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What does Marbury v. Madison stand for?

Mere Judicial review? Supreme Judicial review?

1.Mere Judicial Review: ct need not defer to political branches, and political branches need not defer to ct Jeffersonian view Most common understanding of Marbury

2. Supreme Judicial Review/ Judicial Supremacy- ct binds political branches, and political branches must defer to the cts decision (Today Supreme Ct follows)

Constitutional and policy arguments for and against Supreme Judicial review - Marshall says? - Separation of powers? o Counter? - X o Breckinridge? - X o Jackson Counter? - X o Jeffersonian and Lincolns?

- McCulloch v. Maryland
Issue: (Federalism Question) Does Congress have the power to incorporate a bank? Is creating banks authority of the states? Rule: Marshall says by this tribunal alone can this decision be made. (Judicial Supremacy) Arguments in favor of Judicial Supremacy over Departmentalism: *Separation of Powers: Legal issues expected to go through ct. Counter: 3 equal branches of govt means that all 3 have power to interpret. Arising under language: Article III Counter: Breckinridge says more in line with departmentalism. (judicial supremacy not in Constitution) Oath: Binds ct Counter: Jackson says we all take oaths. Limits/ All bind by Constitution Peaceful Settlement argument: added by McCulloch

Counter: Counter: Jeffersonians and Lincolns say that settlement is another name for tyranny.

Constitutional and policy arguments for and against Supreme Judicial review - X o Pros o Cons - X o Pros o Cons

Popular Sovereignty - Civic Virtue

Balance and diffuse Pro: checks and balanceslimit power of Congress and executive to violate Constitution Cons: Five votes do not properly balance/diffuse too much power to judiciary. 5 justices can beat out the other 4 justices, the states, the Presidents and Congress, etc. (Ex. Texas v. Johnson). Representation Pro: Judges not representative, not subject to popular opinion. Laws are technical questions that are properly left to legal experts. Cons: Decisions being made by non-representative institutionsjudges not elected. Also free speech issuerepresentation as free speechmay be undermined when judges make decisions. Popular sovereignty Judges as legal experts are just enforcing laws ratified by the majority Civic virtue Pro: reaction to Supreme Court inspires reaction and popular input about constitutional issues

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Con: apathy, Let the Supreme Court handle it.

Methods of Interpretation: (6)

1. Text of the Constitution- should always be the starting point. 2. Original understanding. Looking at intent of the authors. 3. Judicial precedent. Stare decisis. 4. Evolving legal traditions. Traditions Am people should look at b/c they express fundamental values of US. 5. Consensus or popular values 6. Policy judgments, natural law, moral philosophy and the judges own values

What Branch should interpret CONSTITUTIONAL? - 4 Possible Setups for Constitutional Interpretation

1. Legislative supremacy- Congress had the final authority to determine the meaning of the Constitution. Supported by a few at the founding, clearly rejected by Marbury. 2. Executive supremacy- Never seriously supported by anyone. 3. Judicial supremacy- (many) 4. Departmentalism/ Coordinate Review

5. Judicial supremacy- (many)

The SC is supreme in its explanation of the Constitution; ultimate arbiter. Marshall, most federalists support this. Cooper v. Aaron (1958) asserts this view Very close to what we have today. From McCulloch v. Maryland (an Article I, Bank of the United States case), we get a new argument for thisthe settlement function. Judicial review serves to maintain civic peace and help avoid civic discord. Settlement Thesis only a branch like the judiciary can settle these issues peacefully and quickly. This limits the hostility between branches and gives one answer to promote constitutional stability. (Viewed as a more powerful argument) 4th argument along with separation of powers, Article III arising under, and judiciary oath.

Counter-arguments to judicial supremacy (under a departmentalism view

Separation of Powers All three branches are supposed to be equal under the Constitution; who checks the Court when they violate the Constitution? 1. They all need power to check each other. Settlement Thesis Settlement at the expense of the other two branches is actually judicial tyranny. Discussion and debate are good. Article III means judicial review, not supreme judicial review. 1. Why would the founders have intended for the cts to have this tremendous power and not even bother to write it down? 2. Departmentalism does not eliminate judicial review. It just makes it only appropriate in its own sphere. All of the public officials take an oath to uphold the constitution, just as the court members do.

Departmentalism/ Coordinate Review

Co-equal authority; legislative, judicial and executive review; all 3 have equal authority to interpret within own sphere all three branches equally share power. This was the view that all 3 branches shared equally in their power to interpret the Constitution. Instead of supreme judicial review there would be MERE judicial review. Marbury is consistent with departmentalism or judicial supremacy, but is cited for judicial supremacy. Departmentalism was supported by Jefferson and most Republicans.

Departmentalism or Co-Ordinate Review

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Thomas Jefferson: The Constitution intended that the 3 branches of govt should be co ordinate and independent of each other. John Breckinridge: The Constitution intended a separation of powers vested in 3 great departments, giving to each exclusive authority on the subjects committed to it. If judicial supremacy was within means of Constitution, then surely it would have been expressed in it. Andrew Jackson: The Congress, the Executive, and the Ct must each for itself be guided by its own opinion of the Constitution.
Abraham Lincoln: Dred Scott case- Vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Ct, the instant they are made in ordinary litigation b/t parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Govt to the eminent tribunal. People have resigned to ct self-government if these burning political issues are to be decided by ct.

Who has authority to interpret? (Struggle b/t natl and state govt)

1. National Supremacy - The federal govt is supreme (Many founders supported)

States are supreme over their state constitutions, so federal government should be supreme over US constitution. Arguably, this is what federalism means. Separation of Powers National government should answer questions of constitutionality because State legislatures are less competent and State legislatures do not have the power to perform judiciary functions. Many of the arguments for judicial supremacy apply here again; Article III, etc. Settlement Thesis national is better equipped to interpret the constitution because if states are given the power there may be 50 different interpretations. In addition, if nobody to solve, may lead to states taking up arms against each others. National supremacy ultimately won out; many thought national supremacy debate was settled after civil war, but debate reemerged during civil rights movement in the 1960s.

2. State Supremacy

- states are supreme (Few founders supported)

3. Federal Departmentalism Nullification (State Constitutional Review)

idea that states could exercise power of constitutional review within their borders and could interpose their authority and nullify unconstitutional actions within their borders (judicial); ) the states would have the power to determine the constitutionality of federal laws within their boundaries; the national government would have power in DC and other federal territories. Sedition Act of 1798: Meant to suppress the expression of the Jeffersonian Republicans, although said the purpose was possible war w/ France. You couldnt criticize the V-P, who was Jefferson. J-R state governments said the Sedition Act was unconstitutional, and thus it was null and void. This is the state asserting the right to nullify a federal law the state thinks is unconstitutional. Interposition the state will interpose their political authority between the unconstitutional acts of the national government and their citizens, in order to protect them. State Constitutional Review state conventions sit in and determine whether or not acts of the federal government are unconstitutional.

Federal departmentalism arguments:

The Constitution is a compact between state governments. When the entity created by the contract does something its not supposed to do, the members of the contract get to decide how to deal with it. We know that the states are members of the contract because of Article VII. The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same. Also, nullification is parallel to the actions taken against the British government. Centralizing power in the national judiciary is tyranny. Again, their arguments mirror the ideas denying the supremacy of the judiciary. Nullification Crisis of 1832: S.C. decided that a tariff was unconstitutional, and nullified the tariff; Congress authorized an army to march into S.C. \ Tariff bill was repealed, and S.C. repealed nullification; also nullified force bill, but that became irrelevant. *Summary: Marshall believed in National and Judicial Supremacy; Jefferson believed in federal and national departmentalism; others were in between. Our practice today tends to be Marshalls practice.

Constitutional and policy arguments for and against Supreme Judicial review

Support why its bad o Texas v. Johnson o Dissent o Opinion

A Texas statute made it illegal to desecrate a flag. Overruled. Brennan, maj: Govt may not prohibit the expression of an idea simply b/c society finds the idea offensive. Govt cant censor political speech b/c its disagreeable. the flag was burnt as an expression of an idea, and 1A does not allow using a symbol in only one direction. Dissent Summary: Dissent: was allowed to use other forms of protest or say anything he wanted, just not burn the flag (arguing that the statute didnt suppress free speech). Flag is an intangible asset that should be protected, a symbol of unity in times of crisis, which is an important state interest. The burden on Johnson in not being able to burn the flag is trivial. You cant spray paint the Lincoln Memorial, and so you shouldnt be able to burn the flag.

Judicial Review Calder v. Bull (Chase) and (Iredell) Define Activist? Method of constitutional interpretation? 1. Purpose of const. 2. Emphasize? 3. Modern Value?

Justices Chase and Iredell disagree over the role of natural law in interpretation. 2 thoughts on republican institution

SC examined authority to review state legislative decisions) Chase: purpose of Constitution to promote justice; any legislature that goes against our values is wrong and it is up to the ct to declare it void. We need to protect natural rights; if govt violate it, they have violated the Constitution, meaning judge has a right to invalidate laws. 1. Activists: loose constructionists who do more and are more flexible; Constitution all about protecting minority rights: Have less legislative power They emphasize discretion, policy arguments, & non-deference to elected officials. Want to adapt the constitution to modern values and protect minority rights. (More living constitution leaning)

Judicial Review Calder v. Bull (Chase) (Iredell) Define Restrain? Method of constitutional interpretation?
1. Maximize? 2. Want to protect?

Iredell: Disagred stating that cts did not have power to invalidate laws; before SC can strike down a law, there needs to be specific text or original understanding; in Hamiltons language determining natural law is an exercise of will (distribution of authority/ separation of powers thought) 1. Restraint- Strict constructionists who do less and seek precedents; they are more rigid. Majority rule/ will; cts should accept majority rules in democracy. Want to minimize policy discussions, and discretion. Maximize legalistic forms of interpretation, & deferential to elected officials. Think that it undermines democracy to be too activist. Want to protect majority rule; want a constraining (not adaptable) Constitution.

Constitutional Interpretation and the Judicial Role

o Judicial Activism v. Judicial Restraint (4) Activist (4) Restrain

Judicial Activism: Judges (1) are non-deferential to democratic decision-makers; (2) are not required to ground their decisions firmly in traditional legal materials; (3) exercise a substantial amt of political discretion in determining the meaning of constitutional provisions; (4) accept, and even celebrate, judicial policy making in areas of political importance and controversy Concern with governmental violations of individual rights and a distrust of ordinary politics Judicial Restraint: Judges: (1) are deferential to democratic decisionmakers; (2) are required to ground decisions very firmly in traditional legal materials; (3) strive to minimize their political discretion; (4) reject expansive judicial policy making in areas of political importance and controversy Concern with judicial governmental actions in tension with constitutional values

Historical v. Living Constitution (sliding scale) o Connected with Judicial Activism or Restrain? o Major premise (3) Pros/Cons

Historical- emphasizes text, original understanding, and precedent. Connected with judicial restraint If the values change we should evaluate them to make sure they stay in tune with the Constitution. Has respect for political process. Pro-democracy. If we want to change the Constitution, there is an amendment process available. Separation of Powers. Let the legislature make the laws. Pros o Stable, predictable o Rely on legal materials, not political whims o The constitution restrains o There are some horrible things that could possibly be upheld under a living constitution that would not be upheld under this constitution. Cons o Dead-hand control

Historical v. Living Constitution (sliding scale) Connected with Judicial Activism or Restrain? Pros/cons Major premise?

Living- Emphasizes flexibility/adaptability due to evolving legal traditions, policy judgments, consensus values, and probably precedent. o Connected with judicial activism. Pros Maybe the founders intended for it to be a living constitution. This reflects current practice more closely. Has been used to expand our rights. Allows us to adapt. Cons Too much political input; might overreach. Elitist view, since the lawyers are elitist; may give a bias for the upper classes through the rulings. The constitution does not constrain properly

Congress (legislative power) has the power of Will v. Cts (judicial power) have the power of Judgment
Checks on the Judiciary Checks on the Ct

1. 2. 3. 4

(27): 2/3 of both houses of Congress and states must ratify- SC has only been overruled 4 times by a constitutional amendment

Constitutional amendment The Power to Appoint:

President nominates justices to the SC and Senate confirms; 20 th Century vast majority of Presidential nominees have been confirmed; Whose on SC is determined by political branches (Since 1981 there have been 10 Justices; roughly every 2-3 years there is a new justice) Justices arent always going to go the direction t he president wants them to lean.

- Impeachment No one has actually been impeached but there have been attempts (Samuel Chase- not convicted) A. Hamilton in Federalist Papersbut Thomas Jefferson said impeachment no longer a scarecrow. TO be impeached the judge would actually need to take a bribe. (Samuel Chase was impeached but never removed) - Life Tenure Controlling sitting judges; informal mechanisms and self-imposed limits-

Major Sources of CI: The View of the Framers and the Ratifiers
Why does the ct. get to declare congressional legislation unconstitutional? Structure of the argument is Marbury v. Madison.

Hamiltons Justifications for ct trumping ct legislation: People & Constitution; delegated authority, more rational to suppose that the cts were designed to be an intermediate body b/t the people and the legislature to keep the latter within the limits assigned Hamilton in Federalist 78 said that as long as the judiciary exercised its judgment power and not its will then legit. Courts role is its judgment, not its will. Judgment is law interpretation through interpretative methods. Said the Constitution is supreme over the Congress and over the S.C. Legislative power is will. Intention/ Will of people

newspaper in MS; Congressional limits on SC jurisdiction******

Judicial Review

Ex parte McCardle Definitely will be on the exam

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Rule: The appellate jurisdiction of this ct is not derived from acts of Congress; it is conferred by the Constitution (Article III). Although the Supreme Ct derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction. We are not at liberty to inquire into the motives of the legislature. Only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this ct. is given by express words. Suppose its a Texas v. Johnson the Supreme court was going to rule a certain way the congress doesnt want( Congress could strip the supreme court from hearing flag burning cases) If you block congress after it has made a ruling, you could actually keep that case from ever being over turn. Court organization: Congress sets up organization of courts, what cases they can hear, etc. Congress total control over everything in the court system. (Congress can destroy the Supreme Court if it wanted to do so).

