Constitutional Law

Table of Contents
Introduction ............................................................................................................................................. 4 § 1 Equal Protection Clause (Intro to Class) ......................................................................................... 4 The Role of the Supreme Court ................................................................................................................ 4 § 2 Types of Arguments ....................................................................................................................... 4 Bobbitt ± Constitutional Interpretation ............................................................................................. 4 § 3 Review of Acts of Congress (Judicial Review) ............................................................................... 5 Marbury v. Madison, 1803 ............................................................................................................... 5 § 4 Review of State Courts................................................................................................................... 7 Martin v. Hunter¶s Lessee, 1816 ....................................................................................................... 7 The Powers of Congress .......................................................................................................................... 8 § 5 Federalism & Federal Power Generally .......................................................................................... 8 McCulloch v. Maryland, 1819 .......................................................................................................... 8 § 6 Congress Powers & Limitations ..................................................................................................... 9 Forms of Federalism ........................................................................................................................ 9 Gibbons v. Ogden, 1824 ............................................................................................................... 9 Commerce Clause before 1937 ....................................................................................................... 10 Hammer v. Dagenhart, 1918....................................................................................................... 11 U.S. v. EC Knight Co., 1895 ...................................................................................................... 12 Houston, East & West Texas Railway v. U.S., 1914 (Shreveport Rate Case) ............................... 12 Champion v. Ames, 1881 (The Lottery Case) ............................................................................. 12 A.L.A. Schenchter Poultry Corp v. U.S., 1935 ............................................................................ 12 Commerce Clause 1937-1995......................................................................................................... 13 Carter v. Carter Coal .................................................................................................................. 13 NLRB v. Jones & Laughlin Steel Corp. ...................................................................................... 14 U.S. v. Darby ............................................................................................................................. 14 Wickard v. Filburn ..................................................................................................................... 15 Civil Rights Cases ...................................................................................................................... 16 Commerce Clause after Lopez........................................................................................................ 16 United States v. Lopez (1995) .................................................................................................... 16 United States v. Morrison (2000) ................................................................................................ 17 Gonzalez v. Raich ...................................................................................................................... 17 Raich v. Gonzales ...................................................................................................................... 17 1

Health Care Law ........................................................................................................................ 18 Implied Limits on Federal Power ................................................................................................... 18 Garcia v. San Antonio Metropolitan Transit Authority, 1985 ...................................................... 18 New York v. United States, 1992 ............................................................................................... 19 Printz v. United States ( 1997) ................................................................................................. 19 14th Amendment as Alternative Source of Congressional Power .................................................... 20 Alden v. Maine .......................................................................................................................... 20 Katzenbach v. Morgan ............................................................................................................... 21 City of Boerne v. Flores, 1997 .................................................................................................... 21 Kimel v. Florida Board of Regents (2000) .................................................................................. 23 Board of Trustees v. Garrett (2001) ............................................................................................ 23 Nevada Department of Human Resources v. Hibbs (2003).......................................................... 25 § 7 State Powers & Limitations .......................................................................................................... 26 Implied Limit on Local Power: Dormant Commerce Clause ........................................................... 26 Philadelphia v. New Jersey ......................................................................................................... 26 Kassel v. Consolidated Freightways Corp. .................................................................................. 26 Hunt v. Washington State Apple Advertising Commission (1977) .............................................. 27 West Lynn Creamery, Inc. v. Healy (1994) ................................................................................. 28 Implied Limits on Local Power: Preemption................................................................................... 30 Crosby v. National Foreign Trade Council (2000) ...................................................................... 30 Wyeth v. Levine (2009) .............................................................................................................. 30 Distribution of National Powers ............................................................................................................. 32 § 8 Powers of the Executive ............................................................................................................... 32 Distribution of Powers ................................................................................................................... 32 Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952) ................................ 32 Medellin v. Texas (2008) ........................................................................................................... 33 Hamdi v. Rumsfeld (2004) ......................................................................................................... 34 Hamden v. Rumsfeld (2006)....................................................................................................... 35 INS v. Chadha (1983)................................................................................................................. 36 Morrison v. Olson (1988) ........................................................................................................... 37 Individual Rights ................................................................................................................................... 38 § 9 Race and the Constitution ............................................................................................................. 38 The Classifications Based on Race ................................................................................................. 38 State v. Post (1845) .................................................................................................................... 39 Dred Scott v. Sandford (1857) .................................................................................................... 40 Reconstruction Era ......................................................................................................................... 42

