CON LAW OUTLINE

MODES OF ARGUMENTS:

Historical Argument: Based on Original Understanding of the

Constitution (What was the context in which the provision was
written?)
Textual Argument: Based on present sense of the words of the
constitution (Scalia)
Doctrinal Argument: Based on principles derived from precedent or
judicial/academic commentary. Usually limit Courts role to most
narrow issue presented by the parties
Prudential Argument: Based on political and economic circumstances
surrounding the decision. Usually given when refusing to decide a case,
and say that it should be given to a political branch to decide, etc.
Structural Argument: Claims that a particular principle is implicit n the
structures of government [relationship between government and
citizens)
Ethical Argument: Relies for its force on a characterization of American
social institution. Limited role of government
I. Judicial Review
Marbury v. Madison: It is the Supreme Court, not Congress, which
has the authority and duty to declare a congressional statute
unconstitutional if the Court thinks it violates the Constitution [Judicial
Review]
o Supreme Court has original jurisdiction only in cases affecting
ambassadors, other public ministers and consuls, and those in
which a state shall be party
o IF THE SUPREME COURT IDENTIFIES A CONFLICT BETWEEN A
CONSTITUTIONAL PROVISION AND A CONGRESSIONAL STATUTE,
the COURT HAS THE AUTHORITY TO DECLARE THE STATUTE
UNCONSTITUTAL AND REFUSE TO ENFORCE IT.
Critics argue that nowhere in the Constitution does it state
that courts, not Congress, ought to decide whether a given
statute conflicts. However, that is kind of what Marbury
says and does.
Supreme Courts Review of State Decisions:
o Martin v. Hunters Lessee: Whether the Supreme Court is
constitutionally authorized to review the constitutionality of state
court decisions
 Court can review the constitutionality of states highest
court
This falls under Appellate Jurisidction
o Can review a state court decision if it was based on FEDERAL
LAW.
Exceptions:
SC cannot review the case if there is an independent
and adequate state ground for the state courts
decision
o Article III and Appellate Jurisdiction
Congress may place certain limits on both Supreme Courts
Appellate Jurisdiction and on the jurisdiction of the lower
federal courts
Appellate Jurisdiction as both to Law and Fact,
with such Exceptions, and under such Regulations
that Congress shall make
Ex Parte McCardle: Court upheld Congress restriction
of Courts jurisdiction. (Congress passed a law
repealing the portion of the 1867 act which allowed
appeals to the Supreme Court)
Congress does not, however, have unlimited power to
tamper with SC appellates jurisdiction
US v. Klein: Sued in Court of Claims under fed statue.
Won before appeal in SC, congress passeda new
stautute that pretty much showed the opposite. Said
stautute provided that COC and SC had no
jurisdiction to decide pardons.
UNCONSTITUTIONAL: violated separation of powers.
Not a valid and bona fide denial of appellate
jurisdiction in a whole class of cases; instead, it was
merely a means to an end.
Standard set by Klein: Any jurisdictional limit must be
neutral, that is, Congress may not decide the merits
of a case under the guise of limiting jurisdiction
Justicability: In order for a case to be heard by federal courts,
the plaintiff must overcome a serie sof procedural obstacles
that we collectively call the requirements of Jusictiability
o 1. Advisory Opinions: Cannot give Advisory Opinion
What is an advisory opinion?: In the situation where the
Supreme Court of the State has decided a determination
that, even if the state statute being attacked was invalid
under the Constitution, the party attacking it would lose
anyway, a supreme court decision would have NO EFFFECT
 on the ultimate outcome of the state and therefore the
Court s opinion would be an advisory opinion.
Shorter Explanation: opinions which give advice
about particular legislative
Federal Courts may not decide questions that are
hypothetical, abstract, or contingent
A case must be in actual dispute between litigants to
satisfy the cases and controversies requirement of Article
III.
o 2. Standing
Determination of whether a particular person is the proper
party to present a particular issue before a federal court for
determination
Standing Requirement is found in Article 3, Section 2
Need to have: Injury, Causation, and Redressability
o 1. Injury-in-Fact: Needs to show that P has
suffered an injury-in-fact (he himself has been
injured in some way)
Injury must be DISTINCT and PALABLE,
not abstract, conjectural, or hypothetical
Injury must be CONCRETE AND
INDIVIDUATED
Must be actual or imminent
Clapper v. Amenesty International:
NSA surveillance case involving
lawyers who felt that they could
not obtain sensitive information
from those abroad now
o 2. Redressability: Relief likely to follow from a
fair decision which is not too speculative
Redressable by a favorable ruling
o 3. Action challenged must be c-i-f of injury
(Causation)
Fairly traceable to the challenged action
and not too attenuated (Clapper)
Challenged action was the but for cause
of the injury
Must not be so attenuated that the
conduct not fairly traceable to the injury
(Allen)
Allen v. Wright: group of parents of black children,
private schools, and the IRS: IRS authorized tax
exemeptions that would make private schools tax
 exempt even though they discriminate on basis of
race
o Do not have standing
o Articulated the requirements of standing
Prudential Standing Requirement
Prohibition on THIRD PARTY STANDING and GENERAL
GRIEVANCES and SPECULATIVE FUTURE HARM
o Third party standing
Generally, a litigant may not assert the
constitutional rights of persons not
before the court.
There are some exceptions (look at
what they are)
o General Grievances
Prevents citizens from suing only if their
injury is as a citizen or taxpayer
concerned with having the government
follow the law
General grievance means the plaintiff
does not claim an injury to a personal
right but rather object to an illegal action
as a taxpayer or a citizen
When shared by substantially equal
measure by all or a large class of
citizens
Interest of all citizens in having
their government operate
constitutionally and according to
statute will not be allowed
o Example in Allen v. Wright:
Members of a minority group
will not from that
membership alone derive
standing to litigate against
governmental conduct which
denigrates from that minority
group. Parties interest in
avoiding stigmatizing injury
was insufficient needed to
have been personally denied
equal treatment
However, a municipal tax payer can bring
a suit in federal court
 Violations of a personal right such as the
1st amendment is not a general grievance
o Speculative Future Harm
Trying to avoid future harm
NEED TO SHOW that the threatened
harm is reasonably likely to occur in the
near future, not merely speculative
Clapper: Trying to prevent harm
they FEAR will be inflicted by the
government
Lujan: someday intentions to go to
see endangered species abroad
without any description of concrete
plans do not support a finding of
actual or imminent injury
o 3. Ripeness
Not yet ripe if it has not sufficiently become concrete to be
worthy of adjudication
o 4. Mootness
A case is not justiciable if its moot. A case is moot if it
raised a justiciable controversy at the time the complaint
was filed, but events occurring after the filing have
deprived the litigant of an ongoing stake in the controversy.
Exceptions:
o Capable of Repetition yet Evading Review
o Voluntary, but not necessarily permanent,
changed conduct by the defendant
o Collateral Consequences to the defendants
action, which, when considered, prevent
mootness
If adverse to the plaintiff, not moot
Example: Criminal defendant
already served his sentence, but
attack on constitutionality of his
conviction will not be deemed moot
because of the ongoing
consequences of his conviction
(loss of voting rights, etc.)
o 5. Political Question
Subject matter that the court has deemed inappropriate for
judicial review and left to the politically accountable
branches to resolve
 Usually involves cases meshing two separate principles:
separation-of-powers principals, and prudential concerns
Baker v. Carr
Holding: Constitutionality of legislative appointment
schemes is not a political question
o Factors:
1. A textually demonstrable
constitutional commitment of the issue to
a coordinate political department
(Commitment to another branch, i.e.
Congress or to the President)
Any issue the determination of
which is clearly committed by the
Constitution to another branch of
government (i.e. impeachment)
2. A lack of judicially discoverable and
manageable standards for resolving the
issue (Lack of standards)
Example: Guarantee of republican
form of government
War Power Disputes
3. The impossibility of deciding the issue
without an initial policy determination of
a kind clearly for non-judicial discretion
(Unsuitable Policy Determination)
4. The impossibility of a courts
undertaking independent resolution
without expressing lack of the respect
due co-ordinate branches of government
(Lack of respect for other branches)
5. An unusual need for unquestioning
adherence to a political decision already
made (Political Decision already made)
6. The potential for embarrassment from
multifarious pronouncements by various
departments on one question (Multiple
Pronouncements)
Need for a unified voice especially
in foreign affairs
When does it come into play?
Policy and Military Affairs (Factor 6)
o Goldwater v. Carter
 Court refused to decide whether the
President can terminate a treaty with
Taiwan without Congressional approval.
Impeachment [Factor 1)
o Nixon v. United States
A federal judge whom the house had
impeached and senate convicted
challenged the procedures used by the
senate. Senate delegated to a committee
of senators the job of holding hearings,
and Nixon said that this was
unconstitutional because the entire
senate had to ehar it
This was non-justicable because it
presented a political question due to the
Senate Impeachment Clause giving the
senate sole power to try all
impeachments
Senate decides what a trial is
Congress Self-governance
Some Electoral Process ?
Article V Process
o Guidelines for the constitutional convention
o 6. Eleventh Amendment and Suits against States
One state cant be sued in federal court by a citizen of a
different state, or by a foreigner
Bars suits by citizens against their own state
BUT can sue against state officials
Also, the federal government can sue a state
Seminole Tribe of Florida v. Florida:
Major case that significantly hampers Congress
ability to give private citizens the ability to sue states
for violations of federal law
Congress passed statute to govern aspects of
gambling operations run by Indian tribes. State has
to negotiate in good faith with any tribe located in
state to try agreeing before permitting tribe to
conduct comparable gambling operations. Tribe could
sue in federal court for an order directing good faith.
Holding: Even when the constitution vests in
congress complete law-making authority over a
particular area, the Eleventh Amendment restricts
 the judicial power under Article III, and Article 1
cannot be used to circumvent the constitutional
limitations placed upon federal jurisdiction SO
basically, even though Article 1 gives Congress full
authority to regulate commerce with Indian tribes,
Congress cant allow a tribe to sue a state in federal
court.