Congressional Control of the Cts appellate jurisdiction under Article III: o Plenaryo Limit?

Structure: Congress has full authority to make exceptions and regulations under Article III; Congress can block all paths of appeal (Be able to check the ct; strip Ct of jurisdiction) (departmentalism: all three branches share power, this is part of the check and balances congress has to limit the power of the court). Text: Exception means exception; blocking every single path is an exception (broad language doesnt place a limit) (This connect with Ex parte McCardle)
Congressional Control of the Cts appellate jurisdiction under Article III: o Limited/ Essential functions readings

Structure: Congress must leave open one path of appeal (Judicial Supremacy- Sup Ct is final arbiter in meaning of the Constitution) Ex Parte Yerger- there was an alternative means of obtaining SC review Text: An exception means there must be a rule; if block all it then becomes a new rule and no longer an exception. Exception is narrow

Case or Controversy 1. 2. Standing: Majority/dissent opinion

IRS was given exceptions to churches who were running private schools that discriminate, IRS was negligent in not investigating before the churches(African American parents were concerned ) (Parents v. IRS)

Allen v. Wright

Supreme Court had to decide if they had justifiability and standing, the case and controversy had to be between the right plaintiff and defendant. If no standing the decision would be an advisory decision. Standing requirements: Constitutional Requirements( Is it an article 3 provision that gives the Supreme court authority to hear such a case) You have to ask three things (injury in fact, causation, redress by the court) Courts always have jurisdiction to decide if they have jurisdiction(justifiability) OConnor: these allegations are speculative, e.g. there is no proof that if IRS would not give tax breaks, white kids would not go to private schools, and how many of those schools are there? In what communities? This is a proximate cause analysis. Stevens: causation is established, b/c economically, if IRS makes something more expensive, there would be less of that behavior. Also attacks OConnors political question argument, b/c the purpose of the standing doctrine is to assess the state of the party in the outcome of the case, no whether the possible outcome would

interfere with other branches of government. If the case is not resolved here, where else would the Ps go?

A malapportionment of representation occurred in TN due an influx of large numbers of people. (it violate equal protection question, which was deemed a justificable question)

Guaranty Clause?
In Baker v. Carr, Foreign policy is often seen as a political question. Internal Operations of Congress are also often seen as a political question. The Guaranty ClauseArticle IV, 4promises citizens of the states a republican government, not a monarchy. In the 1840s, the SC decided that the Guaranty Clause only creates political questions. It needs to be enforced, but it needs to be enforced by the President or Congress. (Luther v. Borden. The Borden Rebellion/Rhode Island case. If any department of the US was empowered by the Guaranty Clause to resolve this issue, it was not the judiciary.) Stability concern: There would be chaos, because if the government is deemed illegitimate then the all their laws to this point are illegitimate)

Political branches could resolve this question,

Political question? Why is guaranty clause a political question?

Political Questions Doctrine- a political question is a constitutional question for resolution through the political process (political branches) rather than through the courts. S.C. has never said whether or not this is a Constitutional requirement, or prudential. o While they could not make decision on Guaranty Clause, they could on Equal Protection Clause. o Dissent, wants a broader interpretation of political questions. He feels this is a guaranty clause political question in disguise. Federalism/State autonomy Have to be concerned with judicial isolation from controversial political areas. Guaranty Clause is a Political Question (1st PQ) Importance of stability; chaos would ensue if RI was declared unconstitutional Political branches had already acted; US militia already been called to enforce original charter (Respect for what PB had already decided) The Guaranty Clause is not a repository of judicially manageable standards which a ct could utilize independently in order to identify a States lawful govt. Both Luther and Baker are claiming that government is unconstitutional defining how republican or democratic govt practices are. Luther found issue non-justiciable, but Baker found justiciable.

Luther v. Borden


Holding Dissent



HOLDING: However, Brennan found TN to have a justiciable question. o Judicially manageable standards for Equal Protection cases. o No need for finality or chance of embarrassment. o No policy decision need be made/ TN is not a political branch, so no lack of respect. Dissent Frankfurter- PQ doctrine is fundamentally about the separation of powers and respect for the political branches. States prevent cts from being entangled in politics. (Respect for autonomy of states and their internal operations)(Supreme court has to stay out of politics, there is no way to enforce the law anyway. If reapportion makes any of the political parties happy, the court would be viewed as favoring one over the other)

Majority in Allen takes a narrow view of Standing. Brennan Dissent in Baker takes a broad view of Political Questions. Stevens 3. Activists want broad Standing and narrow PQ. More liberal justices; more cases heard by the ct. 4. Restraints want narrow Standing and broad PQ. More conservative justices; Less cases heard by the ct. (OConnor & Frankfurter)

Justiciability Doctrines: (demand adherence) Standing Underlying Concerns: Why important?

They ensure that the court will decide cases that are concrete rather than abstract or hypothetical They promote judicial restraint by limiting the occasions for judicial intervention into the political process They ensure that decision will be made at the behest of those directly affected rather than on behalf of outsiders with a purely ideological interest in the controversy. Standing doctrines are an important part of the separation of power system. They ensure that courts will not hear cases simply because they want to; they require a concrete stake and thus give the executive and legislative branches a range of breathing space Sanding doctrines ensure that people can bring suit only if some source of law has given them a cause of action. People cannot sue simply because they are unhappy, dissatisfied, or outraged.

Policies in support of Judiciability Doctrine and Against Advisory Opinions:

1. Structure- review/ restraint; separation of powers- political branches

(democracy- reduces friction b/t branches) Major concern about the separation of powers and other constitutional structures like federalism. While the Supreme Court might have the power to interpret the Constitution (thanks to Marbury), it doesnt have that power at all times; there must be some level of judicial restraint. 2. Soundness of decision- distinguishes legislative and judicial decision making when we have a true controversy, the adversarial situation will bring out the best, concrete arguments. The Court will take it seriously if there are actual parties. 3. Conserve judicial resources- efficiency rationale; limit the number of cases. 4. Fairness to the proper parties (no officious intermeddlers) A group may be negatively affected by a law, but be willing to hit a compromise with the government. An ideological third party might hurt the proper litigants.

Arguments FOR allowing advisory opinions

Promotes efficiency in the other branches, b/c they might pursue policies the S.C. thinks is unconstitutional. Might actually conserve some judicial resources so that the lower courts dont have to deal with whether or not some actions are Constitutional. If S.C. is guarder of Constitution, should do it at the outset. The Courts sympathy for certain parties might actually make it less sound in decision-making


Equality and the Constitution: Evolution of Equal Protection Doctrine 14th Amendment says:

1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 5. The Congress shall have power to enforce, by appropria te legislation, the provisions of this article.

Declaration of Independence & Slavery:

All men are created equal in Declaration, but also slavery present in colonial
America. George IIIs list of indictments o 3 Views of Declaration Phrase and Presence of Slavery: 1. Hypocrisy- loudest cries of liberty from the drivers of slaves- Tory view 2. Men= White Men (Europeans and not African Americans)Roger Taney opinion 3. Move toward equality as soon as prudently possibleDouglass opinion/ Lincoln view

Constitution & Slavery:

is the Constitution?

Slavery never explicitly mentioned in Constitution (used persons)

Pro-slavery: 3 specific references to slavery- protecting the institution of slavery Neutral: reduce amount of conflict b/t states; adopted as compromise to ratify the constitution Anti-slavery: Interpret Importation Clause as abandoning slavery; partial recognition for representation purposes; Lincolns position statement of political philosophy implemented in all men are created equal= slavery is wrong in principle

Equal Protection
RACE 1. 2. 3. 4. 5. 6.

Would explicitly abolish slavery if wanted; judicial restraint/hist. const.

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State v. Post

(NJ Constitution statute implicitly abolished slavery plan for those born after certain date; Post bought husband and wife slaves w/ son) Activist judge: Slavery unconstitutional Originalist: Not unconstitutional (restraint decision) Issue: Whether slavery can exist within the limits of this state under its present constitution and laws? Rule: Slavery is not inconsistent with a constitutional declaration that all men are by nature free. The expression must be understood in a modified sense according to the nature, the condition and laws of the society to which they belong. Popular sovereignty- speak with clarity in Constitution; not left to doubtful construction Judge exercises judicial restraint.

Justice Taneys majority decision:

Twin Holdings that make Dred Scott an important case Even if freed African Americans arent citizens, Scott cannot count as US citizen: Most controversial assertion under citizenship: A freed African American who is descended from slaves cannot be a citizen. (Federal Purpose) Original understanding in Declaration and Constitution: African Americans were routinely enslaved and not treated as citizens. Whether just or not, historically this is the intent of the framers. (They werent the people included in the Constitution) Right to own slaves in all federal territories. Prohibition of slavery was unconstitutional. Due process clause: Thus the rights of property are united with the rights of person, and placed on the same ground by the 5th am. (invented Substantive Due Process) Substantive due process: (We cannot deny you substantive rights, no matter how much process the government gives you, they cant take it away) The right to own slaves in the territory was a substantive right the government cannot take slaves away from the owner. ) There was a substantively due process right for people to own slaves in the territory. (If slave was a property, then he couldnt be free) If he was a slave he wasnt a citizen or if he was not a slave he still wasnt a citizen.

Dissent: Scott is a free person b/c

Citizenship: There were free African Americans at the time of Constitutional Convention who voted to ratify the Constitution; they also fought in the American Revolution.(They were recognized as citizens of states) Original intent was not a color bar, but as to show citizens of states who recognizes the Federal Constitution. Rebuttal to right to own slaves in all territories: Article IV, Section 3: Congress has express authority to create rules in federal territories. Response to Substantive Due Process: Legislature decides if there is a property interest in slaves, and in some states the legislature did indeed ban slavery and any property interest therein. . If you didnt agree with the ruling youll say there was no such thing as substantive due process. Holding strike down the Missouri compromise Procedural Due Process- redundant- 5th amendment says cannot be denied life liberty and property w/o due process of law. If both houses passes legislation that is signed by the Pres= thats not a denial of due process. Were adhered to.

Dred Scott and the Power of Judicial Review

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SC first asserted the power to invalidate acts of Congress in Marbury v. Madison; its second assertion came in Scott v. Sanford. The 1st time the Ct tries to resolve a major political issue. Question of status of slavery in federal territories. Whats wrong with Dred Scorr CJ Taneys opinion: The court unnecessarily and unwisely reached out to decide an issue not properly presented: Unwise for court to address the constitutionality of congressional power to enact the Missouri compromise The Courts decision is racist in it premises and morally obtuse in its result The court unwisely assumed that it could finally resolve a divisive political issue by taking it out of politics Too Restrained- original understanding or Too Active- make policy deciding issues that it did not have to decide and creating substantive due process. Restriant: Substantive due process is not on us. Blame it on activist.

Reconstruction Amendments o Before constitution: o National Government? o State?

National Government was a bad guy, limit on the power of the National government: National government has delegated and numerated powers. The powers delegated from the power, enumerated powers found in Article 1 of the Constitution. Congress couldnt do something not in Article 1 of the Constitution. (Bill of rights limit the States not Federal govt) State: Police Power (Public welfare laws): States had General jurisdiction. States can pass any legislation, they can pass any legislation. States came first, State interacted with the people and delegated power to the National government, and they placed a list. (Few limits on original constitution on the State.

Reconstruction Amendments: Shift? After Civil War:

13th Amendment 14th Amendment Emancipation Proclamation New Power?

Post Civil War Amendments: (new powers for national govt to enforce limit states) 13th- 1. Abolish slavery 2. Congress enforced power (Even if you arent a state power, you cant own slaves in US).Lincoln couldnt free all the slaves because it was illegal for president to slavery, not enumerated power of president. Its why the 13th Amendment was needed.
Emancipation proclamation: Freed slaves in rebellion with states. Article 2 power, states in rebellion to fights. Since southern state were using slaves to fight with union, thats the justification to free slaves. 14th- Citizenship: (1) Privileges and immunities clause, (2) Due process clause, (3) Equal protection clause, 14 Amendment limit states and people, not on states. The National Govt were delegated new power from states. How big is the shift: Congressional enforcement (provide basis for federal legislative action against the states) (5) another enumerated power. (14th Amendment put limits on States) Expanded the power of Congress, States has new limit. New power to enforce the new limit on the States.

Reconstruction Amendments: Shift? After Civil War:

Civil Right Act? 2 Dimensions of Equal Protection?

Civil rights act: All people born in the US and not subject to any foreign power, excluding Indians not taxed, were citizens of the US. Such citizens were granted the same rights to make and enforce contracts, sue, give evidence, acquire property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens. (retaliation to black codes) 2 Dimensions of Equal Protection Clause: No equality of in Constitution, the writer points to Declaration of Independent. 1. Protected class- who is protected: 14th Amendment Equal protection clause is about protecting African Americans from race base legislation. 2. State action: 14th Amendment only meant to limit State sponsored discrimination. There can be no violation of the 14th Amendment unless the State has acted. 14 th is fundamentally about protecting African Americans from racial discrimination by the State.

State Action and the Substantive Content of the State Action Theory Broad and Narrow view?