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Strauder v. West Virginia (1880) ................................................................................................ 43 Plessy v. Ferguson (1896) .......................................................................................................... 43 Brown v. Board of Education of Topeka (1954).......................................................................... 45 Bolling v. Sharp (1954) .............................................................................................................. 45 Brown v. Board of Education of Topeka (Brown II) (1955) ........................................................ 46 § 10 Implied Rights............................................................................................................................ 48 Privileges and Immunities Clause ................................................................................................... 48 Slaughter-House Cases (1873).................................................................................................... 48 Incorporation Cases ....................................................................................................................... 49 Substantive Due Process: Protection of Economic Rights ............................................................... 50 Lochner v. New York (1905) ...................................................................................................... 50 US v. Caroline Products Co. (1938)............................................................................................ 52 Nebbia v. New York (1934) ....................................................................................................... 53 West Coast Hotel (1937) ............................................................................................................ 53 Ferguson v. Skrupa .................................................................................................................... 53 Application to Slaughterhouse .................................................................................................... 53 Comments on Lochner Area and Transition ................................................................................ 54 Substantive Due Process: Modern Fundamental Rights .................................................................. 54 Griswold v. Connecticut (1965) .................................................................................................. 54 Roe v. Wade (1973) ................................................................................................................... 56 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) ............................................ 57 Bowers (GA - 1986) & Lawrence (TX - 2003) ........................................................................... 58 McDonald v. Chicago ................................................................................................................ 60 Definitions ............................................................................................................................................. 61 Things to Remember.............................................................................................................................. 62 To-Do.................................................................................................................................................... 63 List of ³Questions´ ................................................................................................................................ 64 Reading ................................................................................................................................................. 65 Unfiled Notes ........................................................................................................................................ 68 Class 11/31 .................................................................................................................................... 68 Exam Review ............................................................................................................................. 68

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furthers important government interest in a way substantially related to that interest ii. Virginia. Gender based 3.com/constitution/article-3/22-judicial-review-limitations. and 2) is VWIL remedy appropriate? 2. Tiers of Scrutiny 1. E. ³recognition of rights once excluded´) D. preferred ii. Cases establishing intermediate scrutiny. and http://supreme. and 2. Race based C. 2. compelling government interest . One would not believe if he didn¶t believe framers were responsible for empowering government 4 . Issue was twofold: 1) does VMI policy violate EP Clause.Introduction §1 Equal Protection Clause (Intro to Class) A. Textual ± Rely on Constitution 1. overbroad or under-inclusive not ok b. Historical 1. United States v. capacities. Prudential ± Consequences / Policy arguments E. Rational Basis Review i.html A.g. Discriminatory means are substantially related to the achievement of those objectives iii. * Must not be created post hoc and must not rely on generalizations about the different talents. VMI did not allow women to attend. Rebuttal: circular reasoning. Structural ± Larger architecture of the Constitution * Examples from US v.justia.crucial vs. why Constitution upheld (e. Ethical ± Nation¶s ethos. Virginia Bobbitt ± Constitutional Interpretation A. judges are mere usurpers of power i. reasonable means to an end that can be legitimately pursued by government. least restrictive means possible iii. Important governmental objectives. Cases discussing adequate remedies B. ³originalist´ ± not following this modality jeopardizes legitimacy of review because without. narrowly tailored a.g. Personal vs. and ii. so VA established an alternate school. Intermediate Scrutiny i. Strict Scrutiny i."nor deny to any person within its jurisdiction the equal protection of the laws" B. or preferences of males and females The Role of the Supreme Court § 2 Types of Arguments See Constitutional Fate ± Phillip Bobbit. 1996 1. Doctrinal ± Past cases 1. 14th Amendment . Court expanded Intermediate Scrutiny to include ³exceedingly persuasive justification´ that classification shows: i. group rights C. Historical ± Past practices or Attitudes of the Framers (originalism) F.