II. Federal Legislative Power, Article I and

the Tenth Amendment (McCulloch v.
Maryland)
Tenth Amendment
Powers not delegated to the United States by Constitution
are reserved to the States
Congress powers are limited to those in the Constitution
State power= Default
Police power to regulate health, safety, morals,
welfare, etc.
When you see a federal law, ask
1. Does it fall within the scope of congress constitutional
powers? [Article 1, Section 8)
Lay and Collect Taxes
Provide for the defense of the country
Borrow money on the credit of the united states
Regulate commerce with foreign nations and among
the several states
Regulate immigration and bankruptcy
Establish post offices
Control the issuance of patents and copyrights
Declare war
Make all laws which shall be necessary and proper
for carrying into execution the foregoing powers.
(Necessary and Proper Clause)
o Section 9 forbids legislation on certain topics
2. If yes, does it then violate another part of the
Constitution?
McCulloch v. Maryland
 Although the federal government may act only where it is
affirmatively authorized to do so by the constitution, the
authorization does not have to be explicit. Therefore, the
doctrine of implied powers allows the federal government
to exercise power that is anciallary to one of the powers
explicitly listed in the Constitution (as long as ths power
does not conflict with specific Constitutional prohibtions)
Pretty much stated in the N+P clause
McCulloch= first case to make an important interpretation
of the N+P clause. Congress chartered a bank in Maryland.
Maryland imposed a tax on all banks that were not
chartered by the state. State then brought suit against the
Bank to collect the tax. The Tax was held to be
unconstitutional
Powers came from the PEOPLE, not the states
Particular power can be implied from another explicit
power
Congress has expansive power
Federal sovereignty is supreme within its sphere
incompatible state law is invalid
o Principle of Federal Supremacy sets limits on
state interference with federal power
Rejected the contention that NECESSARY meant
absolutely necessary or indispensable. Said: Let the
end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate,
which are plainly adapted to tha tend, which are not
prohibited, and which are consistent with the letter
and spirit of the constitution, are constitutional
o Thus AS LONG AS THE MEANS IS RATIONALLY
RELATED TO A CONSTITUIONALLY SPECIFIED
OBJECT, the means is also constitutional
o Necessary and proper clause is NOT an
independent grant of authority. Rather, it
provides congress with the means to exercise
other enumerated powers.
Court will usually show great deference to congress
and will usually not inquire into legislators motives
III. Commerce Power
Commerce Clause: Article I, Section 8
o Congress has the power to regulate Commerce with
foreign nations, and among the several states, and the
Indian Tribes
o Basic Rule: Congress can regulate any activity which
substantially affects interstate commerce (Darby),
including aggregate effects of local acts (Wickard).
Three Broad Categories (as set forth in Lopez):
1. Congress may regulate the use of channels
of interstate commerce (Darby, Heart of
Atlanta Motel)
o Reasonably related to highways,
waterways, and air traffic
2. Congress is empowered to regulate and
protect the instrumentalities of interstate
commerce, or persons or things in interstate
commerce, or persons or things in interstate
commerce, even though the threat may come
only from intrastate activities
o People, machines, and other things used
in carrying out commerce
3. Power to regulate those activities having a
substantial relation to interstate commerce
o Computerized information was article
moving
o E.g. Fit within the Larger Regulatory
Theme
o Effects must be significant
o Jurisdictional Hook: Congress drafts statute in way that
requires a jurisdictional hook between particular activity
and commerce, still likely found to be within commerce
power
Elements:
*If not inherently economic, focus on:
o Connection to a larger regulatory scheme
+ aggregation
o Jursidictional Element
o Congressional Findings
o Truly national or truly local: Constitution
requires a distinction between what is
truly national and what is truly local
The regulation and punishment of
intrastate violence that is not directed at
the instrumentalities, channels, or goods
 involved in interstate commerce has
alwys been the provinces of the States
Take Aways:
Distinction between economic and non-
economic activities
Willingness to scrutinize congressional findings
that are based on unworkable methodology
of piling inference upon inference
Truly national or truly local: Constitution
requires a distinction between what is truly
national and what is truly local The regulation
and punishment of intrastate violence that is
not directed at the instrumentalities, channels,
or goods involved in interstate commerce has
alwys been the provinces of the States
Gibbons v. Ogeden
o Marshall opinion: Ogden acquired grant from NY legislature
given monopoly rights to operate steamboats between
New York and New Jersey. Gibbons began operating the
same, which was in violation of the monopoly. Gibbons
boats were licensed under federal statute.
o Holding: Monopoly conflicted with the federal statute, and
thus violated the Supremacy Clause
o Sets stage for broad, national power
Congress could legislate with respect to ALL
commerce which concerns more state than one
CONGRESS HAS THE POWER TO regulate
interstate commerce that affected matters
occurring within a state so long as the activity
had some commercial connection with another
state.
COMPLETELY INTERNAL COMMERCE of a STATE
may be considered as reserved for the state
itself
Commerce doesnt include only buying and selling,
but all commercial intercourse
Lochners Era: Effort by the court to start limiting congress
power
o Congressional regulation was found to fall within the
Commerce power so longa as the activities being regulated
had a substantial economic effect upon interstate
commerce
 Post New-Deal Era: Court began to show a vastly greater
deference to Congress use of its Commerce Power. Court will
uphold laws based on Commerce Power if the Court is convinced
that what is being regulated is economic activity, and that the
activity substantially affects interstate commerce.
o NLRB Jones & Laughlin Steel Corp: Constitutionality of
NLRA- NLRB tried to prevent J+L from engaging in unfair
labor practices
NLRA lay within the commerce power as J+L owns
mines two other states other than Pennsylvania and
operates steamships other places, etc. and 75% of its
product is sent out to Pennsylvania
Had, therefore, a SUBSTANTIAL EFFECT ON
INTERSTATE COMMERCE (US v. Lopez- it is indeed
required)
o Wickard v. Filburn: Set out cumulative effect theory out
(Munger I dont think calls it this)
Cum Effect Theory: Congress may regulate not only
acts which taken alone would have a substantial
effect on interstate commerce, but also an entire
class of acts
Facts: Owned a small farm in Ohio- challenged
governments right to set a quota on the wheat
which he raised and consumed on his own farm- said
this was completely local and beyond scope of Fed
Gov
Holding: Upheld act because Consumption had a
market effect and ALTHOUGH HE WAS JUST ONE GUY,
TAKEN TOGETHER, WITH THAT OF MANY OTHERS
SIMILARLY SITUATED, IS FAR FROM TRIVIAL
Gonzales v. Raich says of Wickard: WIckard
establishes that Congress can regulate purely
intrastate activity that is not itself commercial, in
that it is not produced for sale, if it concludes tha
tfailure to regulate that class of activity would
undercut the interstate market in that commodity
o U.S. v. Darby: upheld FLSA which set minimum wages for
employees.
Commerce power extends to intrastate activities that
affect interstate commerce
Congressional motive is irrelevant
Sets out that the TENTH AMENDMENT IS BUT A
TRUISM
 Tenth Amendmet will no longer act as an
indepdent limitation on congressional authority
over interstate commerce
Congress is free to impose whatever conditions
it wishes upon the privilege of engaging in an
activity that substantially affects interstate
commerce, so long as conditions affect no
independent constitutional prohibition
o All together, WRAP UP
1. Does acitivty have a substantial effect on
interstate commerce?
2. Does the aggregate effect of the local activity
have a substantial effect?
3. The 10th Amendment protects whatever is not
within Congressional Power= A truism
4. Congress motives are unimportant
5. Substantial effects are judged hypothetically-
Whether Congress could have reasonably concluded
there is
Civil Rights Cases Dealing with Commerce
o Title II of the 1964 Civil Rights Act bans dsciscrimination in
places of public accomodations.
o Heart of Atlanta Motel v. United States:
Plaintiff was in a motel located in Atlanta which
refused to rent rooms to African Americans
Motel was near two interstate highways and
derived 75% of its occupancy from out-of-state
guests, etc.
Holding: Motel could be constitutionally reached
under the Commerce Clause. Racial discrimination
discouraged travel. Therefore could be regulated by
Congress in the aggregate. ALSO HELD that the
power of congress to promote interstate commerce
also includes the power to regulate and local incident
thereof, including local activities in both the States
which may have a substantial and harmful effect
upon that Commerce
o Katzenbach v. McClung:
Ollies BBQ 46%of food purchased by restaurant
during previous year had been bought from a
supplier who brought it from out of state
Upheld Act as applied to restaurants returned to
the Wickard rationale
 Limitations to the Commerce Power:
o 1. Substantial Effects is required:
US v. Lopez: Congress, for example, cant prhobit
possession of guns near schools, because the effect
on Commerce of such possession is not substantial
enough
To uphold the Governments contention here,
we would have to pile inference upon inference
in a manner that would bid fair to convert
congressional authority under the Comemerce
Clause to a General Police Power of the sort
retained by the States
This statute had little connetion to commerce
and there no findings given
US v. Lopez makes Commercial/non-
commercial activity distiniction
Non-Economic activities may be regulated
based on other factors, such as:
o Connection to larger regulatory scheme
o Jursidictional Element
o Congressional Findings
Another Example of Non-Economic
activities is Congress not allowing
women who are victims of gender-
motivated violent crimes to bring
