To Congress, § 8 grants the “power of the purse”
○ To the President, Art. III says that the President is “commander in Chief” & “ shall have the power, by and with Advice & consent of the
Senate, to make Treaties. . .”
➢ Three Questions Addressed:
○ 1. Does the Constitution treat foreign & domestic affairs differently?
■ If so, does the President have more inherent authority over foreign policy than domestic?
○ 2. What are the Constitutional limits on agreements with foreign nations?
■ Can the President use executive actions rather than actual treaties?
○ 3. How is decision-making authority over war powers allocated?
Issue One: Are foreign policy and domestic affairs different under the Constitution?
➢ Basic question in this area is whether the President inherently has greater powers in the area of foreign policy compared to domestic affairs.
○ It has come to be well recognized that the President has BROAD powers in the area of foreign affairs → this has a substantial effect on the
President’s power in two major areas: war powers and treaty-making.
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U.S. v. Curtiss-Wright Export Co. → Congress passes a joint resolution authorizing the President to stop sales of arms to countries involved
in the Chaco border dispute. President Roosevelt immediately issued an order prohibiting munitions sales to the warring nations in the
Chaco border dispute. D made deal to sell in violation of the Joint Resolution of Congress. Argues this was an improper Court uses Model
4; President’s power is more expansive in the area of foreign policy than in domestic affairs
■ Federal government only has limited internal powers due to not stepping on state's rights, but the states have no foreign
rights → even if the Constitution didn't say it, it would still be true.
¡NOTE! This is ONLY in the area of foreign affairs!
Zivotofsky v. Kerry-skim this case → Fight between President and Congress about passports. Someone born in Jerusalem to state his place
of birth as “Israel.” President wants Jerusalem. Congress wants Jerusalem, Israel.delegation.
○ SCOTUS uses Model 4; even though the President’s actions go against the express will of Congress (President’s power at its lowest
ebb per J. Jackson’s “zones) his actions here are constitutional
■ BROAD Presidential power in the area of foreign policy
○ The Constitution grants the President exclusive authority to recognize foreign nations → Congress CANNOT contradict via
statute.
■ Constitution direct the President to “receive Ambassadors & other public Ministers” → since the country must speak w/”one
voice”, Congress cannot contradict the President via statute.
Issue Two: What are the Constitutional Limits on Treaties & Executive Agreements?
Not covered → SKIP
Issue Three: How is Decision-Making Power over War Powers Allocated?

➢ Constitution splits authority AGAIN:
○ To Congress: Art. I grants the power to declare war & authority to raise & support the army & navy.
○ To the President: Art. II makes the President “Commander in Chief”
War on Terrorism
Two Questions:
1. When may the Executive detain US enemy combatants?
2. When, if at all, are military tribunals Constitutional?
➢ SCOTUS decided 3 major cases on civil liberties & the war on terrorism in June 2004:
○ Rasul v. Bush → Detainees in Guantanamo Bay had a right to have their habeas corpus petition heard in federal court.
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○ Padilla v. Rumsfeld → an American citizen, caught in the US & held in South Carolina could not present habeas corpus petition in NY
federal court, but had to do it in S.C. court instead.
○ Hamdi v. Rumsfeld → SEE BELOW
Hamdi v. Rumsfeld → Hamdi is an American Citizen apprehended in Afghanistan and brought to Guantanamo Bay where his citizenship was
discovered. He was held as an enemy combatant, but was never charged with a crime. Court of App. for 4th Cir. agreed w/government that as an
American citizen apprehended in a foreign country and held as an enemy combatant, Hamdi was not entitled to due process or judicial review.
○ SCOTUS applied Model 3 & Model 4;
■ Issue 1: Power to Detain → does the president have inherent power to detain American citizens apprehended in foreign countries as
enemy combatants?
● Plurality agreement → YES; President has an inherent power to detain.
○ M4: J. Thomas → president has inherent power as commander in chief
○ M3: Discussion as to whether to apply Zone 2 or Zone 3 → did Congress approve/deny/or neither?
■ Issue 2: Power to Waive Due Process → What, if any, process is Hamdi afforded?
● Majority Agreement → Hamdi MUST be afforded due process
○ War does not give the Executive a “blank check” when it comes to citizen’s rights.
Boumediene v. Bush → Congress & P. Bush signed the Military Commission Act, declaring that non-citizens held as enemy combatants cannot have
access to federal courts via writ of habeas corpus.
○ SCOTUS applies Model 2; denial of the writ undermines the role of the Constitution, the judiciary, and the rule of law in the war on
terrorism.
Checks on the President: Civil Lawsuits

➢ There are two primary formal mechanisms to check the power of the President:
○ Civil Suits & Criminal Proceedings
○ Impeachment
Suing & Prosecuting the President

Nixon v. Fitzgerald→ President has ABSOLUTE immunity from suits dor damages based on official actions taken while in office
Clinton v. Jones → President DOES NOT have immunity for civil actions arising from actions committed before entering office.
Limits on State Regulatory & Taxing Power

➢ What inherent limits exist on state power because of the national government & other states?
○ Very much focuses on FEDERALISM → State v. Federal Power
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CENTRAL ISSUE: What is the appropriate degree of judicial oversight or judicial deferent to state/local government?
Two Situations Where State & Local Laws May be invalidated:

1. If Congress HAS acted → does federal law preempt state/local law?
➔ Supremacy Clause: where federal & state/local law conflict, federal law preempts the latter
2. If Congress HAS NOT acted OR a judiciary decides there is NO preemption → state/local law may be challenged on two principles:
➔ Dormant Commerce Clause: principle that state/local laws cannot place an undue burden on interstate commerce ––even if Congress HAS
NOT ACTED.
➔ Privileges & Immunities Clause (Art. IV § 2): interpreted as limiting the ability of the states to discriminate against out-of-staters w/ regard
to constitutional rights or important economic activities
Preemption of State & Local Laws

➢ The Constitution & acts of Congress are the supreme law of the land.
○ See Gibbons v. Ogden
How to determine if a state/local law has been preempted:
Express Preemption Direct Preemption is easy to apply, but the difficulty arises because Congress is rarely clear about scope or how
particular situations should be handled.
Congress’ command is expressly stated in
the statute’s language.
Implied Preemption Conflict Preemption
Congress’ command is implicitly contained Even if federal law does not expressly preempt state/local law, compliance with both regulations is a physical
in the statute's structure & purpose. impossibility.
Obstacle Preemption
State law impedes on the achievement of a federal objective
Field Preemption
The scheme of federal law & regulation is so pervasive as to make it a reasonable inference that Congress left no
room for the States to supplement it.
¡For ALL of the above: CONGRESSIONAL INTENT IS KEY!

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Dormant Commerce Clause
➢ Commerce protection between the states is so important because of interdependence, that state/local law can be challenged on the grounds that it impedes
interstate commerce EVEN IF CONGRESS HAS NOT ACTED.
Two Functions of the Commerce Clause
1. Authorizes Congressional actions
2. Limits state/local regulations → enter Dormant Commerce Clause
Privileges & Immunities Clause (Art. IV, § 2)

➢ Court has stated that this clause essentially prevents a State from discriminating against citizens of other states in favor of its own
○ Such discrimination will only be allowed if it is substantially related to achieving a substantial state interest (strict scrutiny)
➢ “Citizen” Requirement
○ Note that discrimination against citizens of other states is a PREREQUISITE for this clause to apply.
○ Citizen → U.S. Citizen

■ NOT APPLICABLE to corporations or immigrants w/o legal status.
“Mutuality of P&I Clause & Dormant Commerce Clause

➢ Both can be sued to challenge actions that discriminate against out of staters, BUT KEY DISTINCTIONS:
○ Dormant Commerce Clause does not require discrimination → P&I Clause does
○ Corporations & immigrants can sue under dormant commerce clause → cannot sue under P&I Clause
○ Two Dormant Commerce Clause Exceptions INAPPLICABLE to P&I Clause
■ Congressional Approval → no violation of the Dormant Commerce Clause if Congress approves the state action
■ Market Participant → Dormant Commerce Clause does not apply if a state is acting as a market participant, not a regulator
● I.e. a state may favor its own citizens in dealing with government-owned business and in receiving benefits from
government programs.
➢ ¡Note! The P&I Clause will only protect FUNDAMENTAL RIGHTS → commercial activities; livelihood; certain civil rights…
Protection of Individual Liberties

Constitutional Structure of Civil Right Protection
➢ The Constitution itself contains relatively few mentions of individual rights → Framer’s were most concerned with creating a structure of government that
would, in itself, ensure the protection of individual rights.
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The Importance of Governmental Structure
➢ The issues of Separation of Powers & Federalism (talked about above) underlie every area of individual rights.
○ A major recurring issue is the extent to which the judiciary should protect civil liberties and civil rights when doing so means striking down
the actions of popularly elected officials → anti-majoritarian dilemma
➢ There are few mentions of individual rights in the Constitution because:
○ (1) Framers thought the government’s structure made it unnecessary
○ (2) Fear that “missing” a right would deny protection to unenumerated rights.
■ 9th Amendment added to address this concern → “The enumeration in the constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people”
Sources of Rights
Bill of Rights
➢ Some states were concerned with the absence of enumerated rights → requested ratification of a Bill of Rights (Amendments 1–10)
○ The first eight Amendments detail protection of individual rights.
➢ Notable Amendments/Rights (for the purpose of this class)
○ First Amendment → Freedom of Speech & Religion
○ Ninth Amendment → Contested source to Justify Judicial Recognition of Unenumerated Rights.
■ "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
○ Tenth Amendment → Contested source for Reservation of Unenumerated Power to the States/People.
➢ Protections Arising from Bill of Rights → Enumerated Fundamental Rights
14th Amendment
➢ Important Clauses from the 14th Amendment
○ Privileges or Immunities Clause (P/I) → § 1 → “No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States;”
○ Due Process Clause → §1 → “nor shall any state deprive any person of life, liberty, or property, without due process of law;”
○ Equal Protection Clause → §1 → “nor deny to any person within its jurisdiction the equal protection of the laws.”
○ Enablement Clause → § 5 → “The Congress shall have power to enforce, by appropriate legislation, the provisions of this
article.”
➢ Protections Arising from 14th Amendment → Equal Protection & Unenumerated Fundamental Rights (Substantive Due Process)
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Applying Rights as a Limit to Conduct
Application of Rights as a limit to Federal Conduct
➢ The Bill of Rights directly limits the federal government → NO BRANCH can interfere with or deny Bill of Rights.
➢ The 14th Amendment directly limits the federal government → NO BRANCH can interfere with the guarantee of equal protection.
(Bolling v. Sharpe)
Application of Rights as a limit to State Conduct

MODERN RULE: Enumerated & Unenumerated Fundamental Rights are protected though the DP Clause of the 14th Amendment; Equal
Protection Guarantee applies to State Conduct through 14th Amendment inherently → that’s why
➢ The Bill of Rights directly limits the federal government, NOT the states.
➔ Baron v. Mayor & City Council of Baltimore → The city of Baltimore diverted streams that made Barron's wharf too shallow for boats.
Barron sued the city for taking property without just compensation in violation of the 5th Amendment.
◆ The 5th Amendment is intended solely as a limitation on the exercise of power by the government of the United States and is not
applicable to the legislation of the States
● They were added in response to the fear that the government may abuse its power → the fears of abuse of power were not
directed at the governments of the states or their localities, but at the central government being formed.
➢ The 14th Amendment as Method of Application to the States
○ Initial Argument → Use P/I clause to apply the Bill of Rights to the States.
■ Argument that the Bill of Rights is the most basic set of “privileges” and “immunities” possessed by citizens.
■ SCOTUS quickly found that the P/I clause was NOT meant to protect individuals from state government actions nor was it
meant to be a basis for federal courts to invalidate state laws. → strong federalism notions.
➔ Slaughter-House Cases → Louisiana granted a monopoly to the Slaughter-House Company for butchering livestock in New
Orleans. Several butchers brought suit, claiming the monopoly violated the butchers' rights to practice their trade.
◆ Court holds the grant is a proper exercise of Louisiana’s police power; its purpose was not “deprivation,” but
nuisance regulation.
◆ SCOTUS narrowly construed 14th amendment as only applying to prohibit slavery → doesn’t last long.
¡Other than the P/I clause, all other narrow constructions of the 14th Amendment have
been overruled! → that’s why EP automatically applies to states
➔ Saenz v. Roe (1999) → California enacted a statute in 1992 that placed a cap on welfare benefits for newly arrived
residents. Issue as to whether the P/I clause protects the right of newly arrived citizens to enjoy the same privileges and
immunities as other citizens.
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◆ Previous decisions already held the Right to Travel as a fundamental right → Cal’s statute would discriminate
against those who recently traveled to deny them equal treatment under the law.
● It infringes on the right to travel by denying equal protection simply because a person has asserted a
fundamental right to travel.
◆ ¡Note! This is the only right housed under the P/I Clause→ SCOTUS has not mentioned it since.
○ Second Argument → Incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment
■ In early 20th Century, SCOTUS recognized that the Due Process Clause MAY safeguard some personal rights from the first
eight amendments. (Twining v. N.J.).
■ RULE: The Due Process Clause of the 14th Amendment protects fundamental rights from state interference →
CAN include the Bill of Rights, but “not because those rights re-enumerated in the first eight Amendments, but because they
are of such a nature that they are included in the conception of due process of law.”
● Rights are “incorporated” into the Due Process Clause through judicial recognition.
¡Due Process Explored in Depth Below!
Application of Rights as a limit to Private Conduct: The State Action Doctrine