§ 3 Review of Acts of Congress (Judicial Review) A. Ratification procedure by the States (Art VII) ¾ of States Marbury v. B. D. F.´ Textual 1. 2. Madison. Circuit Court Act of 1801 establishes 16 federal judgeships to create federal circuit courts underneath the Supreme Court.B. whose officials are elected by a state¶s constituency. Constitution amended by the States (Art V) ii. C. 3. Rights are mainly inferred in the constitution from limits on power. This case is an example of an original jurisdiction case.´ 2. E. Taney in Dred Scott ± construed scope of diversity jurisdiction in Art III (suits ³between citizens of the several states´) based on historical approach. Does Marbury have right to a commission? Yes i. Federal laws in conflict with constitution cannot be given effect as law a. Counter-majoritarian difficulty requires this group to describe as ³Attempt to ground theory in public values that is different than those commonly shared. Maryland determines that structure of federalism could not be maintained if ³states. in contradiction with humane values Structural 1. 99% of SC cases are appellate jurisdiction. Background: Plaintiff applicant sought a writ of mandamus to compel defendant Secretary of State of the United States to deliver a commission to him that appointed him a justice of the peace of the District of Columbia. 1803 A. Legitimate because it serves goals: protection of minorities. 1. Textual can be a straightjacket when founders would have changed text had they foreseen later events. Art IV (Supremacy Clause) ± ³this constitution«shall be the supreme law of the land and the judges in every state shall be bound thereby´ Implies: i. Marbury v. Marshall in McCulloch v. 2. Issues: 1. Looked at: i. Two strong textual arguments for States: i.´ ii. Dred Scott on a textual basis would reasonably equate with black citizen in suit against white citizen based on text as understood when decided 2. etc. however. Rebuttal: assumes the approach it is trying to defend Prudential 1. ³Who were the citizens of the several states when the constitution was adopted. could tax the agencies of the federal government present in a state and thereby tax a nationwide constituency. and signed (just not delivered) 5 . i. confirmation. so courts must place boundary between private rights and public power Doctrinal 1. Korematsu ± relocated Japanese-Americans because prudent to do so. Vested right ± appointment. Among States vs. Laws of states must give way to the US Constitution iii. Madison ± elected branches are only legitimate if confirmed by unelected branch owing only duty to the constitution and not to factional support Ethical 1. Judges must act in conformity with supreme law ii. Constitutional Compact Theory 1. civil liberties. Among People when referring to who µmade¶ the Constitution 2.

Distinctive & higher role of judiciary to interpret Constitution i. Judicial oath ± Judges apply Constitution (But every branch has this) 3. Laws = by elected people. Counter-majoritarian difficulty vs. Main Points from Review 1. Courts cannot do ³general intrusion into political operation of the executive branch´ a. Why can unelected judges set aside laws made by the people? ii. Think of it as a ceiling that Congress cannot increase. Political questions not appropriate (P. what role for the Fed branch? 1.Constitution trumps statute C.g. to support this Constitution´ ± Art VI b. Supremacy Clause ± the Constitution ³shall be the supreme Law of the Land´ . Case or controversy of Individual who has rights violated can be heard in court. SC has oath to uphold constitution . ³shall be bound by Oath or Affirmation. Right to a remedy? Yes i.This undermines the right/remedy claim . Ruled there is a conflict between Article III and the Judiciary Act of 1789 a.all branches.´ c. Article III gives SC original jurisdiction for two cases (admiralty & diplomats) but appellate jurisdiction for others ii. From the people & the court works for the people 4. Only way to preserve Con over Common b. Constitutionalism i. What if Fed/Court/President disagrees? i. If Fed statue conflicts with Constitution. ± President commit troops unilaterally and Congress objects c.Accomplishes this by avoiding constitutional answers to questions that can be decided with non-con grounds .³Where there's a deprivation of individual right.2. constrains government 2. Essentialist argument ii. e. Doctrine) b. No one is above the law b. Super-majoritarian. there is a remedy. Read to say court is ultimate arbiter of Constitutional meaning 3. Should court trump others? i. See Fed 78 for Hamilton¶s defense of Judicial review E. Doctrine of Self-Restraint ± court ties own hand . The people made the constitution and trumps ordinary law a. µCounter-majoritarian¶ difficulty a. Does court have jurisdiction to issue writ of mandamus? No i. Con = by THE people D. Court ruled that this gives power to congress to remove appellate jurisdiction. Therefore mandamus is appropriate ii. Supremacy clause only laws pursuant to Constitution trump State 2. and under such regulations as the Congress shall make´ a. Congress can change law to work-around 6 .Q. but not increase original jurisdiction b. Constitutional Remedy ± µGovernment of Laws and not of Men¶ a. Executive office answerable and must remedy as there is a µclear deprivation¶ of an individual right . To not give power would deny sovereignty b. but can decrease iii. Exceptions Clause ± ³with such exceptions.Called Passive Virtue 3. Popular sovereignty i.