federal civil-court suits, because
gender-motivated crime against
women is essentially a non-
economic activity (US v. Morrison)
o 2. Forced Entry into the Market
Cannot use commerce power to compel somebody
who is not already active in the market to enter that
market by purchasing a product
Example: N.F.I.B. v. Sebelius- health insurance
case
o Clear that Congress can regulate
EXISTING instrastate activities. But
cannot require individuals to buy that
product.
o CANNOT COMPEL inviiduals to become
active in commerce by purchasing a
product
o Cannnot require to pay a penalty either
 Gonzales v. Raich
o Relied on Wickard forbid consumption of home-grown
medical marijuana. Says that WIckard establishes that
Congress can regulate purely intrastate activity that is not
itself commercial, in that it is not produced for sale, if it
concludes tha tfailure to regulate that class of activity
would undercut the interstate market in that commodity
SUMMARY:
o When a consumer wants to make or grown his own
product, and the product has a somewhat commercial
nature, Congress can regulate or prohibit his actibities,
even if the consumer is ating in an entirely intrastate
manner, due to the cumulative effect that it could have.
BUT
o Where congress wants to regulate an activity that is
essentially not a commercial activity, Congress can quicky
go beyond its Commerce Power, and into the realm of
attempting an unconstitutional exceerise of power to
regulate for the general welfare. So no.
o AND where congress wants to take an individual who is not
currently participating n the particular marketplace at all,
cannot force them.
IV. Taxing and Spending Powers
South Dakota v. Dole: Conditional Spending Limitations
1. Must be in pursuit of general welfare
2. If Congress desires to condition the states receipts of
federal funds, it must do so unambigiously, enabling states
to exercise their choices
3. Conditions on Federal grants might be illegitimate if they
are unrelated to the federal interest in particular projects
or programs
4. Other constitutional provisions may provide an
indepdent bar to conditional grant of federal funds
If financial inducememnt was so coercive as to pass the point at
which pressure turns into compulsion, the inducement would
undermine state soveringty
V.Legislative Power and Tenth & Eleventh
Amendments [Continuation of Federal
Commerce Power] (Reno v. Condon)
Tenth Amendment: (Limits some powers to reserve to the states)
 o Garcia v. San Antonio Metro Transit Authority: whether
minimum wage and overtime provisions of the federal fair
labor standards act hould apply to employees of
municipally-owned and operated mass transit systems
o Was this a traditional government function?
Must depend on politics of political branches and not
left up to courts to intrude
Restore 10th Amendment to truism state
State soverign interests are protected by procedural
safeguards inherent in the structure of the federal
system, not by judicially created limitations on
federal power
o Seems to mean that once Congress, acting pursuant to its
Commerce Powers, regulates the states, the fact that it is a
state being regulated has no practical significance.
However, after Garcia (which has a broad scope) Printz and NY v.
US both place limits to the extent to which Congress can force
state or local governments to make or enforce laws.
o New York v. United States: Congress may not force a state
to enact a certain statute or to regulate in a certain
manner
Radioactive waste policy- take title incentive where
state would be required to take title to the waste
CONGRESS MAY NOT COMANDEER THE LEG.
PROCESSES OF STATES BY DIRECTLY COMPELLING
THEM TO ENACT AND ENFORCE A FEDERAL
REGULATORY PROGRAM
Alternatives: Could have sent funds to them
with conditions on it, could directly regulate the
conduct in question, etc.
o Printz v. United States: Congress may not compel a state or
local governments executive branch to perform functions,
even if the compulsion is temporary.
Brady Bill ordered local law enforcement officials to
conduct a background check on prospective
purchasers (this was a temporary 5 year bill)
It is an essential attribute of the States retained
sovereignty that they remain independent and
autonomous within their proper sphere of authority
o TOGETHER, cases stand for the proposition that Congress
may not 1) Force a state to legislate or regulate in a certain
way and 2) require state executive ranch personnel to
perform even ministerial functions
 o HOW IS THIS DIFFERENT FROM GARCIA?
Garcia seems to apply to generally applicable federal
lawmaking
G holds that when Congress passes a generally
applicable law, the Tenth Amendment does not
entitle a states own operations to an
exemption, merely because it is a state that is
being regulated along with all the other
PRIVATE entities
But where the federal government tries to
force a state or local government to enact
legislation or regulation, or tires to force state
or local officals to perform particular
governmental functions, that is not part of the
generaly-applicable federal scheme
o Congress MAY single out the states for regulation when the
states are acting as market participants (Reno v. Condon)
Eleventh Amendment
o States are immune from being sued for money damages by
private citizens in federal court
Commerce Power cannot serve as a basis for a
congressional abogration of the Eleventh
Amendment
CAN USE CIVIL WAR AMENDMENT POWERS
Can ban discrimination and abograte the
states eleventh amendment immunity
VI. Congressional Powers Under Post-Civil
War Amendments
Post-Civil War Amendments: 13th, 14th, 15th
o US v. Morrison: can only regulate state ACTORS
Overview of the 14th Remedial Power Test [14 Section 5]]: [Can
Congress Use Fourteenth Amendment Powers to enfore a statute]
o 1. Is there state action?
o 2. Is there a 14th Amendment right which congress can protect?
o 3. Has congress identified a history and pattern of state
violations of the right?
o 4. Is the statutory remedy congruent and proportional to the
pattern of violations? [judicial scrutinty of congressional findings]
Treatment of ifnidings at step 2 +3 Inverse in relationship
between level of courts protection for particular rights and
courts scrutiny of congressional findings
 More Scrutinty:
o If rights merit low level protection (states only
need a rational basis to regulate), then
Congressional findings are subject to a
heightened scrutinty
Less Scruitinty
o IF rights merit heightened protections,
congressional findings only require a rational
basis and therefore are afforded more leeway
City of Boernes v. Flores:
o CONCLUSION: Has to find a history and pattern of violations,
which was missing in this case
Remedy must be congruent and proportional
o Congress has been given the power to ENFORCE, not the POWER
TO DETERMINE, what constitutes a constitutional violation
o If objector can show a substantaial burden on his free excercise,
the state must demonstrate a compelling government interest
and show that it has adopted the least restrictive means
o Sets forth a new test for when Congress has gone beyond its
fourteenth amendment remedial owers: must be congruence and
proportionality between the injury to be prevented or remedied
and the means adopted to that end
Congress has power to allow private plaintiffs to sue the
state only if congress properly found widespread
unconstitutional state conduct in the area in question and
Even if congress properly found such wide spread
unconstitutional conduct by the state, congress must
choose narrowly-tailored methods for Combatting the state
conduct
Shelby County v. Holder:
o Found that Congress had relied on 40 year old data to get pre-
clearance for voting-related changes
o Congress exceeded the scope of Fifteenth Amendmetn
enforcement powers
o This list included only a few states
o Same formula as 1975
o Particular formula was unconstitutional because it did NOT
REFLECT CURRENT conditions
Shelby County means that unless and until Congress is
able to agree on a new coverage formula for all, no
jurisdiction can be subject to it.
Congress Power to Abrograte the Eleventh Amendment, and Thus
Authorize Private Damage Suits Against the States for Discrimination
o Sometimes, Congress attempts to give private inviduals the right
to bring private actions fo rmoney damages against a state or
local government that commits the discrimination
USUALLY because of 11th Amendment, Congress will have
overstepped boundary in doing so
11th Amendment: States are immune from beign
sued for money damages by private citizens in
federal court
IF Congress wants to subject the states to private money
damages for violating federal anti-discrim laws, it must do
it under the 14th Amendment Remedial Powers
Still must be the congruent and proportionality
talking about before: between constitutuional injury
that congress is trying to prevent or redress, and the
means that Congress has chosen
o Board of Trustees v. Garrett:
Congress exceeded its Fourteenth Amendment Remedial
Powers in this Case
Congress did not have the power to bar the states from
dsiriminating against employees with disabilities, as it tried
to do in Title I.
Lack of Adequate Proof: Disabled people were not a
suspet class, so the onl discrimination that would
have been a violation was it there was irrational
discrimation, i.e. a pattern of irrational state
discrimination in employment against the disabled
Lack of Congruence and Proportionality: Remedy
chosen by Congress lacked the C+P
Significance: Eleventh Amendment means that a
state, when it acts as an employer, is not liable for
money damages if it discriminates against a disabled
employee or applicant in a way that would violate
the ADA.
o Nevada Department of Human Resources v. Gibbs:
Sought leave under the FMLA to care for his wife
Exhausted his time under FMLA, and said that he had to go
State employees may recover money damages in federal court in
the event of the State's failure to comply with the FMLA's family-
care provision. The Court reasoned that Congress both clearly
stated its intention to abrogate the States' Eleventh Amendment
immunity from suit in federal court under the FMLA and acted
within its authority under section 5 of the Fourteenth Amendment
by enacting prophylactic, rather than substantively redefining,
legislation. "In sum, the States' record of unconstitutional
 participation in, and fostering of, gender-based discrimination in the
administration of leave benefits is weighty enough to justify the
enactment of prophylactic [section] 5 legislation