Under this view, the civil right cases stand for the proposition that the states are the primary guarantors of the rights of their citizens and that the federal government may protect those rights if but only if the state fails to do so. This view suggests both a broad and narrow view of federal power. It is broad in the sense that it treats state failures to act as state action for purpose of the 14th Amendment, it is narrow in the sense that it incorporates a federalism based limit on the federal government to act.

Historical tension between who should enforce limitations: Issues that arose?

Republicans who wrote constitutional amendments were departmentalism and wanted legislative to enforce limitations on states. Reflected in text of 13,14,15 th amendments. (Succession, civil wars, black codes=ways Southern States still uphold slave type condition) Background notions of judicial supremacy. Cts should be enforcers of new limitations. Separation of powers questions: More power given to Congress to enforce the laws, over the courts. 14th, 13th, 15th Amendment enforcer over the Court. The courts didnt like these Amendments, Amendment were controversial,. Judicial Supremacy took a blow. The court was no longer considered the Supreme in terms of interpreting the constitution.

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Black was convicted of murder by jury. Only white men over the age of 21 who were citizens of the State could serve as jurors

Strauder v. West Virginia

(It went against the premise that that every white man is entitled to a trial by a jury selected from persons of his own race or color, or without discrimination against his color) Strauder says African Americans are protected from unfriendly legislation. A law that puts their brand on them, stimulate racism is bad. Court can keep other people off. The court says the history trump the text, 14 th Amendment is only limited to African American, so other people could be limited. Dissent: 14th Amendment protected civil rights not political rights. (We already have the 15th Amendment)(14th Amendment text was not about Race) S.C. allowed for other exclusions, but could not be based solely on race. NOLA butchers; 14th only to states; Established? Other importance? Summary? Establish that EPC is just about race.

Slaughter-House Cases o Slaughter-House is important for several reasons. Slaughter-House was the Supreme Courts first interpretation of the Civil War Amendments, which applied against the states. The Court refused the invitation to redistribute power away from the states and toward the federal government. In particular, the opinion narrowly construed the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment. o Summary. After Slaughter-House the Privilege and immunity clause could not be used to argue that the Bill of Rights applies to the states. Slaughter-House stands for the fact that the PoI clause cannot be a source of substantive federal rights. Also, the case stands for the fact that the Bill of Rights cannot restrain the states. When the rights of freed slaves are at stake, the amendment must be read expansively to provide comprehensive federal protection (court has continued to be quite deferential to political outcome when ordinary social and economic legislation is challenged under the 14 th Amendment

Judicial invalidation of civil right legislation:

The court denied that either the 13th or 14th Amendment conferred on Congress the power to prohibit private discrimination in public accommodations. The court held that the first part of the 14th Amendment is prohibitory in its character, and prohibitory upon the States. It is a state action of a particular character that is prohibited. Individual invasion of individual rights is not subject matter of the Amendment. The court believed a refusal of service has nothing to do with slavery or involuntary servitude. In cases where racial discrimination affected federal rights, the Court upheld Reconstruction legislation. It is at least possible to argue from these cases that the justices were authentically concerned about the expansion of federal power. Reconstruction Amendments contained congressional enforcement clauses precisely because the framers thought Congress better positioned than the judiciary to protect the substantive rights the amendments conveyed.

Civil Rights Cases CRA about access to public facilities; unconstl bc 14th only to states (Opinions and Dissent)

Justice Bradley: The 14th Amendment is prohibitory in its character, and prohibitory upon the states. Individual invasion of individual rights is not the subject of the Amendment. Congress doesnt have the delegated or enumerated po wer to make such a law. Private actor cant violate 14th Amendment, only government can. The law was considered unconstitutional since it was not delegated or numerated power. It was a state issue. (congress wanted a 9 shift of power, Supreme Court say its 3)(Congress is asserting judicial supremacy) Harlan: Dissent thought there was a close enough connection under 13th amendment (racist attitudes supported slavery); and also that it fits w/in 14 th amendment (says not focused on equal protection clause, but on the wide grant authorizing Congress to prevent blacks from not being treated as citizens.); Race discrimination is close enough to slavery, b/c slavery was based on race. Reduced to state of economic poverty. 14 th Am argument that under the citizenship clause everyone counts as citizen= Congress has the affirmative authority to protect citizenship status of African Americans. (14 th Amendment) SUMMARY: In these cases, the SC is taking a narrow approach to amendments. Concerned about too much expansion of state power. Motivated by hostility to federal civil rights legislation. In terms of federalism dimension, Ct stating new limits on states as fairly narrow. In terms of separation of powers, Ct asserting authority over Congress. CT ASSERTS JUDICIAL SUPREMACIST VIEW.

Plessy v. Ferguson separate but equal railcars=ok; social rights not in 14th; not hostile 3 things Plessy Stand for

o o

The 14th was undoubtedly enacted to enforce the absolute equality of the races, it was not intended to abolish distinctions based on color, or to enforce social equality of commingling of the races. Narrow view of 14th. Law permitting, and even requiring, their separation, in places where they are liable to be brought into contact; do not necessarily imply the inferiority of either race to the other. The court never used separate but equal, they just upheld the statute. No where did Plessey accept say it was. All the court said was that this wasnt a hostile legislation. o Plessy stands for 3 things: Equality can allow separation as long as the separation is equal Separate, but equal = equal protection under the laws; although Plessy didnt say that; the LA statute said that, and it was upheld. Social rights are outsides the protection of the 14th The 14th was to protect blacks from hostile legislation and the court says that this legislation is not hostile (i.e. its not a badge of inferiority). o Suggested that social rights are not protected; only civil/political rights.


Harlan Dissent: obvious hostility, and an endorsement of white supremacy. A statute may be unreasonable merely because a sound public policy forbade its enactment. The statute will defeat the beneficent purposes which the people of the US had in view when they adopted the civil rights amendments.

RACE AND EDUCATION 1. 2. 3. 4. 5. 6.

The Higher Education Cases following Evolution of Segregation Doctrine: (The Road to Brown) Basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.*

Taxes to white HS; local authorities discretion in creating equal facilities; sbe ok

Cumming v. Bd. of Educ.

Facilities; courts can only intervene in the case of clear and unmistakable disregard of rights and abuse of discretion. Separate but equal really means equal enough. This was good enough.

Separate but Equal; Segregation okay in social sphere but it must be equal. Burden of requirement to provide equal facilities.

McCabe v. Atchison

Principle: If facilities are provided, substantial equality cannot be denied. Takes separate but equal seriously; said no discretion granted to states. No deference to political actors. There actually has to be equality.

Separation is unequal if person has to go out of state to receive education.

Gaines v. Canada

Ct adopts a new de novo determination of equality. Practice of denying black law school applicants admission into Missouri law school was unconstitutional even though there was a program set-up to pay for out-of-state expenses incurred when a black student had to go to another state to attend a school that MO didnt offer for black students. MO has to create a black law school or let blacks into Missouri.

Even though two schools were equal in tangibles=library, there are other considerations (intangibles):

Sweatt v. Painter

such as reputation of faculty, influence of alumni, experience of administration, standing in the community, traditions and prestige etc, which are not equal. The school should also admit students who represent substantial part of the community. Texas would have thrown money into the African American school to make it higher. Separation is premise on inequality Ct saying that separate but equal can never be equal. court ordered the admission of a black student to a white school b/c the parallel black school was not equal, esp. on intangibles.

Internal separation is unequal as well. OK admitted a black student, but required him to sit in a special seat

McLaurin v. Oklahoma

Internal separation is unequal as well. OK admitted a black student, but required him to sit in a special seat, he couldnt eat with the white students, and he had a reserved place in the library. Basically denied him interaction. This affected his ability to study, to engage in discussion and exchange views with other students, and, in general, to learn his profession.

Separate but equal in school NOT OK; Plessy overruled

The goal of the Post-War Amendments intended them to remove all legal distinctions among all person born or naturalized in the United States. But there in 1868: People werent thinking of public schools. History is inclusive, 1868 education. The court is saying in 1954, if you dont get education you arent going to be able to make good money, or be a functional member of the society. o Brown (1954) Segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the minority children equal educational opportunities, so inherently unequal. Brown is about Education, Plessy wasnt about schools, thus Brown didnt overrule Plessy. Even though Brown was about Education, the principle is applied broadly. Brown v. Board of Education separate but equal in school NOT OK; White Supremacy o Separation on the basis of race is detrimental to a childs education because there is an inherent feeling of inferiority. Racial separation is an assertion of white supremacy and African American inferiority. In terms on intangibles, they will never be equal, thus this is an unequal education. The implicit school for inferior race will never get the prestige of the superior race. Chief intangible: psychological effect. o Brown only says segregation in public schools is unconstitutional, but as the court receives additional cases concerning segregated water fountains, o

Invidious(Unfair; Unfairly Injurious) Discrimination

Brown v. Board of Education

Brown v. Board of Education separate but equal in school NOT OK; Judicial activism or Constraint?

Brown is very easy for a judicial activist to swallow. Think the majesty of the Constitution require that we use moral insight to interpret it. Activist/ Living Constitutionalist: interpret what ct believes equality means today; denial of equality in moral sense (easy case) People in favor of restraint think it is difficult to justify; they could go back to the 14th Amendment to attempt to show that originally were for it. Restraint/ Historical Constitutionalist: need historical material; note in Plessy hostile legislation in political, civil, and social segregation unconstitutional (harder case)

segregation in public schools in DC is unconstitutional.

Reverse Incorporation

The 14th incorporated the original bill of rights. Reverse incorporation is when a provision of the 14th incorporates something into the bill of rights. EPC is one such reverse incorporation. 5th am due process clause has an equal protection component that incorporates whatever is in the 14 th am equal protection clause= Reverse Incorporation Because the 14th Amendment is just geared (explicitly) to the states, the Court used the Due Process Clause to defeat segregation; says there is a substantive component even though there is only a discussion of process. There is no EPC in 5th Amendment. Whatever the states cant do under the EPC, the federal government cant do under the DPC. This is known as reverse incorporation. (since no Equal protection clause is not in 5th the case added it to it) o Judicial activism opinion. Equal protection only applies to 50 states, federal government is not under equal protection clause. The court is now saying congress is also the bad guy, and the court is the enforcer of the 14th Amendment.

Bolling v. Sharpe


This case establishes strict scrutiny for racial classifications.

All legal restriction s which curtail the civil rights of a single group are immediately suspect. (They are not unconstitutional)

o Korematsu v. United States

o o

Technically a 5th Amendment case; although came before Bolling. Korematsu establishes strict scrutiny for racial classifications. All legal restrictions which curtail the civil rights of a single racial group are immediately suspect, and subject to rigid/strict scrutiny. o In Korematsu, the compelling state interest is the war effort. The law is viewed as necessary to affect the compelling end. o This is not an ordinary SS case, because generally nothing passes SS. Why? It is a political constitutional question; they are trying to avoid secondguessing military during a time of war. Dissent said military cannot do anything they want simply b/c time of war; the military has to at least be reasonable. Unreasonable b/c limited to all Japanese. Clearly race base and unconstitutional Racism: Over-inclusive (included loyal Japanese) and under-inclusive (did not include unloyal Germans & Italians) Military will likely violate Constitution during war, and courts should not interfere, but should not give stamp of approval.

Why is race a suspect classification? (Compelling state interest, necessary, the government always loses). Why are racial classifications suspicious?

Why Strict Scrutiny?

14th amendment meant to prevent invidious discrimination- wrongful moral thought: creating stigmas, stimulate prejudice, reinforce stereotypes, treating individuals as group, immutability: Youre born with your race and cant change it, so its unfair for government to use it against you. Racial minorities are minorities in the political processes; o Justice Stones Carolene Products footnote 4: a more stringent standard of review might apply to statutes directed at particular religious or nation or racial minorities. Racial minority that cant protect itself in political process- should be suspect of discriminatory legislation.(Justice Stone argued that stricter review might be appropriate in such cases because ) A law that puts their brand on them, stimulate racism is bad Case? Routinely, race classifications are not relevant to government decision-making. Ask why are they doing that? Any wrongful motivation? SO if govt suddenly decides to make it relevant its suspicious. History of race discrimination in country should make us prima facie suspicious of government when they classify on basis of race. Strict scrutiny is

simply a shorthand expression of a conclusion, reached after long experiences with racial classifications, that such classifications generally express impermissible animus. . Strauder vs. West Virginia

Custody battle where mother remarried African American

. Awarded custody to father to prevent social stigmatization. Unanimous Supreme Ct reversed. The reality of private biases and the possible injury they might inflict were NOT permissible considerations. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Anything that has the real whiff of racism is going to fail strict scrutiny, its a tough test. Racial classifications bear a heavy burden of justification and will be upheld only if necessary and not merely rationally related, to the accomplishment of a permissible state policy.

o Palmore v. Sidoti (SS)

segregation in jail; means werent necessary to achieve compelling state interest

Ct concerned this will exacerbate racial tensions. Federal Prison System and other states do not segregate on basis of race. Court also said by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility amongst prisoners and reinforce racial and ethnic divisions. By perpetuating the notion that race matters most, racial segregation of inmate may exacerbate the very pattern of violence that is said to counteract. Thomas dissenting: Two conflicting lines of precedent; one strict while the other relaxed standard of review should apply to all circumstances in which the needs of prison administration implicate constitutional rights. Relaxed standard should be used for military or prison. Special circumstances where judges dont know what its like to be in that situation.

o Johnson v. California (SS)

no interracial marriages; SS even though treats both same

o o o o

Laws that are facially/apparently neutral as between traditionally discriminated-against groups and other groups. Analytically identical to separate but equal. All express classification will immediately receive strict scrutiny. This is a de facto segregation statute, this is about white supremacy. Rule: Strict scrutiny will be applied if state classifies on racial ground even if apparent neutrality on its face. Laws that advantage traditionally discriminated-against groups.

o Loving v. VA (SS)

Racial Classification Non-Express

Laws with no express classifications might still have a race-based purpose but no effect. o These laws will receive RBR; there may be some question here. o In Personnel Admin. of Mass. v. Feeny: Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decision-maker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Inferring purpose from effect when there is no race neutral explanation. Even with purpose, if the effect is never realized it would be a bad idea to invalidate a potential reversible impact, that wasnt intended.