➢ The Civil Rights Cases held that (1) federal Constitutional rights do not govern individual behavior and (2) Congress lacks the authority to
apply those rights to regulate private conduct.
○ State Action Doctrine (SAD) → Congressional regulations to protect individual rights can ONLY be applied to government
actions.
Constitution’s Extension to Private Conduct

13th Amendment → The one provision directly aimed at private conduct → forbids slavery
Government can enact statutes that apply constitutional norms to private
Fed. & State Statutes → conduct through such laws (though Enablement Clause)
Exception to State Action Doctrine 1. Public Function Exception
“SAD” → 2. Entanglement Exception
➢ Cost/Benefit Analysis of SAD
○ Costs → private conduct can: infringe on rights; perpetuate imbalances in power; etc.
○ Benefits → limiting regulation: advances & enhances federalism; prevents constraint of private actors; etc.
¡NOTE! This area of judicial decision making is MESSY and INCONSISTENT.
➢ SAD Exceptions:
○ Public Function Exception → a private entity must abide by the Constitution if it is performing a public function that has
been (1) traditionally and (2) exclusively done by the government.
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➔ Marsh v. Ala. (1946) → P, a Jehovah’s Witness attempted to distribute pamphlets in a company-owned town. The company did not
allow solicitation w/o prior written permission.
◆ Expansive Interpretation → Balancing test of Property owner interests against interests in Constitutional rights.
● Court noted that the latter occupies preferred position
◆ Private property for public use → running a city is a public function.
➔ Jackson v. Metropolitan Edison Co. (1974) → D was granted a monopoly to deliver electricity in NY. P had her electricity cut of bc
of delinquency; argues that D was required to provide her with dues process since it was providing public function
◆ Narrow interpretation → traditionally, exclusively done by the government
◆ Public utility; history of private actors → since there long have been private utility companies, running a utility is not
regarded as a public function to which the Constitution always applies.
➔ Manhattan Comm. Access Corp. v. Halleck (2019) → D was selected by NY to run a public access channel; cable companies were
required to offer some public access channels. D temporarily suspended P’s ability to use the channels after a controversial
documentary.
◆ Function MUST have been traditionally AND exclusively under State’s control to regulate a private entity i.ed for this
exception to SAD to count..
○ Entanglement Exception → private conduct MUST comply with the Constitution if the government has authorized,
encouraged, or facilitated the unconstitutional conduct.
➔ Brentwood Academy v. Tennessee Second. Schl. Athletic Assoc. → Private company was regulating high school sports activities.
◆ A private entity is a state actor based on its “ENTWINEMENT” with the government
● Court does not address what “entwinement” is or how it related to entanglement → this remains unaddressed
● Suggested definition → a state action may be found only if, there is such a close nexus between the State and the
challenged action that seemingly private behavior may be fairly treated as that of the state itself.
On the Levels of Scrutiny

Courts presume that laws are constitutional → deference to the Legislature (separation of powers)
➢ “Level of Scrutiny” → the test applied to determine if a law is unconstitutional.
○ Informs the Court on how to balance the interest → where to arrange the “weights”
Presumption of Constitutionality/ Area of great government suspicion/
Generally, police power of state Fundamental right at stake
–– Increasing Scrutiny–→
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Rational Basis Intermediate Scrutiny Strict Scrutiny
Presumption of Validity
*all other classes “Suspect” Classes
Sexual Orientation/Disability/Age/Poverty “Quasi-Suspect Class”
Race/National Origin
Gender
“RB w/Bite” Fundamental Right Infringement
No Bare animus
Carolene Products/Footnote 4 Theory

➔ U.S. v. Carolene Products Co. →”Filled Milk Act” prohibited the sale of milk “filled” with vegetable oil.
◆ SCOTUS upheld law, citing need for deference to Congress.
◆ Reserved area for “more searching judicial inquiry” where a law:
↓ “Heightened Scrutiny Categories” ↓
1. Interferes with individual rights
2. Restricts the ability of the political process to repeal undesirable legislation
3. Discriminates against a “discrete and insular minority”
★ “Discrete and Insular Minority”
○ Lack of access to political process
○ Immutable Characteristic
○ History of Discrimination
○ Likelihood of Prejudice
Rational Basis Test

Law will be upheld if → rationally related to a legitimate government purpose
Legislative Goal: LEGITIMATE for government to pursue

Means/Fit: REASONABLE way to accomplish the objective
Burden of Proof: Challenger
➢ REQUIREMENTS:
○ Legitimate Goal
■ Any conceivable, legitimate purpose
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■ The goal does not need to be the actual purpose of the law, so long as the Court can find any legitimate purpose the law may serve.
○ Reasonable Fit
■ It is ok if the law is under/over inclusive.
➢ Challenger of the law carries the burden of proof.
○ Law will be upheld unless challenger can prove the law:
■ (1) does not serve a legitimate government purpose OR
■ (2) the means are not a reasonable way to attain the objective → *see Rational Basis with Bite
➢ CHALLENGES START HERE → Unless it falls in a “heightened scrutiny” category
Intermediate Scrutiny Test

Law will be upheld if → substantially related to an important government purpose
Legislative Goal: IMPORTANT for government to pursue

Means/Fit: SUBSTANTIALLY RELATED to the objective
Burden of Proof: Government

➢ REQUIREMENTS:
○ Important Goal
■ The goal must be more than just a legitimate goal for the government to pursue
■ Court must regard the purpose as “important”
○ Substantially Related Fit
■ The law must be narrowly tailored to the important goal (not as narrowly tailored as in SS)
■ Some over/under inclusivity is ok → does NOT need to be the least restrictive means
➢ Government carries the burden of proof → government must justify the law
➢ HEIGHTENED SCRUTINY CATEGORY
○ Fundamental Rights → regulation of speech in a public forum; regulation of commercial speech
○ Discrimination → gender discrimination; discrimination against undocumented children in regard to education
Strict Scrutiny Test

Law will be upheld if → necessary to achieve a compelling government purpose
Legislative Goal: COMPELLING for government to pursue

Means/Fit: NECESSARY way to accomplish the objective
Burden of Proof: Government

➢ REQUIREMENTS:
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○
Compelling Goal
■ The government’s purpose must be regarded as vital by the Court
○ Necessary Fit
■ Law must be narrowly tailored to the compelling goal.
■ Must be the least restrictive/least discriminatory alternative → there can be NO under/over inclusivity
● If a law is not the least restrictive alternative, then it is not necessary to accomplish the end.
➢ Government carries the burden of proof → presumption of unconstitutionality in this realm
○ Law will be struck down unless the government can prove it is necessary & uses the least restrictive means.
○ Most intensive type of judicial review → “Strict in theory, fatal in fact.”
➢ HEIGHTENED SCRUTINY CATEGORY
○ Fundamental Rights → Interference with any fundamental right
■ Right to Vote
■ Right to Travel
■ Right to Privacy
■ Interference with the freedom of speech
○ Discrimination → discrimination based on race or national origin; discrimination based on undocumented status (with exceptions)
On Due Process
The 5th and 14th Amendments both contain Due Process Clauses:
Neither the United States nor state governments shall deprive any person “of life, liberty or property without due process of law”
5th Amendment → limits the Federal Government
14th Amendment → limits the states
➢ Due Process Clauses have been interpreted to impose two separate limits: Procedural Due Process & Substantive Due Process
Procedural Due Process Substantive Due Process
● Refers to the procedures that the government must follow ● Refers to the government’s justification for depriving a
before it deprives a person of life, liberty, or property. person of life, liberty, or property and asks if that
justification is sufficient.
● Classic concerns → what kind of notice or what form of
hearing is required (Civ Pro+ issues) ● The sufficiency of a justification depends on the level of
scrutiny applied
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On Substantive Due Process
➢ Substantive Due Process became important after the Slaughter-House Cases because SCOTUS used it to enforce individual rights protections on
the states.
○
➢ Distinguish between Procedural and Substantive Due Process by looking to the remedy sought.
Procedural Due Process Issues Substantive Due Process Issues
P is looking to have a government action declared unconstitutional because..
↓ ↓
The lack of adequate safeguards. The action violates a constitutional right.
e.g., no notice, no hearing, etc.
○ Illustration → the constitutional right to parental custody of their children.

■ P. Due Process → gov must provide notice and a fair hearing before terminating rights.
■ S. Due Process → because a fundamental right is at issue, the government must meet Strict Scrutiny.
○ Illustration → challenges to large punitive damages awards (Timbs *see below under fundamental rights).
■ P. Due Process → safeguards required (jury instructions; judicial review)
■ S. Due Process → excessive punitive damages are prohibited regardless of the procedures followed.
¡SUBSTANTIVE DUE PROCESS = FUNDAMENTAL RIGHTS!
➢ Substantive Due Process has been primarily used to:

1. Protect Economic Rights
○ Lochner Era
2. Safeguard Privacy Rights*
○ These are rights that the court has said are so ingrained in personhood that they are fundamental rights.
○ Examples:
■ Family/Sex/Marriage
■ Medical Care
■ Reproductive Freedom
*Not the same as privacy rights in reference to technology.
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Economic Substantive Due Process: The Lochner Era
➢ Lochner Era was a mess → illustrates the danger of using substantive due process to incorporate unenumerated fundamental rights.
¡NOTE! Everything that has to do with modern Constitutional Law is in reaction to the Lochner Era.
➢ SCOTUS used substantive due process to advance laissez-faire economics → struck down government actions to protect economic liberties.
○ Economic Liberties → Right to Contract; Right to Pursue a Trade/Profession; Right to Acquire, Possess, and Convey Property
■ Especially so when the government actions intended to protect workers, unions, consumers, and competitors.
■ When it had to do with morality → SCOTUS much less willing to protect.
● i.e., would uphold laws regulating activities seen as relating to “morality,” but not laws regulating fair working conditions.
➢ End of Lochnerism marked by West Coast Hotel v. Parrish & U.S. v. Carolene Products
○ SCOTUS declared that it would no longer protect the freedom to contract, government could regulate to serve legitimate purposes, the
judiciary would defer to legislative purposes so long as they were reasonable (West Coast Hotel v. Parrish)
○ Court established double standard of review over legislative actions (U.S. v. Carolene Products)
■ (1) presumption of constitutional validity for reasonable laws → application of Rational Basis to ALL laws
■ (2) interference with “heightened scrutiny” categories → application of Intermediate or Strict Scrutiny
● Fundamental Rights Interference → SS
● Equal Protection Violation → IS or SS
➢ Post 1937 → indication that virtually any law can meet the Rational Basis Test
○ Laws that undoubtedly would’ve been struck down in the Lochner Era as infringing on economic liberties are regularly upheld now.
(Williamson v. Lee Optical of Oklahoma, Inc)
Cases Referenced:
➔ Slaughter-House Cases → see facts above*
◆ Rejected use of P/I clause as method to apply individual rights protections to the states.
◆ Narrow construction of 14th Amendment made Substantive Due Process vital.
➔ Lochner v. New York → NY created a law that limited bakers' hours to no more than 60 hours because of great safety concerns to bakers’ health.
◆ The law infringes on an economic liberty → the Right to Contract
◆ The law is not a proper use of the state’s police powers because the health risk is so remote.
➔ West Coast Hotel v. Parrish → Washington State passed a law that established minimum wage for women. West Coast Hotel had not paid Elsie
Parrish the full amount established by the minimum wage law. Parrish sued to collect.
◆ Court made it clear that it was abandoning Lochnerism → “What is the freedom of contract? The Constitution does not speak of the freedom
of contract”
➔ U.S. v. Carolene Products → see facts above*
◆ Economic liberties are subject to rational basis.
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➔ Williamson v. Lee Optical of Oklahoma, Inc → Oklahoma passed a law that required people to obtain a prescription from an ophthalmologist or
optometrist to get a new set of glasses. Practically, this law served to prevent opticians from fitting old glasses into new frames without a
prescription.
◆ Realistically, this law was an anticompetitive measure, but the Court proclaimed deference to the legislature and upheld the law anyway.
go down to Fundamental Rights Section for application of substantive due process
Equal Protection
Equal Protection Clause (14th Amendment ) → “no state shall…deny to any person within its jurisdiction the equal protection of the laws”
Brief History & Development