VII. Executive Power: Inherent Powers

(Cheney v. US District Court)
Supreme Court has adhered to one over-arching limitation on
presidential power: The President may not make laws, he may
only carry them out.
Youngstown Sheet & Tube Co. v. Sawyer: President Truman
tried to avert a strike in nations steel mills. Issued
executive order directing SOC to seize mills and operate
them under federal discretion
Court struck down seizure order, concluding it was an
unconstitutional exercise of lawmaking authority
Concurrence by Justice Jackson
Emphasized the fact that Congress had explicitly
rejected plant seizure as a means of handling labor
disputes
Presidents Powers are not fixed but fluctuate,
depdening on the disjunction or conjunction with
those of congress
o 1. Where the president acts pursuant to an
express or implied authorization of Congress in
which case his authority is at its maximum
(THATS OKAY)
o 2. Where the president acts in the absence of
either a congressional grant or denial of
authority in which case there is a zone of
twilight in which he and Congress may have
concurrent authority, or in which its distrubition
is uncertain
o 3. Where the president acts in contradiction to
the express or implied will of Congress; in this
case, its power is at its lowest ebb.
United States v. Nixon:
Executive privilege
Court recognized a constitutionally-based doctrine of
executive privilege, but held that the privilege was only a
qualified one
Holding: The privilege of executive privilege did not apply
It is the duty of the judicial branch to say what the
law is
 Privilege for confidentiality of Presidential
Communications, but he privilege is only qualified
o At least where the claim of privilege was, a
general one, and not related to a particular
need to protect military, diplomatic, or
sensitive national security secrets, privilege
was merely a qualified one
o It was OUTWEIGHED by the need to develop all
relevant facts in a criminal trial

VIII. Limits on Increasing Executive Power

President has the power under Article 1, Section 7, to veto any bill passed by
congress.

Several Major Exceptions:

o Can the President Constitutionally be given a line-item veto?
Ability to veto a particular part of a bill rather than the entire bill.
Clinton v. NY:
Line item veto as implemented by Congress violated the
Presentment Clause of the Constitution
o Return of the bill occurred after the bill had been
signed into law
o The cancellation could apply to only PART of the bill
o Net effect: Created a different law
o To what extent does the legislative veto violate the Presidents veto
power?
Device which enables Congress to monitor actions by the
executive branch
IF an agency takes a certain action and Congress disagrees, the
veto provision in the original bill allows once or both houses to
cancel that administrative action by means of Resolution and
that resolution is not presented to the President
INS v. Chadha: One-house legislative veto is unconstitutional
Struck down the legislative video because it violated the
presentment clause and that it constituted the exercise of
legislative power, which needs bicameral approval.
Significance: Makes one-house legislative veto completely
unusable.

IX. Foreign Policy (Zivitovsky v. Kerry)

The Constitution gives the President Substantially greater authority
with respect to foreign affairs then to domestic ones
 o US v. Curtiss-Wright Export Corp: joint resolution of Congress
authorized the President to ban the sale of arms to countries
engaged in a particular conflict. CW argued that it was an
unconstitutionally broad delegation of legislative power to the
president
Supreme Court upheld the resolution stressed the very
delicate, plenary, and exclusive power of the President as
the sole organ of the Federal government in the field of
international relations
Need for negotiation plus special access to sources of
information which required a degree of discretion and
freedom from statutory restriction (extreme view)
Congress may sometimes be found to have impliedly acquiesced in the
Presidents exercise of power in a certain area. Where the
acquiescence exists, this fact may be enough to tip the balance in
favor of a finding that the President acted within the scope of his
constitutional authority.
o Dames & Moore v. Regan: Upheld Carters power to take certain
actions fo rhte purpose of obtaining the release of American
Hostages from Iran
Suspencion was within the Presidentals constitutional
authority. While congress had never explicitly authorized to
the President the power to suspend such claims, it had
implicitly authorized that Practice by a long history of
acquiescing in a similar president a conduct
Stressed limited scope of its holding.
Where such settlement or suspension is NECESSARY
TO THE RESOLUTION OF A MAJOR FOREIGN POLICY
DISPUTE ANDDDDDDD Congress has acquiesced in
that tpe of presdiental action, the action will be
deemed within the Presdients constitutional
authority
Zivitovsky v. Kerry:
o Not a political question
Framework for dealing with Article 2 justice Jackson
Article II, Sec. 2
Rationale: Need to present a clear and unified face to the world
dictates that the President bear a special role in implementing the
nations foreign policy
TAKE AWAYS:
o Executive agreements with congressional approval are OK
o Use Jackons tri-part test
o Readiness to infer congressional approval
 Long-standing practice = important
X. War Powers, Presidential Power and War on Terrorism, Preemption (Article
VI, Arizona v. Untied States)

What process is due to the detention fo enemy combatants during

war?
o Hamdi v. Rumsfeld:
American citizien captured in Afghanistan army labeled
him as an enemy combatant
By calling him an enemy combatant, administration argued
that they could hold him in confinement indefinitely
without formal charges or proceedings
Plurality: US did not have the power to do that
Right to due process with respect to purusing his
claim that he was not an enemy combatant
Balance governments interest in national security
with Hamdis interest in not being deprived of liberty
without due process
o Minimum procedural protections that he was
entitled to:
Notice of the factual basis for his
classification
Fair opportunity to rebut the
governments factual assertions before a
netural decisionmaker
Access to counsel
o HOWEVER:
Hearsay may need to be accepted as
reliable available evidence from the
Government
COnsitution would not be offended by
presumption in favor of the governments
evidence as long as it remained a
rebuttable one
Procedures would not be due at the
moment a citizen was initially captured
Would only be due when the
government decided to continue to
hold them
Possibility that this could be heard by a
military tribunal
Preemption:
o Article IV: Supremacy Clause
 Pre-emption cases Federal and State Law
Subject matter= the same
IF there is a conflict between state law and federal law, the
resolution is clear: the state law is simply invalid
Express v. Implied
o Express: federal law specifically/expressly says
tha tit preempts state or local law.
o Implied: Congress does not expressly state that
it intends to preempt state or local law, but
manifests an intent to do so
Field and Conflicts Pre-Emption
Field: Occurs where the scheme of
federal regulations is so pervasive as to
make reasonable the inference that
Congress left no room for the states to
supplement it
Congress has occupied the field
Conflict: Applies when: 1) Compliance
with both federal and state government
is impossible an 2) where state law
stands as an obstacle to the execution of
the full purposes and objectives of
Congress
Impossibility of compliance
Obstacle to achieving a federal
legislative goal
Federal government has an intent
and even though the state law
does not conflict, leads down that
path
o Always a question of Congressional Intent:
Intent must be unmistakable
Is the subject matter traditionally left to
the states?
Traditionally left to the federal
government?
Is the existing federal regulatory scheme
broad? Does it cover most of the subject
area?
o Arizona v. United States (look at)
Failure to comply with Federal regulation requirement =
state misdemeanor
 Section 5= unauthorized alien seeking or engaging in
work= state misdemeanor
Take aways:
Tests to determine whether a state law is pre-empted
Focus on congressional intent