Defense: 1. Art VI ± ³the Judges in every State shall be bound thereby´ ii. Amend the Constitution under Art V iii. courts have special and distinctive role to guard the meaning of constitution. Art III (see below) gives SC power over all cases. thus implying that other branches seek court guidance (aka judicial supremacy) 7 . Limit/expand the Supreme Court size vi. whoever may be the party. No history of this. Hunter¶s Lessee. 10th Amendment ± ³nor prohibited by it to the States´ C. Emphasis on States (Senate and House lines) iii. Virginia. Supremacy clause 2. Noted Cases: 1. States organize. State judges may interpret constitution differently (due to political influence or lack of concern). Aaron. Art 1 § 10 ± List States cannot do (limits) b. State would hear US case and US would only hear under appellate jurisdiction ii. Confirmation process (Best and most common way) § 4 Review of State Courts Martin v. in law & equity. Does Constitution bind state judges? Yes i. but Constitution owes obligations to the people v. Jurisdiction striping statutes µexceptions clause¶ iv. Individuals could be deprived of rights if case tried in State court and State does not properly abide by the Constitution iii. Compact µamong the people¶ a. as originally given. § 25 of Judiciary Act of 1789 lets SC exercise appellate review over states B. If Congress hasn¶t passed law moving it to US. 1816 A. Non-Compliance a. State is sovereign & Fed cannot exercise control 2. arising under the Constitution (Textual) iv. Background: Martin claims lands confiscated by Virginia were illegal under anti-confiscation clauses of US/England treaties 1. Issues: 1. State ratifying conventions.´ See Art III 2. Prudential: Paper money not allowed to be produced by states under Constitution and would be a case under US jurisdiction. Does SC have appellate jurisdiction over State cases? Yes i. 10th Amendment (Textual argument for state sovereignty) a. extends to all cases arising under the constitution or a law of the US. Constitution has provisions to limit state sovereignty a. State courts can hear federal questions a. Enumerated Powers b. Extended in Cooper v. 1958: Arkansas failure to comply with desegregation i. State gets everything not delegated to Federal Government D. ³judicial power. Senate Appt¶d by State Senate/Legislature iv. 1821: unlawful sale of lottery tickets i. Impeach a Justice vii. maybe reflecting prestige of the court v. only needed 9 states ii. Affirmed in Cohens v. so SC must have revising authority a. Art 1 § 9 ± List Congress cannot do (limits) c. Constitution is compact among sovereign states i.ii.