Laws with race-based effects, but not racebased purpose

Some laws that are facially race neutral are administered in a manner that discriminates against minorities or has a disproportionate impact against them. The Supreme Court has held that there must be proof of a discriminatory purpose in order for such law to be treated as a racial or national origin classification. The Supreme Court held that proof of a discriminatory impact is insufficient, by itself, to show the existence of a racial classification. Justice White, writing for the majority, said that the Court never had held that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. The Court explained that discriminatory impact standing alone does not trigger the rule that racial classification are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of consideration. Law that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose.

(Court uses rational base review)

public swimming pool; purpose w/ no effect ok

There was a racial purpose, but a neutral effect. Keep in mind that it might have been argued that the effect was not neutral if you could prove that AfricanAmericans were more likely to be in a socio-economic bracket that would utilize a public pool. This is the only case that addresses this weird category and the Court might change their application later.

Palmer v. Thompson (RBR)

low-income rezoning; effect w/ no purpose is ok; main thought=CAN infer purpose from effect Case?

How do you prove discriminatory purpose when there is no express racial classification? (1) Look to the general historical background (2) departures from normal procedures (Deviation from standards of procedure) (3) specific legislative/administrative history (4) patterns of behavior (no other groups to explain stark pattern of discriminatory impact) (5) statistics (6) common sense. If discriminatory purpose is shown, it can still be upheld if govt can convince ct. that they would have made the same decision w/o the racially discriminatory purpose. o Village of Arlington Heights v. Metropolitan Housing Dev. (RBR)

police qualifications test; effect w/ no purpose OK

Just b/c test had disparate impact does not mean that the test was written with the purpose of causing discrimination. If every law had to pass strict scrutiny, the government would essentially be prevented from making laws. Act should apply strict scrutiny to a facially nonracial government action only if the P can show that the action was taken for a discriminatory purpose. Can infer purpose from effect: Justice Stevens concurrence: : When proportion is dramatic in terms of effect, we cannot be certain that there is no purpose; sometimes we may infer purpose from effect. Purpose sometimes creates effect, and a big effect may mean that there is a purpose. Dissent said showing the effect goes a long way towards adding the purpose. After Washington v. Davis, a court confronted with a classification that disadvantages a racial minority must first determine whether it constitutes a racial classification. If it doeseither because the classification explicitly draws racial lines or because it is motivated by racial purposethe court will use strict scrutiny and probably invalidate it. If the classification is non-race specific, the court will use rational basis review despite the classifications disproportionate impact on the minority group and uphold it.

Washington v. Davis (RBR)

redrawn boundaries in Tuskegee; infer purpose from effect

Alabama statute altered the shape of the city of Tuskeegee from a square to an uncouth twenty-eight sided figure.
Gomillion v. Lightfoot (RBR)

Chinese laundrymen; discriminatory admin not OK

Might have race neutral law, but it is administered in racially discriminatory way.

Yick Wo v. Hopkins (RBR)

Baldus study; insufficient to find purpose (Davis)

No indication of a racially motivated purpose from the legislature in enacting the death penalty statutes; said showing risk of discrimination (Baldus study) not enough; must show discrimination with his case. (The Court never challenged the study, because you cant show that this jury falls between that study. Each jury is unique, so the stats dont tell us about this particular jury) Other justifications for upholding the penalty: 1. Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker, selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effect upon an identifiable group. Purpose means it was a conscious object: Its not enough that the Georgia state legislature knew. Mere knowledge is not purpose; purpose is that you meant to achieve the result. If the Georgia state legislature did this in order to suppress African Americans. 2. Justice powell: If we allow McCleskeys claim that racial bias has impermissible tainted the capital sentencing decision, we could soon be faced with similar claims as to other type of penalty. Moreover, the claim that his sentence rest on the irrelevant fact of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in



other minority groups, and even gender. This argument is best left to the legislature, to fix institutional racism in the criminal justice system A very spirited dissent bemoaned the irony that the majority seemed afraid of too much justice. Georgia has a racial history. Its the government job under the equal protection clause to protect minorities. They also reinforce the idea that the role of the court is to protect people who cannot protect themselves through the democratic process; There is a manifest racism. This case reaffirms Davis, if there is no purpose or no effect, the state is probably going to win under RBR.

McClesky v. Kemp (RBR)

disenfranchised ex-felons

; discriminatory purpose; burden to govt to show would take same action w/o racial motivation; discrim against more than one group not enough to remove from SS o Hunter v. Underwood (SS)

Affirmative Action 1. 2. 3.

Reasons for Affirmative Actions/ How to Decide the Level of Scrutiny: Purpose of 14th amendment: Congress given express power to enforce and is not actually under equal protection clause History of race discrimination is a reason to be suspicious of race-based classifications. Troubled racial history fell in neutral or disadvantaged discrimination. Now, falling under advantage and are not meant to discriminate against. Political Process (Carolene Products Footnote 4) whites are more represented Relevance- race classifications are relevant to affirmative action Invidiousness- wrongful; stigma; stimulating prejudice and unfairness of treating individuals as members of a group that they did not choose or cannot change

Financial incentives for contractors; skepticism, consistency and congruency; adv. and disadv. same level of scrutiny

Rule: Express racial classifications will always lead to a SS analysis. (5 th Amendment equal protection clause because its the federal government) 14th Amendment only applies to state government. Are we going to apply same limit on Fed as we do for States? Do we do strict scrutiny on Affirmative Action cases? OConnors 3 General Propositions: Shes not saying not saying theyre unconstitutional but apply strict scrutiny to view if they are malicious or benign. We cant know on the front end, its only through strict scrutiny we can tell the difference. Skepticism- race classifications are inherently suspicious, all get SS (Historical and practical reasons) Consistency- the focus is on classification, not on the class (individuals and not groups), whether it advantages or disadvantages racial minorities. The classification should apply to all; it doesnt matter if its racial minorities, women, etc. Same level of scrutiny. Congruency- equal protection component of 5th am is the same as 14th= not a different standard for natl gov and states. Same standard and every case should come out exactly the same.

Adarand Constructors v. Pena (SS) Dissent

Scalias view: most affirmative action programs are unconstitutional- In my view, government can never have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination. Individuals who have been wrong by unlawful racial discrimination should be made whole, but under our constitution there can be no such thing as either a creditor or debtor race. Applies very strictly. (If the government has hurt people, based upon their race then they can take measure to correct that). Thomas view: people are entitled to formal equality; no racial paternalism exception to equality. Government cannot make us equal, it can only recognize, respect, and protect us as equals before the law. Stimulate race prejudice; it says members of racial minorities cant compete. These programs arent benign. Stevens dissent: (1) Know the difference b/t advantaging and disadvantaging racial minorities- can vary the level of scrutiny proportionality (2) No excuse for treating Congress like a state govt; Congress is entitled to a break and should be given intermediate scrutiny- does not have the same history of discrimination as states. Congress is the policy maker representing the people, so if they make a decision, it carries more weight than the states. Anomaly: Harder on race than gender based affirmative action

Ginsburg dissent: Some affirmative action programs will pass SS; call attention to part of OConnors opinion to guide lower cts not to deny all affirmative action legislation. Still racial problems in America, and combatting those problems is a legitimate state interest.

Would a law that meets Strict Scrutiny always be repealed?

Case was remanded, told lower court to apply a tougher standard, which doesnt mean it will be automatically turned down. Supreme Court is saying theyre the enforcer of the equal protection, rather than what the Constitution says. The Constitution says States are violated of equal protection, not Feds. Reason why Race classification has been suspicious: Suspect classification: Not suspicious because the history of 14th Amendment says laws that hurt racial minority are suspicious but doesnt say anything about laws that help racial minority. The point of SS is to differentiate between permissible and impermissible governmental use of race

Mich. Law critical mass race factor;

o o o

Ends= need compelling state interest = DIVERSITY Educational benefit of higher education (cross race understanding, diverse viewpoints, better educational environment) 2. Means= necessary/ narrow tailoring Plus factor to achieve critical mass. Quotas are unconstitutional, race is only a plus factor o Non-racial diversity factors as well o OConnor- duration: end in 25 years Ginsburg concur: cant firmly forecast racial problems will go away in 25 years. Minorities do face tougher obstacle because of the resources available to them. Kennedy dissent: this isnt SS b/c its not giving deference to govt officials Scalia dissent: learned cross racial understanding in kindergarten; not up to higher education to teach- outside of the classroom social education Thomas dissent: several states have passed legislation preventing affirmative action programs; other ways to achieve diversity; no CSI- many states do not have a public state law school; could lower qualifications for all students and achieve race diversity; lots of race neutral alternatives; suspicious of action- stigmatizes minority achievement; no explicit durational limitation

o Grutter v. Bollinger (SS)

undergrad point system; not narrowly tailored

Policy: Diversity is a CSI; narrowly tailoring requirement was not met. Not narrowly tailored enough Huge awarding of points; not a holistic file review= no opportunities for nonminorities to illustrate diversity Dissent: lots of other categories in point system; receive much more applications than Grutter case to do qualitative holistic file review; wink and nod

Gratz v. Bollinger (SS)

Grutter & Gratz Summary diversity is recognized as a Compelling State Interest, but the problem is narrow tailoring. The more it looks like Grutter the more chances it will be upheld, the more it looks like Gratz the more chances it will be held unconstitutional. Limited to role in higher education
Remedial Measures to Determine Past Discriminations: (lower public school education- only assigning on race)

o o

Proven violator and proven victim- absolutely compelling (rectifying) Police department now wanting to hire blacks after not previously hiring them. Proven violator and present effects of past discrimination (Post-Brown decisions)- compelling But remedying general societal interests is not specific enough to be compelling o P. 584 Parents involved in community schools v. Seattle- final frustration of Browno No clear diversity applies, Race diversity not allowed. Narrow tailoring of school based upon race. Court said school district should have expanded their boundaries if they wanted to acquire more desegregated schools.

Split between defining the meaning to Brown:

o Does brown mean only invidious race classifications are bad? Some justices say yes, and use this as basis for saying Affirmative Action is alright o Does Brown mean Race classifications in general is prohibited Justice Scalia and Thomas believe Affirmative Action

14th Amendment Equal Protection Other than Races TYPICAL RBR 1. 2. 3. 4.

methadone; acceptable over-inclusion (efficiency)

Rule: Non-suspect classification b/c it does not apply to race or gender; therefore, the ct applies RBR. It doesnt circumscribe a class of person characterized by some unpopular trait or affiliation; it does not create or reflect any special likelihood of bias on the part of the ruling majority. Under these circumstances, it is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined subparts of the classifications as it is with respect to the classification as a whole. o Majority: Constitution does not authorize a fed ct to interfere in that policy decision. Cost efficiency of avoiding substantial administrative costs to look at each individual who is a methadone user. Can justify over inclusion or under inclusion with administrative efficiency. (Deferential application of RBR= state wins under political realm) o Note: To survive equal protection review, a classification must bear some connection to a permissible government end. Over inclusive- a classification disadvantages a larger class than is needed to achieve the states purpose Under inclusive- some people are not disadvantaged even though the failure to include them undermines achievements of the states interest. o Dissent: Methadone users are typically in lower socio-economic class and a member of a minority, thus ct should be suspicious. Stricter in application of RBR than majority (need more particularized analysis). Should have individualized screening. o

NY Transit Authority v. Beazer

vehicle ads; ok to tackle one problem at a time

Railway Express Agency v. NY

More likely to uphold a statute in the area of economic regulation Regulation rationally related to reducing distractions in traffic.

EPC= No requirement that we eradicate all the evils of the same genus of kind. (underinclusion- routinely okay)

opticians need prescrips

; field classifications dont require higher level of scrutiny hypothesize motive o Argue motive: Optometrists and Legislature in a lobby. Ct does not care. They hypothesize motive: public welfare and safety concern. II. Williamson v. Lee Optical

paper/plastic milk jugs; policy not to second-guess legislature unless policy totally irrational

. Sup Ct: Cts are willing to hypothesize motives. Accept whatever state asserts

Minnesota v. Closer Leaf Creamer Co

or will ct will articulate one for the state. Find legitimate state interest that supports legislation. Brennan would say that it is up to the state to regulate economic interests. Another response would be that the ct would not impute impure motive to the state legislature as long as there is rational explanation of the statute. Ct will defer to any reasonable understanding of the facts. Under RBR, state wins except in very rare cases when ct cannot find a reasonable understanding of the facts. In equal protection analysis, the court will assume that the objective articulated by the legislature is actual purpose of the statute, unless an examination of the circumstances forces it to conclude that they could not have been a goal of the legislature. Court will not invalidate a state statute under the Equal protection Clause merely because some legislature sought to obtain votes for the measure of the basis of its beneficial side effect on state industry.

14th Amendment Equal Protection Other than Races ATYPICAL RBR (RBR WITH BITE/TEETH/SHARPER FOCUS) 1. 2. 3.

retard zoning; irrational prejudice viol EPC

o o o

Looking for actual purpose when statute based on irrational prejudice to mentally handicapped. History of discrimination against disabled persons (social hostility is not a legitimate state interest) Mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not a permissible basis for treating mentally retarded differently. No evidence of danger of harassment. Flood plain excuse not realistic. Stevens concurring: regulation based on prejudice- should be asking if states has legitimate state interest (doesnt like the 3 tiers- moving up and down) Marshall concurring: this is atypical of the conventional form of rationality review Once the court mention they wont use Strict Scrutiny and Quasi, we can tell the court will use a tighter rational zone argument.