XI. Dormant Commerce Clause

What is the Dormant Commerce Clause?
o Limitation on State Power
o Does the mere fact that Constitution gives Congress the
power to regulate IS commerce prevent a state from taking
a particular action which affects interstate commerce?
o Some areas that are covered are usually:
Regulation of transportation
Regulation of incming rade
Regulation of outgoing trade
Attempts to compel out-of-staters to perform
business activities within the state
Regulation of the environment
Have to ask:
o Does the law discriminate against out-of-state interests?
IS it facially discriminatory?- State statute expressly
treats in-and-out-of-state commerce differently
Is it facially netural?
IF so, is it discriminatory in purpose and effect?
o When a state law is discriminatory, the
state has a high burden of justifying and
it is usually invalid
IF the law has a non-discrimnatory purpose and
effect, does it burden interstate commerce?
o The court balances the burden vs. the
local benefit
o IS there a less burdensome alternative?
Pike Balancing Test
PBT= usually more leinant
Where the statute regulates even-
handedly to effectutate a
legitimate local public interest, and
its effects on interstate commerce
are only incidental, it will be upheld
unless the burden imposed on such
commerce is clearly excessive in
 relation to the putative local
benefits
Can be overcome by clear
showing that the national
interest in uniformity or in
free commerce outweighs the
benefit
Less-restritive alternative: What are
some objectives that are less
burdensome?
Philadelphia v. New Jersey
o NJ statute prohibiting the importing of most solid or liquid
waste into the state
o Several New Jersey operators and out-of-state users of the
landfill sites sued to have the statute invalidated on the
ground that it discriminated against inter-state commerce
Struck down the statute as violative of the
Commerce clause
Protectionist v. Non-protectionist move
This was a protectionist measure
o It imposes on out-of-state commercial
interests the full burden of conserving
the States remaining landfill space
Non-protectionist purpose: Minnesota v. Clover-Leaf Creamery
o Although Phialdelphia was per-se invalid, this is not true for
acts which merely burden (without discriminating against)
interstate commerce
o Minn. V. C-L Creamery: SC sustaineid a state law which
banned non-returnable milk containers made out o f plastic
Sustained the staute even though the plastic used for
milk cartons was made solely by Non-Minnesota
firms
Statute was NOT simple protectionist legislation
Intentional Discrimination: Hunt v. Washington Apples
o Court is much more likely to strike down a statute whose
clear purpose is to favor local economic interests by
discriminating against out-of-state interests
o NC required that all closed contianers of apples shipped
into or sold witin the state bear the applicable us grade or
no grade at all (you know this case, just think)
Tried to justify it both in terms of local benefits
flowing from the statute and unavaialblitly
 o Holding: NC statute UNCONSTITUIONALLY BURDENED
interstate commerce. Discriminated against Washington
growers. NC scheme was apparently intentionally
discriminatory.
Facially neutral statutes
o Even though even-handed on its face, may still turn out to
be disproportionately burdensome to some or all out-of-
state business
o Exxon v. Maryland: MD passed a law prohibiting oil
producers or refiners from operating gas stations in
Maryland. Since no gas is produced or refined in Maryland,
the rule affected out-of-state companies exclusively.
o Court upheld the statute
Did not discriminate against interstate commerce
Not all out-of-state companies were affected by the
statute
Mere fact that the entire burden of the stuate fell on
SOME out-of-state companies was insufficient to
establish that interstate commerce was
discriminated against
Court held that the CC protects the interstate
market, not particular interstate firms, from
prohibitive or burdensome regulation.
West Lynn Creamery v. Healy
o Commissioner of Massachusetts Department of Food and
Agriculture issued a pricing order. The order required all dealers
who sold milk to Massachusetts retailers to make a monthly
premium payment to be distributed among in-state dairy farmers.
Two Massachusetts milk dealers --West Lynn Creamery and
LeComte's Dairy -- sell dairy products in Massachusetts. West Lynn
Creamery relies on out-of-state producers; LeComte purchases all of
its milk from West Lynn. The dealers filed an action
o Holding: violated the Commerce Clause because it discriminated
against interstate commerce. The majority found that while the
pricing order taxed all dealers, the benefit of the tax was reserved
exclusively for in-state dairy farmers and outweighed the tax they
were required to pay.
Transportation:
o The Supreme Court will usually uphold a transportation regulation if
SAFETY interests are paramount
o However, when it comes to regulationst aht seem to be motivated
by discriminatory or protectionist impulses, then they are usually
quick to strike down
o Kassel v. Consolidated Freightways Corp
Iowa statute prohibiting 65-foot long trucks struck down
 Was there a clear discriminatory purpose?
Intent to discriminate against interstate commerce?
Exceptions to the Dormant Commerce Clause:
o State as a Purchaser or Subizider
When the state acts as a market participant, spending
money to run a proprietary enterprise, or to subsizidize a
private business, THE DORMANT COMMERCE CLAUSE WILL
NOT BE APPLIED, and the state may favor local citizens over
out-of-state interests
Example: state-owned cement plant favors in-state
customers in time of shortage (Reeves v. Stake)
The market participant exception is pretty narrow and
applies onlyw here state and local government, acting as a
market participant, chooses to deal with in-staters rather
than out-of-staters in direct transactions
Government-owned entity may prefer in-state buyers when
government sells, may prefer in-state sellers when
government buys, etc.
o However The market-participant exception does NOT permit the
state to REGULATE in a way that discriminates against out-of-
staters, even if the state is also acting as a market participant
South-Central Timber v. Commissioner: Alaska sells timber
from state-owned lands at below market prices. State
requires each buyer to promise that it will process the timber
inside Alaska before the timber is exported. Non-Alaska firm
with no Alaska processing facilities attacks it.
Holding: M-E does not apply here
o 1. Exception will apply only where the effects
of the states terms are LIMITED to the
particular market in which the state is
participating, not to a broader one
Here, state was trying to engage in
downstream regulation of the timber-
processing maret (i.e. trying to affect
the conduct of parites with whom the
state isn ot dealing directly)
Market participant exception does not
apply to immunize that downstream
regulation from DCC attack
Other exception: COnress explicitly allows it

XII. Privileges and Immunities Clause

Article IV: Privileges and Immunities Clause
o There are two different P+I clauses one is in the Fourteenth
Amendment Section 1
 14th is for national
4 is for state citizenship
o The Citizens of each state shall be entitled to all the Privileges
and Immunities of Citizens of the Several States
Only fundamental rights are covered (fundamental to
national unity
All related to commerce
Examples: right to be employed, right to practice
ones profession, and right to engage in business
Test
Will win if either of the following is shown:
o 1. Discrimination will violate P+I unless non-
residents are a peculiar source of the evil which
the law was enacted to remedy
o 2. Non-residents to do not bear a substantial
relationship between the discrimination against
out-of-staters does not bera a substantial
relationship to the problem the statute is
attempting to solve
o McBurney v. Young: Mark McBurney is a citizen of Rohde Island and a
former resident of Virginia where his son lives. When McBurney's wife
defaulted on child support obligations, he asked the Virginia Division of
Child Support Enforcement (VDCSE) to file a petition for child support on
his behalf. After a nine-month delay, the petition was filed and granted. He
then filed a Virginia Freedom of Information Act (VFOIA) request with the
VDCSE for all records pertaining to his son and ex-wife. The VDCSE denied
the request, arguing that the information was confidential and McBurney
was not a citizen of the state. While McBurney eventually obtained most of
needed the information through other sources, he never got all of the
information from his VFOIA request.
Holding: Virginias Freedom of Information Act, which grants Virginia
citizens access to all public records, but grants no such right to non-
Virginians, does not violate the Privileges and Immunities Clause,
which protects only those privileges and immunities that are
fundamental. The Act also does not violate the dormant
Commerce Clause: it neither prohibits access to an interstate
market nor imposes burdensome regulation on that market; and in
any event, a state does not violate the Clause when, having created
a market through a state program, it limits benefits generated by
[that] state program to those who fund the state treasury and
whom the State was created to serve.
FUNDAMENTAL RIGHTS ONLY