Term Limits v. conducive to (see Hamilton: Opinion on Constitutionality of an Act to Establish a Bank).´ i. Experimentation: Local level does not impact country. Limiting government allows people to choose the state (and therefore policies) they prefer. 1819 A. but is instead a body composed of representatives of the people. Preventing Tyranny: State's break national governments monopoly on control McCulloch v. The right to punish is desirable but not necessary. Values of Federalism 1. Art I § 8 ± ³To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers´ ii. Congress. Hamilton (See Fed 84) argues that Bill of Rights implies more powers than expressly granted. Constitutionality of Bank was discussed during first charter and determined to be legitimate (Historical) a.g. congress enacts laws forcing non-compliant states to obey and eliminating advantage detrimental to other states) ii. Important ± Must learn B. and that its terms enlarged.The Powers of Congress § 5Federalism& Federal Power Generally A.S. Issues: 1. defense. Maryland. Restrictively limiting right to create bank because not expressively in constitution would make it difficult for congress to achieve ends enumerated in constitution (EX: Art I §8 power to "establish post offices and post roads" implies power to deliver mail and punish theft. cashier at bank of U..") v. communication) 2. a. Constitution was established and accepted by the people and made binding on State sovereignties iv.S. Defendant in error sued under writ of error and won at CoA of Maryland C. meaning a lesser threshold of "necessary.g. 3. not undifferentiated people of the nation as a whole B. the powers vested in the U. Democracy: People can participate directly in political process 5. incidental. Argues it to be unnecessary and dangerous ± ³abuse of authority not given´ C. 8 . Useful arrangement over time (e. not among the limitations on those powers.g. Constitution and was a part of the supreme law of the land. Marshall gave example of 'absolutely necessary' (Art I §10) being restrictive on states. Background: Appellant. The Court ruled that the ³necessary and proper´ clause (Art I §8) was placed among the powers of the U. Thornton: ³the United States is not a confederation of nations in which separate sovereigns are represented by appointed delegates. Limits of Powers 1. Government. (H) The Supreme Court of the United States held that the act to incorporate the Bank was a law made in pursuance of the U. financing the war of 1812) (Prudential) iii. Does Congress have power to incorporate a bank? Yes i. Individual Choice: i. failed to pay state tax to Defendant in error.S.S. Origins of Enumeration 1.S. Nation can enforce social norms shared by majority of nation (e. Efficiency: Economic (and other) problems can be resolved in specific areas while providing services and goods that are easier on a large scale (e. transportation. Enumeration intended to limit powers of congress 2. Definition of µnecessary:¶ needful. not diminished. a. Dissent: power stems from the consent of the people of each individual state. U. but can be testing ground for bigger policies 4.

Congress to carry into execution powers conferred on that body by the people of the United States. Intergovernmental immunity against state regulation/taxation D.This is different than argument in Schenchter. For: Expansive view of Necessary i. 1824 A. Textual Argument in Detail ± Necessary and Proper clause 1. Stringent view of the necessary and proper clause 3. Legal Codes ± Interpretive Theory a. ³post office´ article 3. Constitutions vs. Nature of Constitution is broad outline vs.McCulloch was not written in a time of crises E. Preemption ± displacement of State law when they conflict with Fed law 1. § 8 ³To regulate Commerce with foreign Nations. Historical ± constitution by the people 2. Ferry operator (O) granted exclusive right to operate before competing ferry (G) opened. Express: Congress says states cannot regulate 2. Impermissible because lack of representation (100% revenue. Limited things Congress can do ii.S. Textual ± ³necessary´ clause. Does State have power to tax the bank? No i. ii. Dormant Commerce Clause Doctrine ± a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce (even if Fed law is non-existent) Gibbons v. 1) power to create implies a power to preserve. Prudential ± limitations make it hard to maintain enumerated powers § 6Congress Powers & Limitations Article I. (H) The Court held that the state¶s sovereignty did not extend to those means that were employed by the U. 2) power to destroy. <100% cost) b. Art I § 10 µAbsolutely Necessary¶ on States ii.b. 9 . Expressly delegated in articles of confederation vs. Occupation of the Field: Congress pervasively regulates and displaces States from regulating B. Art I § 8 ± Announcement of Congress¶ powers 2. State imposing tax on Fed is taxing other states also (Structural) a. Endure for years to come ± adaptable to the ³crises of human affairs´ . Remaining given to the States and People iii. is hostile to and incompatible with these powers. and among the several States. and 3) where the conflict exists. delegated broadly in Amendment X iii. Necessary is also in the powers clause and not limitations clause 2. Structural ± ³absolutely necessary´ vs. the supreme power must control iii. ³It¶s a Constitution we¶re expounding´ c. Types of Arguments: 1. ³necessary´ 4. which argued that Government should NOT expand power in times of crises . Conflict: Interferes with purposes of federal law. Ogden. if by a different hand. detailed rules b. Background: Appeal to SC of NY state court grant of injunction against ferry service seeking to operate in New York waters. simply cannot coexist 3. and with the Indian Tribes´ Forms of Federalism A. Against: Theory of Enumerated Powers i.