The Slaughter-House Cases originally limited the application of the 14th Amendment’s Equal Protection Clause to prevent slavery.
➢ Slaughter-House‘s precedent has been overruled through Brown v. Board & Bolling v. Sharpe.
➔ Brown v. Board → explored in depth later
◆ Beginning of modern Equal Protection jurisprudence.
◆ SCOTUS has used EP Clause to combat discrimination & to protect rights from State action.
➔ Bolling v. Sharpe → Brown’s companion case; concerned segregation in D.C. public school district.
◆ Held that Equal Protection applies to the federal government through the due process clause of the 5th Amendment.
◆ This was an important case because the 14th Amendment relates to a limitation on the States and nothing else in the Constitution talks about
the guarantee of Equal Protection as a limit on the federal government.
Equal Protection Framework

Basic Question: Is the government’s classification justified by a sufficient purpose.
(1) What is the Classification? (2) What is the appropriate level of scrutiny? (3) Does the government action meet the level of
scrutiny required?
(1) WHAT IS THE CLASSIFICATION?
➢ Begin by identifying HOW the government is distinguishing from among people.
➢ Ways to Identify a Discriminating Statue
○ Facial Classification
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■ The law in its very terms creates distinctions
○
Facially-Neutral Classifications
■ The law’s terms do not make an explicit distinction, but there is discriminatory impact and discriminatory purpose.
● Discriminatory purpose behind the law
● Discriminatory impact on a class of persons
■ ¡NOTE! Discriminatory impact alone is not enough.
(2) WHAT IS THE APPROPRIATE LEVEL OF SCRUTINY?
➢ Level of scrutiny will depend on the type of discrimination classification.
*Levels of Scrutiny analyzed above
○
Strict Scrutiny (SS)
■ Applied to racial discrimination; discrimination against undocumented (w/ exceptions)
○ Intermediate Scrutiny (IS)
■ Applied to gender discrimination; nonmarital children discrimination
○ Rational Basis (RB)
■ Minimum level of scrutiny that ALL laws MUST pass
■ Enormously deferential to the government → rarely found to strike down the law.
➢ Considerations in determining the level of scrutiny as to a classification
○ Footnote 4 Theory & Heightened Scrutiny
■ Immutable Characteristics
● Unfair to penalize people for something out of their control.
● e.g., race, gender, national origin, parent’s marital status
■ Access to Political Process
● Can the political process be trusted to represent the group’s interest?
● Concerned with whether the group can represent themselves through the political process
● e.g., women are traditionally underrepresented in political offices; immigrants w/o documentation cannot vote.
■ History of Discrimination
● Relevant to determine whether the purpose of the law is legitimate or purely discriminatory
■ Likelihood of Prejudice
● •related to the above
● e.g., race classification (SS) reflects suspicion from historic treatment of the class; gender classification (IS) reflects
view that biological differences increased likelihood that discriminating law is based on a justifiable purpose
(3) DOES THE GOVERNMENT ACTION MEET THE REQUISITE SCRUTINY?
➢ Court evaluates the relationship between a law’s ends & means by focusing on the degree to which a law is underinclusive and/or
overinclusive.
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○Underinclusive: the law does not apply to similar individuals → it does not include people similar to those affected by law for its
purpose
■ e.g., law prohibiting driving to those under 16; underinclusive bc some indiv. under 16 likely have the capacity to drive safely
○ Overinclusive: the law applied to those who do not need to be included for the government to achieve its purpose.
■ e.g., Japanese internment during WWII; extremely overinclusive bc few Japanese Americans posed a threat
➢ A law CAN BE underinclusive AND overinclusive
○ e.g., Japanese internment was also underinclusive because it did not target individuals of other races who did pose a threat.
➢ Under/Overinclusive analysis is used to gauge “fit” between ends & means
○ SS → requires closest fit
○ RB → requires least fit
¡NOTE! EP can also be used when the government is restricting a fundamental right in a discriminatory manner.
Explored in detail below
Equal Protection Applied

Rational Basis in Equal Protection
Legitimate Purpose
➢ Does the government have a legitimate purpose that this law can serve?
○ Virtually ANY goal that is not prohibited by the Constitution is legitimate
■ Obvious Goals → “police power” illustrates w/o limiting the delineation line
● e.g., protecting/promoting public safety, public health, public morals, peace and quiet, law and order
○ The legitimate purpose does not need to be the actual purpose → it will be upheld so long as there is a conceivable legitimate
purpose
■ Those attacking the law have the burden of negating every conceivable purpose that may support the law.
➔ Romer v. Evans → Colorado passed Amendment 2 has no legitimate purpose. See below*
“Reasonable Relationship”
➢ Court must decide whether the classification in the law is reasonable in light of its purpose.
○ A law will be upheld unless the government action is:
■ Clearly Wong
■ A Display of Arbitrary Power
■ Not and Exercise of Judgement
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○ Under RB, Courts allow significantly under/overinclusive laws
Tolerance for Underinclusive Laws
○ Concerns associated with underinclusive laws → that the law targets a politically powerless group or exempts those w/more political
clout
➔ Railway Express Agency v. NY → NY passed a traffic regulation that limited the use of advertisements on business vehicles to only
the vehicles used by that business . P argued that regulation was underinclusive bc it was just as distracting to have an advertisement
on the business’s own vehicle as on a 3rd party vehicle.
◆ Rule: a law that is underinclusive does not necessarily violate equal protection → state may choose to attack a problem in
phases or feasible portions.
◆ EP does not mean that regulations must be all or nothing
○ Concerns associated with overinclusiveness→ laws can target politically powerless groups that could’ve been protected if they
had more political clout.
■ SCOTUS allows, even significant, overinclusiveness under RB
➔ NYC Transit Authority v. Beazer → NYC Transit authority refuses to employ persons tho use methadone. P argued it was
overinclusive because some people legally use it with a prescription.
◆ Rule: Transit authority has a legitimate interest, even if it affects others besides the targeted class.
◆ Reasoning: any alternative rule would be less precise and more costly than a total ban.
Arbitrary & Unreasonable Laws: Rational Basis “with bite”
○ Evidence of “BARE ANIMUS” → Law is NEVER reasonable
➔ US Dept. of Agriculture v. Moreno → § 3(e) of Food Stamp Act created two classes: class of household with related people & class
of household with unrelated people. Ps are people excluded bc they meet the income requirements, but they live with at least one
unrelated person. Legislative history explicitly stated the classes were because they wanted to exclude “hippies”
◆ Rule: a state regulation violates EP Clause if it creates distinct classes & deprives one class of protections because of
legislative preference.
● The class distinctions did not operate to prevent fraud → “the classification…is not only ‘imprecise,’ it is wholly
without any rational basis”
➔ City of Cleburne v. Cleburne Living Center → City ordinance required special permit for “mentally retarded.” City’s justifications
didn’t make sense because there was a nursing home, a school, and a convalescent home in the same vicinity.
◆ SCOTUS rejected mentally disabled classification as a “quasi-suspect” class (IS) → RB is appropriate test
◆ Rule: Rational relation is NEVER met when there is no purpose behind a regulation other than prejudice.
➔ Romer v. Evans → Colorado passed Amendment 2 through votes. It prohibited legislation or government action that would be done
for the purpose of protecting homosexuals.
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◆ Holding: Amendment 2 violates the Equal Protection Clause → SCOTUS rejects argument that it simply put homosexuals
on the same footing as others.
◆ Rule: there is no legitimate purpose in singling out a group and precluding it from using the political process.
● These kinds of laws raise the inevitable inference that they were born of BARE ANIMUS toward the group
● Recall Footnote 4 Theory → There is (1) a history of discrimination, which increases the likelihood of prejudice,
and (3) the Amendment completely excludes them from the political process at a State constitutional level.
■ Takeaway → any evidence of BARE ANIMUS will likely invalidate the law even under RB analysis.
Miscellaneous Classifications Under Rational Basis

Other Types of Discrimination Falling Under Rational Basis Review:
● Age ● Wealth/Poverty
● Disability ● Sexual Orientation
➢ Age Classifications
➔ Massachusetts Board of Retirement v. Murgia → Mass. State law required police officers to retire at age fifty.
◆ Established rational basis as the appropriate test for age discrimination because:
● Age is not a suspect class → not a “discrete and insular minority”
○ Age “marks a stage that each of us will meet if we live a normal lifespan”
● Law does not interfere with a fundamental right
➢ Disability Classifications
○ Court routinely holds that disability classifications fall under rational basis
○ Protections exist/are imposed through the Americans with Disabilities Act
➢ Wealth Discrimination
○ Routinely held as falling under rational basis
○ Poverty is not immutable; most resulting discrimination is an effect of the law not its purpose (facially neutral)
■ Similarities with Footnote 4 → lack of access to the political process; history of discrimination
○ Court wants to avoid creating a Constitutional right to government benefits
➢ Sexual Orientation
○ Various cases where SCOTUS shows willingness to protect → these cases don’t specify the level of scrutiny applied
Strict Scrutiny: Race & National Origin Classifications

ALL racial classifications MUST meet Strict Scrutiny → regardless of if they disadvantage or help minorities.
➢ The Government MUST show
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○ (1) an extremely important reason for its action AND
○ (2) must demonstrate that the goal cannot be reached through a less discriminatory purpose
➢ Reasons for applying strict scrutiny to racial classifications:
○ Race is an immutable characteristic
○ History of discrimination based on race → increased likelihood that race discrimination is based on prejudice
○ Likely less access to political process → political powerlessness
➢ Two ways to prove a race/national origin classification exists in a law:
○ Facially Discriminatory
■ The text of the law draws a distinction among people based on race/national origin.
○ Implicitly Discriminatory → Facially Neutral
■ Discriminatory Administration/Impact, AND
■ Discriminatory Purpose
Facially Discriminatory Laws

➢ Three Major Types of Facially Discriminatory Laws
1. Express Unilateral Burden → laws that expressly impose a burden/disadvantage on people because of their race/national origin.
2. Express Bilateral Burden → government action that burdens BOTH whites & minorities
3. Express Segregation → laws requiring separation of the races
Unilateral Burden Laws

● These laws are usually struck down.
➔ Strauder v. W.Virginia → law limited jury service to white males
◆ Struck down because it expressly singled out & disadvantaged black americans.
● Upheld in only ONE situation → internment of Japanese Americans in WWII
➔ Korematsu v. U.S. → Civ. Excl. Order No. 34 required all Japanese Americans to move to internment camps.
◆ Rule: Strict Scrutiny will apply to ALL laws restraining rights based on race.
◆ Law was upheld under SS → national security was a compelling government purpose & there were no better/more
narrow means by which the government could achieve that goal
● Time of war and deference to the other branches’ “war powers” played a significant role in the analysis.
◆ ¡Note! SCOTUS never declared evacuation & internment of Japanese Americans to be unconstitutional.
Bilateral Burden Laws
● Originally, these laws were upheld as being “race-neutral”
○ e.g., anti-miscegenation laws (laws prohibiting cohabitation
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➔ Loving v. Virginia → Virginia had an anti-miscegenation statute criminalizing white people marrying outside of their race.
Virginia argued that the law did not violate EP because it applied equally to all races.
◆ Rule: “Equal application” of the law does not circumvent the 14th amendment’s prohibition of racial discrimination.
● The issue is distinctions made solely on race → states cannot restrict marriage solely based on race.
➔ Palmore v. Sidoti → Father sought to remove his child from Mother’s custody solely because she was married and living
with a Black man.
◆ Rule: EP prohibits removal of an infant from its mother solely because of the possibility that it may be affected by
racial bias.
● While the EP does not reach private conduct; the law cannot use private conduct to legalize racial
discrimination.
○ i.e. law cannot regulate private conduct (the discrimination child may be forced to bear), but it also
cannot make decisions based on potential private conduct → counter to EP’s goal.
● Takeaway → Laws that create distinctions based on race/national origin are not exempt from EP requirements solely because they affect
white people and POC as well.
Segregation Laws
● Segregation was regularly upheld when the 14th Amendment was initially passed → Federal government could not pass laws to prohibit it
because the Civil Rights Cases narrowly construed the 14th Amendment to only apply to state conduct.
➔ Plessy v. Ferguson → Plessy, a man that was ⅞ White refused to leave a “White only” train car and was prosecuted for
violating Louisiana law that required “separate but equal”
◆ SCOTUS held that “separate but equal” does not violate the EP Clause
● Rejection of the argument that separation inherently exemplified the assumption that Blacks were inferior.
◆ Court did not question the doctrines → focus on the availability of “equal opportunities”
● Reality was that separate facilities were rarely equal.
● Initial attack on “separate but equal “ in cases from 1938–1954