XIII. 13th, 14th, 15th Amendments, Incorporation

 Supreme Court ruled that Americans of African descent,
whether free or slave, were not American Citizens and could
not sue in Federal Court
Congress lacked power to ban slavery in US territories
Slaves were categorized as property
o Barron v. Baltimore
Bill of Rights were not directly binding on state governments
If the framers had intended them to be limitations, they would
have expressed that intention
th
o 14 Amendment: Privileges and Immunities OF CITIZENS OF THE
UNITED STATES
No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States
Slaughterhouse Cases:
o Louisiana passed a law giving a monopoly on New
Orleans-area slaughterhouse
o Most serious argument was that the statute was a
denial of the privileges or immunities of Louisana
citizenship
o Fundamental civil rights were the domain of the
states, not the federal government. Laintiffs
should look to Louisiana law for protection
Several rights of national citizenship rights
o free access to seaports federal protection blah
blah blah
o RIGHT TO TRAVEL was added in Saenz v. Roe
[welfare benefits]

IXX. State Action Doctrine

o State Action Doctrine:
In virtually every litigation in which an individual argues his
constitutional rights have been violated, the court can grant
relief only if it finds that there has been state action i.e. some
sort of participation by a governmental entity sufficient to
make the particular constitutional provision applicable.
o Civil Rights Cases
Early interpretation of state-action
Facts: Involved civil rights act of 1875 congress prohibited
all persons from denying, on the basis of race, any individuals
equal access to inns, public transportation, tehaters and other
place sof public accommodation
Statute was clearly applkicable to private conduct
 Did congress have the power to enact such a statute?
Holdings:
(That still pertain today): In the absence of
congressional legislation, the courts will not find
conduct that is exclusively private to be violative of the
Fourteenth Amendment guarantees
The Court held that the grant to Congress in section 5 of
the Fourteenth Amendment of the power to enforce
these guarantees did not authorize Congress to regulate
solely private conduct. The only law-making power
given to Congress under Section 5 was the ability to
pass laws to prevent the states, by their own action,
from interfering with these rights (PROB NOT LONGER
GOOD LAW)
Statute could not be justified as an excise of the
thirteenth amendment refusing to allow blacks to use
public accomodations was not a badge of slavery now
overruled
o Modern Approach to State Action
Court began to broaden the concept of state action, with the
result that various acts that were carried out by private
persons, not state officials, were nonetheless attributed to the
state
This happens when the private conduct is so closely linked to
official conduct that it should be considered state actions
Two theories to explain this:
1. Private actor is fulfilling a public function
o When a private invidiual is entrusted by the state
with the performance of functions that are
governmental in nature, eh becomes an agent of
the state and his actions constitute state actions.
It is usually insisted that the function be one that
is normally exclusively reserved to the states.
o Example: Company towns and shopping centers
o Issue- whether the owner of the property had the
right to use state trespass laws to keep out people
who wanted to speak or distribute literature on
the property
When it was held to be a public function,
First Amendment Rights become Applicable,
barring the use of state trespass laws
Example: Marsh v. Alabama
 Jehovahs Witness charged with criminal
trespass for distributing religious literature
in a town WHOLLY OWNED by Gulf
Shipubilding Corp
SC held that the operation of the town was a
public function
Town was not limited to only housing.
IF they were limited to housing, like private
residential communities, that is different
Constitutional rights of owners of property
are balanced against the right of the people
to enjoy freedom of the press and religion
Distinguish Lloyd v. Tanner: Justice Powell's
majority opinion distinguished this case from
Marsh v. Alabama, in which the court held that a
company town could not exclude a Jehovah's
Witness from distributing religious literature on
a privately owned sidewalk. Balancing Marsh's
First Amendment rights against the owner's
property rights, the court in that case held that
Marsh's rights occupied a "preferred position"
and weighed heavier than the owner's rights.
Here, on the other hand, the Court concluded
that the respondents could have distributed
their handbills on "any public street, on any
public sidewalk, in any public park, or in any
public building." Therefore, respondents were
not entitled to exercise their free-speech rights
on the privately owned shopping-center
property.
o Also a requirement of state exclusivity
The function needs to be one which has
traditionally been exclusively the function of
the government.
Jackson v. Metropolitan Edison Co: Operation
of a privately-owned utility licensed and
regulated by the states was held Not to be
performance of a public function
State law did not OBLIGATE the state to
furnish power
o Involvement or entanglement by state
State is SO heavily involved in or entangled
with private action that, even though the
state does not benefit from or encourage
 the private conduct, the court will
nonetheless attribute to the state the
private conduct.
Example: Licensing by State (When state
licenses a private entity to perform a
particular function, often claimed that the
act of licensing is sufficient state
involvement. SC HAS REJECTED THIS
THOUGH)
Example: Moose Lodge No. 107 v. Irvis:
privat eclub refused service to the black
guest of a member. Guest contended that
since the state had given the club oen of a
limited number of loiquor licenses, the act of
licensing was sufficient. SC disagreed,
holding that the mere fact that a state
grants a license to an entity does not
trasnfrom the latters conduct into state
action, even where the number of licenses is
limited.
Was the state SIGNIFICANTLY involved with
invidious discrimination?
o State Funding: The fact that a private entity
receives substantial state funding WILL NOT by
itself convert its activities into state action
Ex: Rendell-Baker v. Kohn: Court held that a
private school, whose income came
primarily from public funding, was not
commiting state action when it fired
employees

2. Those in which the various connections between the

state and private actor are sufficiently great that the
state can be said to be involved in, or even have
encouraged, the private activity which is being
complained of.
o IF the government is significantly involved in the
private actors conduct or encourages that
conduct, or benefits from it, the private partys act
will be deemd state action and subjected to
constitutional review.
o Ex: if they command that conduct
 o Shelley v. Kramer: Enforceability of racially
restrictive covenants. Most homeowners in the
area had entered into a covenant that their
property would not be owned by anyone but
Caucasians for 50 years.
o Could state courts award the white plainitffs the
reliefs that they sought?
o Jdicial enforcement of the restrictive covenant
would consetitute state action and therefore
violate the Fourteenth Amendment.
o There were willing sellers and buyers, so only
states coercive judicial machinery would cause
the discrimination to occur.
- Entanglement Exception
- Only action by state is courts involvement
every wrong then, if brought to court,
would be a state action
STATE ACTION TAKE AWAYS:
Constitution does not apply to action by private actors
May not use Section 5 power to regulate private actors
Exceptions:
o Private function
o Entanglement
Racial Discrimination increase the likelihood of finding
state action

XX. Economic Liberties- The Lochner Era

o Substantive v. Procedural Due Process
Substantive Due Process: Government must have a
justification for interfering with a fundamental right or liberty
guaranteed by the Due Process Clause
Procedural Due Process: Government must follow procedures
before depriving you of your lie, liberty, or property
Usually, notice and opportunity to be heard to contest
facts
o Substantive Due Process Analysis:
1. What is the right at issue?
2. How has the right been infringed?
3. Is the state interest legitimate?
4. Are the means sufficiently related to the state interest?
o Economic Liberties and Substantial Due Process
 Lochner Era- Uses due process to overturn economic
legislation
After Lochner Era: Rejects this. Post limited to 14th for
economic liberty
Lochner v. New York: struck down as an abridgment of liberty
of contract, and therefore a violation of due process, a new
York law which limited the hours a bakery employee could
work to ten per day and 60 per week.
Wrong in treating freedom of contract as a fundamental
interest
MODERN APPROACH:
Is this a fair, reasonable, appropriate exercise of police
power of the state, or unreasonable, unnecessary, and
arbitrary interference with the right of invidiual to his
personal liberty? [check on this]
West Coast Hotel Co. v. Parrish: Court upheld a state
minimum wage law for women
o Substantial weight to the states interest in
redressing womens inferior bargaining power
o Readjustment of economic bargaining power in
order toe nable workers to obtain a living wage
was a legitimate limitation on that freedom of
contract
o PRESERVED the requirement of a real and
substantial relation between the economic
regulation and a legitimate state objective
(more modern): US v. Carolene Products: Court made it
clear that a PRESUMPTION OF CONSTITUTIONALITY
would be applied in the case of an economic regulation
subjected to due process attack. Court sustained
against a due process attack a federal prohibition on the
interstate shipment of filled milk
o Existence of facts supporting the legislative
judgment is to be presumed, for regulatory
legislation affecting ordinary commercial
transactions is not to be pronounced
unconstitutional unless it is such a character as
to preclude the assumption that it rests upon
some rational basis within the knowledge na
dexperience of the legislators. Minimum
rationality standard coupled with presumption of
constitutionalty
 o FOOTNOTE FOUR: The "rational basis test" mandates
that legislation (whether enacted by Congress or state
legislatures) which deals with economic regulation
must be rationally related to a legitimate state
interest.
o Therefore, Footnote Four outlines a higher level of
judicial scrutiny for legislation that met certain
conditions:
o 1. On its face violates a provision of the
Constitution (facial challenge). [Legsilation that is
expressly prohibited by congress]
o 2. to distort or rig the political process. [Restricts
political process]
o 3. Discriminates against minorities, particularly
those who lack sufficient numbers or power to
seek redress through the political process.