Realist approach ± Attempts to determine the actual economic impact of the regulation and the actual motivation of Congress. Can Congress give license to vessel operating in State¶s waterways? Yes 2. companies and organizations suspected of violating the Act ii.Rejects static notion that it is only a customs power and that Congress has to define categories . rejecting slick of activities iii. not affecting other states. It entangles the original intent and creates doubt where none was before. Limitations on the exercise of state power ii. Two SC approaches to determining the constitutionality of a IC law: 1. imposed to curb power of big companies to monopolize production iii. & z b.B. ± upholding regulation triggered by goods crossing state lines. Facilitate strength of American markets vi. and not necessary for fed to interfere for general powers . Two major Acts 1. Commerce Clause provides: a. federal law designed to regulate the monopolistic railroad industry 10 . Fed power stops at NY waterways Commerce Clause before 1937 Evolution of Commerce Clause A.Strictly interior is left to states ± complete within a state. Attack State obstacles to the free flow of goods iv. Some reasoning: i. requires the United States Federal government to investigate and pursue trusts. Definition of ³Among the several States´ (Textual) a. Fluid use of each B. Issues: [Opinion: Marshall] 1. Stable transfer of goods ii. Does State have authority to impose on Fed power? No i. Both sides use both approaches i. ³commercial intercourse between´ x. Narrow construction and understanding of powers granted to government make the constitution unfit for use. Formal Approach ± Court examines the statue and the regulated activity to determine if the certain objective criteria is satisfied i. (Historical) C. Ignores economic effects and actual motivation 2. Ferry is navigation. Commerce only includes goods 2. Argument against: 1. ³intermingled with´ ± does not stop at the boundary but also goes into the interior . Sherman Act of 1890 i. Interstate Commerce Act of 1887 i. Definition of Commerce (Textual argument) a. Protect dangerous/unseemly articles from interstate market 3.g. y. Broad term. Availability of goods on the National market iii. not commerce i. Congress with power to regulate commerce amount several States b. Attack private obstacles to the free flow of goods v. e.With foreign nations it would be impractical to stop at boundaries of states (Prudential) iv. late 1880s saw a shift from promotion of business to regulation 2.

Background: Congress passed child-labor law prohibiting IC of goods made by children under 14 or 15-16 when working +8 hours.C. See Carter v. Act does not regulate transportation among states. If Congress has the right to regulate. When ready to ship (i. Indirect & Remote . Challenges to acts 1. D. Statute prohibits transportation of certain goods in IC. but standardized ages at which goods can be produced [Realist] a.the intent is to reduce a supply of a good 2. US where court ruled in favor of law regulating food coloring going IC D. Intent and Congress power 1. No consistent argument i. ± limit violation/regulating speech under 1st Amendment Direct. Stream of Commerce 1. State Police Power vs. +6 days. See McCray v. Harlan pg 195 (Champion) ± Admits Congress could abuse. External Limits ± prohibition on Fed exercise of power i. Internal Limits ± beyond the Fed power to regulate 2. Court expanded its rulings once Congress began to regulate the economy more broadly. Indirect & Stream of Commerce A. This is in response to argument that the few States with no child labor laws have unfair advantage iv. from one state to another. Power to regulate ICC is to control the means by which commerce is carried on. IC). Carter Coal B. Realist approach (morals/purpose) impacts State¶s right to police power 2. Realist v. Rejects high level abstraction C. Direct . Dagenhart. and the transactions are only incident to this current. This is not arbitrary and other states ban lottery. labor is already over b. Congress has power to regulate this. Added a "public interest" component to the stream of commerce test. Does Congress have power to enact child labor laws under ICC? No i. the method used does not matter ± entirely up to them i. No power in Congress to require States prevent unfair competition a.the intent is to restrain or control the supply i. Because they were intended for IC does not make them subject to Congressional control iii. but not-realist by rejecting a lot of the arguments for a realist approach (below) i. No constitutional right violated Hammer v. C. Realist in rejecting because not motivated by IC. e. Precedents 1. Fed Commerce Power 1. or nights. Both sides can use both kinds of reasoning ± are able to move between formal and realist reasoning approaches 3. D is Appellant. States can still regulate the laws within their body a. but says this is not the case.e. 2. Act indirectly effects the child labor laws ii. Twofold Issue ³In a two-fold sense repugnant´: a. ³Exerts power on a local matter to which the Federal authority does not extend´ 2. Business being a "throat" in which the current of commerce flows. Issue: 1. i. B.g. not to forbid commerce from moving ii. ³Transcends the authority delegated to Congress over Commerce´ b. Dissent: 1. Formal 11 . P secured injunction against D. 1918 A.