○ → Missouri el rel. Gaines v. Canada (1938) → Missouri would pay for black students to attend out of state law schools rather than
admit them to schools in their state.
■ SCOTUS said it was a violation → focus not on what other states can provide, but what Missouri can provide
➔ Brown v. Board of Education (1954) → Five SCOTUS cases involving issues as to segregation in public schools.
◆ Rule: In the field of public education, “separate but equal” is inherently unequal.
● Court focused on the effects of segregation on black children → segregation inherently marked them as
inferior
● Focus on effect of segregation on public education, not on equality of “tangible factors”
◆ OVERTURNED “SEPARATE BUT EQUAL” DOCTRINE
● Court did not assign remedies → left them for Brown II
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○ SCOTUS subsequently declared several segregation laws unconstitutional w/o an opinion.
■ Deeply criticized for this since Brown’s decision was in regard to the effect of segregation on public education →left
unclear how it applies to other contexts.
Remedies to EP Violations
○ When there is an equal protection violation → courts must provide a remedy by either
■ (i) invalidating the law OR
■ (ii) issuing an injunction
○ The Problem of School Segregation
➔ Brown II → Rehearing to decide appropriate remedies for Brown I. i.e. “how is relief to be accorded?”
◆ SCOTUS remanded cases to lower courts w/ instructions to use traditional equity principles to fashion a
remedy to fairly desegregate public schools w/ “all deliberate speed”
■ Schools & States widely resisted:
● Series of cases where SCOTUS attempted to enforce their holding → all found to perpetuate segregation
→ Goss v. Board of Education; continued violation of EP where policy allowed students to transfer from schools
where they were racial minority to schools where they were racial majority
→Griffin v. School Board of Prince Edward County; continued violation where school systems chose to close
rather than desegregate
→Green v. Country School Board; continued violation where “freedom of choice” plan was implemented to
allow students to choose which school to attend.
● Civil Rights Act of 1964 (and other statutes) accompanied the decisions to reinforce them.
○ Title VI prohibited discrimination by schools receiving federal funds
○ SCOTUS broadly defined the remedial powers of the federal courts in the frustrating wake of resistance to Brown I & Brown II
■ Milliken was a limit to that remedial power.
➔ Milliken v. Bradley → Detroit Schools were not officially segregated, but redlining & private covenants resulted in
de facto school segregation. Lower court ordered “bussing” as a remedy to ensure schools reflected actual race
proportions
◆ Rule: without evidence that a school district violated the constitution (through segregation), federal courts
cannot impose an unwarranted remedy.
● There was no proof of inter-district violations
◆ Takeaway → The scope of the remedy is determined by the nature & extent of the constitutional violation
■ Milliken resulted the persisting issue that continues today as a result of historic redlining & housing covenants
● Together w/ San Antonio Indep. Schl. Dist. (holding EP is not violated by funding disparities) → separate & unequal
schools continue today
● See Parents Involved below.
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Racial Classifications Benefiting Minorities: Affirmative Action
1. What level of scrutiny should be used for racial classifications benefiting minorities?
3 KEY 2. What purposes for affirmative action are sufficient to meet that purpose?
QUESTIONS:
3. What techniques of affirmative action are sufficient to meet strict scrutiny?
➢ Q as to the appropriate level of scrutiny → issue as to whether remedial measures should be treated differently than discriminatory
measures.
○ SCOTUS agreed to use Strict Scrutiny as the test for affirmative action cases in 1989 (Richmond v. J.A. Croson Co.)
ARGUMENTS FOR AND AGAINST STRICT SCRUTINY

Reality is that the level of scrutiny applied will usually determine the outcome.
For SS Against SS
● ALL racial classifications should fall under SS–bad or ● There is a significant difference between the government using
good racial classifications to benefit vs to hurt minorities
● ALL racial classifications stigmatize & bread racial ● There is a MAJOR difference between a political majority
hostility discriminating against minorities vs. a majority discriminating
against itself.
De jure segregation De facto segregation
➢ Four Objectives Offered as the Purpose of Affirmative Action

○ Remedying Past Discrimination → sometimes a compelling purpose
○ Enhancing Diversity → COMPELLING purpose (*with exceptions)
○ Minority Role Models → Not Compelling
○ Increasing Services to Minorities → Not compelling
REMEDYING PAST DISCRIMINATION:

➢ Remedying past discrimination is a compelling purpose in certain circumstances → Four Applications/Meanings
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Remedying past discrimination by:
1. Requiring that a proven violator provide a benefit to an individual who personally suffered past discrimination.
■ e.g., a court ordering a discriminating employer to hire the person discriminated against is affirmative action
■ ALL AGREE that this level of affirmative action is compelling (even Thomas)
2. Requiring that a proven violator provide a remedy to a class of persons who were the subject of discrimination,
even if the benefits go beyond the person(s) discriminated against.
➔ U.S. v. Paradise → federal court order responded to intentional discrimination by mandating that a qualified black
man had to be promoted or hired whenever a white person was promoted or hired. Order upheld
◆ Level of Scrutiny: no majority opinion, but → “the conscious relief at issue is justified by a compelling
interest in remedying discrimination”
◆ Adequate Purpose: remedies to proven intentional discrimination
◆ Sufficient Means: “the relief ordered survives even strict scrutiny”
■ Plurality opinion → but generally accepted
3. Requiring a remedy provision from those in a field/industry where there is proved discrimination; even if this
particular entity has not violated the law and this particular recipient has not been required to show they
personally suffered discrimination.
➔ Fullilove v. Klutznick→ federal law required 10% of federal public works to be set aside for minority owners
businesses.
◆ Plurality opinion
◆ Level of Scrutiny: no majority opinion (at all)
◆ Adequate Purpose: Congress found a long history of discrimination in the construction industry
◆ Sufficient Means: affirmative action justified to remedy this past discrimination
■ Although not expressly overruled, it is unlikely to pass scrutiny today.
➔ Richmond v. J.A. Croson Co. → City of Richmond ordered set-aside plan to give 30% of their business to
minority-owned subcontractors. City argued that the proportion of Black residents to number of contractors
evidenced past discrimination.
◆ Rule: (1) SS is to be applied for ALL racial classifications, even if they benefit the race
(2) there needs to be evidence of a particular past race-based discrimination for a city to claim they are
“remedying past discrimination” as a compelling purpose.
◆ An amorphous claim that there has been some past discrimination is insufficient to justify an “unyielding
quota”
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●
If remedy to past discriminations is going to be the compelling purpose → MUST point to teh
specific discrimination the affirmative action is remedying.
■ SCOTUS is unlikely to accept affirmative action efforts like Fullilove without reference to either (a) proof of
discrimination by the entity and/or (2) proof that the particular recipient’s rights were violated
4. Using affirmative action to remedy general societal discrimination→ attacking the legacy of racism
■ This is the MOST BROAD definition/application of affirmative action
■ SCOTUS HAS NOT accepted this as a sufficient justification for affirmative action
➔ Wygant v. Jackson Board of Education → City of Jackson attempted to achieve faculty diversity by laying off white
teachers w/ more seniority.
◆ Level of Scrutiny: not explicitly mentioned, but seems like Court used SS
◆ Adequate Purpose: achieving diversity/remedying past discrimination *not explicitly mentioned
◆ Sufficient Means: SCOTUS held that the means used were unacceptable when there were other, less
intrusive, ways to remedy past discrimination
○ TAKEAWAY: If “remedying a past discrimination” is used → affirmative action is a compelling purpose if

■ It is directed at entities that are proved to have engaged in illegal discrimination, AND
■ It is limited to providing a remedy to those who are proven victims of discrimination
ENHANCING DIVERSITY:
➢ This justification for affirmative action is most often invoked with regard to colleges & universities
➔ Regents of the University of California v. Bakke → Med school set aside 16/100 slots for minority students.
◆ SCOTUS invalidated the “set-aside” method
● Held that schools may use race as ONE factor in the admission process → recognition of diversity
enhancement as a compelling interest
➔ Metro Broadcasting → Federal system that gave preference to minority-owned businesses in licensing broadcast
stations
◆ SCOTUS held affirmative action programs need only meet intermediate scrutiny if they are Congressionally
approved.
● Court emphasized the value of diversity of views and programing over the broadcast system
◆ Later overruled by Adarand, which reset the standard at SS → fed affirmative actions are treated the
same
➔ Adarand Contractors → Mass. State law required police officers to retire at age fifty.
◆ Held that federal affirmative action efforts are to be treated the same as those taken by state and local
governments
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Affirmative Action in College & University Admissions
➢ SCOTUS has held that colleges & universities may use race as one factor, among many, in admissions decisions
→ it is impermissible to use race to add a significant amount of points in the admissions process
➔ Grutter v. Bollinger → Univ. of Mich. L. School used race as a factor, among other “soft factors,” during
the admissions process.
◆ Achieving a diverse student body is a compelling interest & the University’s means are narrow
so long as there are no other race-neutral alternatives that can reach the same level of diversity.
● Focus on the proven benefits of diversity in higher education
● Other race-neutral alternatives would’ve forced the school to sacrifice on academic
selectivity.
◆ Policy passes under SS BECAUSE it is narrowly tailored
● Narrowly tailored factors:
○ No Quotas (“set-asides”) → but Critical Mass OK
○ No Separate Tracks → Individualized Approach (Gratz)
○ Good Faith Consideration of Race Neutral Alternatives
○ Race Only a Factor with Other Diversity Factors (Regents; Grutter)
○ Limited in Time––25 years ?? (who knows)
➔ Gratz v. Bollinger → Univ. of Mich. used race as a factor in the admissions process for undergraduate
degrees, but assigned a heftier weight to underrepresented minorities, admitting “virtually every qualified
candidate” from the group
◆ Inequitable distribution of points based on race alone is insufficient to meet “narrowly tailored”
● Assignment of an additional 20 points on race alone was ⅕ of the total potential points.
● There is no individualized consideration under this approach
◆ Policy fails under SS because it is not “narrowly tailored” → doesn't pass “fit” test
➔ Fischer v. UT → TX implemented “Top Ten Percent Law” which guaranteed admission to any state
public university for high-achieving students. UT gets 75% of its students through this program; the
remaining 25% go through ana application system that considers race as “a factor of a factor of a
factor”
◆ Grutter not reconsidered, but SCOTUS held that a college/university must demonstrate that no
race-neutral alternative could achieve diversity.
◆ Case was upheld.
➔ Fischer II → has UT met its burden of showing no race-neutral alternative?
◆ UT has met its burden by showing there were no other workable alternatives (narrowly tailored)
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◆ DISSENT: argues that UT has not even shown a compelling interest → Thomas hates affirmative
action.
➢ ¡Note! SCOTUS has held that NO STATE is REQUIRED to have affirmative action programs → voter initiatives to prohibit
affirmative action WILL stand. (Schuette v. Coalition to Defend Affirmative Action)
➢ Affirmative action is NOT a compelling interest in lower schools.

