CONSTITUTIONAL LAW OUTLINE

Table of Contents Constitutional law outline ...........................................................................................1 Structure ....................................................................................................................5

Constitutional Approaches ..................................................................................................5 Realists .............................................................................................................................. 5 Formalists: ......................................................................................................................... 5 Contrary Approaches to the Constitution ............................................................................ 5 Constitutional Structure.................................................................................................... 5 Constitutional Breadth ...................................................................................................... 5 Institutional Legitimacy ..................................................................................................... 5 Institutional Competence ................................................................................................. 5 The Constitution and the Role of the Supreme Court ...........................................................5 Basis of the Constitution ...................................................................................................... 5 Articles of Confederation .................................................................................................. 5 U.S. Constitution ............................................................................................................... 6 The Federalist No. 10 (Madison, 1787) ............................................................................. 6 Judicial Review...................................................................................................................... 7 Rules .................................................................................................................................. 7 Constitution as the Supreme Law of the Land .................................................................. 7 Marbury v. Madison (1803) .............................................................................................. 7 McCulloch v. Maryland (1819) .......................................................................................... 8 Calder v. Bull (1798) .......................................................................................................... 9 Standing ................................................................................................................................ 9 Standing In General........................................................................................................... 9 Allen v. Wright (1984) ....................................................................................................... 9 Lujan v. Defenders of Wildlife (1992) ............................................................................. 10 Massachusetts v. EPA (2007) .......................................................................................... 11 Congressional Powers and Federalism ............................................................................... 11 Commerce Clause ............................................................................................................... 11 Commerce Clause: Article I, 8 ...................................................................................... 11 Things That Bear on Interpretation of the Commerce Clause ........................................ 12 Five Ways to Look at the Commerce Clause ................................................................... 12 Gibbons v. Ogden (1824) ................................................................................................ 12 Post Gibbons v. Ogden ....................................................................................................... 13 Post-Gibbons ................................................................................................................... 13 Hammer v. Dagenhart (The Child Labor Case) (1918) .................................................... 13 United States v. E.C. Knight Co. (1895) ........................................................................... 13 Houston, East & West Texas Railway v. United States (The Shreveport Rate Cases) (1914) .............................................................................................................................. 13 Champion v. Ames (The Lottery Case) (1903)................................................................. 13

Post-New Deal .................................................................................................................... 14 Post New-Deal................................................................................................................. 14 A.L.A. Schechter Poultry Corp. v. United States (1935) .................................................. 14 Carter v. Carter Coal Co. (1936) ...................................................................................... 14 Post-Court Change .............................................................................................................. 14 NLRB Period .................................................................................................................... 14 NLRB v. Jones & Laughlin Steel Corp. (1937) .................................................................. 14 United States v. Darby (1941) ......................................................................................... 15 Wickard v. Filburn (1942) ................................................................................................ 15 Post-Civil Rights Act ............................................................................................................ 15 1964 Civil Rights Act ........................................................................................................ 15 Heart of Atlanta Motel v. United States (1964) .............................................................. 15 Katzenbach v. McClung (1964) ....................................................................................... 16 United States v. Lopez (1995) ......................................................................................... 16 United States v. Morrison (2000).................................................................................... 18 Dormant Commerce Clause................................................................................................ 18 Dormant Commerce Clause in General .......................................................................... 18 City of Philadelphia v. New Jersey (1978) ....................................................................... 18 West Lynn Creamery, Inc. v. Healy (1994) ...................................................................... 19 Hunt v. Washington State Apple Advertising Commission (1977) ................................. 19 Exxon Corp. v. Governor of Maryland (1978) ................................................................. 20 Reconciling Exxon and Hunt............................................................................................ 20 Kassel v. Consolidated Freightways Corp. (1981) ........................................................... 20 Enforcement Power Under the 14th Amendment (Section 5) ........................................... 21 Fourteenth Amendment ................................................................................................. 21 Katzenbach v. Morgan (1966) ......................................................................................... 21 City of Boerne v. Flores (1997)........................................................................................ 21 Board of Trustees v. Garrett (2001) ................................................................................ 22 10th Amendment Limits on Congressional Power ............................................................. 22 Missouri v. Holland (1920) .............................................................................................. 22 New York v. United States (1992) ................................................................................... 23 Printz v. United States (1997) ......................................................................................... 24 Separation of Powers........................................................................................................ 24 Introduction ........................................................................................................................ 24 Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952) .................... 24 Foreign Affairs .................................................................................................................... 26 Hamdi v. Rumsfeld (2004)............................................................................................... 26 Domestic Affairs ................................................................................................................. 27 INS v. Chadha (1983) ....................................................................................................... 27 Bowsher v. Synar (1986) ................................................................................................. 28 Morrison v. Olson (1988) ................................................................................................ 28 Contrasting Opinions on Separation of Powers .............................................................. 29

Individual Rights ....................................................................................................... 29

Equal Protection ............................................................................................................... 29 Race ........................................................................................................................................ 29

State v. Mann (1829)....................................................................................................... 29 Dred Scott (1857) ............................................................................................................ 30 Frederick Douglass, Independence Day Address at Rochester, NY (1852) ..................... 31 Plessy v. Ferguson (1896)................................................................................................ 31 Sweatt v. Painter (1950) ................................................................................................. 32 Brown v. Board of Education of Topeka (Brown I) (1954) .............................................. 32 Brown v. Board of Education of Topeka (Brown II) (1955) ............................................. 33 Post-Brown Cases............................................................................................................ 34 Justices and Their Views on Desegregation .................................................................... 35 Heightened Scrutiny ........................................................................................................... 36 Strauder v. West Virginia (1880) ..................................................................................... 36 Korematsu v. United States (1944) ................................................................................. 36 Loving v. Virginia (1967) and Strict Scrutiny Defined...................................................... 37 Washington v. Davis (1976) ............................................................................................ 37 McCleskey v. Kemp (1987) .............................................................................................. 38 Affirmative Action............................................................................................................... 39 Regents of the U.C. v. Bakke (1978)................................................................................ 39 Richmond v. Croson (1989) ............................................................................................. 39 Adarand Constructors, Inc. v. Pena (1995) ..................................................................... 40 Grutter v. Bollinger (2003) .............................................................................................. 41 Gratz v. Bollinger (2003) ................................................................................................. 41 Summary of Affirmative Action ...................................................................................... 41 Race-Consciousness in Public Schools ................................................................................ 42 Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) ................ 42 Gender.................................................................................................................................... 43 Scrutiny and Gender Classifications ................................................................................ 43 Reed v. Reed (1971) ........................................................................................................ 43 Frontiero v. Richardson (1973) ....................................................................................... 43 Craig v. Boren (1976) ...................................................................................................... 44 United States v. Virginia (1996) ...................................................................................... 44 Califano v. Goldfarb (1977) ............................................................................................. 45 Califano v. Webster (1977) ............................................................................................. 45 Sexual Orientation.................................................................................................................. 46 Substantive Due Process ................................................................................................. 46 Bowers v. Hardwick (1986) ............................................................................................. 46 Romer v. Evans (1996) .................................................................................................... 46 Lawrence v. Texas (2003) ................................................................................................ 47 Goodridge v. Department of Public Health (Mass. 2003) ............................................... 48 Fundamental Rights .......................................................................................................... 50 Early Applications ................................................................................................................... 50 Implied Rights ..................................................................................................................... 50 The Slaughter-House Cases (1873) ................................................................................. 50 Substantive Due ProcessThe Lochner Era ....................................................................... 51 Lochner v. New York (1905) ............................................................................................ 51 West Coast Hotel Co. v. Parrish (1937) ........................................................................... 51 United States v. Carolene Products Co. (1938) ............................................................... 51 3

Williamson v. Lee Optical of Oklahoma (1955) ............................................................... 51 Ferguson v. Skrupa (1963) .............................................................................................. 52 The Lochner Era .............................................................................................................. 52 Fundamental Rights/Equal Protection ................................................................................... 52 Travel .................................................................................................................................. 52 Shapiro v. Thompson (1969) ........................................................................................... 52 Saenz v. Roe (1999) ......................................................................................................... 52 Welfare ............................................................................................................................... 53 Dandridge v. Williams (1970) .......................................................................................... 53 Education ............................................................................................................................ 53 San Antonio Independent School District v. Rodriguez (1973) ....................................... 53 Plyler v. Doe (1982) ......................................................................................................... 53 Voting ................................................................................................................................. 54 Harper v. Virginia State Board of Elections (1966) ......................................................... 54 Kramer v. Union Free School District (1969)................................................................... 54 Reynolds v. Sims (1964) .................................................................................................. 54 City of Mobile v. Bolden (1980) ...................................................................................... 55 Modern Substantive Due Process .......................................................................................... 55 Right to Privacy ................................................................................................................... 55 Skinner v. Oklahoma (1942) ............................................................................................ 55 Griswold v. Connecticut (1965)....................................................................................... 56 Abortion .............................................................................................................................. 57 Roe v. Wade (1973)......................................................................................................... 57 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) ............................. 57 Gonzales v. Carhart (2007).............................................................................................. 58 From Roe to Carhart ....................................................................................................... 59 Right to Die ......................................................................................................................... 59 Cruzan v. Director, Missouri Department of Health (1990) ............................................ 59 Washington v. Glucksberg (1997) ................................................................................... 60 The Right to Bear Arms ..................................................................................................... 61 District of Columbia v. Heller (2008) ............................................................................... 61

STRUCTURE
CONSTITUTIONAL APPROACHES
Realists A. Look at the concrete/practical consequences of legislation, and the problems Congress is trying to solve. 1. Ex: aggregate effectswhat would happen if everyone did it? B. Marshall in McCulloch: Constitution is meant to be adapted. C. Marshall in Gibbons v. Ogden: in defining commerce and among, focused on consequences and significance, open-ended and vague interpretations, and no categories. Formalists: A. Answer Should Congress be able by asking abstract questions about classifications. 1. Ex: direct or indirect effect? B. Marshall in Gibbons v. Ogden: Enumeration presupposes something not enumerated. 1. There has to be a line that is respected. CONTRARY APPROACHES TO THE CONSTITUTION Constitutional Structure A. Enumerates (10th Amendment): there is supposed to be a line. B. Short, old document: must be read with flexibility, breadth. Constitutional Breadth A. Sets limits to protect us from our own best intentions. B. Problem-solving: if there is a problem, there is a power. Institutional Legitimacy A. Principles: Courts say what the law is. B. States/Congress should make laws (not the Courts) because they are politically accountable. Institutional Competence A. Courts should use principle reasoning to decide the line. B. Legislation has the best information about actual powers.

THE CONSTITUTION AND THE ROLE OF THE SUPREME COURT

BASIS OF THE CONSTITUTION Articles of Confederation A. Problems with the Articles of Confederation/Need for Constitution 1. Voluntary: no enforcement. 2. Congress had to repay war debts, but had no authority to get money from the states and had no form of revenue.

3. States made unauthorized treaties, trade barriers, and infringed on federal rights. i. States needed collective action and a common commerce act. 4. Needed a powerful, independent government with interstate regulations. 5. Constitution was created to form sovereign regulation. U.S. Constitution A. Article I, 8: Lists specific powers of Congress. B. Article I, 9: Lists specific limits on the powers of Congress. C. Two steps to determine Constitutionality: 1. Look for clause enumerating power that applies. i. If impossible, law is unconstitutional. 2. Look for violations of restrictions on powers. i. If found, law is unconstitutional. D. 1st Amendment 1. Congress shall make no law abridging freedom of speech. 2. Applies only to Congress, not to the states. E. 14th Amendment (1868) 1. No state shall make or enforce laws abridging privileges of U.S. citizens. 2. First amendment that governed state powers. F. Article V: Amendments 1. Sets a high bar for Amendments to the Constitution. 2. Allows Constitution to address things it was not purposed for. The Federalist No. 10 (Madison, 1787) A. Factions 1. Government is meant to prevent factions. 2. Faction: sizable group with common purpose, adverse to rights of other citizens or aggregate interests. i. Can be a majorityimportant premise for Madisons ideas. 3. Factions are the great problem of American democratic government. 4. Favor systems that self-perpetuate their powers and deny to others. ii. Ex: landowners vs. landless 5. Arise because: iii. People get carried away with self-righteousness and emotionally motivated opinions, OR iv. Because of divisions of interest. 6. Madisons paradigm of interest-based factions: perpetuates own interests at the expense of others interests and their rights. v. Ex: Acts against creditors create economic stability against aggregate interests. B. Constitution is an expansion, recognition of government power, designed to inhibit factions and egalitarian action.

JUDICIAL REVIEW Rules A. It is the duty of the courts to say what the law is. (Marbury) B. The court should review acts of Congress to determine their constitutionality. (Marbury) C. A broad view of the Constitution is necessary because the document itself is broad. Congress can define its own constitutional limits, subject to judicial review. (McCulloch) D. Natural Justice: Things not explicitly prohibited can still be unconstitutional if they are against reason and justice because the framers could not have intended to allow something immoral. (Calder v. Bull) 1. The court cannot say something is unconstitutional just because it is, in their individual judgment, contrary to the principles of natural justice. (Calder dissent) Constitution as the Supreme Law of the Land A. Article VI: Constitution is the Supreme Law of the Land. B. Need for the courts: Constitution doesnt answer all questions and doesnt offer direct interpretation. Marbury v. Madison (1803) A. Significance: First time the Supreme Court states and exercises its power to declare acts of Congress unconstitutional, a power not directly given by the Constitution. 1. It is emphatically the province and duty of the judicial department to say what the law is. B. Facts: Marbury was appointed as a justice of the peace just before Adams term ended. Jefferson/Madison refused to deliver the commission, so Marbury sought a writ of mandamus to require them to do so. Supreme Court was given the power to issue writs of mandamus by the Judiciary Act of 1789. C. Central Issue/Holding: Does the Supreme Court have the authority to review acts of Congress? Yes. Is the Judiciary Act constitutional? No. Does the Supreme Court have the power to issue writs of mandamus? No. D. Rule: The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. 1. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what is specified in the Constitution. 2. The Judiciary Act was unconstitutional, and the Supreme Court therefore doesnt have the power to issue writs of mandamus. A. Marshall: 1. Congress gives the Supreme Court the power to issue writs of mandamus in the Judiciary Act of 1789, but the court must ask whether that was within Congress power. 2. Congress has interpreted the Constitution in making the Judiciary Act, but the judicial branch has the supreme interpretive powercourts say what the law is. 3. Allowing Congress to make law contrary to the Constitution gives them omnipotence, and makes the Constitution impermanent and meaningless. 4. Justices took an oath to protect the Constitution.