City of Cleburne v. Cleburne Living Center

food stamp hippies; animus

Looking for actual purpose when harm to politically unpopular group. A bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Ct willing to be uncharitable, only reason for food stamp limitation is to harm politically unpopular group- hippies. If the constitutional conception of the equal protection of the law means anything, it must at the very least mean that a bare congressional desire to harm a political unpopular group cannot constitute a legitimate government interest.

U.S. Dept. of Agriculture v. Moreno

Colorado homos; animus

o o

Law is unconstitutional b/c desire to harm a politically unpopular group cannot constitute a legitimate govt interest- Moreno Ct concludes law is based on animosity b/c: o (1) basic civil rights o (2) law makes it harder for one group to get protection from the government Court uses RBR with bite by using the racial analogy: (Indicia of suspicious) There is history of discrimination between gays and lesbians. Its a minority group (4%) which some might say is politically powerless Some might think sexual orientation is immutable Sexual orientation is not relevant to governmental decision making

Romer v. Evans

Majority v. Dissent

Majority: State interest is based in animosity even though the state says it is freedom of association, conservation of resources and maintaining conservative conception of sexual morality. Scalia Dissent: Culture war; moral disapproval- family values; political issue for political process. Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means. This court has no business imposing upon all Americans the resolution favored by the elite class which Members of this institution are selected. To call homosexuals unpopular is nothing short of insulting. It is also nothing short of preposterous to call political unpopular a group which enjoys enormous influence in American Media and politics.

14th Amendment Equal Protection Other than Races GENDER/SEX Intermediate Scrutiny 1. 2. 3. 4. 5. Government purpose? Government justification?

Law must be substantially related to an important government purpose. Government must show exceedingly persuasive justification for the discrimination

administrator of estate males over females;

state interest not rationally related 1st Supreme Ct case to invalidate a gender classification under the EPC. Ordinary RBR= state will win (overinclusion and underinclusion okay); application here is atypical, sharper RBR. Burger for unanimous ct: Law is unconstitutional b/c arbitrary classification by legislative choice that is forbidden by EPC. Framers of 14th Am EPC: clearly okay with gender discrimination, but cts argue race analogy as gender is immutable characteristic.

Reed v. Reed (RBR w/ bite)

militia and spouses as dependents; gender is inherently suspect; race analogy; plurality decision supports strict scrutiny in gender cases

Brennan for plurality: applies Strict Scrutiny b/c gender classification is inherently suspected. Why? (similar to race discrimination) o History of gender discrimination, gender like race is an immutable characteristics/ highly visible (triggers stigma and stereotypes), stimulation of prejudice, should not impose a disability on a group based on an individual characteristic, congress was trying to pass an equal rights amendment, other thoughts: women are not politically as powerful as men, other thoughts: gender is not relevant to the govs decision making.

Powells concurrence: the matter will be resolved by the equal rights amendment, should resolve by applying Reed (administrative convenience will not suffice under stricter RBR). Amendment more legitimate.

Frontiero v. Richardson (close scrutiny)

Beer; establishes IS; not substantially related to important interest; race analogy; main thought: gender enough like race to move beyond RBR

Craig v. Boren (Established Intermediate Scrutiny)

Test of Intermediate Scrutiny: important state interest and classification must be substantially related. o To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. State interest: Traffic safety Substantial relationship: Not enough- still easily circumvented; very small arrest rate (inaccurate proxy) The very social stereotypes that find reflection in age-differential laws are likely substantially to distort the accuracy of these comparative studies. Rehnquist dissenting: No case law to support intermediate tier of scrutiny. Only two tiers SS and RBR. No sharper RBR. Gender classification belong in RBR where govt will win almost every case. Men have not been discriminated against; should focus on class not classification.

U.S. v. Virginia

VMIs arguments:VMI parallel program not enough o State interest- diversity o Substantially related- single sex education benefits & boot camp training method - Ginsburg: Need an exceedingly persuasive justification for gender-based government action. Burden of justification rests entirely with the State. Stated goal of VMI is state interest (to produce citizen soldiers). Do not credit litigating positions that are not legitimate state interest. Exclusion of all women is not substantially related to goal of producing citizen soldiers. - Remedy of Equal Protection violation: women should be allowed; State of Va attempt to cure was to create a parallel womens program (Ginsburg compares to Sweatt casehuge tangible differences; schools not remotely equal) - Rehnquist, concur: (1) does not like exceedingly persuasive justification and says lets not do tighter version of IS and creating more confusion; (2) does not want to close door on separate institutions, as long as of same overall caliber - Scalia, dissent: if there is an EP violation, should be remedied by an alternative institution. This ct has these elite values it is trying to impose on the whole society. Education is an important state interest and creation of the boot camp education is rationally related to the state objective.


Summary: Is it possible to have single sex education schools? Part of the opinion seems to suggest that it is, part is not. The ct stresses real difference, but condemns overall generalizations and stereotypes. So emphasis on boot camp for men, and cooperative model for women, is it a real difference or generalizations? Some stereotypes are created by real differences, where is the dividing line?

stat rape punished men and not women; ends/means ok; if no express

Michael M v. Sonoma County Superior Court Majority/Dissent? (undefined scrutiny) - stat rape punished men and not women; ends/means ok; if no express gender classification, look for purpose and effect for heightened scrutiny; if none, RBR - State interest: deter teen pregnancy - Rationally related: female open to risk of pregnancy and are naturally deterred, men do not get pregnant, so a penalty has to be placed on men to get them to reframe; if women were guilty to, then less likely to reveal partner. (Other reasons are that the girl might be weak and needs to be protected, boys will be boys.) Brennans dissent: should hold women liable b/c if not stereotype that males are sexual aggressors created; men deterred by child support payments; holding women liable who are not deterred

14th Amendment Equal Protection SEXUAL ORIENTATION 1. 2. 3. 4. 5.

Same sex sodomy was not a fundamental right-

Same sex sodomy was not a fundamental right- specific tradition approach by J. White. The ban is rational b/c it is rational to outlaw moral disapproval on gay sexRBR (Nor are we inclined to take more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause).

Bowers v. Hardwick (1986) (RBR)

Romer v. Evans (1996) (heightened animus)

Colorado homos

Overrules Bowers; living tradition/justice analysis (trend away from anti-sodomy laws

Lawrence v. Texas (2003) RBR(broad view)

((Main issue whether the majority may use the power of the State to enforce their religious

disdain of homosexuality on the rest (Looking at most recent tradition, living tradition, intimate conduct should be free from Government intrusion)Liberty presumes autonomy of self that includes certain intimate conduct Court upheld a GA law banning homosexual Sodomy; declines to classify sodomy as fundamental right, in sexual freedom/individual freedom line. o Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in an import respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for exam protection reasons. (Personal autonomy, human beings should be able to define their own term of humanity) o They instead use specific tradition methodology no deeply rooted right in our culture to engage in homosexual sodomy historically criminalized. (Early American laws were not directed at homosexual)


Kennedy, majority: Violate Substantive Due process b/c constitutional liberty is broad enough to include the right to engage in sodomy whether heterosexual or homosexual Applies Living Tradition approach Bowers is widely criticized(Decision is at odds with the laws put out in Western Civilization) (No reliance on Bower, Fundamental right status of sexual privacy. Ct does not articulate SS. Languages sounds like RBR, but its not. (No legitimate state interest) People are entitled to respect in their private lives. The state cannot demean their existence or control their destiny by making their private sexual

conduct a OConnor, concur: Bowers should not be overruled and this should be thought of as an Equal Protection Clause case, so that Bowers is not overruled, but simply superseded by Lawrence( States cannot single out one indefinable class of citizen for punishment that does not apply to everyone else. RBR- TX uses sodomy law just to stigmatize the group of homosexuals


Scalia dissenting: criticizes stare decisis analysis (Says reasons being used to overrule Bower can be used to overrule Roe) (918 Scalia) The ct does not use Casey stare decisis factors: Erosion analysis - if the ct truly applied Caseys analysis, even Roe could be overruled b/c Bowers should have eroded Roe RBR analysis: Moral disapproval is a rational basis for enacting a law Given what the language of Lawrence says, gay marriage is not far above the horizon Nowlin: if we take specific tradition Bowers is still right, but the methodology rightly applied does not mean the case is rightly decided. The focus of the opinion whether specific tradition or living tradition is right.

ban on homosexual marriage; not a fundamental right; state discretion

State interests: Said procreation was one of the goals; some people that get married cant procreate. Same sex couples not good parents; again, not a proper fit. Same-sex couples more financially independent; again not enough. Moral disapproval also not enough justification. - Ct. later said civil unions not enough; have to use a marriage.

Goodridge v. Department of Public Health (2003) (RBR w/ bite)

ok to ban gay marriage under RBR

o Under traditional RBR: Opposite sex couples sometimes accidently have children. Same sex couples do not. Important for children to have mother and father. Sanctify marriage. Denial of same sex marriage is upheld. Hernandez v. Robles (2006) (RBR

In re Marriage Cases (2008)

CA uses SS; Conn. uses IS for sex orientation

14th Amendment Substantive Due Process 1. 2. 3. 4. 5. 6. Dred Scott v. Sandford

DPC; first SDP case

- Slaughter-House Cases
Opinions? o Majority? o Dissent? What major shift occurred in terms of substantive rights? -

o o

Miller: PI makes express what is already implied. No interpretation of 14 th Am that transfers power away from states to federal govt. This reading of the constitution is very narrow b/c broad reading would open the road to Congress and Ct to interfere with the states. The P & I clause is held NOT to contain extra implied rights. They list rights that were already implicitly included. Limit app. only to black people. (So according to Justice Miller, the privilege and immunity absolutely changed nothing) They argue that this would be a drastic change in the fed. structure of the Con. Field Dissent: Creates a new body of substantive rights including: right to pursue lawful employment in lawful manner. Natural Justice. Violated PI clause. (Natural rights) Bradley Dissent: wants to look at tradition o In Slaughter-House, the Ct held that the rights guaranteed in the first eight amendments are not privileges or immunities of citizens of the United States. (14th Amendment solely for equality) Note: The Demise of The Privileges or Immunities Clause o Ct has eviscerated Slaughter House Cases.

6th right to trial by jury incorporated under DPC of 14 th bc fundamental to American scheme of justice; sets up selective incorporation

Some but not all of the Bill of Rights are incorporated (Actually incorporated) Same methodology of test of pseudo incorporation: fundamental and traditional analysis Winning argument b/c its a compromise Most provisions of the BR were incorporated except: 8th Amendment, 3rd, grand jury indictment, and 7th

Major importance?

- Duncan v. Louisiana


In interpreting due process clause, or privileges and immunities clause, where do we look to determine if rights are substantive? o 14th and 15th DPC? 1. Some cases have said no rights. 2. Tradition. 3. Natural Law. 4. Bill of Rights. 14th and 5th have a DPC. o Procedural due process says you can take away a certain amount of life, liberty and property as long as the correct due process is given. o Substantive due process says these things cannot be taken away no matter how much process is given. 1. Economic rightsright to contract(rise and fall) doesnt exist today 2. social rightsrights to privacy -

14th Amendment ECONOMIC SDP 1. 2. 3.


bakery work hours; right to K in liberty of 14th Major Dissent?

; Test: is it a fair, reasonable and appropriate exercise of police power of state? NO

o Holmes dissent:

Should not read economic policy into the constitution (lassiez faire, economic theory) Would strike down only if a rational and fair man would say that the regulation infringes on fundamental principles as they have been understood by the traditions of our people and our law. Constitution is about establishing democracy and state should win. Constitution did not embody theories of economic policy. As a matter of national justice and tradition.

Lochner v. New York

How would we resolve what rights are protected by the due process rights

No rights at all (Slaughter house cases) Natural rights (right to receive compensation for labor, right to trade it) Lockner also said this Tradition (Holmes and Bradley)

Economic area of Substantive Due Process= Lochner area

o What made the ct in 1873 from the Slaughter House cases to Lochner in 1905- Liberty of Contract. Justices in Lochner are sympathetic to free market ideas. Later, the American Industrial Revolution and the Revolution in Russia affect the ct. Cases after Lochner consistently uphold the state legislature. 1930s during the Great Depression saw the demise of the lassiez faire.

Minimum wage for women

West Coast Hotel Co. v. Parish ; Const. says nothing about freedom of K (impliedly rejects Lochner)

RBR; Court cant strike down bc thinks unwise; def. to state

o o

Formalizes SOR for deprivations of economic liberties. (Slaughter house rational) No economic rights fall The law needs not be logically consistent in order to constitutional. It is enough that there is an evil at hand of correction, and that it might be thought that the particular legislative measure was a rational way to correct it.(Rational basis review applies, Government always win, stop suing the government) Government is saying we will not uphold Lockner type cases) The day is gone when this Ct uses the DPC to strike down state laws, regulatory of business and industrial conditions, b/c they may be unwise, improvident, or out of harmony with a particular school of thought.

Williams v. Lee Optical


Debt adjustor must be lawyer; RBR; reverts back to SlaughterHouse

Debt adjustor must be lawyer; RBR; reverts back to Slaughter-House; deferential to legislature (deprives of liberty to work in certain field, but ok bc no ESDP and not protected under 14th amendment only protects those enumerated); RBR o No violation of due process b/c not the cts business to decide whether a law is unwise. o There was a time when the DPC was used by this Ct to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. That doctrine has long since been disregarded. o Completes the circle (from Slaughter House to Lochner back to Skrupa)

Ferguson v. Skrupa

14th Amendment Substantive Due Process Contraceptives (Right to Privacy) 1. 2. 3.