MORE MODERN: Williamson v. Lee Optical: Court upheld

Oklahoma statute which prevented opticians from fitting
eyeglass lenses into frames witout prescriptions. Statute
was rational health measure because the legislature
might have concluded that in some instances,
prescriptions were necessary
SUMMARY:
o Court has withdrawn almost completely from the
business of reviewing state legislative economic
regulation for substantive due process violations.
1. Minimum Rationality Standard: Assuming
the objective being pursued in an economic
regulation falls within the states police
power (now extremely broadly defined to
include virtually any health, safety, or
general welfare goal), all that is required is
that there be a minimally rational relation
between the means chosen and the end
purused.
A regulation will be presumed to be
constitutional unless government has acted
in an arbitrary and capricious way.
o BUT WHERE A LAW IN THE ECONOMIC AREA
IMPINGES ON SOMETHING THAT THE COURT HAS
FOUND TO BE A FUNDAMENTAL RIGHT, a
substantialy higher level scruitinty is applied
XXI. Introduction to Equal Protection and Rational Basis Scrutiny (Intro to
Equal Protection (711-717), Rational Basis Test, Requirement for a
Reasonable Relationship (724-726), NYC Transit Authority v. Beazer)
o Equal Protection Question: Is the governments classification
justified by a sufficient purpose? [QUICK RUNDOWN]
1. What is the classification?:
Facial Clasifications: The law in its very terms draws a
distinction among people based on a particular
characteristic
Facialy neutral, but discriminatory impact
o Ex: law requiring all police people to be 511- this
discriminiates against women
o Demonstrating a race or gender classification
requires proof that there is a discriminatory
purpose behind the law
Then is it discriminatory in purpose?
Discriminatory in effect?
Discriminatory Impact is Insufficient to prove a racial or
gender classification
2. What is the Appropriate Level of Scrutinty?
Diffeing levels of scrutinty will be applied based on the
type of discrimination
o Race, National Origin, Religion, Alienage,
Classiciations that Burden a Fundamental RIght:
Strict
Law will be upheld if it is proved necessary
to achieve a compelling government
purpose
Government must have a truly significant
reason for discriminating, and it must show
that it cannot achieve its objective through
any less discriminatory alternative
Government: must show that it is necessary
to achieve a compelling purpose
Test for Strict Scrutinty:
1. What is the classification- is it a suspect
class?
2. Is this classification discriminatory?
3. IS there a compelling government
interest? (past discrimination? History?)
4. Is the law narrowly tailored? [Means? No
quota! Less Restrictive?
 o For Race, different kinds of classifciations:
Expressly Racial disadvantages (classifies
race on its face)
Disparate impact- not facial; law effects
disadvantaged racial group
Expressly Racial but Beneficial- classifies on
its face, operates to advantage of minorities
o Gender and non-marital children: Intermediate
Scruinty
Upheld if it is substantially related to an
important government purpose
Court need not find the governments
purpose compelling, but must characterize
it as important
Must have a substantial relationship to the
end being sought
o Rational Basis Test
Minimum level of scruinty that all
challenged laws under equal protection
must meet
A law will be upheld if it is rationally related
to a legitimate government purpose
Does not need to be compelling or
important
Means chosen only need be a rational way
to accomplish the end
Challenger has burden of proof
Applies to most social and economic
legislation
Court is willing to tolerate both under and
oerinclusive
No inqury into actual purpose
o What is relevant to deciding level of scruinty?
Immutable CHaracterisitcs
History of Discriminiation
3. Does the Government Action Meet the Level of
Scrutinty?
o Is the law underinclusive or overinclusive?
Underinclusive: does not apply to invidiuals
who are similar to those to whom the law
applies
 Overinclusive: Applies to those who need
not be included in order for the government
to achieve its purpose
VIRTUALLY ALL LAWS ARE EITHER
Skinner v. Oklahoma: Example of discriminating among
people in their ability to excecise a fundamental liberty:
right to procreate
o Marriage and Procreation= Fundamental Rights
NYC Transit v. Beazer:

XXII. Rational Basis Scrutinty Continued and

Classficatiosn Based on Race and National
Origin
o Sometimes, Rational Basis Review WILL declare laws
unconstitutional
o City of Cleberne: Court used rational basis
review to invalidate a zoning ordinance that
prevented the operation of a home for the
mentally disabled
o Us Department of Agriculture v. Moreno: Court
invalidated a federal law that prohibited a
household from receiving foodstamps if it
included invidiauls who were not related to one
another
o Romer v. Evans: Court found that a voter
initiative in Colorado that repealed laws
prohibiting discrimination based on sexual
orientation and that precluded the adoption of
new protections failed rational basis review
In this case, court said there was no
legimtiate purpose in singling out a
particular group and precluding it from
the political process (gays, lesbians, and
bisexuals voter initaiteve would repeal
all laws protecting them from
discrimination)
MANY ARGUE THAT THIS WAS THE
RATIONAL BASIS TEST WITH A BITE [COC,
US Dept, Rv.E]
More rigor and less deference to
the government
 Strict Scrutinty
The statute will only be upheld if it is ofund to be
necessary to the attainment of some compelling
governmental objective
o Before Grutter, the last case in which a racial
or ethical classification SURVIVED strict
scrutinty was Korematsu v. United States
Holding: There was a compelling need to
prevent espionage and sabotage, and
that there as no practical and sufficiently
rapid way for the military to distinguish
the loyal from the disloyal
If a classification utilizes race, but does not explicitly
disadvantage either blacks or whites, etc. Still prob
fails under SS
o Loving v. Virginia: State prohibits marriage
between a white and a non-white. State rebuts
equal protection attack. STATE VIOLATES equal
protection, and the fact that it has equal
application does not immunize it from strict
scrutinty
Only has a discriminatory purpose

XXIII. Discriminatory Effects; Classifications

Benefitting Racial Minorities
Separarate but Equal no longer da way to go
o Plessy v. Ferguson: Separate but equal treatment did not
violate equal protection
Did not see social equality as a goal of the EP clause
o Brown v. Board of Education:
Court expliclity rejects separate but equal doctrine:
Even if they were equal in tangible factors,
intangible factors prevented children who were
restricted to all-black schools from receiving equal
education opportunities
Did not rely on the legislative history of the
Fourteenth Amendment Itself
A classification will not be found to be suspect and therefore
subject to strict scruitnty unless the Court found that there was a
legislative intent to discriminate against the disfavored group
 o Mere fact that a law has less favorable impact on a
minority group that it has on the majority is not sufficient
to constitute a violation of equal protection
o Demonstration of disproportionate impact isa factor but by
itself it cannot suffice
Must need intention
Washington v. Davis
Explicit requirement that an intent to
discriminate be found before an equal
protection racial discrimination claim would be
upheld
Suit brought by unsuccessful black applications
for policemen. Failed a test at the rate of four
times that of whites.
SC HELD that racial discrimination is only
violative of the Equal Protection Clause when it
is a product of a discriminatory purpose
While a showing of a disproportionate racial
impact IS a factor in ascertaining intent, it can
never by itself prove discriminatory intent
This intention did not have to be the SOLE purpose of
the statute- just has to be a motivating factor
Arlington Heights v. Metropolitan Housing Corp
o If there were two purposes that
motivated the legislature to enact a
statute, and only one of these was
discriminatory against a suspect class,
the presence of the second, non-discrim
motivate, will not immunize the statute
from strict scrutiny.
o Plaintiff just needs to know it was a
substantial or motivating factor
then burden shifts to the defendant to
show that the statute would have been
passed anyway without the intent
Three ways to show purpose:
o Facially discriminatory
o Although neutral, administered in a discriminatory way
o Enacted with the purpose of discriminating
Methods of Proof?
o Clear pattern of administration
o History
o Departure from normal procedures
 o Departure from normal substantive factors
o Legal Admin history
Whatabout non-invidious racial classifications?
o Application:
1. What is the classification? Is it a suspect class? Is it
discriminatory?
2. Compelling gov. int (purpose)
3. Narrowly tailored means?
o Strict scruinty applies
Even if its helping, need to prove compelling
governmental interest, that the racial classification is
necessary to achieve that compelling interest
MUST be a remedy fixing some historic practice
o Richmond v. JA Croson Co.
The purpose of strict scruinty is to smoke out
illegitimate uses of race
When government institutes affirmative ation plan to
accomplish the objective of redressing past racial
discrim, you need to look at the proof and who it is
discriminating against
Not enough that African Americans are under
represented
Facts: Less than !% of the citys construction
contracts have been awarded to minority-owned
businesses. Requires 30% of dollar amount of all
city-funded construction projects must go to
minority-owned firms
There was no clear evidence of past racial
discrimination.
Most likely to be upheld if the PARTICULAR
GOVERNMENT ENTITY IN QUESTION was the one
discriminating against them
o Affirmative Action Cases;
Rules that came from these cases:
1. Public univ and colleges may explicitly
consider minority racial status as a factor that
increases the odds of admission, so as to
promote the compelling goal of education
diversity
2. These institutions may not award points for
minority status, or otherwise pursue
mechanical quota-like schemes, and must
intead evaluate each candidate as part of a
 holistic review that treats race as merely one
factor among others; and
3. Even when uses these methods, the method
may only be used if the institution carries the
burden of showing that no workable race
neutral alternatives would ahieve the
educational benfits of diversity as well or
almost as well ast he race conscious method
being used
Grutter v. Bollinger: race as one factor among
many approach
Gratz v. Bollinger: striking down as a violation of
equal protection Michigans undergraduate scheme,
by which members of favored racial and ethnic
groups got an automatic 20 out of the 100 points
they needed for admission
Fischer v. University of Texas: Holding that the
University of Texas race conscious but non-quota-
based system would be valid only if the University
showed that no workable race neutral methods were
reasonably available