McCulloch v. Maryland (1819) A. Facts: Maryland enacted a statute taxing all banks not charted by the state. McCulloch, representing the Bank of the United States, contested the constitutionality of the statute after he was fined for failing to pay taxes due under the statute. B. Issue/Holding: Does Congress have the power to incorporate a bank, even though that power is not specifically enumerated within the Constitution? Yes. Does the state of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution? No. C. Rule: Congress may enact laws that are necessary and proper to carry out their enumerated powers. The Constitution is the supreme law of the land and state laws cannot interfere with federal laws enacted within the scope of the Constitution. D. Constitutionality of the Bank: 1. Marshall: a. Structural argument: Constitution isnt meant to be rigid. b. Broad view of the Constitution is necessary because the document itself is broad. It is meant to cover everything, to last a long time, and to be able to apply to unforeseen circumstances, and it must be broad to do so. c. The Constitution doesnt exclude incidental or implied powers. d. If the end is legitimate and within the scope of the Constitution, all appropriate means are constitutional under the necessary and proper clause. e. Necessary and Proper Clause i. Congress has the power 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. ii. Necessary 1. Marshall: Convenient, useful, essentialnot mandatory 2. Another clause uses absolutely necessary, implying degrees of necessity. a. Textual interpretation: attempt to use the words on the page. b. Lack of word absolutely must mean that a lesser degree of necessity is required. 3. Words are often used in the figurative sense necessary may not have been used literally. f. Comparison to Marbury v. Madison: i. Much more expansive reading. ii. Marbury: Constitution must be read narrowly to avoid Congress becoming omnipotent. iii. McCulloch: Text must be read broadly or Constitution wont be flexible enough to meet new circumstances and wont work. g. Effect: Marshalls interpretation expands Congress power and allows them to define their own constitutional limits, subject to the judiciary. E. State Taxes on National Bank 1. Marshall: 8

a. Taxation is a power limited by the political process of elections, but that process doesnt work when the federal government is taxed because the federal bank is funded by constituents of all states, most of whom cannot vote in MD. b. If there are no checks on the power of taxation, MD could use it to put the bank out of business. 2. Different from taxes on federal-owned land: All property owners in the state are affected by uniform land taxes, and the taxes will be limited through the political process by all other land owners. 3. Structural interpretation: consequences of state taxation of federal institutions could not have been intended. Calder v. Bull (1798) A. Chase: natural law/moral reading of the Constitution: Things not explicitly prohibited can still be considered unconstitutional if they are against reason and justice because the framers could not have intended something immoral. B. Iredell (dissent): the court cant call something unconstitutional just because it is, in their individual judgment, contrary to principles of natural justice. 1. Would give courts omnipotence 2. Existence of a written Constitution is contrary to ideas that court may use the unwritten Constitution of natural justice STANDING Standing In General A. Necessary for the court to have jurisdiction, limited by Article III. B. Elements of Standing: 1. Injury: Plaintiff suffered injury in fact a. Imminent, concrete, and particularized b. Cannot be abstract, speculative, hypothetical 2. Causation: Injury is fairly traceable to defendants conduct 3. Redressability: Likely that injury will be redressed by favorable decision C. Based on cases and controversies, but has a thin basis in the Constitution D. Without injury, causation, AND redressability: case might be a legal issue, but not the plaintiffs issue. Allen v. Wright (1984) A. Facts: IRS granted unlawful tax exemptions to segregated private schools, arguing that it would harm children attending schools that were undergoing or might undergo desegregation. B. Issue/Holding: Does the harm alleged by the respondents fulfill the constitutional requirement of standing? No. C. Rule: The Article III doctrine of standing requires that a plaintiff must allege a personal injury that is fairly traceable to the defendants allegedly unlawful conduct, and will likely be redressed by the requested relief. D. OConnor: 1. There is no injury created by general interest in law enforcement and legality.

2. A claim for a stigmatic injury does not create standing unless it fell on the plaintiff in a particularized way. 3. The court accepts that the defendants conduct affects the desegregation plan and could be a personal injury, but in this case the injury isnt fairly traceable. There is also no proof that withdrawal of the tax exemptions would have an appreciable effect. E. Brennan (dissent): 1. The ability to receive an education in an integrated school is directly and adversely affected by the tax exemptions granted. 2. The causation part of the standing inquiry is a poor disguise for the courts view of the underlying merits. Lujan v. Defenders of Wildlife (1992) A. Facts: Legislation requiring federal agencies to consult the government to be sure that their actions will not harm wildlife or endangered species was initially extended to actions in foreign nations, but was then limited in scope to the U.S. Plaintiffs brought suit. B. Issue/Holding: Do the plaintiffs have standing to challenge the governments interpretation of the Endangered Species Act under the rules of standing? No. C. Rule: In order to establish standing, plaintiffs must prove that they suffered an injury in factactual, imminent, and particularized, established by affidavit or other evidence with specific facts to support its claim. D. Plaintiffs Argument: They have visited foreign places where agencies are funding projects, and have seen threatened species. They want to go back and enjoy species, and have a special interest in their existence. E. Scalia: 1. Plaintiffs have no imminent injurythey have no concrete plans to return, and their relation to the places is too attenuated. 2. Rejects theories of injury: a. Ecosystem nexus: person who uses contiguous ecosystem b. Animal nexus: interest in studying or seeing endangered animals c. Vocational nexus: professional interest in animals d. UNLESS: i. Ongoing use of the place in question; or ii. Distinct and personal interest in survival of species (ex: your profession is based on this species and their extinction would ruin it, or if you own one of these endangered animals). 3. The plaintiffs are asking the court to make sure laws are carried out correctly and to tell the executive branch how to do its job. That is another branchs job the courts responsibility is to protect individual rights. F. Blackmun (dissent): 1. The court is failing to enforce Congress legislative act, and is not saying what the law is (Marbury). This is an invitation to executive lawlessness. 2. The court must assume that the executive branch will obey the law as the court states it.

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Massachusetts v. EPA (2007) A. Significance: Court creates a rule that there is relaxed standing analysis for states representing their citizens interests. Court place more limits on the executive branch, and overrode the executive branchs decision not to attack these aspects of climate change. B. Facts: States, local governments, and private organizations brought suit against the EPA in an attempt to force them to regulate carbon dioxide and other greenhouse gases as pollutants. C. Issue/Holding: Can a state without a concrete injury bring suit on behalf of its citizens? Yes. D. Rule: There is relaxed standing analysis for states representing their citizens interests. E. Stevens: 1. Greenhouse gas emissions are a general interest, but it is possible to establish a particularized injury (ex: rising water on coastal land in MA). 2. The problem is causation and redressability. 3. Alleged injury is caused by climate change, but there are too many uncertainties to trace climate change to any one act or regulation. In forcing the EPA to act, only a fraction of greenhouse gases might be eliminated. 4. A general case is allowed here because the plaintiff is a state rather than an individual, and has special solicitude. 5. Any causation that could be reduced is okit doesnt have to be totally removed. F. Court essentially adopts and causation and analysis of the dissent in Allen v. Wright. G. Reconciling with earlier decisions: 1. State as a plaintiff 2. Massachusetts has the right to preserve sovereign territory. 3. Creates new standing doctrine for states. 4. Under the Constitution, states are purposed to represent citizens interests (different from activist groups). 5. Difference from dissent: Focus on state rights in separation of powers as opposed to a focus on the executive branch.

CONGRESSIONAL POWERS AND FEDERALISM

COMMERCE CLAUSE Commerce Clause: Article I, 8 A. Congress has the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. B. Power is named/enumerated, but not defined. Restrictive reading: Congress can stop trade wars and create uniform trade laws/codes. C. Gibbons v Ogden: broad reading.

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Things That Bear on Interpretation of the Commerce Clause A. Enumerated Powers (Constitution) 1. Does it imply that there are powers the federal government does not have? 2. State v. federal power B. Changed economy (facts) 1. Since Gibbons v. Ogden, economy changed from local to spread out and connected. C. Wickardaggregation (Doctrine) 1. Slippery slope: what if everyone did the same thing? D. Civil Rights Act Cases (Doctrine) 1. Regulated activity could have substantial effect on interstate commerce without being commercial on its face. 2. Hard to find activity that wont be affected by commerce clause under Wickard and the Civil Rights Act cases. E. Rejection of Formalism 1. Court learned that formalism and abstract technical concepts cant work to determine reaches of the commerce clause and to define interstate commerce. Five Ways to Look at the Commerce Clause A. Rehnquist (Lopez): Need to maintain the line between state and federal power. The line between economic and non-economic is important. Must be suspicious of inferences. B. Breyer: Trust the legislative inferences. Review legislative findings on a rational basis. C. Souter (Morrison, dissent): Political process is enough. The Commerce Clause isnt the place for courts to enforce the line between federal and state power. Other methods disagree on the line, while Souter gets rid of the line. Souters method generally isnt used to decide cases. D. Thomas: Go back to 1789 and to the framers meaning of commerce. Often seen in concurrences, but unlikely to have the votes to be the deciding opinion. E. Kennedy: Traditional areas of state concern should be used. Gibbons v. Ogden (1824) A. Facts: NY State granted an exclusive right of steamboat navigation on NY state waters. Ogden sought an injunction to restrain Gibbons from violating his exclusive privilege. Gibbons asserted that his steamships were licensed by an act of Congress that superseded the exclusive privilege granted by NY. B. Issue/Holding: Does a state have the power to grant an exclusive right to the use of state waterways inconsistent with federal law? No. C. Rule: Congress power to regulate interstate commerce does not stop at external boundary of a state. Congress power to regulate interstate commerce is absolute. D. Marshall: 1. Broad reading of the commerce clause: commerce is not just traffic and trade, but intercourse. 2. Among means intermingled withdoesnt stop at boundary lines as long as it affects other states. 3. State legislatures have police power: health, welfare, morals, and safety powers that cant be infringed by the federal government.

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4. Differentiates states general ability to legislate and Congress specific ability: Congress power is specific, but plenary (supreme in areas where the power exists). Therefore, the acts of Congress regulating the coasting trade are supreme. 5. Commerce power does not extend to internal commercethat falls under state police power. POST GIBBONS V. OGDEN Post-Gibbons A. Congress isnt interested in using power to regulate interstate commerce. B. Most commerce is still local until after the Civil War, specifically from the 1870s on. C. Next cases are period of meandering: looking for limits, but also permissive. Hammer v. Dagenhart (The Child Labor Case) (1918) A. Significance: First major limit on Congress. B. Facts: Child Labor Act prohibited interstate transportation of goods produced with child labor. C. Rule: The power of Congress to regulate commerce does not include the power to regulate the production of a good intended for commerce. D. Technically, Congress is saying what can be traded across state lines, but is aiming to regulate relations between employees/workers. 1. That power belongs to states (Gibbons v. Ogden) United States v. E.C. Knight Co. (1895) A. Constitution does not allow Congress to regulate manufacturing. B. Regulation of allocation of ownership is not regulation of commerce, but regulation of manufacturing/production. 1. Ownership/antitrust and labor relations (wages, age, hours) fall under regulation of manufacturing/production. 2. NOT within Congress powers. C. Holding: Congress cant regulate a monopoly on the manufacturing of sugar. Houston, East & West Texas Railway v. United States (The Shreveport Rate Cases) (1914) A. Current rates make it hard for interstate merchants to compete with intrastate merchants. B. Rule: If governance of intrastate commerce affects interstate commerce, Congress has the power to regulate. C. Holding: Interstate Commerce Commission can set limits on intrastate shipping rates in relation to interstate rates. Champion v. Ames (The Lottery Case) (1903) A. Regulates morals, welfare. B. Contrary to Hammer v. Dagenhart: Congress can prohibit transportation of goods (commerce-related) across state lines. C. States stand together with Congress on this issue, but did not in Hammer.

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D. Rule: Congress has the power to regulate commerce among states, completely and without limits (except as prescribed by the Constitution). E. Holding: Commerce may regulate interstate transportation of lottery tickets because they have a recognized value of money. POST-NEW DEAL Post New-Deal A. New Deal regulation was passed to fix the economy, raising a lot of Commerce Clause questions. B. Gibbons was opening period, the middle was meandering. C. Now: trend of defiance. A.L.A. Schechter Poultry Corp. v. United States (1935) A. Congress imposes regulations on poultry. B. Invalidated on two grounds: 1. If Congress is allowed to do this, it can do anything. 2. Congress can only regulate chicken when in the interstate commerce period, not before or after (i.e., not during sale or slaughter). Carter v. Carter Coal Co. (1936) A. Congress claims that labor disputes, etc. affect the whole nation. B. Court: outside effects are irrelevant if Congress is outside its power in regulating manufacturing/production, UNLESS the effects are direct. C. Holding: Incidents leading up to and culminating in the mining of coal do not constitute commerce or intercourse for the purposes of trade, and their effect on interstate commerce is indirect, so Congress cant regulate the production of coal. POST-COURT CHANGE NLRB Period A. Court changes, and NLRB throws out most distinctions made previously. B. New period: capitulation/surrender. NLRB v. Jones & Laughlin Steel Corp. (1937) A. Facts: National Labor Relations Act established labor/management regulatory scheme. B. Anything with big effects on interstate commerce falls under the Commerce Clause. 1. Direct and indirect doesnt matter (contrary to Carter v. Carter Coal) 2. Labor relations can now be regulated (contrary to United States v. E.C. Knight) C. Congress is allowed to legislate labor/management under the Commerce Clause because they affect interstate commerce regardless of the source of the effect. D. Doesnt say that Carter is overturned, but the reasoning precludes it. 1. Sign of a new direction 2. Same situation as Carter v. Carter Coal, but takes new approach and reaches new conclusion.

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United States v. Darby (1941) A. Rule: Congress is free to exclude from commerce articles whose use in the state they are destined for may be injurious to the public health, morals, or welfare. B. Overrules Hammer v. Dagenhart and rejects the idea that the Commerce Clause is limited by categorical reservation to states. C. Congress can now regulate for health, morals, and welfare. D. Spirit of Carter, Schechter, and E.C. Knight is gone. Wickard v. Filburn (1942) A. Facts: Wheat quota is enforced on production due to a surplus in wheat. Filburn produced double his quota for use on his farm and was fined. B. Plaintiffs Argument: conduct is local in character, within his own farm, and is not interstate. The only effects on interstate commerce are indirect. C. Issue/Holding: Can Congress regulate the production of wheat intended for personal use and not placed in interstate commerce? Yes. D. Rule: Congress can regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce under the commerce power, even if the effect is indirect. E. Jackson: 1. Slippery slope argument: if everyone grew their own wheat rather than purchasing, the national wheat market would definitely see consequences in prices, etc. Plaintiffs need for wheat would otherwise be filled by purchases. 2. The only effective restraints on the commerce power come from political, not judicial, processes (Gibbons v. Ogden). Congress can draw lines of power. 3. Doesnt distinguish courts role in this. 4. Marshall also said that this plenary power only applies to enumerated powers, but Jackson leaves that out because it doesnt support Wickards tendency to leave it all up to Congress. POST-CIVIL RIGHTS ACT 1964 Civil Rights Act A. Federal desegregation legislation. B. Expansive view of the Commerce Clause: 1. People traveling affect interstate commerce, which allows Congress to regulate. 2. If you touch or use something from interstate commerce, your activity is subject to legislation. C. This expansive view of the Commerce Clause allows the Civil Rights Act to be effective in a lot of areas. D. 14th Amendment applies only to states, but doesnt allow Congress to regulate private business owners. E. Court continued their expansive path until the mid-90s (Lopez). Heart of Atlanta Motel v. United States (1964) A. Rule: Congress has the power to regulate local activities that might have a substantial and harmful effect on interstate commerce. B. Holding: Congress may prohibit racial discrimination by motels serving travelers, however local their operations may appear.