Griswold v. Connecticut Importance Opinions

contraceptives for married people; marital privacy fundamental based on justice/natural rights; creates zone of privacy; uses incorporation and NOT SDP (BOR peripheral rights); reading rights into Const. o Rule: The right to privacy, although not explicitly stated in the Bill of Rights (emanation), is a pneumbra, formed by certain other explicit guarantees. As such, it is protected against state regulation that sweeps unnecessarily brought. ( Douglas, majority: Justice/ Natural Rights) (This court creates the right to privacy) (A broad ban on contraceptive is too intrusive; Connecticut should have found another means of controlling illicit sexual behavior. o Goldberg, concur: 9th Am.- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.; Tradition (intimacy is a tradition in marriage) Harlan, concur: use substantive due process, even if Dredd Scott and Lochner were a mistake does not mean that the doctrine of substantive due process of 14A was a mistake The liberty guaranteed by the Due Process Clause is not a series of isolated points represented by the Bill of rights. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.

Griswold v. Connecticut Dissent

Black, dissent: no rights to privacy in Constitution; rights not enumerated in the Bill of Rights are up to the political process and not up to the Ct (Up to the political process to see if the penumbra violate the constitution) (Black states its up to the state to regulate the lives of the citizen) (Outside of incorporation there are no other rights, he believe the ct is doing the same thing as the Lockner court.)

Eisenstadt v. Baird

contraceptives to unmarried people; violates EPC bc dissimilar treatment for married/unmarried; individual privacy o Ct: uses equal protection clause analysis b/c different treatment to married and non-married couples strange. It is not about married couples, it is about individuals fundamental right to decide whether to bear or beget a child. o Now considered more about the scope of right to privacy o The ct. invalidated a law that prohibited contraceptive devices from being given to unmarried persons violated EP clause, b/c did not prevent married couples from obtaining it. o Claimed to be applying RBR, but clearly wasnt.

Carey v. Population Services International

pharmacist for contraceptives; fundamental right to choose/not choose have children; o SS; no compelling state interest; widens Griswold by extending privacy beyond marriage to individual

14th Amendment Abortion (Right to Privacy/Autonomy Rights) 1. 2. Roe v. Wade

right to privacy includes abortion; 14th DPC, not BOR; cant use living tradition; reproductive autonomy; dissents: too judicial active, not in Const.; for political process to decide (and ppl) o Rule: The right of privacy found in the 14th Ams concept of personal liberty and restrictions upon state action is broad enough to encompass a womans decision whether or not to terminate her pregnancy. o Blackmun, majority: looks at history (Greeks did not condemn abortion; CL- no crime of abortion until quickening) (Living tradition: 48 states had laws against abortion) Is there a fundamental right to abortion? Blackmun b/t natural rights and living tradition. o 3 historical reasons for criminalizing abortion: Prevent illicit sexual conduct Concern for the health of the mother Protecting prenatal life o Ct talks about balancing of the state interest to protect the right of the mother and her baby and womans right to have an abortion, which grows inversely in relation of each other. First trimester no regulation of the right to abortion Second trimester state can regulate based on reasonable relation to health of the mother Third trimester state can regulate, and even ban abortion to protect prenatal life, but an exception to the life and health of the mother. Viability baby can survive outside of the womb 28 weeks.

Roe v. Wade (Dissent)

White, dissent: Ct making stuff up, no basis for Cts decision; would have applied RBR b/c not a fundamental right. Using judicial restraint- not enough specific support in legal tradition. (No tradition, no fundamental rights) Rehnquist, dissent: it is not a privacy issue, this is just Lochner, which was a bad idea; should apply RBR and this passed rationality right to abortion is not as universally accepted as the ct wants everybody to believe o Specific tradition, which was criminalizing abortion. o No legal precedent for the right to abortion as being fundamental.

Planned Parenthood of SE Penn. v. Casey

Main Holding: When a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 3 justice plurality= now, Majority Pre-Viability- state may not put undue burden on abortion (Undue Burden Test) (viability where fetus can survive outside the womb, 22 to 24 weeks, technology dependent) Undue burden- any purpose or effect of placing substantial obstacle in path of woman who wants an abortion (not SS test); meant to dilute SS so more favorable climate to abortion restrictions Post-Viability- state may ban abortion but must be health or life exception ( Throws out trimester scheme of Roe; NEW TEST: Undue Burden Informed Consent & 24 hour waiting period= upheld(Its not seen as an undue burden) State has interest in womans health and abortion alternatives Spousal notification= struck down Parental consent= upheld Note: ALL have Medical Emergency Exception Case and Substantive Due Process Analysis Establishes living trend.Establishes justice of natural right approach

Planned Parenthood of SE Penn. v. Casey Continue Dissent?

Even if we assume Roe was wrongly decided, still cannot overrule e.g. the facts are still the same, unlike Plessy and Lochner, understanding of the facts are still the same. There has been no change in facts of Roe. Roe is not unworkable No other cases have eroded Roes holding Change in facts: RELIANCE- people have built their lives around ability to have abortion Price of overruling precedent (Institutional Integrity) Respect to the ct would erode if frequent overrulings National importance- would subdue to political pressure Institutional integrity: Theyve been under fire for its decision, so if they cave under the pressure, they could lose their institutional integrity. Blackmun, concur: gender equality; applying SS; strike down 24hr waiting period and informed consent; (Doesnt like undue burden test)Wants to use Equal Protection clause and heightened scrutiny of gender classifications Rehinquist dissent: Roe should be overturned, b/c no specific tradition of the right to abortion (Use RBR) Scalia dissent: Wants specific tradition approach: Abortion not in Constitution. (Roe created the divisiveness, divineness shouldnt be used as a reason to uphold it.)

14th Amendment Right to Die (Suicide) 1. Washington v. Glucksberg

Substantive process analysis Concurring Scooter ?

Substantive Due Process Analysis 1. Deeply rooted in nations history 2. Liberty interest o Rehinquist, majority (9-0): Specific Tradition: The right to suicide not deeply rooted in the nations tradition, in fact prohibition on assisted suicide is deeply rooted tradition (Applies RBR) OConnor concurring: There is no right to doctor assisted suicide, but there is right to pain treatment that hasten death highly depends on medical judgment. If the doctor wants to relieve pain than it is constitutional, even if this treatment may kill the patient. But when the doctor gives pain treatment to kill the patient who wants to die then it is unconstitutional. Scooter Wants to use Living tradition analysis- he is more open to the idea of some right to physician assisted suicide and right to commit suicide. Legislature is better equipped to deal with such questions o

14th Amendment Sexual Privacy Bowers v. Hardwick

no fundamental right in sodomy

Lawrence v. Texas

overturn Bowers; not about whether or not fundamental right to sodomy fundamental right to make own personal choice about it

14th Amendment FAMILY AUTONOMY SDP 1. 2. 3. 4. Meyer v. Nebraska

statute said only English to be taught in schools; fundamental right in family autonomy (parental control); liberty protected by DPC

Pierce v. Society of Sisters

law prohibited going to private school; violative of parents liberty to direct education of their children
Holding: Statute unreasonably interfered with the liberty of parents and guardians to direct upbringing and education of their children.

Moore v. East Cleveland

restriction on occupancy of house to single family; extended family strong

tradition in history; heightened scrutiny; specific tradition analysis - Liberty Interest: Specific Tradition Analysis ( having children is fundamental right deeply rooted in history and tradition- heightened scrutiny) - Family fundamental right heightened scrutiny because the family is a traditional area of liberty. Maybe strict, maybe not. State interest will have to be pretty weighty. - Expansion of SDP rights should be approached cautiously, but family autonomy is a deep rooted tradition. Traffic, overcrowding, etc, are not enough. - Dissents: suspicious of substantive due process; reluctant to find fundamental right- do not want to create vast body of family law

Troxel v. Granville

visitation rights; parental right to dictate visitation; law violates SDP family autonomy right; Dissent: no fundamental federal family law (RBR) Mother doesnt want grandparents to visit her children. She was never married to biological father. Law allows two weekends of visitation rights, even against the wishes of the parent. Supreme Ct invalidates this state law. Plurality: Law is unconstitutional b/c it violates SDP family autonomy right. State interest is not legitimate enough. Scalia, dissent: Constitution nowhere states there are family rights

General Rule Value of Federal Federalist 46

Distribution of power b/t national govt and state govts. Purpose to protect individual rights. - General Rule: For an act of the federal govt to be valid it must fall within the federal powers specifically enumerated in the Constitution and it must not violate any particular limitations on federal powers found in the Constitution. - Values of federalism: o Efficiency. A national government can respond to problems created for one state or region with resources from other areas. o Promoting individual choice: A national government can enforce the values shared by a majority in the nation as a whole, even against those who are majority in one or few states. James Madison Federalist No. 46: The federal and State governments are in fact but different agents and trustee of the people, constituted with different powers and designed for different purpose. The ultimate authority reside in the people alone. Therefore, if the people should in the future become more partial to the federal than to the State government, they can push for better administration from the states.

What is the balance of power between Congress and States?

1. Mostly federal govt and little state 2. Equally divided b/t state and fed 3. Mostly state and little fed o Congress: Commerce Power in Article 1 & Sec. 5, 14th Am enforcement (1868) o Only has delegated and enumerated powers o States: Police Power (Policy Power)- general authority o Always has authority to legislate

Federalism: Why do we retain power by the States? The Values of Federalism:




3. 4.

Diversity- individual choice (MS has different social values than Mass.) allows states to make their own decisions to reflect their local or regional feelings, and if you dont like it you can move. Prevent tyranny- less likely that power will be abused. o A national government can enforce the values shared by a majority in the nation as a whole, even against those who are majority in one or few states. Promoting democracy- splitting power= more opportunities to participate in gov; breaks down the government into small constituent parts and makes people feel involved in the smaller governments. Easier to influence local government. Efficiency- more efficient to do things at the local level. Experimentation- Louis Brandeis notion if we had a system without federalism, we would have to pick a state guinea pig and force the experiment upon them. 50 laboratories are better than one. Federalism allows states to try new policies and if they work other states can adopt them. As the national power increase, the state law power decreases. The Supremacy clause makes Fed law more prominent

Federalism in the US Constitution

1. 2.

Congress is a govt. of delegated and enumerated authority. Congress can pass a law when it is enumerated in Article I. States=general jurisdiction. o The 10th Amendment reasserts a basic tenet of the Constitution by saying that powers not delegated to the US by the Constitution are reserved to the States. o Art. 1 8 - National governments powers: 1. Few and defined; specific jurisdiction. 2. No general police power 3. Delegated to Congress from states. States powers: 1. Numerous and indefinite; General Jurisdiction. 2. General police power. 3. State can do anything as long as they dont violate the Constitution. The 14th amendment A government of enumeration (Article of Confederation vested power to the National government from the States, the New Constitution vest power on the Federal government from the People). Origin of enumeration: The framers intended to limit the power of the Federal government by specifically listing the powers it could exercise. How Enumeration limits power: Explicit limitation as an alternative. a. Federalist N. 84:

Powers of Congress: Overview Where Can Congress Regulate? Powers Congress has?

Interstate Commerce Clause: Congress may regulate commerce among the states. This includes: o Channels of Commerce (waterways) o Instrumentalities (Greyhound bus on interstate( o Stream/ Flow of Interstate Commerce, and 1. This obviously includes going across state lines to sell things. (Railroads, highways) o The fed can regulate commerce that affects other states. It cannot regulate commerce within a state or between people living in different parts within the same state, if the activities only impugned on individuals within the state. 1. The areas are reserved for the States themselves o Power Congress has: 1. Can prescribe the rules by which commerce is to be governed 2. If the States shall ever surrender its power (inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State) it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.

Powers of Congress:
Pure noneconomic activity
Where Can Congress regulate Internal limit? External limit? Commandeering?

Any economic activity that when aggregated substantially affects Interstate Commerce. o Purely non-economic activities that Congress cannot regulate include crime, family law, and education. Limits on Congress Commerce Power o Internal limit: The clause might define a specific subject matter, such that Congress could not regulate anything but interstate and foreign commerce. o External limit: The clause might allow Congress to do anything reasonable regarded as regulation of anything reasonable as interstate or foreign commerce. But It must still not violate the Constitution. Traditional State Functions Garcia: Congress can regulate the states as if they were a private business as long as the regulation is one of general applicability (i.e. applies to States and private businesses). No Commandeering The federal government may not commandeer a state legislature to pass the laws that Congress wants (cannot commandeer a state to carry out Congress plans). Congress can use conditional spending (carrots) and conditional preemption (sticks), but not commandeering. o Congress cannot commandeer state executives or officers.

Power to enforce the 14th through 5

3 levels of power under 5

Congress has the power to enforce 14th through appropriate legislation. Congress can abrogate SI. 3 levels of Congressional power under 5: o Pure Remedial o Remedial Plus o Substantive View Ct applies the remedial plus view which allows Congress to prohibit activities that are not unconstitutional, but which may lead to violation of what the ct has deemed is unconstitutional. Congress can create a buffer zone around what the ct sees as unconstitutional to prevent constitutional violation. o This buffer zone must be proportionate and congruent to what the ct has determined is unconstitutional. Commerce Clause 1. 2. 3.