➔ Missouri v. Jenkins → Q on the length of time a district’s desegregation order should be complied with.
◆ SCOTUS ruled to end the distinct court’s desegregation order.
● Constitution requires equal opportunity, not equal results
● Once a desegregation order is compiled with, the federal effort should be ended
➔ Parents Involved v. Seattle School Dist.→ 2 school districts voluntarily adopted student assignment plans that relied on
race to determine which public schools certain children should attend –– in both cases, the system was used to ensure that
racial balance at schools fell within a predetermined range.
◆ RULE: even if a regulation’s means are narrowly tailored, it will not pass SS when it does not have a compelling
interest → racial diversity/integration alone is NOT a compelling interest.
● This does not meet any of the 2 predetermined interests that SCOTUS has deemed to be “compelling”
○ Seattle never segregated & JEfferson City stopped →
○ Seattle has not show that they considered race-neutral alternatives
◆ Roberts plurality → diversity is not a compelling interest in the context of elementary and highschools
MINORITY ROLE MODELS:

➢ SCOTUS has rejected the provision of role models as a justification for affirmative action
➔ Wygant v. Jackson Board of Education → City of Jackson attempted to achieve faculty diversity by laying off white teachers w/
more seniority.
◆ “Role model theory would have allowed this, but the Court ruled that it would “not necessarily bear relationship to the
harm caused by past discrimination”
INCREASING SERVICES TO MINORITIES:

➢ SCOTUS has rejected the disproportionate access to professional services in predominantly minority communities as a
justification to use affirmative action to address the issue by increasing the number of services to an are
➔ Regents of the University of California v. Bakke → Med school set aside 16/100 slots for minority students.
◆ No proof that “training more doctors would mean that there would be more doctors actually practicing in
the minority communities”
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Facially Neutral Laws: Disparate Impact and Discriminatory Purpose
➢ When a law does not describe a heightened classification in its terms → it is a facially neutral law
○ Laws that are facially neutral as to race.national origin will only receive heightened scrutiny if there is proof od discriminatory impact
AND discriminatory purpose
➔ Washington v. Davis → Police force applicants were required to take a test to qualify. Blacks failed the examination much more
often than whites.
◆ A law is not unconstitutional solely because it has a racially disproportionate impact.
○ Discriminatory Purpose w/o Proof of Discriminatory Impact is also NOT ENOUGH
➔ Palmer v. Thompson → A city closed down its previously segregated pool rather than comply with segregation
➢ Discriminatory purpose is VERY difficult to prove → must show that it was a “motivating factor.
○ Reasoning:
■ Strict enforcement of discriminatory purpose alongside discriminatory impact reflects the EP Clause’s goal to prevent “official”
discriminatory conduct.
■ Promoting ease4 of legislation/preventing difficult legislation.
○ Arguments Against Discriminatory Purpose
■ Proving discriminatory purpose is increasingly difficult.
■ Requiring discriminatory purpose ignores that most biases are often unconscious.
Ways to Prove Discriminatory Purpose (Arlington Heights)

➢ Statistical Proof of Clear Pattern
➢ History/Sequence of Events
➢ Legislative Record
■ Knowledge that the action would have a discriminatory effect/consequences is not enough to show purpose. (Feeney)
➢ Facially-Neutral’s Burden-Shifting Scheme (Arlington Heights)

○ Step One: P’s burden to prove discriminatory purpose
○ Step Two: Government burden to disprove P by showing some other race-neutral reason
■ The Government must show that it would’ve made that decision regardless of the racial purpose.
➢ Cases:
➔ Personnel Administrator of Massachusetts v. Feeney → Mass. affords employment preferences to veterans. Greatly reduces opportunities
to women since most veterans are men.
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◆
➔ Village of Arlington Heights v. Metro. Housing. Devl’t Corp. → Country closed its public schools and paid for students to attend
segregated private schools.
◆ Holding: Action was an unconstitutional violation of EP
◆ Established the Purpose + Impact framework for facially neutral laws
◆ Established the three ways to show discriminatory purpose
¡NOTE! WITHOUT IMPACT OR PURPOSE → REVERTS TO RB.

Rational basis is the MINIMUM ALL LAWS MUST meet
Intermediate Scrutiny: Gender Classifications

➢ Courts did not strike down laws based on gender discrimination until 1971 → Q as to what level of scrutiny to apply
ARGUMENTS FOR AND AGAINST HEIGHTENED SCRUTINY

Reality is that the level of scrutiny applied will usually determine the outcome.
For SS For IS
● Many of the factors that justify SS for race also apply to ● Biological differences between men and women make it more
gender discrimination likely that a law is justifiable.
○ Gender is an immutable characteristic
○ There is a history of discrimination that increases the ● Women are involved in the political process
likelihood that gender discrimination laws are based
on prejudice
○ Women are underrepresented in the political process
(discrete and insular minority?)
● Claims of biological differences to justify laws are really

based on stereotypes
➔ Craig v. Boren → the Court invents INTERMEDIATE SCRUTINY

◆ Ruled that heightened scrutiny is needed for gender, but not strict scrutiny.
Intermediate Scrutiny
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The actual purpose must be important and the fit must be substantially related.
Gender is quasi-suspect class
Proving Gender Classifications: Facial & Neutral Laws

➢ SAME facial/facially neutral analysis as in race
Facially Discriminatory Laws
➢ Laws that discriminate towards either gender w/in its own terms must meet Intermediate Scrutiny
➔ U.S. v. Virginia → Virginia policy excluded women from attending the Virginia Military Institute
◆ Virginia failed to demonstrate an “exceedingly persuasive justification” for discriminating against women.
● Categorical exclusions of women w/o regard to their individual merit is too OVERBROAD
Facially Neutral Laws
➢ See Feeney above → there must be a showing of discriminatory impact + discriminatory intent.
Finding “Discrimination” in Implied Classifications

➢ Gender is a quasi-suspect class → there is a history of prejudice, but there is room to presume some justification based on biological differences.
➢ Inherent differences arising from biology are used to logically justify some discrimination
➔ Geduldig v. Aiello → Cal. law provides payments for certain disabilities that last more than 8 days, but less than 26 weeks. The law
explicitly excluded pregnancy
◆ There is no gender classification because women can be a part of both classes.
◆ Legitimate interest in securing fiscal integrity of the program → means are substantially related
○ Takeaway: laws based on biological differences will generally be upheld, especially if women can fall into both categories.
■ OBVIOUS Issue: Men CANNOT get pregnant → they will NEVER be subject to this law.
Gender Classifications Benefitting Women

➢ The majority of SCOTUS cases concern laws that benefit women and disadvantage men.
○ THREE PRIMARY PRINCIPLES
■ Gender classifications based on stereotypes are NOT permitted
■ Gender classifications designed to remedy past discrimination generally ARE permitted.
■ Gender classifications benefiting women CAN BE based on biological differences
Benefiting Classifications Based on Role Stereotypes
➢ Generally, laws that seem to perpetuate stereotypes are NOT ALLOWED
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➔ Miss. Univ. v. Hogan → Hogan, a male nurse, applied to an all-woman school and was denied only because of his gender (not his
qualifications). (Note that IS has already been settled as THE test) The school argued that the policy was in place because it was
meant to make up for historic discrimination against women
◆ Bare allegations of previous discrimination is insufficient → rather than remedy discrimination it seemed more like it was
perpetuating a stereotype that men weren't supposed to be nurses
➢ Sometimes, these laws are allowed when it is based on biological differences
➔ Lehr v. Robertson → state law allowed a child to be adopted w/o father’s consent if the father had not registered paternity w/in two
years of the child’s life.
◆ Court saw this as a distinction between fathers who DID register and those who DID NOT
Benefiting Classifications as Remedies
➢ Generally, SCOTUS has indicated that regulations passed to remedy past discrimination or ameliorate differences in opportunity are
PERMITTED
○ This is the strongest argument for keeping gender in Intermediate Scrutiny vs Strict Scrutiny → not as easy to strike down
affirmative action programs
Benefiting Classifications Based on Biological Differences
➢ Court has allowed classifications favoring women when they are justified by biological differences that serve legitimate purposes (IS)
➔ Nguyen v. INS→ INS rules favored mothers over fathers because of the greater certainty as to the identity of the mother compared
to the father and the greater opportunity that mothers have to establish a relationship with their children.
◆ Court held that both of the purposes listed by INS were legitimate purposes and the means were substantially related
General Takeaway from IS → when the difference is about biology, the government is more likely to win.
Fundamental Rights Under Due Process

5th Amendment → “No person shall ... be deprived of life, liberty, or property, without due process of law.”
14th Amendment → “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
Brief History & Incorporation

Recall Constitutional Framework for Individual Rights
➢ Baron v. Mayor (see above) limited the protection of liberties from the Bill of Rights as applying only to Federal Actions.
➢ The Slaughter-House Cases narrowly construed P/I clause of the 14th Amendment, while recognizing its Due Process Clause.
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Initial Bill of Rights Incorporation Cases
➢ Court began to consider that at least some of the Bill of Rights provisions are part of the “liberty” that is protected by the 14th Amendment’s Due
Process Clause.
○ Due Process already limited the federal government through the 5th Amendment
➢ Incorporation of some Bill of Rights liberties was officially recognized in Twining v. New Jersey
○ SCOTUS held that some enumerated rights are so ingrained in personhood that their denial would violate due process therefore, they are
afforded protection from the states.
○ Bill of Rights liberties → ENUMERATED RIGHTS
➢ SCOTUS would selectively incorporate Bill of Rights protections on a case by case basis.
○ Timbs → incorporation of the Excessive Fines Clause by the Due Process Clause
○ In reality, all but three Bill of Rights Provisions have been incorporated to apply to the states through the DPC of the 14th Amendment
Incorporation of Unenumerated Rights

➢ SCOTUS has held that some liberties are so important they must be regarded as "fundamental rights" even if they are not explicitly written in the
text of the Constitution → unenumerated rights
○ The government cannot infringe on fundamental rights unless strict scrutiny is met (Carolene)
➢ Recognized Fundamental Rights
○ Almost all of the recognized "fundamental rights" are not mentioned in the Constitution (except right to vote)
■ Court has decided these liberties should be regarded as fundamental rights → Important issue as to how the Court decides.
Recognized/Rejected
Not a Fundamental Right Fundamental Right
1. Education 1. Right to Travel

2. Economic Activity 2. Parental Rights *See Caveates
3. “Right to Die”/PAS 3. Right to Procreate
4. Abortion 4. Right to Refuse Medical Treatment
5. Right of Access to Contraception
6. Right to Private Adult Sexual Activity* (RB w/Bite)
7. Right to Marriage
8. Right to Bear Arms* (Use Historical Analogy, not Scrutiny)
9. Right to Vote
➢ NINTH AMENDMENT JUSTIFICATION
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9th Amendment → "The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
○ 9th Amendment has been used to justify the Court's protection of unenumerated (nontextual) rights by preserving nontextual rights to
the people
➢ Protection of Unenumerated Rights
○ Fundamental Rights can be protected under the Due Process Clause and/or the Equal Protection Clause (most are protected under both)
○ Due Process → substantive due process analysis
○ Equal Protection → used if the government is discriminating among people as to who can exercise that fundamental right.
Due Process Framework

Basic Question: Is the government’s action justifiably infringing on a fundamental right?
(1) Is it a Fundamental Right? (2) Is the Right “Significantly” Infringed? (3) Does the government action meet the level of
↓ ↓ scrutiny required?
if not, apply RB Test is there a direct & substantial burden
(1) IS THERE A FUNDAMENTAL RIGHT?

➢ Fundamental v. Non-Fundamental Rights → Carolene Framework
Non-Fundamental Right Fundamental Right

↓ ↓
Apply Rational Basis Test Strict Scrutiny Required for Government Action
to Prevail
➢ Generally (and for this class), when determining whether a right is “fundamental” or defining its “scope” use either analysis below:
Glucksberg/Originalist Method Kennedy/Non-Originalist Approach
(i) define the right at issue specifically (i) define the right at issue more broadly → at a higher level
of generality
(ii) limit fundamental rights to those “deeply rooted in
history/tradition” (ii) use history/tradition as a starting point → continue
analysis to consider text; precedent; current laws/evolving
values; consequences/practical effects of denying the right
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➢ Theories of Identifying an Unenumerated Right
○ Constitutional Interpretation
■ Primarily regards how the Court should interpret the Constitution in deciding which rights are fundamental.
■ At its essence: whether the Court should identify fundamental rights that are not written in the text of the Constitution or supported
by the founders' intent.
● Originalists: Fundamental rights are limited to those liberties explicitly stated in the text or clearly intended by the framers
● Moderate Originalism: the judiciary should apply the framers' general intent, but not necessarily their specific view.
● Nonoriginalism: It is permissible for the Court to protect fundamental rights that are not enumerated in the Constitution or
intended by the framers.
○ History and Tradition
■ SCOTUS has said that fundamental rights include those liberties that are "deeply rooted in this Nation's history and tradition."
■ Issues:
● What counts as a sufficient tradition for recognizing a fundamental right?
● What level of abstraction should be applied?
○ General level of abstraction: any liberty can be justified as a fundamental right rooted in tradition.
○ Specific level of abstraction: few nontextual liberties will be justified.
○ Court's Role in the Government Process
■ The Court's preeminent role is perfecting the process of government and the Court should only recognize nontextual rights that
concern ensuring adequate representation and the effective operation of the political process.
○ Natural Law Principles
■ Natural law should guide which rights are deemed fundamental
○ Society's Moral Consensus
■ Court should recognize nontextual fundamental rights that are supported by deeply embedded moral consensus that exists in society.
(2) IS THE RIGHT “SIGNIFICANTLY INFRINGED?
➢ Significant Infringement → direct and substantial burden
➢ Direct v. Indirect Infringement (mirrors facial/facially neutral from EP)
○ Direct → When a recognized right is prohibited.
■ Very obviously infringes on the fundamental right.
○ Indirect → When a government action burdens the free exercise of a fundamental right.
■ (Issue) → When is burdening the exercise of a fundamental right also considered infringement?
■ SCOTUS has said that in evaluating whether a violation of a fundamental right has occurred, it will consider "the directness and
substantiality of the interference"
➢ Unconstitutional Conditions Doctrine → impermissible for the government to condition the receipt of a benefit on a person agreeing to give up a
constitutional right.
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(3) DOES THE GOVERNMENT ACTION MEET THE REQUISITE SCRUTINY?
➢ Is there a sufficient justification?
○ Fundamental Rights → Government has the burden to prove there is a compelling purpose.
○ Non-Fundamental → Challenger has the burden of proving there is no conceivable legitimate purpose.
➢ Are the means sufficiently related?
○ Fundamental Rights → Government has the burden to prove means were necessary/no other less intrusive alternative to achieve purpose.
○ Non-Fundamental → Challenger has the burden of proving the means were unreasonable (or bare animus).
Analyzing Unenumerated Rights