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Katzenbach v. McClung (1964) A. Rule: Congress has constitutional power under the Commerce and Necessary and Proper Clauses to protect interstate commerce from injuries caused by discriminatory practices. B. Holding: Congress acted within its power in extending coverage of Title II only to those restaurants offering to serve interstate travelers or serving food, a substantial portion of which was moved in interstate commerce. United States v. Lopez (1995) A. Facts: The Gun-Free School Zones Act of 1990 made it unlawful to possess guns in school zones. Defendant, a 12th grade student, was arrested for carrying a concealed and loaded handgun into his high school. B. Issue/Holding: Does the GFSZA exceed Congress authority under the Commerce Clause? Yes. C. Rule: Where economic activity substantially affects interstate commerce, legislation regulating that activity is constitutional. Congress may regulate three broad categories under its commerce power: 1) the use of the channels of interstate commerce; 2) instrumentalities of interstate commerce, or persons or things in interstate commerce, even if the threat comes only from intrastate activities; and 3) activities having a substantial relation to/substantially affect interstate commerce. D. Rehnquist: 1. GFSZA is not commerce, and Congress does not have the power to legislate in that area. 2. Commerce power applies only to (1) channels, (2) instrumentalities, and (3) activities related to interstate commerce. 3. Debate here is related to the third, and it is the courts job to define that boundary (implies that court has been neglecting to do that). 4. The court must preserve the domain of state powerwelfare, safety, etc. 5. If this law were upheld, it would take away the boundary between federal and state powers going forward. 6. Admits legal uncertaintyas long as power is limited to enumerated powers, legislation under the Commerce Clause will have uncertainty. 7. Rejection of formalism is relaxed. E. Breyer (dissent): 1. Violence in schools lessens the quality of education, which affects economic activity. 2. Act is constitutional because one can reasonably find relation to economic activity. 3. Uses rational basis standard of review (realist). 4. Courts should give Congress the power to make empirical judgment on the relation between regulated activity and interstate commerce. Congress, not the courts, is best prepared to address this question. 5. Courts should step back and use a permissive standard of reviewrational basis. Therefore, Congress can do anything it could rationally relate to interstate commerce. 6. Enumeration of powers is not the judiciarys job anymore.

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7. Essentially drops enumeration of powers as a way to define the Commerce Clause. a. Reaction to Dissent: i. Everything can be related to economy somehow, but the federal government cant regulate everything. ii. Possessing a gun is in no sense an economic or commercial activity. iii. Breyers dissent makes inferences upon inferencesinfers that guns (non-economic) relate to education (non-economic), and that that somehow has economic effects. F. Kennedy (concurrence): 1. Asks the same question as Breyer: which institution is best prepared to address this question? Answer: the states. 2. It is a state concern because education falls under state powers (unlike Rehnquist, who says that it is a state concern because it is non-economic). 3. Focuses on enumerated powers, defining them by traditional powersmore stable, predictable, and people know where to go to exercise their political power. 4. Stability is the main value of the state/federal line (in contrast to the controversy of economic/non-economic). 5. This reasoning is necessary because of the imprecision of abstract, contentbased boundaries (direct v. indirect, manufacturing v. commerce, economic v. non-economic) that havent worked in the pastrejection of formalism/abstract concepts was for a reason. G. Thomas (concurrence): 1. Commerce Clause should be read very narrowly. 2. Enumeration of powers would be surplusage if the commerce power was meant to be so expansive. 3. The line is so hard to draw because of the confusion that the court has allowed in by way of substantial effects and the aggregation principle. 4. Court should go back to the old distinction between interstate trade and everything else, without aggregation (which blurs the boundaries of interstate v. local). 5. Originalist: read Constitution in light of its writing, defining terms as they were defined when it was written. Commerce is trade. H. Souter (dissent): 1. Agrees with Breyer that enumeration of powers isnt really a concern anymore for the courts. 2. Doesnt believe that Rehnquist or Kennedys lines are any clearer than before. 3. Congress power under the Commerce Clause is plenary within reason and with a rational basisCongress can do whatever it sees fit within limits. 4. There are areas of state concern that aggregate to affect interstate commerce that are covered by plenary power. I. Economic vs. non-economic activity: Modern line of classification (formalist).

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United States v. Morrison (2000) A. Rule: Congress has the power to regulate interstate commerce or that which substantially affects it. B. Holding: Commerce Clause does not provide Congress with authority to enact a federal civil remedy for victims of gender-motivated violence because it is noneconomic activity. DORMANT COMMERCE CLAUSE Dormant Commerce Clause in General A. Prohibition on state regulation of interstate commerce is not explicit in the Constitution, but is implied. B. The Commerce Clause gives exclusive power to Congress to regulate interstate commerce, and that power therefore does not belong to the states. C. Courts role: assessing state regulations and deciding if they regulate in an area reserved for Congress. City of Philadelphia v. New Jersey (1978) A. Facts: NJ statute prohibits waste importation. B. Issue/Holding: Did the NJ waste importation statute violate the Commerce Clause? Yes. C. Rule: State regulation affecting interstate commerce is constitutional if it is nondiscriminatory and achieves a legitimate local purpose, unless the burdens of the regulation on interstate commerce are clearly excessive relative to the benefits. D. Stewart: 1. Two violations of the Dormant Commerce Clause. a. FIRST, the statute is simple economic protectionism and discriminates against interstate commerce, so it is invalid UNLESS it: i. Pursues a legitimate state interest ii. Is narrowly tailored and could not be pursued effectively with less discrimination against interstate commerce. b. SECOND, the statute places a burden on interstate commerce, so it is invalid UNLESS the burden is not excessive in relation to local benefits. E. NJ could pass a uniform law regarding waste disposal. 1. Would not be discriminatory. 2. Would also raise costs for NJ citizens. 3. Would help NJs cause, but at its expense as well. 4. Burden to further the interest is on NJ, not other states. 5. Right now, NJ is isolating itself from a problem common to many. F. Dormant Commerce Clause has been used to keep states from offloading the costs of local initiatives and benefits onto other states. G. As a lawyer: Prove that it is a legitimate state interest and is the only/least discriminatory option for pursuing that interest effectively. Benefits to NJ are irrelevantfocus is on interest. H. NJ Argument: State has an interest in protecting state health and the environment. This statute isnt like barring the importation of a good, because it is something people want to get rid of, not acquire.

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West Lynn Creamery, Inc. v. Healy (1994) A. Facts: MA taxes all milk sales, then used the money for a subsidy fund for MA milk producers. 1. Same effect as a tariff on out-of-state milk. B. Issue/Holding: Does the tax on milk sales combined with the subsidy unconstitutionally discriminate against interstate commerce? Yes. C. Rule: State taxation of interstate commerce is constitutional as long as the tax doesnt discriminate or place undue burden on interstate commerce. The Dormant Commerce Clause prohibits economic protectionism. D. Stevens: 1. Intent and effect are the same as a tariff. 2. MA is using other states to fund its subsidyfunding local policies by burdening other states. 3. Reinforces the idea that the Dormant Commerce Clause is meant to prevent funding of local policies by imposing burden on other states. 4. When states create policies for themselves at their own cost, those same people who have the costs and the benefits can vote in elections and use political power. If out-of-state people are burdened, they cant vote to change it. 5. Here, out-of-state milk producers cant lobby against the tax, and in-state producers wont want to because of the subsidy. 6. The local benefit does not outweigh the burdens it places on interstate commerce. E. MA argument: Achieves goals through lawful meanstaxation and subsidy are both individually constitutional. F. Scalia (dissent): States may subsidize domestic industry as long as funds are from nondiscriminatory taxes and go into the States general revenue fund. Hunt v. Washington State Apple Advertising Commission (1977) A. Facts: NC requires apples to only have USDA grading on the labels. WA has its own, more rigorous, grading system. The NC requirement imposes a burden on WA apple producers. B. Issue/Holding: Did the NC statute violate the Commerce Clause by unreasonable burdening interstate commerce? Yes. C. Rule: In the absence of conflicting legislation by Congress, where a state law governing a matter of local concern comes into conflict with the Commerce Clauses overriding requirement of a national common market, the Court must accommodate competing national and local interests. D. Burger: 1. Statute is facially neutralit is uniform, and there is no discrimination as to origin. However, it has the effect of simple protectionism. 2. It places burdens on WA by: a. Raising costs of doing business (forces them to change their marketing); b. Taking away Washingtons earned competitive or economic advantages; c. Creating a leveling effect that is in favor of local producers. E. NC argument: Purpose is to protect consumers from fraud. 1. Could be accomplished by requiring USDA grade without saying only USDA.

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2. Doesnt look like an anti-fraud statuteit looks like simple protectionism. 3. Core analysis of the effect/structure of the statute leads to the conclusion that it is discriminatory. 4. This method is obviously not the least discriminatory way to accomplish the purpose NC claims, and is therefore unconstitutional. Exxon Corp. v. Governor of Maryland (1978) A. Facts: Producers of petroleum cant also operate retail service stations. B. Issue/Holding: Did the Maryland statute unconstitutionally burden interstate commerce? No. C. Rule: Absent a relevant congressional declaration of policy, or discrimination against, or burdening of, interstate commerce, the States may regulate commerce. D. Stevens: 1. Statute is uniform, applying to both in-state and out-of-state producers. Effectively, however, it only really applies to out-of-state producers because no petroleum producers are in-state, and it helps reduce competition for in-state retail service stations. 2. Previously, refinery-owned stations had competitive advantages that have been taken away. 3. Companies of the same kind (refining companies) that are in state arent given any advantagesthe advantages only go to similar but different companies. E. Blackmun (dissent): 1. The effect is to protect in state companies from competition from out-of-state companies. 2. If discrimination must be universal, it is too easy for states to discriminate. F. Similar case to Hunt, but the court reaches a different conclusion. Reconciling Exxon and Hunt A. Its possible that Exxon was wrong. B. Exxon doesnt benefit MD companies of the same kind as those that are regulated. C. The Dormant Commerce Clause revolves around anti-protectionism, but also considers state autonomy Kassel v. Consolidated Freightways Corp. (1981) A. Facts: IA prohibits the use of 65-foot doubles (type of truck) within its borders, but makes certain exceptions for the same trucks used for the benefit of IA residents. B. Issue/Holding: Was IAs statute an unreasonable safety measure enacted pursuant to its police powers and therefore a violation of the Dormant Commerce Clause? Yes. C. Rule: State regulations designed to promote public health or safety but which further such purposes only marginally and interfere with commerce substantially may be invalid under the Commerce Clause. D. Powell: 1. Falls under the second branch of the Dormant Commerce Clausenot patent discrimination but places a burden on interstate commerce. 2. The court must do a cost benefit analysis: is the burden excessive in relation to local benefits?

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3. Statute has little additional benefit when compared to a modestly more permissive law, and is therefore excessive compared to its benefits. E. Brennan (concurrence): 1. The effect and purpose of the statute is protectionist and therefore impermissible under the Commerce Clause. 2. Benefits are for Iowans, while costs are placed on others. F. Rehnquist (dissent): 1. All states have limits on truck lengths. 2. The action is reasonable and therefore valid. ENFORCEMENT POWER UNDER THE 14TH AMENDMENT (SECTION 5) Fourteenth Amendment A. 1: No state shall deny citizens equal protection of the laws. B. 5: Congress shall enforce, by appropriate legislation, the articles of this amendment. 1. Gives Congress the power to enforce the protections of the 14th Amendment. 2. Allows Congress to expand protection of rights and liberties beyond where courts will enforce them. (Boerne) 3. Makes states subject to suits for damages for violations under commerce (Garrett), and lifts sovereign immunity. C. Three possible meanings: 1. Interpretive: Congress is assigned to give meaning to equal protection. 2. Preventative: Pass laws to enforce equal protection (as defined by courts). 3. Remedial: Provided causes of action against violations. D. Arguments for each: 1. Similar to Commerce/Necessary and Proper Clause (broad) a. Appropriate = proper b. Purpose: to establish federal dominance over states with regard to fundamental rights, including equal protection. 2. Duty of the courts is to say what the law iscourts should define equal protection. 3. Key is the word enforce. Katzenbach v. Morgan (1966) A. Facts: NY had a statute requiring literacy in English, which was overridden by Congress Voting Rights Act. B. Holding: Congress expression of power is valid. C. Preventive: Congress can reasonably see discrimination as a result of the literacy test. D. Interpretive: Court can see basis upon which Congress decision was rational. E. Dissent: This allows Congress to interpretjudgment is for the judiciary. City of Boerne v. Flores (1997) A. Facts: Decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act, which forbids a government from substantially burdening a persons exercise of religion unless the government can demonstrate that the burden furthers a compelling state interest and is the least restrictive means of furthering that state interest.

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B. Issue/Holding: Is the RFRA a proper exercise of Congress 14th Amendment, 5 power? No. C. Rule: While preventive rules are sometimes appropriate remedial measures, there must be congruence between the means and the ends. D. Kennedy: 1. Congress has remedial and preventive power to enforce, but not to determine what the law is (rejection of interpretive view). 2. Addresses Katzenbach, concluding that it gives Congress preventive power, but not interpretive. 3. Creates a test of Congress preventive power: congruent and proportional to a pattern of violations of 1 of the 14th Amendment. Board of Trustees v. Garrett (2001) A. Facts: Challenge of the ADA requirement of reasonable accommodations for the disabled, and the ability to seek money damages. B. Issue/Holding: Can a state be held civilly liable for disability discrimination under the ADA? No. C. Rule: Legislation that goes beyond the scope of 1s actual guarantees must show congruence and proportionality between the injury to be prevented and the means adopted to that end. D. Rehnquist: 1. Uses Boerne testmust be congruent and proportional to recover money damages against states. 2. If state has rational basis, there is nothing constitutionally wrong with treating people differently (narrow band of constitutionally discriminatory acts). 3. The statute challenged goes beyond limitations of the Constitution. 4. Asks if statute is congruent to the underlying Constitutional protections and violations of those, and if it is proportionate to violations. It isnt congruent goes farther/exceeds constitutional requirements, and there is no pattern of unconstitutional discrimination. 5. Preventive power cant stray far from the remedial scope defined by the court. E. Kennedy (concurrence): 1. The only part of the ADA being challenged here is the ability to sue states as employers, not the requirements of the ADA (which are an important milestone to progressive society). F. Breyer (dissent): 1. Constitution requires the appropriate test, not the test from Boerne. 2. Congress could reasonably find the acts of the state and state actors as a widespread problem. 10TH AMENDMENT LIMITS ON CONGRESSIONAL POWER Missouri v. Holland (1920) A. Facts: Missouri wanted to prevent the US game warden (Holland) from enforcing the Migratory Bird Treaty Act (the Treaty). It claimed the Treaty infringed on Missouris 10th Amendment right against federal intrusion. Congress passed the law using the treaty power (14th Amendment, 5), a law that was not covered by enumerated powers. 22

B. Issue/Holding: Can Congress pass legislation to enforce a treaty that it could not pass without the treaty? Yes. C. Rule: Treaties take precedence over any conflicting state law. A federal law can trump an earlier rule in treaty if it is clear that it is meant to do so, or the provisions cannot be fairly reconciled. If the treaty comes later it can trump federal law even if federal law is inconsistent. D. Holmes: 1. Treaty doesnt override prohibitions of Constitution, because it is implied that it would be unconstitutional if it did so. It can expand the scope, however. 2. The 10th Amendment is what is not forbidden, the unenumerated powers. It names powers not claimed by Congress, but it is not a ban on Congress power. 3. If there is a problem, the court should assume that there is a power that corresponds to it. New York v. United States (1992) A. Two Takeaways: 1. Anti-commandeering: Congress cannot direct states in their exercise of sovereign functions (extends to administration and implementation of federal policiesPrintz). a. BUT: federal government can bypass the state by making federal law. 2. Congress can guide decisions of states very aggressively by providing two unpleasant options ONLY if those things are under Congress power to impose. B. Facts: A federal statute required states to either provide for radioactive waste disposal or take title to waste made within the states borders. NY claims it is a violation of state sovereignty. C. Issue/Holding: Does Congress have the authority to force a state to adopt a federal regulatory program? No. D. Rule: Congress does not have the power to force states to implement regulations. E. OConnor: 1. Congress crossed the line from encouragement to coercion. 2. Recognizes formalistic approach, and says that the Constitution is a formalistic document. 3. States choices as sovereign are in a special domain. 4. 2 unpleasant choices are still free action, and are OK as long as both choices are valid exercises of power. 5. Congress can encourage choices or override choices by accomplishing the same thing with another choice, but not require voluntary action. 6. If the line between federal and state power is obfuscated, people dont know who to hold accountable and lose political power. 7. States cant consent to intrusion on powers. 8. Opposite of Holmes view: there are problems without powers, and courts have to hold that line, rather than licensing extra-constitutional governance. F. Stages of Law: 1. Authorizes states to place surcharges on out-of-state waste (authorized violation of the Commerce Clause are ok), then takes part of the surcharges, to be returned if states can reach certain milestones.