Gibbons v. Ogden (Early Republic Era)

State inspection laws

This gives Congress the power to regulate instrumentalities of interstate commerce as well as transportation of items for sale where they cross state lines. Conflict b/t congressional action and state action Is congressional action constitutional? IF it is, state law is invalid under supremacy clause. If congressional law is unconstitutional? State law is given full effect. Marshall, opinion of ct: o Whether navigation included in commerce? Yes. Commerce- includes navigation b/c everybody knows that transporting for purposes of buying and selling is commerce. Channel of interstate commerce is included in commerce. o Whether it is interstate commerce? (between two states) Can move within interior of states, but must have more than one state involved. Moving back and forth b/t two states (navigable waterway) People use for purposes of transporting. State inspection laws: o Marshall says: Congress can inspect b/c it is included in interstate commerce. Preinspection left to states without congressional interference. Question to be raised exactly when does flow of commerce start.

A.L.A. Schecter Poultry v. U.S. (Industrial Period)

post-flow sale of chickens=intrastate so not within Congresss commerce power to regulate If commerce clause reaches all enterprises having an indirect effect on IC, federal authority would reach all activities. Has to be in the flow or stream of interstate commerce. Considered a formalist approach Direct Effect v. Indirect Effect (the nature not the magnitude of the effect) Direct: if within commerce power (actual buying and selling, channels, instruments of ISC

Carter v. Carter Coal (Industrial Period)

regulating hours/wages of miners; this relates to production, not commerce, so not within commerce clause to regulate; pre-flow The acts occur before the beginning of the transportation of commerce; they are production. Question whether this is direct or indirect. Labor regulations found unconstitutional b/c they were not direct. Production of coal does not constitute interstate commerce because that would completely swamp federal police power. Congress would then have total power to regulate the economy and the States police power would be completely obliterated. (Indirect affect because its outside the scope of the fed government)

Wickard v. Filburn
Major economic change? New Test Justices pressing for formalism Justices for realism?

Wheat; aggregate effect on interstate commerce so ok to regulate; channels, flow and instrumentality not important anymore (Aggregation Principle) (National economy, new economic that wasnt around back then.) A local activity that may not be regarded as commerce can be regulated by Congress under the commerce clause if the activity, in the aggregate, exerts a substantial economic effect on IC, regardless of whether the effect is direct or indirect. Under Carter and Schechter, this would have been struck down b/c not commerce, but production- Formalist Approach but ct uses NEW TEST: Realist jurisprudence: ask whether there is a substantial effect on IC. Real world economic question. Realist Approach Aggregation principle if every farmer in America decided to grow his own wheat, would that effect the price in the national market? Yes. This is the Realist approach. Some commentators argue that this ushers in an age of no judicial enforcement against Congressional statutes that have even the remotest connection with interstate commerce. And, in fact, no such law was struck down until the contemporary age. o The test becomes RBR. Wickard arguably turns National Government power into police power rather than D&E power! This expands the power of the Federal Govt. Justices pressing for formalism to preserve state power. (preserve tradition)

Justices pressing for realism are interested in making sure national gov has all the power it needs to defeat economic depression. (broad to protect national economy; new economic reality)

The New Federalism (1995-until) Congress can regulate? Noneconomic activity

Congress can regulate: - Channels Instrumentalities; - Flow/ Stream of IC; and - Activity that substantially affects IC in the aggregate. o Activity is limited to economic activity in the new federalism o Non-Economic activity that cannot be regulated by Congress is: 1. Family Law 2. Crime 3. Education When analyzing any Commerce clause type of question, start analysis with Lopez using Wickard ruling on anything that has Substantial affect in the aggregate.

- U.S. v. Lopez (New Federalism)

o Congress has power to regulate

guns in school zone; non-economic v. economic activity; out of scope of commerce power; (jurisdictional hook) Just as the separation and independence of the coordinate branches of the Federal government serves to prevent the accumulation of excessive power in the one branch, a healthy balance of power between the States and the Federal Government will not reduce the risk of tyranny and abuse from either front. Congress has the power to regulate under the commerce clause: The channels of interstate commerce Congress can also regulate a person or thing in interstate commerce Regulate those activities having a substantial relation to interstate commerce The court has allowed a wide variety of things dealing with intrastate commerce that congress can regulate because they have substantial affect on interstate commerce, i.e.: Where economic activities substantially affect interstate commerce, legislation regulating the activity will be sustained.

U.S. v. Lopez (New Federalism)

Jurisdictional hook? If something is economic?

o o

SC struck down Congress Gun Free School Zone Act as being outside the commerce clause. Ct says there is a limit to Congress power. Congress later passed new law, which included requirement that gun had recently moved in interstate commerce. Added a jurisdictional hook. If you are in a channel into an interstate commerce(Selling drugs, channels)
Now economic activity is distinguished from non-economic activity. If something classifies as economic, you stick with Wickard. The determination on whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicial enforceable outliers, congressional legislation under the Commerce Clause always will engender legal uncertainty. Congress has operated within the frame work the Supreme has determined to be acceptable. The Court has determined that it has the judiciary duty to say what the law is. Congress cannot be allowed to overstep the enumerated powers given to it by the Constitution. Congress cannot be given any more broad expansion of its power that has already been given.

o o o

U.S. v. Lopez (New Federalism) Non Economic

o o

Something is a non-economic activity, Congress will almost surely not be able to regulate it under the guise of the Commerce Clause. Basic qualification: Non-Economic Activity Here, gun possession is not an economic activity. Purely a crime. Focus on schools/ education. p.215 Gun Act is not an essential part of a larger regulation of economic activity.- Could make it part of comprehensive drug act.. (Should be a larger part of regulation of Return to Formalism with distinction between economic and non-economic activities. It is not a doubt that Congress has the authority under the commerce clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. The authority, though broad, does not include authority to regulate each and every aspect of American life that could possibly have a substantially effect on interstate.

U.S. v. Lopez (New Federalism) Majority Opinions

If the Federal Government was to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and the political responsibility would become illusory. Blurring the lines of political authority. In a democratic form of govt, the people need to know who to blame or praise at election time. We need to maintain clear line of congressional authority. (clear common sense lines know who to hold accountable) Traditional state concerns: crime, education, family law (risky for fed gov to get involved) Further policy of chief value of federalism: state experimentation Thomas wants to take it all the way back to the Industrial Era, and possibly PreIndustrial. Formalists had it right and never should have done Wickard. Big slice of federalism.

U.S. v. Lopez (New Federalism) Dissent Opinions

Dissents: Should use RBR. These dissenters are termed realists b/c they want Congress to be able to regulate all activities that really do affect IC. Congressional power needs to be broad enough to address problems of America. (national integration of economy has broadened) (Statute has no ulterior motives, the only goal is to curb the level of violence students face at school which could affect their ability to learn. Wickard does not distinguish between Economic/Non-Economic. It is also not clear whether the decision can be made with any type of clarity, will lead to uncertainty in litigation. Incoherent and random b/c no principle line ct can follow. Dissent: brings question motive Perez v. US case (loan shark) Fed-5 v. Realist-4: o Fed-5 say federalism is part of the Constitution and therefore has to be subject to judicial enforcement. o Real Dissenters feel federalism shouldnt be subjected to judicial review and is better enforced through the political process.

U.S. v. Morrison (New Federalism)


- VAWA not an economic activity Crime of gender violence is a noneconomic activity. Justice Rehnquist says we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nations history our cases have upheld Commerce Clause regulation of intrastate activity only where the activity is economic in nature. On Exam: No rule; 2 cases Congress loses.. probably will lose in future but fact that no rule has been adopted suggests Congress has chance of winning some cases Congress cannot provide a civil remedy for gender-motivated crimes of violence because this is not an economic activity. Congressional fact findings concerning violence against women affecting IC is not convincing (Ct. had criticized lack of fact-finding in Lopez). Dissent Majority result could lead to random and arbitrary results. Again see argument that federal balance has shifted; much more powerful national government than framers could have imagined. o Congress can merely re-word the statute. Random and Arbitrary Results. o If a woman was victimized 2 feet from an interstate the statute wouldnt apply, but if she was victimized on the interstate the statute would apply.; IRRATIONAL

Gonzalez v. Raich (New Federalism)

Is the controlled substances act as applied w/in the Commerce power of Congress? o Court rules 6-3 that Congress can regulate the medical use of marijuana (i.e., economic activity) (majority restraints justices/ text and history) Wickard revisited Stevens says it is controlling. Use of marijuana is an economic activity, b/c there is a market for marijuana. Dissent says states have rational basis (activists justices/ living constitutionalist) OConnor distinguishes Wickard.(No evidence home grown marijuana affec t the national market) Raich gives Congress potentially perverse incentives. Congress has a massive regulation rather than a narrow wording, in order to ensure that they have jurisdiction. Broader Regulatory Scheme (broad scheme is constitutional). Regulating national markets, rather than narrow things. There is tension between this ruling and the previous two. Lopez and Morrison dont really protect federalism, they just tell congress to be careful at how it drafts its statutes and put them within the categories of economic activity and interstate jurisdiction, or simply by providing broader regulatory schemes. On the other hand, even though it is constitutionally conceivable to pass a broader act it is harder for the Congress politically to pass a broader act.

Implied Limits on Congressional Power TRADITIONAL STATE FUNCTIONS 1. 2. National League of Cities v. Usery (Traditional state Function)

o o o

cant regulate states like wal-mart (TSF) In area of traditional state functions, there is an implied limit. Federalism thought: States are supposed to retain basic attributes of sovereignty. Thus, they should not be subject to regulation as if they were private employers in areas of traditional state function. In areas of TSF the 10th prohibits the national government from regulating states as if they were a private corporation. (Sovereign government cant regulate with the dignity state retained by federal structure) Can apply FLSA to states as if they were private employers. No distinction b/t State and WalMart. Once State is in economic activity/ business of hiring employees. 2 reasons for overruling Natl League: Test is unworkable Federalism should be left to political enforcement. Different than Lopez in that Lopez said federalism was to be left to the judicial process. Garcia has not been overruled yet. Even though it has been doctrinally eroded. Traditional State Functions: Currently something congress can limit, but it might not be again.

Garcia v. San Antonio Metro Transit Authority

Anti-commandeering principle Conditional spending?

TFT after ruling?

o -

overrules Usery; CAN regulate states like wal-mart; TSF unworkable Can apply FLSA to states as if they were private employers. No distinction b/t State and WalMart. Once State is in economic activity/ business of hiring employees. 2 reasons for overruling Natl League: Test is unworkable Federalism should be left to political enforcement. Different than Lopez in that Lopez said federalism was to be left to the judicial process. Garcia has not been overruled yet. Even though it has been doctrinally eroded. Traditional State Functions: Currently something congress can limit, but it might not be again. Anti-Commandering Principle o Congress may not order command a state government to enact an administrative or federal program, but Congress may coerce states: 1. Conditional Spending Congress can give money as subsidy in exchange for cooperation with a federal program.

Implied Limit on Congress COMMANDEERING 1. 2. 3.

South Dakota v. Dole

conditioned highway funds on raising drinking age to 21; conditional spending okay; 1) must be clear, 2) nexus, 3) not too coercive 1. Condition must be clear, and; 2. Some nexus/ relationship between the condition and the spending; 3. Conditional spending cant be too coercive (Potentially dicta) a. W/o this the state wouldnt have a real choice anymore. Federal Government can withhold money from the states or offer the States money to encourage States to do what Congress wants. Congress has the power to spend for the general welfare and generally courts will defer to Congress decision concerning what is for the general welfare. Article I, 8 As for back as Butler in 1936 this deference was allowed; this will not be reviewed by courts. 2. Conditional Preemption Federal law wins over state laws under the supremacy clause; therefore Congress can say pass this law or we will pass one for you and preempt you. Article VI-Clause 2-Supremacy Clause-The fed. laws are supreme.

New York v. United States

3 provisions? What is an example of commandeering?

radioactive waste disposal; no commandeering; blurs the lines of political accountability o 3 Provisions: (1) Monetary (CS); (2) Access (CP); (3) Take Title Take title provision that said if States hadnt met Congressional requirements (by a certain date) they would have to take title and become liable for the waste produced with their state. This last provision was unconstitutional commandeering; telling states to adopt law fitting w/ federal specifications. It was the functional equivalent of telling the state legislatures that they must pass laws to regulate the provision. Even if states are WILLING to cede their constitutional power doesnt mean they can. Telling states they can act b/t Policy A or Policy B, is commandeering. 10th Amendment. Constitution protects our own best interests, even it is formalist. Policy argument: Blurs accountability mirrored in Lopez and Printz. Also, there is a concern about federalism. If Congress tells States they have to legislate, no sovereignty left. Want a sharp line of accountability.

New York v. United States

Dissent Why NY is decided differently from Garcia? Whats law would considered commandering?

Dissent Appropriate analysis is Garcia, Court shouldnt be enforcing formalistic limits on Congress. This is TOO obedient to federalism. It should be left to the political process. Again, just as in Garcia, it will be too difficult to determine what should/should not be included in commandeering, just as in TSF. - Why is NY decided differently than Garcia? In Garcia, everyone else, private actors were being regulated. NY dictated to states alone. Garcia treated states like employers or businessesthat is all right. Inconsistencies between the two? Garcia says no to judicial enforcement of federalism (political enforcement is fine). NY says yes to judicial enforcement, even if it becomes formalistic - If Congress passes a minimum wage that applies to private employers and State employers would, this would be acceptable under the Commerce clause, and it wont be considered commandeering (Everyone has to increase income) - If Congress passes a law that is solely directed to all 50 states to raise minimum wage for their employees and the law doesnt affect private employers are not allowed. (Considered Commandeering)

Act? Why was it held unconstitutional? How congress could have made it constitutional?
Brady act for background checks on guns; cant commandeer state officials; would hinder separation of powers

o o

Gun Control Act that required state officials to do background checks was held unconstitutional because it commandeered state officials. Unconstitutional to commander a state legislature or official, no matter the state interest. (NOT balancing) The enforcement has to be voluntary, through conditional preemption/ spending. Federalism type argument. o State officials would have to pay the costs for the implementation, in addition to suffering the political heat; also blurs the lines of accountability. Commandeering state officials interrupts the separation of powers because Congress can bypass the federal executive branch by going straight to state officials. Historical point: Brady act is a new idea; he is a legal traditionalist. o Dissent: Articles of Confederation allowed for national government to require executives to enforce federal law, and our new Constitution was enacted to be more powerful. If were worrying about blurring the lines of accountability, the voters (political process) can figure out who to blame.