Constitutional Protection for Family Autonomy
SCOTUS has broadly defined the term “liberty” to protect basic aspects of family autonomy
→ Right to Marry
→ Right to Custody of One’s Children
→ *Others we didn't focus on in class
Right to Marry
Identifying the Right
➢ The Right to Marry was first recognized in Loving v. Virginia
○ METHOD OF ANALYSIS: Originalist/Glucksberg
■ Right is Specifically described → the right to marry
■ Reference to/Basis on History/Tradition → “the freedom to marry has long been regarded as one of the vital personal
rights essential to…the pursuit of happiness”;
Applying Scrutiny
➢ Strict Scrutiny where statutes directly and substantially interfere with the right to marry
○ Zablocki v. Redhail → Did not allow a person to marry if they owed child support payments
■ Right protected under EP → right to marry unfairly withheld from parents with children outside of their custody
● Court recognized compelling interest, but the law was not sufficiently related to the goal (there were other ways to
ensure child support such as wage garnishment)
○ Boddie v. Connecticut → Did not allow a divorce without payment of filing fees and court costs
■ Violation of Due Process → preventing people from divorcing precludes them from exercising their right to marry someone
else
➢ Rational basis there there is no evidence of a DIRECT and SUBSTANTIAL interference with the right to marry
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○Califano v. Jobst → Provision of Social Security Act that terminated benefits for disabled children if those children got married
■ No violation → Rational to assume that a married person would be less dependent than a nonmarried person; even if some
people might be deterred from marrying because of the law
○ Bowen v. Owens → Provision of the Social Security Act that provided benefits to a wage earner's widow who remarries after age
60, but not to a similarly situated divorced "widowed spouse"
■ No violation → Rational to assume that divorced "widowed spouses" would be less dependent on their former spouses than
widows or widowers.
➢ The Right to Marry was enforced to strike down laws that prohibited same-sex marriage (Obergefell v. Hodges)
○ METHOD OF ANALYSIS: Non-Originalist/Kennedy
■ Right is Described at Higher Generality → the right to marry
● The dissent specifically describes it as the right to same-sex marriage
■ Start with History/Tradition, → Four Principles and Traditions
■ but History is not a Limit → There is no difference between same-sex and opposite-sex couples when it comes to the
importance of marriage for couples, their children, and society.
Cases Referenced:
➔ Loving v. Virginia → Virginia had an antimiscegenation statute that prohibited whites from marrying non-white people.
◆ Rule: Marriage is one of the "basic civil rights of man" fundamental to our very essence and survival.
◆ Court held that the antimiscegenation statute violated Equal Protection and deprived citizens of a liberty (the right to marry) without
due process of law.
➔ Obergefell v. Hodges → Mass. State law required police officers to retire at age fifty.
◆ The right to marry is a fundamental right inherent in the liberty of the person
● Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples may not be deprived of the
right and the liberty of marrying.
◆ The Right to Marriage––4 principles and traditions
i. Court precedent that the right to personal choice regarding marriage is inherent to the concept of individual autonomy
ii. The right to marry is fundamental because it supports two-person union unlike any other in its importance to the committed
individuals
iii. Marriage safeguards children and families and this draws meaning form related rights of child rearing, procreation, and education
iv. Marriage is a keystone of our social order
◆ No difference between same-sex and heterosexual marriage
The Right to Custody of One’s Children

➢ The Right to Custody of One’s Children was first recognized in Santosky v. Kramer
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■ Right is Specifically described → the right to custody of One’s Children
■ Reference to/Basis on History/Tradition → Court quoted to a long line of cases
Applying Scrutiny
➢ Kramer Court remarked that the government must meet the requirements of substantive and procedural due process before a parent’s rights
can be permanently terminated → Strict Scrutiny
➢ Rights of Unwed Fathers in Question
○ In general, unwed fathers have the same right to parental custody as any other parent (Stanley)
■ Biology+ Rule applies (“+” was developed in Lehr)
■ Kennedy Approach was used
● Right describes as “integrity of the family unit” → not “the right to custody”
● Traditional protection of parental custody expanded to unmarried parents who have not been shown to be “unfit”
○ UNLESS → Unwed father doesn’t have a relationship with their child (Lehr)
■ Biology+ Rule →must show something MORE THAN mere biological link
■ Kennedy Approach was used
● Right described as “integrity of the family unit” → distinguished from Stanley
● An involved parent’s personal interest in the custody of their child acquires substantial protection under due
process, but the mere existence of a biological link is not enough to get constitutional protection.
○ UNLESS → Unwed father had a child with a married woman (Michael H.)
■ Originalist/Glucksberg Approach was used
● Right specifically described as an “adulterous father’s right to parental custody”
● There is no tradition of protecting the father’s rights when the mother is married to someone else.
➢ TAKEAWAY: Biology+ Rule for unwed father’s rights, unless the child is born w/in another marriage.
Cases Referenced:
➔ Stanley → State law automatically made children of unwed mothers wards of the state. Stanley was a good father who lived with his children and
their mother until her death.
◆ Both Due Process and Equal Protection were violated.
◆ Originalist Dissent would have denied protection → Unmarried Father’s Right to Custody is not a traditional right.
➔ Lehr v. Robertson → State terminated an unwed father’s rights when he had not supported the 2 year old nor registered in the state’s parental
registry.
◆ Biology+ Rule → to get protection you must be a father that looks like Stanley.
➔ Michael H. v. Gerald D. → Michael H. had a child with his married neighbor. Child and parents moved to NY; Michael and Child sued for parental
rights.
◆ An adulterous natural father does not have a fundamental right over the custody of his children.
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◆ State’s legitimate interest → ensuring the presumption of legitimacy within the family unit
● Michael’s argument was flawed because it was based on the biological link, whereas Staanly and other cases are based on the rights
afforded to protect the sanctity of the family unit.
Constitutional Protection for Reproductive Autonomy

SCOTUS has broadly defined the term “liberty” to protect basic aspects of family autonomy
→ Right to Procreate
→ Right to Purchase & Use Contraceptives
→ *Right to Abortion
Right to Procreate
➢ The right to procreate was initially rejected in Buck v. Bell.
➢ The Right to Procreate was first recognized in Skinner v. Oklahoma
■ Right is Specifically described → the Right to Procreate
■ Reference to/Basis on History/Tradition → “right to marry an procreate are fundamental to the existence and survival of
the race”
○ Court in Skinner also focused on the “irreparable harm” of sterilization → no remedy
Right to Purchase & Use Contraceptives

➢ The Right to Purchase and Use Contraceptives was first recognized in Griswold v. Connecticut, BUT it was done in a
VERY limited sense
■ Originally framed as being w/in the Right to Privacy
○ METHOD OF ANALYSIS: VARIED APPROACHES
■ Douglas’ Majority Opinion → Penumbras of Privacy
● Law is framed in respect to the Right to Privacy
○ 1st/3rd/4th/5th "penumbras" create guaranteed “zones of privacy”
● Many do not like, but since Dobbs, there is renewed interest in these “oenumbras”
■ Harlan Concurrence → Due Process Method (THIS IS WHAT WE USE TODAY)
● Violating the right to use contraceptives would violate basic values “implicit in the concept of ordered liberty”
● History is starting point → not limit
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■ Goldberg Concurrence → Ninth Amendment Argument
● Framed as the Right to Marital Privacy
● Ninth Amendment leaves room for us to define certain unenumerated rights
■ Black/Stewart Dissent → Originalist Approach
● Would find no fundamental right bc the Right to Use of Contraceptives is not a right that is deeply embedded in
history & tradition
Applying Scritiny to Expand the Right
➢ SCOTUS reaffirmed & EXPANDED Griswold in Eisenstadt v. Barid
○ Now framed as → the Right to Control Reproduction
○ Analyzed under EP lens → The access to contraceptives is a right that must be equally available to married and unmarried people
alike.
➢ TAKEAWAY: it seems as though the Court is willing to accept that basic rights are constitutionally protected even if they are not written in
the Constitution.
Right to Abortion
➢ Abortion is a contentious ground because there is no middle ground between believing abortion is murder and believing a woman's bodily autonomy
should dictate.
○ It was originally recognized & then UNRECOGNIZED as a fundamental right (Roe v. Wade & Dobbs)
Pre-Dobbs
➢ The Right to Abortion was first recognized in Roe v. Wade
○ METHOD OF ANALYSIS: Non-Originalist/Kennedy
■ Right Described at Higher Level of Generality → the Right to Privacy protects the right to have an abortion.
■ History/Tradition is Only the Starting Point → Court went through a LONG explanation of history.
○ Applying Strict Scrutiny → there are legitimate interests that become compelling at some point in pregnancy
➢ Right to Abortions upheld in Planned Parenthood v. Casey
○ A HUGE reason Casey came out with the holding it did is because of stare decisis
○ Applying SS → states have a compelling interest to protect the health of pregnant women
■ Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue
burden.
➢ SCOTUS clarified that the Right to Abortion ≠ Entitlement to funds necessary to “realize all of the advantages of that freedom”
Post-Dobbs
➢ SCOTUS rejects the Right to Abortion as a fundamental right → apply rational basis
○ Biggest takeaway is that the Court REJECTED stare decisis.
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Cases Referenced:
➔ Buck v. Bell → government regulation would involuntarily sterilize those with mental “retardation.”
◆ Oliver W. Holmes is an ass that believed in forced eugenics.
◆ The right to procreate is not a fundamental right and it can be regulated by the government so long as they have a legitimate goal and the means are
rationally related (rational basis) → (implicitly overruled by Skinner)
➔ Skinner v. Oklahoma → Oklahoma's Habitual Criminal Sterilization Act; Skinner was convicted three times for crimes of theft. The law was passed while
he was incarcerated for his third crime.
◆ Focus was on the way the law was applied differently to embezzlers even though they were also thieves; pointed to discriminating regulation of a
fundamental right
● Court uses SS because it is a fundamental right under EP lens → if it wasn’t a fundamental right, then it would just be RB
➔ Griswold v. Connecticut → Conn. law prohibited the sale and use of contraceptives & made it a crime to assist another in getting contraceptives. Griswold
executive Director of the Planned Parenthood; arrested 10 days after opening the center for giving information, instruction, and medical advice to married
persons to the means of preventing conception. PP had examined a wife and prescribed her with the best means of preventing contraception.
◆ There is a constitutional right to privacy → right to purchase & use contraceptives embedded in that.
◆ State law is overly broad & infringes on one of the zones of privacy protected by the Constitution.
● Law would violate the right of married persons to purchase contraceptives
➔ Eisenstadt v. Baird → Mass. law restricts the distribution of contraceptives to pharmacists. Law Created three classes of people to which contraceptives can
be distributed: (1) Married persons to prevent pregnancy (only form doctors or druggists on prescription); (2) Single persons cannot obtain contraceptives
from anyone; (3) Married or single persons can obtain contraceptives to prevent the spread of disease, but not to prevent pregnancy. Baird was convicted for
showing contraceptive articles and giving vaginal foam to a young woman.
◆ Access to Contraception must be the same for married and unmarried persons
◆ The deterrence of premarital sex cannot be reasonably regarded as the purpose of the law
● Plainly unreasonable that the state would use pregnancy and an unwanted child as punishment for fornication, a misdemeanor in
Massachusetts
◆ The effect on unmarried sex is marginal at best
➔ Roe v. Wade → Texas penal code criminalized abortions unless they were "procured or attempted by medical advice for the purposes of saving the life of the
mother. Roe (pregnant single woman) sued Wade (Texas official) on the grounds that it was an unconstitutional restriction on abortion.
◆ Esta
➔ Planned Parenthood v. Casey→ Pennsylvania law challenged by PP over restrictions on abortion: (1) Informed consent and a 24-hour waiting period for
all women prior to undergoing the procedure; (2) All minors seeking an abortion were required to obtain the informed consent of at least one parent; (3) A
married woman had to show that she notified her husband of her intent to abort the fetus.
◆ Relied on weight of STARE DECISIS
➔ Harris v. McRae → The Hyde Amendment prohibited states receiving federal Medicaid grants from funding abortion procedures except in cases where
abortion was medically necessary to preserve the life of the mother or in cases of promptly reported rape and incest.
◆ Right to Abortion ≠ Right to receive government funding for an abortion.
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➔ Dobbs v. Jackson Women’s Health Org. → successful challenge to the Right to Abortion
◆ SCOTUS rejects stare decisis → abortion is no longer a fundamental right
● Rational Basis Test NOW APPLIES
Constitutional Protection for Sexual Activity and Sexual Orientation