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a. States options: Regulation as Congress wants, or give up money. b. OK: offers financial incentives, but does not coerceconditional exercise of spending power. 2. Access: raises surcharges for existing disposal sites, and potentially deny access after deadlines. a. States options: Regulate as Congress wants, or get stuck with own waste. b. OK: exercise of Commerce Clause power. States have a choice and states citizens may choose not to do it. 3. Take Title: if state doesnt provide for disposal of its own waste by 1996, it has to take title to the waste. a. Not OK: coercion, no choice given. b. Forces state to become liable for waste, and isnt a valid exercise of Congress power. c. Other options represent a conditional exercise of Congress enumerated powers. d. Either path here forces states to follow direction of Congress effectively makes a state regulate rather than subjecting the state to valid regulation. G. Formalist (p. 338): applying framework of the Constitution, not inferences. H. Realist (p. 343): Looks at benefits to be able to decide what Constitutions framework means. 1. Nothing particular about decision of the court is in the Constitutionhave to make inferences using supposed functions of government, even as a formalist. Printz v. United States (1997) A. Anti-commandeering: prevents the federal government from making sovereign entities do something. B. Compelled enlistment of state officers for federal programs isnt a valid exercise of Congressional power. Places burden on the state government for the benefit of the federal government. C. Dissent: History suggests that the framers intended to empower Congress to act through local officials.

SEPARATION OF POWERS
INTRODUCTION Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952) A. Facts: President Truman issued an order directing the Secretary of Commerce to take possession of and operate most of the nations steel mills to avoid a strike. B. Issue/Holding: Did President Truman have the authority to order the seizure of the steel mills? No. C. Rule: The Presidents power, if any, to issue an order must stem from an act of Congress of the U.S. Constitution. D. Black:

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1. The power to issue orders is for lawmakers. 2. The Presidents Article II power is to see that laws are faithfully executed, not to make laws. 3. Congress has the power to make laws. E. Arguments of the Solicitor General and Blacks Responses: 1. President has all executive power. a. Response: Could not mean unlimited executive power because other powers are enumerated, and it does not fit with historical context. 2. President as Commander in Chief: power to take actions the President deems necessary to the war effort. a. Power to support armies, provide and maintain a Navy is given explicitly to Congress. This would fall under Congress portion of shared responsibility. b. Power is shared and limitedPresident is not Commander in Chief of the country, just the military. 3. President shall take care that the laws be faithfully executed. a. 5th Amendment: no person shall be deprived of life, liberty, or property without due process of law. b. First clause gives authority, but the second limits it from going too far. c. No law gives the President the authority to do this, and people dont submit to authority without law. 4. President has inherent powers that arise from customs and claims of past administrations, including the power to deal with crisis and emergency. a. Argument is like Holmes in Missouri v. Holland: for every problem there must be a power. b. Jackson: Framers knew about emergencies and did not provide for them, and gave the executive branch no emergency powers. Textual arg. c. Black: History showed that emergency powers kindle emergencies and provide pretext for usurpation. i. If you have a hammer, everything looks like a nail, regardless of good or bad faith. F. Frankfurter (concurrence): 1. We need more than what the Constitution tells us to decide whether this Act is the executive branch trying to take legislative power. 2. We need to look at historyif this was a systematic, unquestioned act, it would be executive power. 3. The relation of the two powers over the last decades helps define executive power. 4. There is no long tradition of presidential orders, only isolated incidents that were provided for by congressional legislation. 5. Here, it is specifically not authorized. G. Jackson (concurrence in the judgment): 1. Agrees that you cant just look at the Constitution to determine whether this Act is the executive branch trying to take legislative power. 2. Three situations for the legitimacy of the Presidents power need to be considered: 25

a. Action with implicit or explicit permission from Congressmaximum authority b. In the absence of either grant or denial of power/ambiguityzone of twilight c. Against the will of Congresspower would have to reside in a Constitutional writ of executive power, and presidential powers are at their lowest. d. This falls under the third one. Executive action here is the individual will of the President, an exercise of authority without law. e. Separation of powers isnt just about conflicting powersno part of government has the authority to define its own power and carry that power out. 3. Jackson was the Chief Prosecutor in the Nuremberg Trials, and argued for rule of law as an international authorityprobably why he references history of concentration of powershe lived it. FOREIGN AFFAIRS Hamdi v. Rumsfeld (2004) A. Facts: Hamdi (P), an American citizen, was captured in Afghanistan and held as an enemy combatant under a post-9/11 policy for detention as long as the executive branch sees fit for people deemed enemy combatants. B. Issue/Holding: Is a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdis capture was sufficient by itself to justify his detention? Yes. C. Rule: When an enemy combatant is captured in a zone of active combat in a foreign theater of conduct, he may be constitutionally detained under the Commander in Chiefs war powers. D. May be authorized under statutory authorization (Authorization of Use of Military Force). 1. Allows necessary and appropriate force against those involved in 9/11. 2. Zone 1 of Jacksons zones (from the steel cases)limited only by the Constitution. E. Constitutional Limitations: 1. Right to writ of habeas corpus cannot be suspended except in event of invasion/rebellion. Gives the chance to get into court to have the validity of the detainment examined. 2. Due Process: substantive issue. F. Statutory Limitation: 1. 18 U.S.C. 4001 (a): no citizen shall be imprisoned or detained by the U.S. except as pursuant to an Act of Congress. G. OConnor: 1. The AUMF is an Act of Congress. 2. Everyone knows that this detention falls under necessary and appropriate force.

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3. It follows naturally for people in Hamdis category and is part of what it means to be at war. 4. Detainment is not authorized as an indefinite detention, despite the infinite time of the war on terror and the lack of a definitive conflict. 5. In this case, there is active combat in Afghanistan, so the detention is authorized. 6. If we are within the law, the question turns to Due Process. 7. A citizen-detainee seeking to challenge classification as an enemy combatant must receive notice of the factual basis for the classification and a fair opportunity to rebut the governments factual assertions before a neutral decision maker. 8. Proceedings may be tailored, but the process cant be eliminated altogether. H. Souter (concurring in the judgment): 1. The Non-Detention Act should be read narrowly. 2. An Act of Congress should have to specifically reference detention for it to apply. 3. The executive branch should not decide the balance between liberty and security, because its particular responsibility is to maintain security. It would be natural for the executive branch to weight security and to be inclined to find powers to allow success in maintaining security. 4. Congress must resolve the competing claims so that the executive branch is not defining its own power. I. Disagreement on grounds of illegality: 1. OConnor: Problem is the way Hamdi was held without the opportunity to contest. Falls under constitutional limitation (due process). Zone 1 of presidential powerspecifically given power by Congress. 2. Souter: Non-Detention Act makes it unconstitutional. Zone 3 of presidential powerspecifically not allowed by Congress. 3. Reflects views on role of court: a. Souter: Court has a structural role in averting a situation in which the President is the judge of his own powers. b. Thomas (dissent): Court should take a deferential treatment of the executive branch because the court lacks the capacity to understand what is necessary during war. DOMESTIC AFFAIRS INS v. Chadha (1983) A. Significance: Stands for the proposition that Congress cant veto/command action of the executive branch without completing the full set of requirements for lawmaking set out in Article I, 7. 1. Bicameralism: passes both houses. 2. Presentment: presentation to President for opportunity to veto. B. Facts: Pursuant to the Immigration and Nationality Act, which authorized either House of Congress to invalidate and suspend deportation rulings of the Attorney General, the House suspended an immigration judges deportation ruling regarding Chadha. C. Issue/Holding: Was the part of the act authorized a one house veto constitutional? No.

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D. Rule: Where the House takes actions that have the purpose and effect of altering legal rights, duties, or relations of persons outside the legislative branch, bicameralism and presentment are required. E. Burger: 1. Congress gives itself power over agencies, etc. (the executive branch) by giving itself a legislative veto shortcut. 2. This is a legislative power, but works contrary to the Article I definition of how the legislative power works. 3. Equivalent to lawmaking without the difficult of lawmaking. 4. The only way to change immigration status otherwise is to make new lawthis act must be lawmaking and therefore must be constitutionally done. F. Steps for Separation of Power Cases: 1. Classify Act. 2. Is act being performed by the branch authorized to do this? G. White (dissent): 1. Defense of legislative veto is necessary for Congress to secure the accountability of the executive branch and independent agencies. 2. Helps Congress retain its given lawmaking power and protect it from executive agencies. The majoritys decision takes this away. H. Powell (concurring in the judgment): 1. Agree that it is unconstitutional on formalist grounds. 2. Exceeded scope of constitutional authority. Bowsher v. Synar (1986) A. Significance: Stands for the idea that Congress cant reserve for itself the power to dismiss an official of the executive branch. B. Facts: Congress passed the Gramm-Rudman-Holings Act, which, among other things, said that the Comptroller General is removable only at the initiative of Congress. C. Issue/Holding: Does Congress have the power to reserve for itself power of removal of an officer of the executive branch? No. D. Rule: Congress cannot reserve for itself power of removal of an officer charged with the execution of the laws except by impeachment. E. Burger: 1. When an executive official is seeing that a law is executed, Congress oversight via dismissal is an executive action. 2. It is an illegitimate takeover of Presidential power to oversee execution of laws, and an invasion of executive power. 3. Classified as an executive action. 4. Congress and the legislative branch are not authorized to use this power. Morrison v. Olson (1988) A. Significance: Stands for the principle that Congress can embed an official within the executive branch (appointed by courts) by restricting terms and grounds for dismissal. B. Rehnquist: 1. Real question is whether removal restrictions impede the Presidents ability to do his constitutional duty. This restriction did not.

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2. The courts decide whether the President can still do his job, and whether the Congressional Act burdens the executive branch too much. 3. Uses a functional/realist approachno rigid categories. C. Scalia (dissent): 1. Rehnquist doesnt provide a principle. Rule is sloppy and inconsistent, and barely even a law at all. 2. Rehnquist uses a case-by-case basis, which changes with the Supreme Court majority. 3. Scalia wants a principle. 4. Poses different question that what was posed in Bowsher or Chadha. D. Bowsher says Congress cant dismiss officials from the executive branch, but Morrison says that Congress can stop the President from dismissing an official from the executive branch. Contrasting Opinions on Separation of Powers A. Scalia (Morrison): There must be a defined principle for evaluating separation of powers cases. B. White (Chadha): Defense of legislative veto is necessary for Congress to secure the accountability of the executive branch and independent agencies. Helps Congress retain its given lawmaking power and protect it from executive agencies. The majoritys decision takes this away. C. Powell (Chadha): Agree that it is unconstitutional on formalist grounds. Exceeded scope of constitutional authority. D. Stevens (Morrison): Constitutionally invalid on formalist grounds. Comptrollers responsibilities are legislative, not executive. Must follow Article I procedures bicameralism and presentment.

INDIVIDUAL RIGHTS
EQUAL PROTECTION RACE
State v. Mann (1829) A. Facts: Mann wounded a slave that he had hired for a year from Jones. After he chastised her for a small offense, she ran off, and Mann shot her. This criminal action was brought at the behest of Jonesher slave had been injured and her value diminished. B. Attorney General: Assimilates the owner/slave relationship with other hierarchical subordinate relationships (parent/child, etc.)argument of analogy. 1. Response: Other relationships have some kind of reciprocity and some longterm benefit for the subordinate. 2. Difference: freedom vs. slavery. a. Slave has no will, benefit is only for the master.

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3. Slavery requires this relationship (force, constant threat of force). a. No other way to make the slave surrender his will and work for anothers benefit. b. Power of the master must be absolute. C. Conscience might want the law to interfere, but it is not the judicial role. 1. Slaves must know there is no appeal from their master, and no higher authority. 2. Court disclaims power to change the slave relationship. 3. Judges must recognize the full dominion of owner over slave. Dred Scott (1857) A. Importance of Understanding Dred Scott 1. Gives a picture of what the Civil War amendments rejected (especially the 14th Amendment). 2. It is the first sustained look at originalism. a. One of the most important ways of interpreting. b. Original understanding of the meaning of constitutional terms. c. Poses question: to what extent is Taney right? B. Holding: 1. African Americans, free or not, cant become citizens of the U.S. and so the privileges and immunities clause does not apply. a. Can still get state citizenship in some states. 2. States could abolish slavery, but the federal government cannot. a. Slavery is a state action. Congress is not given the power to legislate in that area. C. Facts: Dred Scott (P) was living in the slave state of MO. His owner took him to IL and MN, both of which were free states under the MO Compromise. P sued for his freedom, claiming to be a citizen of MO, based on having obtained freedom by domicile for a long period in a free state. P lost in MO court, and appealed in a federal court. D. Issue/Holding: Can a slave be considered a citizen and as such become entitled to all the rights, privileges and immunities granted to citizens under the Constitution? No. E. Rule: Slaves are not citizens under the Constitution. F. Article IV, 2: When you cross state lines as a citizen of the U.S., you are treated as a citizen of that state would be. G. Article IV, 3: No person held in service who crosses state lines can gain freedom just because that state does not recognize that legal relationship. (Fugitive Slave Clause). 1. Meant to prevent conflict between free and slave states. 2. Doesnt apply to Dred Scotthe was not a fugitive because he was taken across state lines by his master. H. Taney: 1. P must be a U.S. citizen to be able to sue in federal courts, not just a state citizen. 2. Dependent on how the word citizen would have been used. a. Citizen: member of the political community. b. The Framers could not have considered negroes as citizens because it would have been incongruent with the beliefs they were espousing.