Printz v. United States

Summary Garcia, NY, & Printz:

o o

NY and Printz do not undermine holding of Garcia. Distinction b/t cases Fair Labor S. (min wages police) is a generally applicable law and is NOT commandeering. Garcia cases requiring state actors to make policies. Not traditionally enforcement of federalism, leave to political process. Post Garcia cases that reject underpinning and have judicially enforced federalism

Why no commandeering rule applies to State Judiciary?

1. Text: VI Supremacy Clause (state judges shall enforced supreme law of land/ federal law) 2. History: 3. Precedent in Testa v. Katt 4. Structure: Judicial interpretation and no concern with judicial accountability. Note: Legislative branch is policy making branch that is politically accountable. Executive . Judicial branch is not policy making, therefore not inherently democratically accountable. Never were to apply commandeering line to judicial branch.

Civil Rights Protection under the Commerce Clause

Concerned with Two Laws: Can congress use 5, 14th Am. Against private individuals? If they cant what and how can they regulate private actors?

A. 1. Interstate Commerce Clause o Congress can regulate private actors. (use jurisdictional component) B. 2. 5, 14th Am. Congress cant regulate private actors b/c the 14 th Am only applies to States, therefore to prohibit racial discrimination in private business use Wickard under the Commerce Clause. (Only if private actors are involve in business) Private State Aggregation of Sovereign Imm. IC Y Y N 5, 14th Am N Y Y

Civil Rights Protection under Commerce Clause

Title II of CRA prohibit discrimination by private parties and state actors in public accommodations; burden on IC by discouraging interstate travel; RBR; per Garcia ok to treat states like private actors

Congress through Interstate Commerce Clause CAN regulate private actors. o JUSTIFICATION: Impact on movement of persons in interstate commerce, particular effect on African Americans traveling, impeding persons in flow of IC, hotel is instrument of IC (real world impact discrimination has on flow
of IC), ECONOMIC activity under Wickard and Lopez (Congress passed RBR for economic activities, in the aggregate, substantially affect IC) Moral motive: Racism is a problem. Eradicate the evil of American racism. Does NOT take this out of commerce analysis. W/in scope under Wickard. Analysis for a state-owned hotel that was engaged in racial discrimination: Under the Garcia principle, its permissible to treat states the same way as private actors are treated.

Hearts of Atlanta Motel v. U.S.

Title II of CRA restaurants cant refuse service to blacks; (same as Hearts)

Discrimination in restaurants falls under Wickard as modified by Lopez (economic activities. Even under narrower view of commerce clause, this is still justified b/c near interstate, bus stations, train stations. Serving a significant number of patrons from interstate commerce.

Katzenbach v. McClung

- 5 of the 14th Amendment says

Section 1? Section 5?

5 of the 14th Amendment says: A. Section 1: The Due Process Clause and the Equal Protection Clause and the Privileges and Immunities Clause. And, through the process of incorporation, most of the provisions of the Bill of Rights. B. Section 5 Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Congress has a delegated and enumerated power to enforce by appropriate legislation the DPC, the EPC, the incorporated Bill of Rights, and the P&IC. Purpose of Section 5 is to enforce Section 1. Three different broad views of the scope of 5: Separation of Powers Thought: Cts v. Congress Federalism Thought: States v. Congress 1. 2. 3.

1. Pure Remedial View

Congress may prohibit via statute anything the Supreme Court thinks is unconstitutional. To enforce 1, Congress must enforce the meanings of 1 that the Supreme Court deems appropriate. Narrowest view, which that gives Congress almost no authority. All Congress can do is pass redundant legislation and authorize lawsuits Scalia is here. Congress cannot go outside the S.C.s box. View most favorable to federalism. This would line up the Marbury v. Madison view.

Remedial Plus View

Congress is given remedial powers (i.e. power to prohibit by statute activities the SC finds unconstitutional) plus the power to prevent and deter constitutional violation by creating a proportionate buffer zone of behavior that the Supreme Court doesnt think is unconstitutional, but prohibiting such behavior will help protect the limits included in the true zone of unconstitutionality. o As the buffer zone gets larger, it becomes more like the substantive view, but as it decreases in size, it becomes more like the remedial view. o The other justices are all in this range somewhere, w/ 4 taking a broad view, and 2 take a narrow view; we dont know where the 2 new guys are. o Congress can draw a box around the S.C. view, but only to a certain extent.

Substantive View

Congress gets to interpret 1 for themselves, meaning they can decide what rights are included. Congress can basically draw its own box. Broadest interpretation which gives Congress co-equal authority along with Courts to determine what is constitutional / unconstitutional under 14th. View that it is worst for federalism; b/c gives Congress a good deal of power over states. This view undermines judicial supremacy.

Section 5 of 14th Amendment 1. 2.

Katzenbach v. Morgan

NY literacy test conflict with Congressional act; Congressional act ok bc end is legit and means not prohibited by and consistent with letter and spirit of Const.; may be remedial plus; 5 to enforce 1; Dissent: too activist of Court to allow Congress to do this (not within power); NYs test has no discriminatory purpose or effect so Congress cant preempt it In Lassiter (1959), it was decided that literacy tests as a voting requisite is constitutional. Congress then used their 5 powers and passed the Voting Rights Act, which made literacy tests illegal as a pre-requisite to vote if the citizen (i.e. voter) had completed 6 th grade in Puerto Rico (meaning a person who had completed 6 th grade in accredited Puerto Rico school could not be denied the right to vote because of lack of English). The court upholds the law, despite previously acknowledging that literacy tests were constitutional. There is no test laid out. Analysis says 5 gives Congress an affirmative grant of authority. Nowlin says probably not RBR but is very deferential. Ct. may be using Remedial Plus view b/ c Congress has engaged in fact -finding to determine a constitutional violation that Court missed. Some interpreted as the Substantive view. Emphatic rejection of Pure Remedial. Given Lassiter as a precedent, Congress may have decided that it was invidious.

o Congress smoking out discrimination that is not otherwise apparent. Prophylactic, b/c it is meant to prevent discrimination; if they can vote, their electoral voice will be heard.

Justice Harlan relied on the separation of powers doctrine to argue that allowing Congress to interpret the Fourteenth Amendment undercut the power of the judiciary. Justice Harlan objected to Congress having the power to interpret the Fourteenth Amendment substantively (that is, to create new rights). Harlan argued that the appropriate use of Section 5 power was the enforcement of judicially recognized Fourteenth Amendment rights

RFRA unconstl; remedial plus SS not congruent to RBR and no pattern of violations; not congruent and proportional

14th Am 1-SDP-Incorporation-Free Exercise Clause Provisions of B.O.R. (through 1 of 14th Amendment) include freedom of religion; Congress has power to enforce the rights of 14th Amendment. Congress has a Remedial Plus power. Congress can sweep more broadly that what SC has said is unconstitutional, but what is made illegal by statute must be proportionate and congruent to what the court thinks is unconstitutional. Boerne Background: Sherbert (1963) If a statute results in substantial infringement of the free exercise of religion (which is protected under DPC incorporation), then that law is unconstitutional as applied to those persons unless it passes SS balancing test (which involves CSI-NT v. Burden on Religion). (Still law under the Federal System)

City of Boerne v. Flores

Employment Div, Dept of Human Resources of Ore v. Smith overturned Sherbert and said that if the government infringes a religious right, a notargeting test applies. RBR
1. 2.

Unless the religion was specifically targeted, then the law is not unconstitutional. Conservatives and liberals were both pissed by this ruling; C want to protect religion and liberals want to protect minority rights.


This is much less protective of religion and very controversial, so Congress passed the Religious Freedom Restoration Act (RFRA) to essentially make a statutory form out of Sherbert. Made SS the test. Said they could do it under 5.

The Court overturns RFRA as being outside of the scope of 5.

SS is not congruent and proportional to RBR; Congress made a level jump. Congress does not have any substantive authority to change 1 . Congress must follow SC interpretation; therefore SC accepts a Remedial Plus Theory . A. 3 Part Process 1. Scope of 1 2. Pattern of Violations 3. C & P- Congressional Remedies Giving Congress a substantive right would violate separation of powers because Congress could step on SCs powers. o Marbury v. Madison disallows this thought. o Counter: Congress wrote the language b/c they were concerned about S.C.s anti-Reconstruction bias. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V. o Counter: The very purpose of the 14th Amendment was to alter the federal balance.

Remedial Plus Power *Proportionality and Congruence Test*:

Congress can sweep more broadly than what SC holds as unconstitutional, but that buffer zone must be proportionate and congruent to what the court thinks is unconstitutional. 1. Congruence the Supreme Courts interpretation has to be central to the new law. We want a roughly symmetric buffer zone. 2. Proportionality the buffer zone cant be much bigger than the actual core violation. This buffer zone / sweeping power allows Congress to: o Deter or prevent constitutional violations under 1; and o Create complex remedies.

Sovereign Immunity

Citizen v. State $ damages w/o the state consent; Rights or immunities of an non-consenting state not to be the in a suit in either state or federal court where the is a private citizen for money damages (and may include other damages like injunction). o Cannot sue a state for injunction, but you can name a public official in their private capacity for an injunction. o Can SUE: US (sue on behalf of citizen) v. State Citizen v. State or State Official (declaratory relief: declare rights; injunctive relief: stop violation or do what supposed to; money damages: as long as suing individual and not state, need qualified fault level) States NOT local govt.

Art I IC- no abrogation clause

Sovereign immunity is part of original constitutional plan Commerce Power is in Article 1 which was an original part of Constitution. Interpret to harmonize and not contradict. Bc sov immunity and commerce power both part of original constitutional plan, interpreted to be consisted therefore no abrogation!

Not part of original constitution 14th am does not have to be read to be consistent with federalism Made to give new powers and five new limits on states o Abrogation is one of the new powers and limits!

Policy in favor Sovereign Immunity

o o

Strongest argument for sovereign immunity is to protect the state treasury. Enforcement of rights- states take steps to avoid lawsuits, avoid violating rights and getting sued. 5 congress enforcing constitutional rights of 1.

Sovereign Immunity 1. 2. 3. Board of Trustees v. Garrett

nurse w/ cancer; sued under Title 1; bc sovereign immunity not abrogated, cant sue for violation; not congruent and proportional; could sue a private actor under this title but not govt Americans w/ Disabilities Act grants disabled persons right to reasonable accommodation. This is an employment regulation; they are regulating both states and private actors. That is w/in the commerce power. BUT, Congress cannot abrogate sovereign immunity to enforce this right, unless they are working under 5. The reasonable accommodation is not at issue, but the SI is. Ct. says exceeds the power of 5, and it cannot stand only on the grounds of abrogating SI. Ct asks whether there is a clear statement of abrogation: Yes.

5 Analysis:

o o

Scope of 1 right that Congress is attempting to enforce? In this case, is EP clause. Disability discrimination is RBR. What is the pattern of discrimination, or violation, that Congress is trying to remedy? There was not a pattern of state discrimination, but private parties. It would also have to be a pattern of unconstitutional state discrimination. Is the statute Congress has passed proportionate and congruent given the 1 right and the violation? Since the states have done almost no unconstitutional discrimination, there is no pattern of discrimination, and well beyond what the constitution requires. Basically changing the scope of the right from Cleburne, widely expanding it. Ct. also notes that the act is good, but those discriminated against will still have a remedy.

Nevada Dept. of Human Resources v. Hibbs

12 work weeks unpaid vacay constl; ok to abrogate state sovereign immunity here; protects right to be free from gender-based discrimination in workplace; congruent and proportional; IS Required employers to give employees 12 weeks of leave for family emergencies (including pregnancy). Again, Congress can use their commerce power to establish this right, but cannot use commerce power to abrogate SI. So, have to be under 5 of 14th Amendment. There is clear abrogation: Scope of 1: o EP clause: Reinforces gender stereotypes. Employer is given incentive to hire men instead of women. Patterns of violation: o Lots of states that grant maternity leave and not for paternity leave. Proportional & Congruent

o Congress had a narrow remedy and a broad remedy: But had they taken the narrow (making them be gender neutral in granting leave), the states would likely have granted little or no leave. Ag, this would have been harmful to women.

Nevada Dept. of Human Resources v. Hibbs Dissent

Dissent: Pattern of violations is guilt by association; lots of this violation was in private sector, not by states. Most of the discrimination was only paternity/maternity leave, whereas the statute allowed leave for all types of family illness. EP clause does not require 12 weeks of family med. leave, so no sense by which Congress is enforcing Constitution. Heightened level of scrutiny. The higher the level of scrutiny the more deference to the proportional/congruence test is, the more leeway Congress has to prohibit unconstitutional behavior. For example: In age discrimination, Congress not going to get much deference.

Tennessee v. Lane

couldnt get to court bc not wheelchair accessible; some level of heightened scrutiny; clear abrogation; constl Disabled victim had to go to court, but he couldnt get to the court room because it wasnt wheelchair accessible. Congress passed the ADA which requires court houses to be handicap accessible. Again, clear abrogation. Access to courts receives some level of heightened review, regardless of disability. The scope of 1 obv extends to access to courts. The need for a pattern is lessened under heightened scrutiny. Again, P & C is less impt. RULE: o If were at RBR, Congress buffer zone must be very small. o At heightened scrutiny, the proportionality analysis is more deferential.