SCOTUS initially rejected a right to private consensual homosexual activity in Bowers v. Hardwick
➢ Lawrence v. Texas expressly overruled Bowers v. Hardwick
Right to Privacy Adult Sexual Activity

➢ SCOTUS held that states cannot prohibit private, consensual sexual activity between consenting adults of the same sex in Lawrence v. Texas.
○ Non-Originalist/Kennedy Method
■ Higher Lvl of Generality → The Right to Private Consensual Homosexual Activity is protected under the general Right to Privacy
■ History is not a Limit → Traditional proscriptions against sodomy were actually proscriptions against all non-procreative activity
or were meant to criminalize predatory acts; there has been a movement towards decriminalization; concern with relative morality
(bare animus is never ok)
➢ TAKEAWAY: Private Consensual Homosexual Activity is protected under substantive DP, but it seems to get more Rational
Basis “with Bite”
Cases Referenced:
➔ Bowers v. Hardwick → Hardwick was arrested after a police officer witnessed him having sex with another man in his bedroom.
◆ SCOTUS held that the right to privacy does not protect the right to private consensual homosexual activity.
● Held that it was not protected because it was not supported by the Constitution's text, the framers' intent, or tradition.
➔ Lawrence v. Texas → A Texas statute criminalized "deviate sexual intercourse" between people of the same sex, namely oral and anal sex or
penetration with an object.Lawrence was caught engaging in a sexual act with another man in this home.
◆ There is a historic consent that the Constitution protects all individuals in the most intimate and private aspects of their lives.
Constitutional Protection for Medical Care Decisions

SCOTUS has considered two major concepts regarding the right to medical care:
→ Right to Refuse Treatment
→ Right to Physician-Assisted Suicide
Right to Refuse Treatment

➢ There is generally a recognized constitutional right to refuse medical treatment, but it is not absolute and can be regulated by the State.
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○ Jacobson v. Massachusetts →SCOTUS upheld a Massachusetts law that required vaccinations because of the government's compelling
interest in stopping the spread of communicable diseases. (police power of the state)
■ Protecting public health/welfare is generally a compelling interest
○ Washington v. Harper → SCOTUS held that prisoners has a right to be free from the involuntary administration of antipsychotic drugs;
however, this interest would be adequately protected by providing an inmate with notice and a hearing before a tribunal of medical and
prison personnel at which the inmate could challenge the decision to administer drugs.
■ Procedural due process sufficiently protects an inmate’s interest while balancing state interests
➢ SCOTUS affirmed that there is a NEGATIVE RIGHT to Healthcare → Right to Refuse, not Right to Gov. Provided Healthcare
➢ In Cruzan v. Director Missouri Dept. of Health, SCOTUS held that there was a limited(ish) Right to Refuse Medical Care
■ (1) Competent adults have a Right to Refuse Medical Care
■ (2) States can require clear and convincing evidence that an unconscious person wanted termination of treatment.
○ Questions Left Open:
■ Court never addressed the level of scrutiny → assume SS
■ No clear indication of what is “clear and convincing”
Right to “Death with Dignity”

➢ SCOTUS has never recognized a Right to Physican-Assisted Suicide
➢ In Washington v. Glucksberg, SCOTUS held that there was NO FUNDAMENTAL RIGHT TO PHYSICIAN-ASSISTED SUICIDE
○ Originalist/Glucksberg Analysis
■ Right at Issue Framed Speficiaally → The Right to Physician-Assisted Suicide (not Refusal of Medical Care or Death)
■ Deeply Rooted in History & Tradition → Historically PAC has been criminalized
○ No Fundamental right → Rational Basis
■ State has a legitimate interest
➢ In Vacco v. Quill, SCOTUS held that laws prohibiting PAC were NOT discriminatory under EP
○ Rejected argument that the law treated vegetative people differently and therefore discriminated against conscious people.
○ Framed as:
■ Refuse Medical Care → Right to Prevent Intervention (i.e. letting nature take its course)
■ PAS → Medical intervention to bring about death
➢ TAKEAWAY: There is a right to die, but not a right to have another person assist in your death.
Cases Referenced:
➔ Cruzan v. Director Missouri Dept. of Health → Parents were seeking authorization from the state court to remove their daughter from life
sustaining equipment after their daughter fell into a persistent vegetative state after a car accident.
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◆ There is a right to refuse treatment, even where it means a person will die.
◆ States have a compelling interest to ensure an incompetent person’s actual wishes are being carried out.
➔ Washington v. Glucksberg → Wash. State ban on physician-assisted suicide.
◆ No fundamental right.
➔ Vacco v. Quill → NY law criminalizing assisting in another’s suicide.
◆ No fundamental right & no EP discrimination
Constitutional Protection for Voting

SCOTUS repeatedly affirms the right to vote as a fundamental right under equal protection → therefore Strict Scrutiny is the appropriate test
➢ Because it's a fundamental right under EP → when a state/government hold voting, it MUST do so equally to all
○ DOES NOT DECLARE THAT STATES MUST give citizens the opportunity to vote, just that it needs to do so equally when it doe
➢ Two Identifiable Government Restrictions
→ Laws that deny some citizens the Right to Vote
→ Laws that dilute the voting power of some citizens
➢ Two Issues Affecting Voting
→ Inequalities in counting votes as a denial of EP
→ Laws that limit the ability of candidates and parties to have access to the ballot
Laws Denying Some the Right to Vote

Poll Taxes
➢ Poll Taxes required that people pay a fee to vote
○ First generation attempt at limiting access to voting
➢ Poll Taxes were already prohibited in federal elections (24th Amendment) → SCOTUS extended the Constitutional prohibition of poll taxes
to state elections in Harper v. Virginia State Board of Elections.
○ This case is about applying heightened scrutiny even in cases that wouldn't ordinarily warrant heightened scrutiny
■ Poll Taxes discriminated against the poor → normally RB test
■ Because discrimination against the poor has to do with voting → there cannot be any discrimination → SS applies
➢ TAKEAWAY: When states allow voting, it MUST do so equally
Laws Diluting Voting Power

➢ One Person, One Vote Rule → for any legislative body all districts must be about the same in population size
○ Issue of malapportionment: difference in the number of representatives in proportion to the population of the districts they represent.
■ Exacerbated by urban migration
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➢ In Reynolds v. Sims, SCOTUS held that districts needed to be drawn in a manner that was proportional to POPULATION
○ Reasoning → malapportionment leads to vote dilution
■ Voters in more populous districts would have proportionally less representation than those who live in less populous districts
■ Rejects argument that states can mimic Senate malapportionment → federal structure is built into the Constitution
○ Holding seen as perfection of the political process
■ Anti-majoritarian dilemma → Court stepping in when we cannot rely on politicians to correct the error (that would lead to
tyranny)
Inequalities in Vote Counts

➢ SCOTUS issued per curiam opinion in Bush v. Gore case involving a presidential election recount in Florida.
○ Rule seems to indicate that all votes need to be counted in the same way or else it results in voter dilution.
➢ Other issues regard its justiciability → was this a political question
Laws Limiting Access to Ballots

➢ Gerrymandering is a practice used by political parties to draw districts in a way that maximizes the likelihood they will remain/retake power
○ Cracking & Packing
■ Cracking → diluting the voting power of the opposing party's supporters across many districts
■ Packing → concentrating the opposing party's voting power in one district to reduce their voting power in other districts
➢ SCOTUS held that political gerrymandering was a non-justiciable political question in Rucho v. Common Cause
○ There are no judicially manageable standards to assess when partisan gerrymandering has gone too far so as to violate the Constitution.
○ Judges should not inject themselves into the most heated partisan issues.
➢ What is clear is that both parties have dug into partisan Gerrymandering to lock in power
Racial Discrimination in Voting

➢ 15th Amendment –– Extends Right to Vote to Ex-Slaves
○ "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude"
➢ Voting Rights Act of 1965 Provides broader protection against race discrimination in access to the ballot than the Court’s narrow interpretation of the
15th Amendment.
○ Shelby County v. Holder challenged Congress’ ability to interfere with elections →
■ SCOTUS held that a federal law that departs from the fundamental principles of federalism must be justified by current needs
■ J. Ginsberg Dissent: the preclearance requirement is exactly why there is no more discrimination → it means the measure are
working as they intended
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Cases Referenced:
➔ Harper v. Virginia State Board of Elections→ Section 173 of the Virginia Constitution directed the General Assembly to levy an annual poll tax not
exceeding $1.50 on every resident of the state twenty-one years of age or older.
◆ States cannot impose a poll tax on voting, because voting is a fundamental right, poll taxes discriminate unnecessarily and therefore violate
Equal Protection
◆ A poll tax is not related to any possible state interest, let alone a compelling one required by SS
● The interest of a State in fixing qualifications is limited when it comes to voting.
◆ Poll Taxes invidiously discriminate against those who cannot pay → the degree of discrimination is irrelevant bc it needs to be equal
➔ Reynolds v. Sims → Rampant malapportionment in Alabama legislature. State argued the districts were equal in geographic size.
◆ One person, one vote articulated → does not require mathematical preciseness, but greater variations will lead to questioning
● More scrutiny when it is a federal election
➔ Bush v. Gore → Hanging Chad → FL Supreme Court ordered a hand recount, but did not include standards to determine intent.
◆ Vote dilution results w/o standards to uniformly determine intent of votes
➔ Rucho v. Common Cause → Plaintiffs challenge North Carolina and Maryland congressional districting maps as unconstitutional partisan
gerrymanders. North Carolina plan discriminated against Democrats; Maryland plan discriminated against Republicans
◆ Political gerrymandering is a non-justiciable political question
➔ Shelby County v. Holder → Voting Rights Act established measures to ensure suspect states were complying with orders to allow equal access to
voting. VRA was continually renewed and expanded despite evidence that there was no more discrimination in voting.
◆ The coverage formula used to renew VRA Section 5 was outdated, and therefore impermissible to subject any jurisdiction to preclearance
requirements.
Constitutional Protection for Guns

2nd Amendment → "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed."
➢ Major policy argument as to how this is supposed to be interpreted
○ Scalia → the operative phrase was "the right of the people to bear arms, shall not be infringed."
■ Meaning that the point of the Second Amendment was to ensure that the people had a right to guns.
○ Breyer → the operative word was "militia."
■ Meaning that the point of the second amendment was to ensure the right to keep a military
Right to Bear Arms

➢ SCOTUS found an “individual right to bear arms for defensive purposes” in District of Columbia v. Heller
○ States cannot absolutely prohibit guns in the home when that is where a person would most likely need it to defend.
○ The Right to Bear Arms is not unlimited → Allowable Limits:
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■
Who cannot have guns:
● Mentally ill
● Felons
● In certain locations
● Commercial sales
■ Dangerous and unusual weapons can be regulated
➢ SCOTUS extended the Right to Bear Arms to include Public Carry in New York State Rifle v. Bruen
○ New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense
needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.
○ SCOTUS rejected means/fit test → APPLY HISTORICAL ANALOGY TEST
■ (1) Is the use covered by the 2nd Amendment?
■ (2) Historical Analogy → have guns been regulated in the same way in the past?
Cases Referenced:
➔ District of Columbia v. Heller → DC ordinance prohibited handguns and had significant restrictions on long guns.
◆ Right to Bear Arms for defense.
➔ New York State Rifle v. Bruen → New York requires a person to show a special need for self-protection to receive an unrestricted license to carry a
concealed firearm outside the home. Robert Nash and Brandon Koch challenged the law after New York rejected their concealed-carry applications
based on failure to show “proper cause.”
◆ If a government wishes to place restrictions on firearm ownership it must “affirmatively prove that its firearms regulation is part of the
historical tradition that delimits the outer bounds of the right to keep and bear arms.
First Amendment Analysis