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I. J.

c. Language of the Declaration of Independence would suggest that negroes are included as citizens, but the context and attitudes would not. i. Where there is inconsistency, we should favor practice rather than principle. To do otherwise would be to call them hypocritical. d. White supremacy was the view of members of the political community at the time of the Constitution. Court is bound by that because that defines their use of the word citizens. 3. Taney suppresses history of conflict within the law over slavery, and the criticism of Americans calling for liberty from Britain while defending the right to hold slaves. Campbell (concurrence): Status of slavery is dependent on the state of origin. Additional question: were slavery laws in the MO Compromise constitutional? 1. Congress cant act in opposition to the Constitution in territories, and is given no broader authority. 2. Cant legislate free speech or religion, and cant legislate the right to private property or deprive citizens of their property without due process of law. 3. Slaves are property, and Congress cant create a geographic boundary on property. Slavery laws are a deprivation of property without Due Process of Law. 4. Constitutionally guarantees slavery and prohibits federal citizenship for negro slaves and their descendants.

Frederick Douglass, Independence Day Address at Rochester, NY (1852) A. Constitutionality of slavery is a question for the people. The Constitution itself doesnt sanction or oppose it. B. The Framers meant the terms to preserve ambiguity to avoid unsettled debate. 1. Left for future generations to determine. Plessy v. Ferguson (1896) A. Facts: LA statute required railroad companies to provide separate but equal accommodations. Plessy (P) was prosecuted under the statute when he refused to leave the white section of a train. B. Issue/Holding: Was the statute requiring separate, but equal accommodations on railroad transportation consistent with the Equal Protection Clause of the 14th Amendment of the Constitution? Yes. C. Rule: A law that authorizes separate but equal accommodations on public conveyances is consistent with the 14th Amendment unless the law is unreasonable. D. Brown: 1. In the nature of things, it couldnt have been intended to abolish distinctions based on color. (p. 456) 2. People are bigots. 3. Racism is imagined, not actual. a. Incongruent with #2. E. Harlan (dissent): 1. Law plays a bigger role, although all people have pride of race.

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2. Constitution is color blind, and its application cant depend on race. F. Reconciling absolute equality with segregation: 1. In the nature of thingslaw cant change attitudes. 2. Equality means symmetrical legal treatment. 3. 3 kinds of rights: Civil, political, and social. Social rights are not protected, and the law is allowed to make this distinction. 4. Inferiority: in your head. Race/Bias Equality Court Natural Symmetry = equality Harlan (dissent) Natural/legalevery man has pride of race. Constitution is: 1) Color Blind: states cant know race when legislating. 2) Without caste: people cant be put in groups with varying levels of respect. Yes. Everyone knows segregation laws are to express and maintain racial hierarchy. Segregation is a civil right, not social. Civil rights fall under the 14th Amendment. Disagreement about the boundaries of civil category of rights.

Segregation = Inferiority?

No. Inferiority is in your head.

Spheres/Rights

Political (voting, etc.) Civil (Participation in economy, property, courts, private law) Social (Marriage, residential neighborhoods, right to ride train without segregation)

Sweatt v. Painter (1950) A. UT Law School established a separate school for black people. B. Not Constitutional. Accommodations are very unequal, and there are intangible benefits that could not be separately available. Brown v. Board of Education of Topeka (Brown I) (1954) A. Facts: Black children were denied admission to schools attended by white children under laws that permitted or required segregation by race. The children sued. B. Issue/Holding: Do separate but equal laws in the area of public education deprive black children of the equal protection of the laws guaranteed by the 14th Amendment of the Constitution? Yes. C. Rule: Separate but equal educational facilities are inherently unequal, and therefore violate the Equal Protection Clause of the 14th Amendment. D. Warren: 1. At the time of the amendment, education wasnt a big part of the institutional activity of states, and the circumstances were different. The Congress that adopted the amendment also administered schools in D.C. that were segregated.

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2. School is now compulsory, so states must make that right available to all on equal termsdoesnt address separation. 3. The question is if segregation is inherently unequal. Equal is not really equal material equality is not complete equality because of unequal intangibles. Intangible factors: black kids see a difference and feel inferior, affecting their motivation and ability to study and learn and stunting their educational and mental development. 4. Rejects contrary language in Plessy. Separate is inherently unequal. Rejects the its all in your head argument. 5. Segregation in public schools, even among those similarly situated, is unconstitutional. 6. Agreement with Harlans dissent in Plessy: a. Color blind: In the case of education, the Constitution must be color blind going forward. b. Without caste: Education has become necessary for success in many areas of life, and to deny equal education to blacks places them in a caste. c. Segregation inherently implies inferiority with ill effect. E. No dissent was written in order to not give opponents something to hold onto in the courts decision, since the issue was very controversial. Having a 9-0 decision was important to establish legitimacy and authority when there was so much controversy. Brown v. Board of Education of Topeka (Brown II) (1955) A. Significance: First major statement of what has to change to accommodate the Brown I ruling. B. Facts: Case was decided to define the manner in which relief, as held in Brown I, is to be accorded. C. Issue/Holding: What is the appropriate relief for schools violation of equal protection? Immediate relief, with all deliberate speed. D. Rule: It is up to the courts to decide whether the action of the school authorities constitutes good faith implementation of the governing constitutional principles. E. Jacksons Memo: 1. Difficulties of implementing. 2. Government says to remand cases to district courts, but Jackson doesnt want to place the burden on lower courts. a. Subjects judges to local pressure. b. Provides no standards to justify opinions. c. Department of Justice offers no standards. F. Warren: 1. Remand to district courts, which can analyze a variety of considerations. Public interest cannot be an obstacle to desegregation. Contrary to Jacksons memo. 2. All deliberate speedessentially allowed courts to take their time. 3. Harm is not just in exclusion, but also in separation. The remedy is integration.

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Post-Brown Cases A. Cooper v. Aaron (1958): Eisenhower sent the National Guard to enforce desegregationnot a sign that he agreed with desegregation, but he wanted to back up judicial power. 1. Court put federal government on the side of desegregation. 2. Supreme Court ordered desegregation to proceed. 3. Constitutional rights cant be sacrificed or yielded to violence and disorder following the actions of Governor Faubus. B. Goss (1963): one-way transfer (allowed children to transfer from schools where they were a minority). C. Griffin (1963): Shut down public schools instead of desegregating. D. Green (1968): Struck down freedom of choice of law, leading to segregation even though laws werent requiring segregation. Effective failure of integration. 1. Meaningful opportunity to actively desegregate. E. Swann v. Charlotte-Mecklenburg Schools (1971), invalidated. 1. Limits on what constitutes a desegregation issue. 2. Remedy depends on underlying intentional discrimination, which is the constitutional harm. a. To a certain degree, courts treat race as a non-legal phenomenon that has its own impulses and connotations that the court cant address. b. Other statutes passed because of Plessy caused areas of segregation not now established by law. c. Drawing the line where the remedy stops is hard. 3. Schools neednt be proportional. 4. At some point, schools will be unitary, and then courts will get out. a. First announcement of an end point. 5. Last of a string of unanimous decisions for 17 years in matters of desegregation (ever since Brown). F. Milliken I (1974): 1. Extended restriction constraint set in Swann. 2. Could not desegregate Detroit schools without undue burden. a. De facto segregated. b. D. Ct. tried to reach beyond school district in order to desegregate. 3. Supreme Court: remedial measures that the D. Ct. can use for desegregation are limited to within a school district. 4. Draws back from aggressive measures of earlier desegregation cases. 5. Federalism considerations: it is federalist tradition that school policy is local, not federal. G. Milliken II (1977): D. Ct. required a set of policy measures that would bring up the school district. Upheld by the S. Ct. H. MO v. Jenkins (1995): D. Ct. tried to require a set of expenditures by creating schools in order to fight flight of white. Attendance would have been voluntary. 1. Invalidated by the Supreme Court. D. Ct. had overstepped its boundaries. 2. Announced change in attitude in allowing the D. Ct. to use policy and expenditures to bring up district performance. 3. Thomas (concurrence): 34

a. Idea of suffering psychological harm rests on an assumption of black inferiority. b. Supreme Court has allowed D. Cts. Too much power against segregation, contrary to federalism and separation of powers, allowing them to pursue other agendas. c. Brown should be read as: constitutional lawmakers must be colorblind. i. BUT that is all that the Equal Protection Clause requires. Justices and Their Views on Desegregation A. CJ Vinson: No desegregation, but died a sudden death. B. Black: Yes. 1. KKK to get into the Senate, but was a later advocate of desegregation. 2. Believed that segregation is definitely meant to create castes. 3. Believed that the Constitution is a document that can only be read one way and that he could read it correctly. Its meaning doesnt change, regardless of his own values. C. Douglas: Yes. 1. Segregation is an easy problemthe Constitution says there should be no classification on the basis of race. 2. New Deal/Civil Rights liberal. 3. Law as politics: representative of the people. D. Frankfurter: Maybe 1. Doesnt know if this is legitimate without precedent. 2. Court might fail to enforce desegregation and would look bad. 3. Not clear that this is somewhere the court can go. 4. Was a civil rights activist before the civil rights movement and worked with the NAACPvery anti-segregation. 5. Sees the Constitution with the gloss that history puts on text (ex: in light of decisions like Plessy, etc.) E. Jackson: Maybe 1. Worried about precedent: cant find in the material of constitutional interpretation any justification in saying that segregation in schools violates 14th Amendment. 2. Says enforcement clause gives Congress power to legislate on this. 3. Court can strike down legislation that supports segregation but the only policy abolishing it must come from Congress. a. The court is bad at enforcing social reform. Attempting this would undermine the courts legitimacy. b. Necessity for court action arises from doctrine already on the books. 4. Prior decisions constitutionalize segregation, and Congress doesnt have the power to overrule themonly the Supreme Court can overrule SC decisions. a. Could probably get away with it, but would be discouraged by court saying that desegregation is alright. b. City of Boerne: Congress cant legislate 14th Amendment beyond where the court has defined it. BUT: THIS CASE COMES AFTER BROWN.

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c. The COURT has the duty to update the principle, which is why Jackson is open to a limited holding. 5. Like Frankfurter, sees the Constitution with the gloss that history puts on the textthe Constitution as the justices have interpreted it and as society has embodied it. HEIGHTENED SCRUTINY Strauder v. West Virginia (1880) A. Facts: A WV statute limited jury service to white man. Strauder, a black man, was convicted of murder by a trial court in WV. B. Issue/Holding: Did Strauders conviction by a jury selected pursuant to the state violate the 14th Amendment? Yes. C. Rule: A citizen of the U.S. has a constitutional right to criminal trial by a jury selected and impaneled without discrimination against his race. D. Strong: 1. 14th Amendment implies creation of a right to not be subjected to unconstitutionally differential and discriminatory treatment by state government. 2. Protects from legally established inferiority. 3. Very anti-caste opinion and view of the 14th Amendment. 4. 14th Amendment only applies to racenot age, gender, etc. Korematsu v. United States (1944) A. Facts: During WWII, a military commander ordered all persons of Japanese descent to evacuate the West Coast. Korematsu, a U.S. citizen of Japanese descent, was convicted for failing to comply with the order. B. Issue/Holding: Was it within the power of Congress and the Executive to exclude persons of Japanese ancestry from the West Coast at the time that they were excluded? Yes. C. Rule: All legal restrictions that curtail civil rights of single racial groups are immediately suspect and subject to strict scrutiny. D. Significance: Establishes the strict scrutiny standard of review. First look at race in general, not just white v. black. E. Black: Upholds the conviction, even though it excludes on the basis of race. 1. Although exclusion order imposed hardships upon a large number of American citizens, hardships are part of war. 2. Power to protect the U.S. must be commensurate with the threatened danger. 3. The executive branch and Congress have the power to enforce Japanese exclusion. 4. Court is unqualified to question the militarys judgment of military necessity. F. Murphy (dissent): 1. This is a case of racial discrimination of exactly the kind that the court is responsible for declaring invalid. 2. If courts wont do this in times with strong political motives to discriminate, nobody else will. Court has to. G. Jackson (dissent): 36

1. Cant second-guess the military, but also cant pass the act as Constitutional. 2. Declines to say whether it is constitutional or unconstitutional. It is not a problem he knows how to handle as a judge, and it is not his job. 3. The court should step away, and not judge military necessity, but since they cannot say the act is constitutional, Korematsu must be released. Loving v. Virginia (1967) and Strict Scrutiny Defined A. Facts: VA enacted laws making it a felony for a white person to intermarry with a black person or the reverse. The constitutionality of the statutes was called into question. B. Issue/Holding: Was rational basis the proper standard of review by which to evaluate the constitutionality of the statutes? No. Were the VA miscegenation statutes constitutional under the Equal Protection Clause? No. C. Rule: Restricting the freedom to marry solely on the basis of race violates the central meaning of the Equal Protection Clause. D. Warren: 1. Purpose of the 14th Amendment is to eliminate state sources of invidious discrimination. 2. For a racial classification to be upheld, it must be shown to be necessary to accomplishment of a permissible state objective, independent of racial discrimination. a. Not the case here, so statute is invalidated. b. Necessary = heightened scrutiny. 3. Looks at intent of legislation as the key to validity. 4. Elaborates requirement of the Equal Protection Clause. a. When there is classification of citizens by race for purposes of differential treatment, it is subject to RIGID/STRICT SCRUTINY. b. Law imposing a racial classification is invalid unless the classification is: i. Necessary ii. Narrowly tailored iii. State objective that is legitimate and compelling. a. Not compelling: Racial integrity (Loving), prejudice (Strauder) b. Compelling: National security (Korematsu), c. Possibly compelling: remedying past constitutional harms (Swann has race conscious policies to fix earlier violation of the Equal Protection Clause), diversity/providing opportunity (affirmative action). c. What kinds of state uses of race count as classification for strict scrutiny purposes? i. ALL classifications are suspect (anti-classification view) ii. NEGATIVE classifications are suspect (anti-caste view) iii. Facially neutral acts with discriminatory purpose. Washington v. Davis (1976) A. Question: Will strict scrutiny be triggered in a case where the law is facially neutral and doesnt employ racial classification, but has a differential impact?

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B. Facts: A higher percentage of black applicants failed a qualifying test administered by the D.C. police department. Some of the unsuccessful black applicants claimed these effects constituted unconstitutional discrimination against them. C. Issue/Holding: Was proof of the disproportionate effects of the qualifying exam sufficient to find that the exam unconstitutionally discriminated against the respondents? No. D. Rule: Proof of a disproportionate impact is not enough, without more, to ground a finding that a law amounts to unconstitutional discrimination. E. Arguments for P: 1. Court can infer that the purpose was discriminatory. 2. The result of this can be traced back to previous explicit discrimination (i.e., segregation in schools). F. Representation Reinforcement Theory (J. Ely, Democracy and Distrust) 1. As a general matter, courts should defer to what legislatures do because they are electorally accountable. 2. Heightened suspicion for legislative purposessometimes politicians can disregard certain constituencies without consequence. a. Discrete and insular minorities b. Never enough strength to exercise power (similar to out-of-state interests protected by the Dormant Commerce Clause). G. White: 1. Differential impact but facial neutrality with a lack of discriminatory purpose does not warrant strict scrutiny. Rational basis should be used. 2. Discriminatory purpose: decision-maker chose or reaffirmed action because of rather than in spite of. (Feeney, p. 535-36) H. Stevens (concurrence): Normally the actor is presumed to have intended the consequence of his deeds, especially in case of government action. 1. Weakened by Feeney/set aside. I. After Washington v. Davis: differential impact gives only a weak basis for discriminatory purposes, and will usually warrant rational basis review. McCleskey v. Kemp (1987) A. Facts: P was convicted or a robbery. He brought forth a study to show that his 8th and 14th Amendment rights had been violated because he was black. B. Issue/Holding: Does a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations prove that Ps capital sentence is unconstitutional under the 8th or 14th Amendment? No. C. Rule: It is the ultimate duty of the court to determine on a case-by-case basis whether the laws of the states are applied consistently with the Constitution. D. Powell: 1. In the aggregate, study shows that people are looked at differently and are of different socioeconomic groups. 2. Basis of argument is whether aggregate facts affect policies and whether they should be taken into account. 3. Racial differential that results from a facially neutral policy is not important is the policy is made in spite of the differential rather than because of.