XXIV. Gender Classifications (Craig v. Boren,

United States v. Virginia)
Intermediate Scrutinty: gender-based classifications
o Applies to class based on sex or illeg.
o Class must be substantially related to that interest
o Must be substantially related to important governmental
objectives
Was there a substantial relationship between the statute
and the discrimination which was to be remedied?
o Craig v. Boren: successful challenge to an Oklahoma Statute
which forbade the sale of 3.2% beer to males under 21 and
females under 18
The clasisifcations by gender must serve important
governmental objectives and must be substantially related
to achievement of those objectives
o United states v. Virginia: that case with the military school
Violated EP
XXV.Other Types of Discrimination and
Intorduction to Fundamental Rights
Substantive Due Process Analysis:
o 1. What is the right at issue?
o 2. How has the right been infringed?
Deepky rooted in nations history and tradition?
Definition of right is critical
If infringed- level of scrutinty is SS
If not infringed rational basis is the law a reasonable
way to serve a legitimate state interest
o 3. IS the state interest have a compelling purpose? [necessary to
serve a compelling state interest?
o 4. Is the means narrowly tailored and sufficiently related to the
injury?
FUNDAMENTAL RIGHTS
o 1. Right to Marry: The right to marry is seen by the Supreme
Court as being fundamental; substantial interereces with that
right will therefore not be sustained merely because they are
rational
Zablocki v. Redhail: plaintiff attacked Wisconison law which
required that any parent who was under court order to
support a minor child meet certain requirements before
being permitted to remarry
Not allowed it directly and substantially interfered
with that right
o If it did not SIGNIFICANTLY interfere with the
ability, a mere-rationality test would have been
used but here it did
Obergefell v. Hodges
Look at the children so that they could have status
It imposes stigma and injury
o 2. Right to raise Children
Stanley v. Illinois- father was declared unfit and the
children became wards of the state just because the
mother died.
Troxel v. Granville: Parent has a fundamental due process
interest in determining which people outside of the nuclear
family will have access to the child.
 When a parent is fit, a court deciding to grant
visitation rights must accord at least some weight to
the parents own determiniations.
o 3. Right of Natural Father
Michael H v. Gerald D: although an unwed fathers
biological link to his child does not, in and of itself,
guarantee him a constitutional stake in his relationship
with that child, such a link combined with a substantial
parent child relationship will do so,.

XXVI. Family Autonomy and Reproductive

Autonomy
4. Family Relationships/Autonomy: Individuals desires to live together, to
marry, or to raise their children in certain ways have come face to face with
other concerns. In recent cases, the Supreme Court has found that a
persons decision about how to conduct his family life often rises to the level
of a fundamental right.
o Moore v. East Cleveland: Court struck down a zoning
ordinance which allowed only members of a single family to
live together.
5. Right to Procreate: Skinner v. Oklahoma (EP Grounds, has DP in
there)
o Invaidated a Oklahoma statute- compulsory sterilization
o Marriage and Procreation are FUNDAMENTAL strict scruinty
6. Privacy Interst (sub due process-like analysis to protect
fundamental right)
o Griswold v. Connecticut: Contraceptive case
Wanted to protect privacy interst of married persons to
have contraceptives
Take Aways: Fam Autonomy
o Focus on family as defined by blood, adoption, or marriage (Moore,
elle Terre)
o Focus on parents right to control certain aspects of childs
upbringing (Meyer, Pierce, Troxel)
o Broad and narrow constructions of the Troxel holding; Courts use of
the term liberty interest instead of fundamental rights
o The court has greater difficulty when there are family members with
competing fundamental rights

XXVII. Right to ABORTIONNN (Roe v. Wade, Planned Parenthood v. Casey,

Gonzales v. Carhart)
 Abortion Follows after Griswold
o Extends right to privacy to the abortion context
o Roe v. Wade held that the womans right to privacy was a
fundamental right under the Fourteenth Amendement. Therefore,
the legislature had only a limited right to regulate abortions. It
described the trimester rule, which is no longer in effect.
o Court held a womens right in deciding this issue herself was a
fundamental one which could only be outweighed if 1) there was
a compelling state interest and 2) the state statue was narrowly
drawn
Planned Parenthood v. Casey: The Modification of Roe
o Abortions status as a fundamental right has been overturned, as
well as the trimester framework.
o May restrict abortions as long as they do not put undue
burdens on the womans right to choose
Undue burden is when the regulation has the purpose or
effect of putting a substantial obstacle in the path of a
woman seeking to abort a nonviable fetus. Under this
standard, if the regulations merely create a structural
mechanism by which the state may express profound
respect for the unborn, and do not place a substantial
obstacle in the womans path, the regulations will be
upheld.
o Gonzales v. Carhart: Upheld federal ban on partial birth abortions
Made it a crime to carry out an abortion by intact D+E
Not an undue burden
Congress was free to legislate to show its profound respect
for the life of the life within the woman
XXVIII. Other Fundamental Rights: Sexual Orientation, Education, Procedural
Due Process (Obergefell, Goldberg v. Kelly, Board of Regents v. Roth,
Mathews v. Eldridge)

EDUCATION: San Antonio v. Rodriguez

- Texas school financing scheme based on local property taxes
o Opportunity of education where the state has undertaken to provide
it, is a right which mut be available to all on equal terms
- Take Aways
o No fundamental right to education under DP clause
o No heightened standard of review for wealth classifications under
the EP clause
- Alienage Discrimination
 o Near rational basis standard that deal with self-government and
democracy
Right to vote
Right to run for office
o Plyer v. Doe
Undocumented aliens are NOT subject to strict scrutiny analysis
- Procedural Due Process
- INDIVIDUALIZED DECISIONS
o Whether or not you can maintain your employment , etc.
- Was there an individual decision?
- Has the government deprived a person of a life, liberty, or property interest
recognized under the due process clause?
o Property interest: Goldberg v. Kelly (termination of welfare benefits
without a pre-termination hearing)- can include welfare benefits, etc.
o If so, what process is due?
Matthews v. Eldgridge: is every instance of deparavation going
to require all of the kinds of DP procedure that Goldberg v. Kelly
mentioned (neutral judge, transcript, bring your own advocate)
Identification of the specific dictates of due process
requires consideration of three distinct factors
o Private interest that will be affected by the official
action [specific class of people e.g. poor people
rather than individual person)
o The risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards
o Governments interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirements would entail

Interests in Liberty or Property

HYBRID EP/DP Cases:

Classifications that interfere with an individuals ability to exercise a

fundamental right may get strict scruinty either the Equal Protection or
Due Process or both
o Only women may have abortions- Equal protection, as it is a
class that discriminates against women
o Ex. Everybody born on Mondays cant drink
Due Process: Interferes with a fundamental right