Freedom of Speech
➢ Four Main Theories of Free Speech justify why we protect free speech as a fundamental right.
1. Democratic Theory → Promote self-government and the democratic process.
○ Political speech is at the core of the 1st amendment
■ Not the only speech we protect; we protect other forms of speech
2. Marketplace of Ideas Theory →Promote a "marketplace of ideas"(aid in the discovery of ideas)
○ Truth is most likely to emerge from the clash of ideas
■ Justice Holmes' metaphor
○ Criticism that we do not have a free marketplace
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■ Churchill acknowledged this truth, but claimed it was better than the alternative of the government dictating what is truth
3. Autonomy Theory → Promote autonomy and self-fulfillment
○ "self-definition of expression"
4. Tolerance Theory → Promote tolerance
○ Criticism that, if this is so, why do we allow hate speech
Methodology: Content-Based v. Content-Neutral

➢ The CORE of Free Speech Protections is that the government cannot regulate speech based on content.
Content Based Regulations Content Neutral Regulations

Strict Scrutiny Time, Place, and Manner Test (TPM)
PRESUMPTIVELY INVALID VERY dependent on CONTEXT
● Law or regulation that turns on subject matter or viewpoint of the speech ● Law or regulation is content-neutral if it applies to all speech,
is content based. regardless of subject matter or view point.
Subject Matter Based Viewpoint Based
Regulation is based on the topic of the Regulation is based on the ideology of

speech the speech.
Likely will NEVER pass SS
Content-Based Regulations
➢ Strict Scrutiny ALWAYS applied (regardless if it is Subject Matter Based or Viewpoint Based)
○ Methods of Analysis/Levels of Scrutiny were determined in Reed v. Town of Gilbert
■ Court generally decides whether a law is content-based by looking at the face of the law.
■ If it seems there is a purpose behind the law (the purpose behind the law is based on the message)
● i.e. if you cannot justify the law without referencing the message.
➢ Reed distinction is based on fear that content based regulation means that the government can suppress certain types of speech
based on what suits them.
○ SCOTUS would rather government regulate more than draw lines because that can mean that the government is trying to
suppress certain types of viewpoints.
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Content-Neutral Regulations
➢ Content-Neutral regulations get “intermediate scrutiny” (not the same as in EP)
○ SCOTUS articulated the TPM as the appropriate test for content neutral regulations in Ward v. Rock against Racism
Three Part Test for TPM REgulation
A regulation:
(1) must be content-neutral;
(2) must not burden substantially more speech than necessary to serve
a significant government interest, but need not be the least restrictive
alternative; (means/fit test)
(3) must leave open ample alternative channels for communication.

Note that this is a CONJUNCTIVE test → must meet ALL elements
➢ TAKEAWAY → very dependant on CONTEXT

Cases Referenced:
➔ Reed v. Town of Gilbert → Town has a sign code that restricts people putting up signs around town; different rules for different types of signs,
including political signs and event signs.
◆ Court will apply SS to a law that is content-based on its face even if the government has a benign motive or content-neutral justification for
the law.
➔ Ward v. Rock against Racism → New York law that regulates volume of music at the bandshell in Central Park requires use of the city’s sound
technician and equipment.
◆
Vagueness & Overbreadth

➢ Vagueness → Reasonable Person Test
○ Laws restricting speech will be struck down as void for vagueness if a reasonable person cannot tell what speech is prohibited and what is
permitted.
➢ Overbreadth → Substantiality Test
○ A law is overbroad if it regulates substantially more speech than is necessary to accomplish its goal.
○ Exception to Standing:
■ P can bring potential claims of others in the suit if he can argue that it would be unconstitutional as applied to others..
● Demonstrate that it can affect third parties
72
● Even if P's conduct is not constitutionally protected; P can say "hey, this is going to affect X party"
Conduct that Communicates

➢ Expressive Conduct is protected free speech if
○ (1) Actor has intent to convey a message
○ (2) There is a substantial likelihood that audience would understand the message
¡Note! Rules apply for corporations as well as individuals (Citizens United)
➢ Test for Expressive Conduct communicated in U.S. v. O’Brien
○ There are first amendment protections when “speech “ and “nonspeech” elements are combined in the same conduct → in this case, the
government must have a sufficiently important interest to justify the regulation: (essentially IS)
■ (1) Government interest in regulation is unrelated to suppression of free speech
■ (2) Important Government Interest
■ (3) Restriction is no greater than is essential to the furtherance of that interest
Cases Referenced:
➔ U.S. v. O’Brien → Federal law made it a crime to destroy draft cards; O’Brien and others burned their cards in protest of the Vietnam War.
◆ SCOTUS upheld regulation, but it's pretty clear they shouldn’t have.
➔ Texas v. Johnson → TX state law prohibited mistreating the flag in a way that was likely to offend others.
◆ Very obvious that the government’s interest IS related to the law’s purpose → likely meant to target protesting conduct.
◆ Law struck down
➔ Buckley v. Valeo → FEC passed a law limiting campaign spending after Watergate.
◆ SCOTUS held that spending money is a form of political speech.
➔ Citizens United v. FEC → Q as to company spending on campaigns.
◆ First Amendment protections apply to companies as well.
Limits of Freedom of Speech

Incitement to Illegal Activity
➢ In Brandenburg, SCOTUS held that the government cannot prohibit advocacy for violence unless the speech advocated for imminent
lawless action that is likely to occur
○ Advocacy of a crime → Constitutionally protected
○ Incitement of a crime → not protected by the Constitution
➢ Brandenburg Test: → this test is VERY hard to meet
○ Imminent Harm (objective inquiry)
○ Likelihood of Producing Illegal Action (objective inquiry)
○ Intent to Cause Imminent Illegality (subjective inquiry)
73
IMMINENCE is vital because w/o imminence, it is probably just advocacy
Student Speech
➢ Tinker sets the foundation of protected student speech → students do not lose their First Amendment rights at the schoolhouse gate
○ Limit when it would “substantially interfere” with normal school operation
➢ Fraser creates exception for Lewd/Vulgar Speech
○ Schools can punish for inappropriate speech
○ Deference to school officials to determine what speech is inappropriate.
➢ Kuhlmeier creates another exception for the “school’s own speech”
○ EXCEPTION: School's own speech/"imprimatur"
■ School is not required to promote/talk about things it does not want to.
■ Schools can regulate their own speech/publications
➢ Morse exception for promoting illegal drug use
○ Line drawn at protected “political speech”
➢ Mahanoy extends scope of school’s regulation power → limited speech exception from Tinker
○ Schools can regulate “off campus speech” when it “materially disrupts classwork or involves substantial disorder or invasion of the
rights of others.”
Cases Referenced:
➔ Brandenburg v. Ohio → KKK leader convicted under Ohio criminal syndicalism law.
◆ Conviction was reversed.
➔ Tinker → Students wore armbands to school to protest the Vietnam War.
◆ Armbands were a “silent protest” that did not cause significant disruption → w/o this showing school cannot regulate.
➔ Bethel School District v. Fraser → Student made a speech filled with sexual innuendos during an assembly. Suspended and not allowed to give
speech at graduation.
◆ SCOTUS upheld punishment.
➔ Hazelwood School Dist. v. Kuhlmeier → Principal deleted articles about teen pregnancy from the school newspaper.
◆ Schools retain the right to regulate their own speech
➔ Morse v. Fredrick → "BONG HiTS 4 JESUS"
◆ Schools have an important interest in preventing speech that encourages illegal drug use
◆ If this had been political activism (medical marijuana) likely would have been a violation of freedom of speech.
➔ Mahanoy Area School Dist. v. B.L. → Student was suspended from cheerleading team after posting two photos on Snapchat with vulgar content
and expressing frustration at not making the varsity team.
◆ Violation of First amendment for disciplining a student cheerleader for proface off-campus speech
◆ Students speech was not materially disrupting
74
75
Freedom of Religion & Establishment Clause
Free Exercise Clause ––> EXPANDING
Establishment Clause ––> SHRINKING
Free Exercise of Religion

Methodology of Application:
Neutral Law of General Applicability Purposeful/Hostile Law
Rational Basis Test (Smith) Strict Scrutiny (Hialeah; Masterpiece)
Cases Referenced:
➔ Church of the Lukumi Babalu Aye v. City of Hialeah → M.
◆ Bare animus evidence → SS
➔ Masterpiece Cakeshop → Baker refused to bake a cake for same-sex wedding because of sincerely held religious beliefs. Evidence of hostility in
lower court proceedings.
◆ Hostility towards religion will make a regulation fall under Strict Scrutiny
Establishment Clause
➢ Clear Baseline → If a government acts with a purpose to discriminate against religion, it violates the establishment clause
Three Theories of Establishment Clause:

1. Strict Separation
○ "Wall between Church and State"
○ Cannot funnel any money to church
■ In theory this questions provision public services
○ No touching
■ No praying in schools
■ No religious monuments in public offices
2. Neutrality Theory
76
○
Government cannot favor or disfavor anyone based on religion
■ Government should not endorse between religion or between non religion
○ Lemon test abandoned (neutrality theory gone?)
3. Accommodation Theory (MOVING TOWARDS THIS)
○ Government cannot coerce participation in any given religion
■ Government can accommodate religion, even favor a majority religion
■ Can funnel money to religious institutions (parochial schools, etc.)
■ Government HAS to provide money to parochial schools if it is providing the money to secular schools (otherwise it is
discriminating against religion)
○ Government cannot establish its own church
Cases Referenced:
➔ 303 Creative → Pre-enforcement suit essentially with the same issues as Masterpiece, but with graphic design.
◆ Future case
➔ Trump v. Hawaii → Facially neutral law that affects people from majority Muslim countries
◆ Court MUST be deferential to the Executive (not the President), but in another context this is likely a violation.
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Constitutional Law – P.

Manian Spring 2023

Horizontal Division of Power: The Three Branches

Vertical Division of Power: Federalism and State’s Rights

Protection of Individual Liberties: An Overview

Marbury v. Madison: Foundations of Judicial Review

Limits of Judicial Interpretation

Interpretive Limits: Originalism v. Nonoriginalism

Variations Strict Originalism (Most Narrow) Purposivism

Original Meaning Living Constitution (Most Broad)

➢ Policies & Sources of Justiciability Requirements:

Advisory Opinions Standing Ripeness Mootness Political Question

Requirements: Requirements: Requirements: Requirements: Requirements:

Federalism & the Scope of Congressional Power

Argument for Strong Federal Governmetn Argument for State Sovereignty

Political Process Argument Judicial intervention Argument

Necessary & Proper Clause

Congress’ Constitutional Powers

Three Deciding Factors of Congress’ Commerce Power:

First Era: Gibbons Defines the Commerce Power

Second Era: The Lochner Era (1890s-1937)

➢ Three Defining Questions:

¡NOTE! Congress was not completely consistent in applying these principles.

Third Era: Broad Federal Commerce Power (1937-1990s)

➢ Three Defining Questions:

Fourth Era: Present Rules

➢ New Categories for Commerce Power Regulation (Lopez)

Taxing & Spending Power

§ 5 XIV Amendment & Post-Civil War Amendments

15th Amendment → guarantees right to vote

Congress’ Ability to Enforce Post-Civil War Amendments

What is the Scope of Congress’ Authority Under Post-Civil War Amendments?

Nationalist Perspective Federalist Perspective

Katzenbach v. Morgan City of Boerne v. Flores; Nevada v. Hibbs

Inherent Presidential Power: The Four Models

Model 1: No Inherent Powers

Example of the Models at Use:

Separation of Powers & Foreign Policy: The War Powers

¡NOTE! This is ONLY in the area of foreign affairs!

Issue Three: How is Decision-Making Power over War Powers Allocated?

Checks on the President: Civil Lawsuits

Suing & Prosecuting the President

Limits on State Regulatory & Taxing Power

Two Situations Where State & Local Laws May be invalidated:

Preemption of State & Local Laws

Implied Preemption Conflict Preemption

State law impedes on the achievement of a federal objective

¡For ALL of the above: CONGRESSIONAL INTENT IS KEY!

Privileges & Immunities Clause (Art. IV, § 2)

○ Citizen → U.S. Citizen

“Mutuality of P&I Clause & Dormant Commerce Clause

Protection of Individual Liberties

Application of Rights as a limit to State Conduct

¡Due Process Explored in Depth Below!

Application of Rights as a limit to Private Conduct: The State Action Doctrine

Constitution’s Extension to Private Conduct

On the Levels of Scrutiny

Carolene Products/Footnote 4 Theory

Rational Basis Test

Legislative Goal: LEGITIMATE for government to pursue

Burden of Proof: Challenger

Intermediate Scrutiny Test

Legislative Goal: IMPORTANT for government to pursue