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4. Statistics are striking. On the face of it, it looks as if prosecutors and juries are punishing blacks much more. 5. Court rejects claims: a. Conviction should be thrown out because of discrimination. i. Cant make valid inference from aggregate to individual discrimination. Statistics dont say anything about individual racism. b. State as a whole was acting with a discriminatory purpose. i. There was nothing to prove that Georgia enacted the policy in order to give more blacks the death penalty. E. Brennan (dissent): 1. Begins dissent by saying that at some point, P had to be told that because he was black, he was more likely than if he were a white person. 2. P cant go to the legislative branch to make a change because nobody would take a death row inmates call. F. Dissents in McCleskey and Davis: 1. Should take into account background conditions: a. Background is real and persuasive. b. Rooted in the legal caste system, which is now unconstitutional. c. Neutral policy can compound caste system. 2. Against taking into account background conditions: a. Race consciousness raises attention that works against the goal of the colorblind Constitution. b. Over-inclusive and under-inclusive: Accounting for background and equality would miss people the policy is intended to reach and reach people that were not intended. c. Calls to many policies into question if the background is always accounted for. AFFIRMATIVE ACTION Regents of the U.C. v. Bakke (1978) A. Facts: UC Davis med school was setting aside 16 of the 100 seats for black students. B. Powell: invalidated affirmative action. 1. All racial justification has to be justified under strict scrutiny. 2. Remediating a prior constitutional discrimination is a compelling purpose. 3. Maintaining a diverse student body is a compelling purpose. 4. BUT: the quota system was not narrowly tailored to meet diversity. There cant be a quota for diversity. Richmond v. Croson (1989) A. Facts: Richmond created a set-aside program which required that a percentage of subcontracts for construction projects be reserved for minorities. B. Issue/Holding: Can a state enact an affirmative action plan without support that the race-based measure remedies the effects of past discrimination on the opportunities enjoyed by minorities? No.

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C. Rule: Affirmative action programs can only be maintained by a showing that the programs aim is to eliminate effects of past discrimination. D. OConnor: 1. Richmond policy benefits the local majority that is a national minority, at the expense of the local minority. 2. Strict scrutiny should be used. 3. Compelling reason: History of explicit discrimination in contracts in Richmond. a. Cant be remedial for past general societal discrimination. Only ok if it is specific to contract discrimination in Richmond. Adarand Constructors, Inc. v. Pena (1995) A. Significance: Extends strict scrutiny to the federal level. B. Facts: P, a low-bidding subcontractor denied a contract on a federal highway project, alleged that the federal governments incentives to hire minority subcontractors denied him equal protection of the laws. C. Issue/Holding: Does the 5th Amendments guarantee of equal protection require the federal governments racial classifications to withstand strict scrutiny? Yes. D. Rule: Racial classification by the federal government is subject to strict scrutiny. E. OConnor: 1. Cant promote affirmative action on the basis of remedial action. 2. Making everyone equal and giving them the same opportunities is not enough to be a compelling state interest. 3. This measure is proactive and broadneeds to be reactive and narrow to be constitutional. a. Remedial action is ok only if it is to make up for past discrimination by the same agency that is offering the remedy. 4. There can be a specific remedial measure, but it must be narrowly tailored. a. Were there alternatives? b. Is there a time limit to the remedial measure? 5. Affirmative action also needs to be viewed under strict scrutiny for state actions. F. Thomas (concurrence): 1. Remedial provisions hurt minorities. They dont remedy, but rather reinforce bias and give them a badge of inferiority. G. Scalia (concurrence): 1. There can never be a compelling government interest to justify a racial classification. H. Scalia and Thomas: 1. If the law is making any type of racial classification, there should be strict scrutiny. 2. Preventing anarchy and violence is the only compelling government purpose, not remedial purposes. I. Stevens (dissent): 1. Launches an attack on the consistency concept. 2. Cant put bad discrimination on par with affirmative action. 3. Court can differentiate between invidious and benign discrimination.

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4. Laws that injure minorities should be subject to strict scrutiny, but laws that remedy past discrimination should only be subject to intermediate scrutiny. 5. Constitution does not require sensitivity to racial inequality but does not forbid it. Grutter v. Bollinger (2003) A. Facts: White law school applicant challenges the University of Michigans use of race as a factor in their admissions process. B. Issue/Holding: Does the University of Michigans use of racial preferences in the admissions process violate the Equal Protection Clause or Title VI of the Civil Rights Act of 1964? No. C. Rule: Schools may consider race as a part of the admissions process as long as it is only one factor in an individualized process. D. OConnor: 1. Bakke said that maintaining a diverse student body can be a compelling interest if it is not accomplished through a quota system. 2. Not true that the only government use of racial classification that can survive strict scrutiny is remedying past discrimination. 3. Defers to the judgment of the school. a. Law school creates the next leadership class so everyone should have a path to that leadership group. b. Legitimacy of the leadership class is determined by its diverse citizens. c. Schools get a more deferential standard. Municipalities dont get the same type of deference. Gratz v. Bollinger (2003) A. Facts: The University of Michigan had a policy of adding 20 points out of a possible 150 for minority applicants. B. Issue/Holding: Does the University of Michigans use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the 14th Amendment? Yes. C. Rule: A school may use affirmative action as a part of its admissions process as long as it is narrowly tailored to achieve the compelling interest, and if it is in the form of a plus, rather than a concrete and predetermined benefit. D. Rehnquist: 1. Bakke: Race can be a plus, but cannot be decisive. Each applicant was to be evaluated as an individual, and people must be holistically considered. 2. Policy makes race the decisive factor for virtually every minimally qualified underrepresented minority applicant. The policy was therefore not narrowly tailored to achieve respondents asserted compelling interest in diversity and violates the Equal Protection Clause. Summary of Affirmative Action A. Constitutional if it avoids racial classifications. 1. Ex: Can award contracts, public financing to economically disadvantaged people.

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B. Use of racial classifications calls for strict scrutinymust be a compelling state purpose, and the policy must be narrowly tailored. 1. Remedial (history of government discrimination, explicit and purposeful). 2. Equalizing opportunity is not a compelling purpose. 3. Diversity rationale: not categorically excluded (used in MI law school case), but rationale is unique to cases of higher education. C. Diversity Rationale: 1. May be a compelling purpose for racial classification. 2. Argument for diversity in Grutter: want to address background inequalities, open the legal field to everyone, and create diversity to better the law school. a. Addressing background inequalities is not as good an argumentits not remedial because it is not done by the institution that was discriminatory. 3. According to Parents Involved, there are 2 compelling interests: a. Remedying past intentional discrimination b. Interest in diversity in higher education 4. Narrowly tailored: a. Race can only be a factor, not the sole basis, and there cannot be quotas. b. No express, hard benefitsonly soft benefits, boosts, etc. c. Must be no other way to accomplish the purpose (Parents Involved, Kennedy) RACE-CONSCIOUSNESS IN PUBLIC SCHOOLS Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) A. Facts: Schools have assignment plans that are discriminatory against students based on their race. B. Issue/Holding: May a school that was never segregated and had never achieved unitary status classify students by race for the purpose of assigning schools? No. C. Rule: School plans that use race alone as a qualifying criterion for school assignments are unconstitutional. D. Roberts: 1. This was not narrowly tailored. Other means would have been effective, and their minimal impact casts doubt on the necessity of the racial classification. 2. Implies that diversity is not a compelling interest except in higher education, but doesnt actually make a decision or state a holding on that subject. 3. There is no compelling reason to treat racial imbalance. a. Kennedy does not join here. He wont say that there is no compelling interest but doesnt say what is compelling. 4. Uses plaintiffs brief from Brown to interpret holding principle. Takes Brown to mean that you cant classify at all based on race. E. Kennedy (concurrence): 1. Almost says that policies here have a compelling interest in avoiding racial isolation. 2. Realizes that race does matter. 3. Brown does not say to ignore racial imbalances.

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GENDER
Scrutiny and Gender Classifications A. Level of scrutiny created by Craig v. Boren: 1. Important interests a. Broader than compelling, but still limited. 2. Substantially related. a. Actual, credible relation. B. 14th Amendment was not meant to address gender, so it is hard to use it as an argument. Reed v. Reed (1971) A. Used rational basis to invalidate gender classification on the basis of the Equal Protection Clause. 1. Said classification was an arbitrary legislative choice and there was no rational relationship. B. Normal rational basis would ordinarily not have invalidated this. It wasnt a true rational basis review. Frontiero v. Richardson (1973) A. Facts: Military practice automatically allowed the wives of male officers to be considered as dependents and thus receive the rights of dependents, but required the female officers, in order to get the benefits for their husbands, to actually prove that their husbands were dependent upon them. Frontiero argues that it is an unconstitutional gender based classification. B. Issue/Holding: Does the differential treatment of the military with regard to awarding benefits to dependents violate the Constitution? Yes. C. Rule: Classifications based on sex are inherently suspect and must be subject to strict judicial scrutiny. D. Brennan: 1. Close scrutiny = strict scrutiny. 2. Implicit support from Reedthe court had rejected an apparently rational explanation. 3. No new law because there is no majority opinion, but the court will be looking at gender classification much more closely. 4. Equates gender and race with regard to protection under the Equal Protection Clause. 5. Women deserve heightened scrutiny, and the Equal Protection Clause should be interpreted to include women. 6. How/To whom Equal Protection Clause should be applied: a. Discrimination based on qualities unrelated to qualifications or contribution to society (ex: race, gender). b. History of discrimination c. Continuing discrimination, stereotypes, and unconscious distinctions. d. Individual responsibility must be the basis for legal burdens, not immutable characteristics.

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e. Immutability Craig v. Boren (1976) A. Significance: Court first announces heightened scrutiny for gender classification. B. Facts: Oklahoma maintained different drinking ages for men and women for the consumption of 3.2% alcohol beer. P alleges that this difference violates the 14th Amendment. C. Issue/Holding: Does the Oklahoma statute violate the Equal Protection Clause of the 14th Amendment? Yes. D. Rule: Gender-based classifications must satisfy intermediate scrutiny requirements to pass constitutional muster. E. Brennan: 1. Constitutional injury is the difference between genders, not age. Gender falls under the criteria of the Equal Protection Clause, while age does not. 2. Classification must have an important purpose and a substantial relationship. 3. Men are stereotyped as being more likely to drive intoxicated. 4. Statistics support law, but the difference is minimal. 98% are treated differently as a result of a 2% difference. More reflective of background attitude and stereotypes. 5. Not substantially related: full of holes, not well done, and the law applies only to purchase, not consumption. United States v. Virginia (1996) A. Facts: Virginia Military Institute (VMI) was the only single-sex school in VA. VMI used a highly adversarial method to train male leaders of the future. There was no equal educational opportunity in the state for women. B. Issue/Holding: Did VMI and the lack of an equal opportunity for women represent a violation of the 14th Amendments Equal Protection Clause? Yes. C. Rule: Gender-based classifications of the government can be defended only by exceedingly persuasive justifications. The state must show that its classification serves important objectives and that the means are substantially related. D. Plaintiffs Arguments: 1. VMI is a great school and a unique opportunity that is not available to women. 2. Women are being denied something of value due to their gender. 3. VWIL (the proposed program for women) is inferior in terms of facilities, faculty, endowment, etc., and teaching methods are not adversarialit doesnt provide the same opportunity as VMI. E. Defendants Arguments: 1. Lack of privacy and the adversarial method are unsuitable for women. 2. Provides educational in diversity, and a different educational opportunity. 3. VMI gave VWIL some of its endowment, provided some employment opportunities and access to the alumni employment network. 4. Adds more diversity by increasing the number of single-sex public institutions. F. Ginsburg:

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Diversity is valid, but there is no evidence of that being VMIs actual purpose in being established or maintainedit seems like a rationalization for actions with another purpose). 2. Inability to educate citizen-soldiers in multi-sex institutions isnt true. a. Would require accommodations, but VMIs methodology could be used to teach women and women wouldnt downgrade the institution. 3. Adds new requirement: must be exceedingly persuasive 4. History of sex integration in other institutions: people predicted poor outcomes that never actually happenedcourt will be skeptical of this argument. 5. The goal of producing citizen-soldiers is great enough to accommodate women, and the goal has not been advanced by categorical exclusion. 6. Defines public purpose by presuming that this categorical exclusion is the only means. 7. Adequacy of VWIL: a. Looks at intangible benefits of VMI that cant be recreated. b. 1 person interested in a VMI education who is excluded based on sex is enough. The exceptional individual is the constitutionally decisive individual. G. Ginsburgs Suggestions of Review for Defenses of Sex Discrimination: 1. Anytime a state says sex integration will be problematic with some institutional practice, the court has to look at the policy very skeptically. 2. If gender/sex exclusion is inherent in the purpose itself, the court is very skeptical. H. Rehnquist (concurring in the judgment): 1. The exceptional person is not enoughit should depend on whether Virginian women in general are interested in a VMI education. 2. Stated the standard of substantial relationship in Craig v. Boren, but doesnt think that exceedingly persuasive should be added. 3. VMI still fails to meet that standard because it is distinctly inferior. I. Scalia (dissent): 1. Negative originalism: the properly read Constitution says nothing about this issue. 2. The courts decision enshrines a notion that is not supported by the Constitution. Califano v. Goldfarb (1977) A. Make spousal benefits only conditionally available to widowers. B. Struck down because women are stereotyped as more dependent on men than men are on women. C. Court can invalidate laws that treat sexes differently in cases where stereotypes are used, and validate laws that give advantages to women to remedy past discrimination. Califano v. Webster (1977) A. Women are allowed to receive higher benefits. B. Like affirmative actionthe advantages are to a gender with a history of discrimination.

1.

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SEXUAL ORIENTATION
Substantive Due Process A. Bowers and Lawrence v. Texas use the Due Process Clause. B. Relies on different interpretation than the ordinary one. C. Protects substantive liberties (as opposed to procedural). 1. Certain liberties cant be violated by the government. 2. Not explicitly named, but inferred from reference to due process in the 14th Amendment. D. Liberties protected if: 1. Deeply rooted in history and tradition, OR 2. Implicit in ordered liberty (if right is not protected, society is not free). Bowers v. Hardwick (1986) A. Reversed in Lawrence v. Texas. B. Substantive Due Process case. C. Facts: A male homosexual was criminally charged for committing sensual sodomy with another male adult in the bedroom of his home. D. Issue/Holding: Is the right of homosexuals to engage in sodomy a fundamental right? No. E. Rule: There is no constitutional right to engage in consensual homosexual sodomy. F. White: 1. Right is not deeply rooted. In fact, there are long existing proscriptions against it. 2. Why defined as the right to engage in sodomy rather than something more general (i.e., right of two people to engage in intimate conduct, for the state not to interfere in intimate relationships)? a. Defines the right very narrowly, making it much less likely to succeed. 3. Basic question of any Substantive Due Process Case: is the right defined broadly or narrowly? a. Has a big effect on the results. Romer v. Evans (1996) A. Facts: Colorado voters adopted Amendment 2 to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. B. Issue/Holding: Did Amendment 2 violate the Equal Protection Clause of the 14th Amendment? C. Rule: A bare desire to harm a politically unpopular group cannot constitute a legitimate government interest. D. Defense Argument: Puts homosexuals on the same footing as ordinary people, denying only special rights. E. Kennedy: 1. Uses rational basis review. 2. Purpose is to harm a politically unpopular group (animus). a. Prohibited. 3. Too narrow: only sexuality, not based on individual contributions, etc. 4. Too broad: takes away variety of protection unrelated to sexuality.

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5. Specifically targeted, broad and undifferentiated denial of protection. 6. Equal protection requires the government to remain open on impartial terms to those who seek its assistance. Amendment 2 makes this hurdle higher for homosexuals. F. Scalia (dissent): 1. Not in the Constitution, so it should be left to the political process. 2. The court made a moral judgment, and the animus argument is subjective. 3. Anti-miscegenation laws were based on a moral premise that the court declared invalid in an act of moral condemnation. Animus cant be separated from moral condemnation. 4. Looks at homosexuality as a set of acts, while the court seems to look at it as an identity. Lawrence v. Texas (2003) A. Substantive Due Process case. Overturns Bowers. B. Facts: Police found two men engaged in sexual conduct, in their home, and they were arrested under a Texas statute that prohibited such conduct between two men. C. Issue/Holding: Does a statute prohibiting specific sex acts violate liberty under the Due Process Clause of the 14th Amendment? D. Rule: While homosexual conduct is not a fundamental right, intimate sexual relationships between consenting adults are protected by the 14th Amendment. E. Kennedy: 1. Applies the Due Process Clause because under the Equal Protection Clause, Texas could make the law constitutional by applying it to everyone. a. EPC: Government cant deny rights based on traits/classifications. b. DPC: People have personal autonomy that the states cant abridge. 2. Liberty presumes autonomy of self. 3. The state has no role in both spatial and more transcendent dimensions. a. Includes thoughts, belief, expression, and certain intimate conduct. The government doesnt get to tell you who to be. b. Broad characterization of liberties protected by Substantive Due Process. 4. The Constitution was meant as a flexible documenta tool for society to decide how to deal with issues. The Due Process Clause did not presume to know what liberty meant in all possible situations. 5. Looks at sexuality as identity rather than a set of acts. 6. Bowers court failed to appreciate the extent of liberty at stake. a. Goes beyond a certain act and infringes upon relationships and private lives. b. State governs private acts in a private place, which infringes upon the core right to decide who you are. 7. Difference from Bowers is mostly a broader re-casting of the issue, which also makes historical considerations irrelevant. 8. Considers weight of history of sodomy bans. a. Not intended to limit homosexuals, just non-procreative sex. Population is no longer a concern, however, so those laws are irrelevant.

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b. Laws werent usually enforced or prosecuted, but were meant to express disapproval. 9. Homosexuality is not a trivial concern for many people, but can the majority use the states power to enforce their views using criminal law? F. Scalia (dissent): 1. Since the court doesnt find homosexual sodomy to be a fundamental right, and merely describes it as an exercise in liberty, a rational basis scrutiny should be applied. 2. The law would be upheld. 3. Since all laws, by definition, affect liberty, they would all be unconstitutional under this ruling (ex: prostitution, heroine, etc.). 4. The court is imposing their views on the democratic majority. 5. The question of liberty and its definition is not really legalwhy does the court get to be philosophers? 6. Courts job is only to protect individual rights and liberties. G. OConnor (concurrence): 1. Doesnt join court in overturning Bowers. 2. Conclusion is based on equal protection rather than substantive due process. 3. Using a rational basis review, the court has consistently held that some objectives, such as a bare desire to harm a politically unpopular group, are not a legitimate state interest. 4. Sodomy is not prohibited between opposite sex partners, and thus unfairly targets same sex partners and makes them unequal in the eyes of the law. Goodridge v. Department of Public Health (Mass. 2003) A. Facts: Challenge to the ban on same-sex marriage. B. Issue/Holding: Is the right to marry a partner of the same sex protected under the Constitution? Yes. C. Rule: Marriage to the partner of ones choice regardless of gender is protected by the Equal Protection Clause and the Due Process Clause. D. Characterization of marriage is importantlike characterization of sexuality as identity in Lawrence.

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Marshall (majority)

Characterization of Marriage -Individual choice, love and support -Stability benefits -Exclusive commitment. -Gender neutral

Equal Protection Romer applies. Loving: Marriage is a choice. VMI: Equal protection = progress and inclusion

Liberty/Due Process Lawrence is broad: liberty of choosing a marital partner.

Review Rational Basis -No rational relationship with statute. -Elevated rational basis: dont want to create a new class for intermediate scrutiny. Elevated Rational Basis

Result Invalid

Greaney -Right to marry (concurrence) is fundamental. -In line with Marshalls view.

-Gender classification here. -Loving classified black/white, MA classification is male-female. -Suspect classification.

Cordy (dissent)

-Procreation is a goal and problem -Marriage is needed to manage procreation. -Up to legislature

Right to marry is fundamental, but uses the EPC because the right to marry the same sex is not necessarily. It is easier to use the gender classification to get to elevated review. -Loving was about -Lawrence is white supremacy, narrow and only not just an antiapplies to private classification intimacy. case. -Loving: -Classification addresses the here is not procreative hierarchical. aspect of marriage. -No liberties as stakeno private conduct.

Invalid

Rational basis for real. Legislative branch could rationally find

Valid

Sosman (dissent)

-Whatever the legislature says it is.

Rational basis

Valid

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FUNDAMENTAL RIGHTS EARLY APPLICATIONS

IMPLIED RIGHTS The Slaughter-House Cases (1873) A. Privileges and Immunities Clause. B. Facts: A LA statute gave the Slaughter-House Company exclusive rights to the New Orleans slaughterhouse business. C. Issue/Holding: Does the legislative establishment of a monopoly slaughterhouse violate the 13th Amendment, the 14th Amendments privileges and immunities clause, equal protection clause, or the due process clause? No. D. Rule: In interpreting a provision of the Constitution, it is necessary to look to the purpose for which the provision was enacted. E. Miller: 1. Claim is rejected: the right to earn a living is not protected by the structure and text of the 14th Amendment. 2. Article IV: citizens had the same rights in another state as citizens of that state. a. Forbids states from discriminating against citizens of other states. 3. Privileges and immunities protected are those rights dependent on the federal government. 4. The 14th Amendment doesnt limit state police powers unless the state interferes specifically with citizens; relations with the federal government. 5. A broad reading of the privileges and immunities clause would severely limit state police powers, allow them to be abridged by Congress, and change the theory of state/federal relations. a. The Framers could not have meant that to happen, especially based only on inference. F. Field (dissent): 1. Other rights were already protected. 2. If the privileges and immunities clause doesnt protect rights beyond those specifically designated in the Constitution, it accomplishes nothing. 3. 14th Amendment was meant to be radical departure from the original intent of the Constitution. a. Original Constitution had failed pragmatically because it led to the Civil War, and morally because it allowed for slavery. b. Doesnt explicitly state a change in federal/state governments, but implies it. c. What wasnt known was how broad the privileges and immunities of federal citizenship were.

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SUBSTANTIVE DUE PROCESSTHE LOCHNER ERA Lochner v. New York (1905) A. Not good law anymore. Anti-canon: case used to define common law via rejection. B. Facts: a New York labor law required employees to work no more than 60 hours in one week. C. Issue/Holding: Does the due process clause of the 5th Amendment and 14th Amendment protect liberty of contract and private property against unwarranted government interference? D. Rule: The NY labor law limiting hours of bakers is an abridgement of liberty of contract and violation of due process. E. Peckham: 1. Liberty of contract is protected/preserved under the Due Process clause of the 14th Amendment. a. Liberty of Contract was in the 1866 Civil Rights Act, and the 14th Amendment was accepted so that the Civil Rights Act could be passed. b. Right to pursue business as you see fit is embedded in history as a traditional, fundamental right, which includes liberty of contract. 2. Accepted set of legitimate state goals: safety, health, morals, and general welfare of the public. a. There must be a credible relationship between these goals and statutes for the statutes to be valid. b. Majority here says there is no credible relationship. 3. Here, state is adjusting bargaining power, which is a prohibited goal. 4. Ds argued that law makes people healthier and so it addresses a state interest. This is too broad, and not the real purpose of the law. F. Holmes (dissent): 1. Liberty cant be used to prevent the outcome of a dominant opinion unless a rational/fair man would find that it infringes on a fundamental right. 2. Can be substantive due process, but the state can pass laws over rights that are not historically fundamental. 3. The court is putting laissez faire economic theory into the Constitution. West Coast Hotel Co. v. Parrish (1937) A. Denies a constitutional basis for liberty of contract, the basis of Lochner. B. Doesnt overrule Lochner, but ignores it. C. Does away with liberty of contract as a constitutional right. United States v. Carolene Products Co. (1938) A. Court will assume that the legislature was responding to a problem on a rational basis unless there is no way to assume this. Williamson v. Lee Optical of Oklahoma (1955) A. Legislatures balance advantages and disadvantages. B. Regulations are constitutional as long as the measure could be a rational solution for a problem. C. The court doesnt decide if a statute is good or bad.

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Ferguson v. Skrupa (1963) A. Court no longer strikes down statutes that are unreasonable or incompatible with economic theories. B. That is the business of the legislature, as long as they arent contrary to constitutional prohibitions. The Lochner Era A. Why is the Holmes dissent in Lochner canonical rather than Harlans? 1. Holmes denies the existence of liberty of contract, while Harlan hints that there may be one. 2. Also says Constitution is not meant to embody economic theory, and the Lochner court erred in applying economic substantive due process. 3. Majority is wrong because they adopt the Social Darwinist view of the economy. a. Social Darwinism: it is futile and wicked to legislate against inequality. You should protect economic bases instead (such as laissez faire rights). b. Holmes says Constitution is not meant to do this.

FUNDAMENTAL RIGHTS/EQUAL PROTECTION

TRAVEL Shapiro v. Thompson (1969) A. Facts: Welfare applicants were denied assistance because they resided in the District of Columbia for less than one year prior to filing their application for assistance. B. Issue/Holding: Is the imposition of a one-year residency requirement on welfare assistance applicants unconstitutional? Yes. C. Rule: Denying welfare assistance to needy families who do not meet a residency requirement, but would otherwise qualify is unconstitutional unless the denial is supported by a compelling interest. D. Brennan: 1. The state cant withhold benefits on the basis of recent arrivalinvalidates the one-year residency requirement. 2. Denial of benefits is not a constitutional problemthe problem is that the differentiation is made solely by length of residency, which affects the right to travel by deterring interstate movement. 3. Once benefits are provided, the Equal Protection Clause requires that no invidious classifications are used. 4. Heightened scrutiny because the right to travel is a fundamental right. a. If the classification burdens a fundamental right, it deserves heightened scrutiny. Saenz v. Roe (1999) A. Upholds Shapiro, but shifts the reasoning to the Privileges and Immunities clause. B. Violates the right to be treated like other citizens of that state, regardless of the duration of residency.

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WELFARE Dandridge v. Williams (1970) A. Benefits are the regulation of economics, and are reviewed very permissively. 1. Extensive legislative discretion. B. Classifications in the area of economic and social welfare dont violate the Equal Protection Clause. EDUCATION San Antonio Independent School District v. Rodriguez (1973) A. Facts: Respondents brought a class action on behalf of parents and students residing in poor school districts in Texas, alleging that the states system of funding schools based on local property taxes denies equal protection to students in poor districts. B. Issue/Holding: Does Texas system of funding schools violate the 14th Amendment? No. C. Rule: Education is not a fundamental right for purposes of Equal Protection analysis. D. Powell: 1. Strict scrutiny applies only if the law disadvantages a suspect class or burdens a fundamental right. 2. Education is not a fundamental right. It is not in the Constitution and is not traditionally protected. 3. The poor are not a suspect class. Poverty is not a stable, immutable category unrelated to choice. 4. The court says local control is enough of a rational basis. 5. Plaintiffs and dissent argue that education is necessary to exercise the 1st Amendment and voting rights. They say that since fundamental liberties depend on education, there is a constitutional interest in education. a. The Constitution protects from being prevented from free speech and voting, but it doesnt protect the ability to do so effectively. It is freedom from, not positive rights. 6. There is nowhere to draw the line if the plaintiffs argument is accepted. Many things prevent effective exercise of fundamental rights. E. White (dissent): 1. Local taxes cant make it equal. 2. Local control isnt to the extent the majority says. 3. It is not the courts job, but a legislative job. Plyler v. Doe (1982) A. Facts: Texas passed a law withholding funds for the education of children of illegal aliens, which also authorized local school districts to deny entry into state public schools. B. Issue/Holding: Can Texas deny free public education to children of illegal aliens under the Equal Protection Clause of the 14th Amendment? No. C. Rule: In order for a state to constitutionally deny a discrete group of individuals the rights it offers to others, it must be justified by showing a legitimate state interest. D. Brennan: 1. Education is not a right guaranteed by the Constitution, but also not a government benefit indistinguishable from other forms of social welfare.

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2. 3. 4. 5.

a. Like Rodriguez, related to fundamental rights (voting, speech), but not a right in and of itself. Children have no control of their status as illegalit is an immutable characteristic for them. It is wrong to take away opportunities for anything but individual merit. The state cant deny any person within its jurisdiction equal protection of the laws, not just citizens. Rodriguez dealt with degrees of inclusion, while this is categorical exclusion. VOTING

Harper v. Virginia State Board of Elections (1966) A. Facts: Challenge to a poll tax. B. Issue/Holding: Does a state poll tax violate the Equal Protection Clause of the 14th Amendment? Yes. C. Rule: A state poll tax violates the Equal Protection Clause. D. Douglas: 1. Poll tax has no relation to voter qualifications. Wealth doesnt make one more qualified. 2. Doesnt satisfy heightened rational basis. 3. Following Equal Protection Clause, a neutral policy with disparate effects is not constitutional. a. Comes before Rodriguez, Washington v. Davis, which say otherwise. 4. Voting is too important a right to be burdened. Kramer v. Union Free School District (1969) A. Facts: A law only allowed resident parents of enrolled children to vote in district elections. B. Court says no elections for government officials can exclude because it wouldnt pass strict scrutiny. C. Voting is too fundamental for less than strict scrutiny. Reynolds v. Sims (1964) A. Facts: Plaintiffs alleged that the apportionment of the AL legislature was discriminatory against areas with fast-growing populations. B. Issue/Holding: Is the current system of apportionment denying to Alabama voters the equal protection of the laws? Yes. C. Rule: In most instances, districts should be apportioned to allow each voter to have one, undiluted vote. D. Warren: 1. One person, one vote. 2. Voting is fundamental because it preserves voice and ability to affect other fundamental interests. 3. Subject to careful/meticulous scrutiny. 4. Effect of apportionment is voter dilution. Some votes count more than others. a. Not the equal participation opportunity required by the Equal Protection Clause.

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5. States should make at least a good faith effort to construct districts of equal population, as much as practicable. City of Mobile v. Bolden (1980) A. Facts: Each of Mobiles three city commissioners was elected under an at-large voting scheme. No black had ever been elected to the Commission. B. Issue/Holding: Did the at-large electoral system of Mobile unconstitutionally dilute the voting strength of blacks? No. C. Rule: At-large electoral schemes are invalid only if their purpose is invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. D. Stewart: 1. There is no voting exclusion, and nobodys vote counts less. 2. Alleged problem is that there is no proportional representation (1/3 of the population is black). 3. Protection is for votingone person, one voteproportional representation is not a right. 4. The standard is intent. Because of is invalid, while in spite of is valid. 5. Equal Protection in the electoral process does not protect political groups from defeat. 6. The value of voting isnt voting itself, its what voting bringsrepresentation, a voice. a. Voting is an instrumental, not intrinsic right. b. Fundamental because it preserves other rights. c. In effect, your vote has to be identical to everyone elses, according to the operational purpose of the right (under Reynolds). 7. Here, the right to vote is not infringed, but it is kept from preserving other basic rights. 8. To attack the Mobile system would be to attack everyones equal weight vote. a. Either you say theres no problem, or you recast Reynolds. E. Stevens (dissent): 1. You have to address this problem with the structure of the voting system itself. 2. The Reynolds formula doesnt give any other way to attack this case, even though it goes against the meaning of voting that Reynolds gives. F. In 1982, Congress passed Civil Rights legislation (Voting Rights Act amendment) requiring re-drawing of electoral districts to ensure that minority groups were able to consistently elect minority representatives.

MODERN SUBSTANTIVE DUE PROCESS

RIGHT TO PRIVACY Skinner v. Oklahoma (1942) A. Right after the rejection of Lochner and the New Deal. B. Douglas referred to marriage rights as fundamental, basic civil liberties. C. Announcing that Constitution would continue to cover non-enumerated rights with strict scrutiny.

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Griswold v. Connecticut (1965) A. Significance: Lays out approaches to non-enumerated rights. 3 concurring opinions give 3 approaches to show right to privacy, while Blacks dissent says there is no valid approach. B. Facts: Appellants (Planned Parenthood executives) were charged with violating a statute preventing the distribution of advice to married couples regarding the prevention of conception. C. Issue/Holding: Does the 14th Amendment protect a privacy right for married couples? Yes. D. Rule: The right of a married couple to privacy is protected by the Constitution. E. Amendments 1-8 apply to the federal government, and the 14th Amendment applies them to states. F. Douglas: 1. First Amendment (freedom of speech) protects association (necessary for speech to be meaningful), education, study of language of choice, acquisition of knowledge, etc. a. 1st Amendment doesnt contain many of the things that have been protected under it. b. These cases are protected only if the 1st Amendments force goes beyond enumerated rights. 2. 3rd, 4th, 5th Amendments (spatial) protect the home and sanctity of privacy in the home. Generates a spatial zone of autonomy. 3. Enumerated guarantees have life and substance from penumbras and emanations from enumerated rights. 4. Marriage is so connected with the home and privacy of the home that it must be within the penumbra of the 3rd/4th/5th Amendments. 5. Marriage is so noble an association that it falls within the 1st Amendment. a. Just as important an association as that protected in the NAACP case. G. Goldberg (concurrence): 1. Uses the 9th Amendmentprotects rights not elsewhere enumerated by showing that the Framers intended other rights not named. 2. Marriage is so basic and fundamental that it must be protected. 3. Traditions and collective conscience should be used to decide what is protected. 4. Dissents logic would make prohibitions on rights to bear children and raise a family constitutional. 5. If laws are clearly wrong, we must have a way to make them unconstitutional. 6. Asks what the government cannot do, and what rights can be inferred from that. H. Harlan (concurrence): 1. Morality based on traditions in order to avoid moral judgment. 2. Contraception touches upon the legally established right of marriage, and that differentiates it from other acts that should or could be prohibited. 3. Common-law framework, case-by-case basis. I. Black (dissent) 1. The Constitution has no right to privacy. 2. Once you stray from the words of the Constitution, it is impossible not to consider personal and private notions. 56

3. To Douglas: how do you decide whether marital contraception falls under a penumbra if not using moral judgment? And if it requires moral judgment, is it grounded in the Constitution or personal judgment? a. In determining this, the court is no longer enforcing the Constitution. ABORTION Roe v. Wade (1973) A. Facts: Challenged a Texas statute criminalizing all abortions except those performed to save the life of the mother. B. Issue/Holding: Does the Texas statute violate the Due Process Clause? Yes. C. Rule: Statutes that criminalize abortions are an unconstitutional invasion of privacy. D. Blackmun: 1. Looks at rights that have been protected under the right to privacy (marriage, procreation, contraception, etc.) and relates to them. 2. Here, use of history is more to loosen the presupposition that there is a strong tradition of limits on abortion. 3. Court uses doctrinal reasoning (based on past decisions) rather than textual (we feel its in the 14th Amendment, but maybe the 9th). 4. Is a fetus a person? a. Word person is only used post-natally in the Constitution. b. If a fetus is a person, the court would have a harder argumentit would have to balance the right to life with the right to privacy. c. Court uses different mode of interpretationnow very textual, but not textual at all in allowing implied rights. 5. If the issue is open in moral traditions, someone has to decide it as a legal matter. a. Court says the legislature cant decide because it is such an open issue. b. Where is this grounded? Normally, the legislature should only be invalidated when contrary to the Constitution. The state only needs to be neutral with regard to protected rights (ex: freedom of religion). c. Legislatures role is usually to decide controversy democratically. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) A. Facts: PA law imposed several obligations on women seeking abortions. B. Issue/Holding: Did the requirements of the act violate the 14th Amendment? Yes. C. Rule: A law is invalid if its purpose or effect is to place a substantial obstacle or undue burden in the path of a woman seeking an abortion at a stage of her pregnancy before the fetus attains viability. D. OConnor: 1. Upholds womans right to choose but drops Roes holding that the states compelling interest begins only after viability. 2. Opens the realm of state legislation as long as it does not place an undue burden on the womans right to choose. 3. State regulation of abortion defines a womans rolesuffering is too intimate and personal for the state to legislate. 4. Part III of the opinion focuses not on the correctness of Roe, but on stare decisis. 57

a. May be overturned if the doctrine is unworkable. Roe is not. b. Dependent on reliancepeople have organized their lives around the supposition that abortion is an option. i. Usually expressed more concretely, individually, and narrowly. ii. Abortion is usually unplanneddo people actually rely on it? 5. The court looks at the overturning of Lochner and Plessy as examples of breaking from stare decisis. a. Lochner line of cases was based on laissez faire, which people no longer believed in. The sense of the world had changed, and the basis of the case was no longer valid. b. In Brown, it had become clear that separate but equal didnt work. Separate was not equal. c. Views of the world had changed in both, and the underlying facts had changed. d. Roe: underlying facts and our understanding of them havent changed. Disagreement here is on values, not facts. A change here would only be a reflection of a change in values of justices. 6. As a matter of institutional legitimacy, the court commits itself with particular weight to cases involving national controversy. a. Special responsibility to stand behind its decisions. b. To overturn Roe would question the courts legitimacy and the publics commitment to the rule of law. c. Overturning here would signify that the court read the Constitution was read wrong the first time. d. Dissent: not overturning makes the court look political. 7. Informed consent: upheld 8. 24 hour waiting period: upheld 9. Parental notification: upheld (as long as there is judicial bypass) 10. Spousal notification: struck down as an undue burden and a substantial barrier. E. Scalia (dissent): 1. The court should never have gotten into this area. 2. There is no real substantive due process. 3. Abortion is a moral issue not talked about in the Constitution. F. Holdings: 1. Undue Burden: Purpose or effect is a substantial obstacle to the womans ultimate choice. 2. State interest in life is legitimate throughout pregnancy. 3. Health and safety regulations are legitimate throughout pregnancy. 4. Womans decision remains the ultimate touchstone until viability. 5. After viability, there must be exceptions for the womans life and health. Gonzales v. Carhart (2007) A. Facts: Congress made it criminal to carry out an abortion by a procedure referred to as an intact D&E. B. Issue/Holding: Is the federal law banning certain partial-birth abortions, with no exception for when a womans health is at risk, facially unconstitutional? No.

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C. Rule: A law limiting abortions is valid so long as it promotes the governments legitimate interest in protecting the health of the woman and the life of the fetus without placing an undue burden on the womans right to terminate her pregnancy. D. Kennedy: 1. Upheld regulation of abortion pre-viability. 2. Upheld prohibition on specific abortion procedure. 3. Doesnt prevent abortions for health or safety, and doesnt involve an undue burden before viability. 4. Whether an intact D&E is safer is up in the air. The majority and the dissent weigh the evidence differently. a. That it is safer for some women is enough (according to reasoning in Casey with regard to spousal notification). 5. Level of scrutiny is lowered. Gives deference to legislatures opinion of medical evidence. a. Undue burden analysis is more deferential. b. Was supposed to be rational basis review. From Roe to Carhart A. Degradation of womans right to abortion, with more moral argument. B. If against Roe: Scalias view that the court should not get into matters of legislature. C. If against Carhart: procedure is troubling. How important are life/autonomy? D. Carhart defers more to legislature, but also engages in moral merits of autonomy and fetal life (what Roe court was accused of doing). RIGHT TO DIE Cruzan v. Director, Missouri Department of Health (1990) A. Facts: Cruzan was in a car accident that left her in a persistent vegetative state. Her parents wanted the hospital to terminate life support. B. Issue/Holding: Does Missouris requirement that it be clear and convincing that withdrawal of life support is the patients wish violate the Constitution? No. C. Rule: A state may condition the exercise of a patients right to terminate life-sustaining treatment on a showing of clear and convincing evidence of the desire of the patient to exercise such a right. D. Rehnquist: 1. A competent person has the right to refuse medical treatment. 2. Incompetent persons do not enjoy the same rights because they cannot make voluntary and informed decisions. 3. Unwanted contact is battery. The right not to consent to medical treatment logically follows. 4. Right to self-determination and a liberty interest in declining unwanted medical treatment are threatened. 5. A feeding tube is an intrusion on bodily integrity and could constitute battery 6. Equates common law rights with the 14th Amendment/Substantive Due Process and personal liberty. 7. Missouris interest in the preservation of life is a valid state interest.

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8. MO may legitimately safeguard these interests by imposing heightened evidentiary requirements. E. Scalia (dissent): 1. Courts have no business in this field. 2. The Constitution says nothing on this topic. Washington v. Glucksberg (1997) A. Facts: Statute prohibits causing or aiding suicide. B. Issue/Holding: Does Washingtons prohibition against causing or aiding a suicide offend the 14th Amendment? No. C. Rule: The liberty protected by the Due Process Clause does not include the right to assist suicide. D. Rehnquist: 1. Due Process Clause protects rights that are objectively rooted in tradition. 2. Method of analyzing due process here will be narrow. a. Method used is often dispositive. b. Lawrence was broad; Bowers was narrow. 3. Same tradition as in Bowers: the right claimed does not exist, and has been routinely prohibited. a. To hold for the respondents would require reversing legal doctrine and striking down statutes in almost every state. 4. Casey talks about a specific right, and does not count as a right to personal autonomy. Just because some rights under that are protected doesnt mean all of them are. 5. Cruzan: the decision to commit suicide is personal and profound like the right to die, but it has never had the same legal protection and should not be protected now. a. The rights are distinct. This case cant really on Cruzan. b. Want for suicide is often temporary and has a sociological basis that doesnt exist for the right to die. E. Souter (concurring in the judgment): 1. Results in substantive due process cases depend on how the rights and issues are defined. Reasons for choosing a definition affect acceptability. 2. Draws analogies between this case and abortion case. 3. Right not to be prohibited from medical assistanceprohibition has counterproductive results. 4. Decision to abort can also be made irresponsibly and under coercion, but women still have a right to a physicians assistant. 5. Statute is valid because it protects patients from coercion. a. Focus is on proceduremaking sure the patient gets what he wants. 6. Everyone agrees that this is a legitimate interest. 7. Uses procedural Due Process rather than Substantive Due Process. Avoids difficulties of Substantive Due Process. 8. Disagrees with Rehnquist about whether the liberty interest in bodily integrity extends to assisted suicide.

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9. There are not good enough reasons for the line Rehnquist is drawing: Whatever has been prohibited isnt protected. a. Leaves little room for judicial reasoning, and requires the court to accept prohibition. b. Free floating is also a problemtends toward moral judgment. c. Wants to relate new questions to established questions to find the answer. 10. Substantive Due Process with teeth: no sweeping decision, or general principle, as written in Casey, Lawrence, and Griswold. 11. Similar to Harlan in Griswold.

THE RIGHT TO BEAR ARMS

District of Columbia v. Heller (2008) A. Facts: Handgun possession is banned under D.C. law. B. Issue/Holding: Does the 2nd Amendment guarantee a personal right to bear arms independent of a militia? Yes. C. Rule: The 2nd Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. D. Scalia: 1. 2nd Amendment has two parts: prefatory and operative clauses. The prefatory clause gives context/purpose, and the operative clause gives the right. 2. The prefatory clause does not limit or expand the scope of the operative clause, but only announces the purpose. 3. Right of the people: in some instances, it refers to individual rights (1st, 4th, and 9th Amendments). In others, it refers to collective rights (preamble, Art. I 2, 10th Amendment)but these refer to reservation of powers, not rights. a. Always refers to people as everyone, not a subset. b. Militia is a subset, and therefore inconsistent. c. Therefore, individual right belongs to all Americans. 4. Keep and bear arms: a. Natural reading of keep arms is to have weapons. Arms is general, not specific. b. Bear arms, from founding era sources, was used for carrying weapons even outside of the militia. c. Applies to war only when stated as bear arms against. d. Idiomatic expression cant apply because it wouldnt make sensekeep and bear arms would by the right to keep and fight a war. e. Historical context is important because this was codifying an existing right rather than creating a new one. People bearing arms was a way to prevent tyranny. The right to bear arms was to protect oneself from government abuses. 5. Points to state constitutions that protect the right to have arms for defense and hunting.

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a. Individual use of arms was implicit and did not need to be codified in the 2nd Amendment. 6. The broad right to having arms is the context in which the 2nd Amendment was adopted (creates scope), so it follows through to contemporary usage and establishes the right today. E. Stevens (dissent): 1. The language in state constitutions was different from the 2nd Amendment. They had the opportunity to use that language but chose not to adopt it. 2. In Substantive Due Process, Stevens would use Scalias broad interpretation that is used herewhat did people think when they wrote it? 3. Right of the people refers to a subset of the people a. Right used in a group rather than an individual. b. Collective right, but not protected for an individual outside the group. 4. Keep and bear arms is an idiomatic expression for the military. a. Bear arms is being used for militia. 5. To use guns for self-defense cant be seen as something definitely adopted by the Constitution explicitly. 6. Here, originalist strategy does not get you away from making interpretations.

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