Realist in rejecting because not motivated by interstate commerce 2. Background: Rates of shipping were more from Texas to LA than longer distances within Texas B.) under the principle of fair competition. J-Harlan 1.A. Just because article manufactured for export.S. Essentially. not important 4. J-Fuller 1. Formal Approach. U. Ames. SchenchterPoultry Corp v.S. a Limited Realist case: i.. Rejects a high level abstraction about what the congress can regulate U. Opinion admits it is possible that Congress could abuse. Dissent 1. b) Slaughtering and sales were not part of IC c) "Flow" or ³Stream of Commerce´ of goods into a state does not continue once the property arriving becomes comingled with the property of the state and held for local use i) Realist argument to describe activities subject to regulation (See Stafford) 12 .S. Otherwise. 1881 (The Lottery Case) A. etc. One state is not in the position to stop a monopoly i. 10th amendment precludes this. Commerce is after manufacture.L. This is not arbitrary. East & West Texas Railway v. even if it will impact IC. Concede that this was moral legislation but they could regulate commerce nonetheless A. Monopoly affecting buying and selling outside the state affects everyone in the US ii. v.. not part of it 2. the method used does not matter i. 1914 (Shreveport Rate Case) A. Rule: Ames. Moral approach ± Fed Police Power? a. no right violated. Schenchter ran slaughterhouse with quick turnaround (under 24 hours) and was in violation of the code. Champion took Paraguayan lottery tickets from Texas to California. Congress supplemented the actions of States who ban lottery on moral grounds. Result is independent from nature. SC struck down the act. 2. Not-Realist in ignoring all of the arguments for Realist reasoning 3. B. Whatever obstructs the free course of IC should be reached by Congress Houston. Effect on prices is indirect 3. Rule: EC Knight ± Formal Approach.. Rule: U. thereby giving ASR 98% of total manufacturing market B. Intent does not determine when article passes from state to commerce C.1. Background: SC upheld Federal Lottery Act of 1895. 1935 1) Background: Live Poultry Code established regulations (hours. wage. U. EC Knight Co. but says that is not this case. Background: US attempted to invoke the Sherman Act to stop acquisition by American Sugar Refining of four competitors. Whenever interstate transactions of carriers are so related that the government of the one involves the control of the other.S. 1. 3. Congress is entitled to prescribe the final and dominant rule. does not make it an article of IC i. 1895 A. which prohibited interstate transportation of foreign lottery tickets. does not create a slippery slope ii. Congress would be denied power and state would have National authority Champion v. a) Not regulating goods in any way 2) Rule: Schenchter a) People who act under constitution are not allowed to transcend rights because they believe more power is necessary. Carry from one state to another of things with a recognized value in money clearly constitutes interstate commerce. If Congress has right to regulate.

Deprive states of responsibility to regulate goods for health and safety of citizens 5. Directs indirect effects test i. If congress can use this device. 3) Respondent Argument ± New Deal philosophy a) Macro-economic theory that stabilizing wages will increase demand and boost prices b) If Congress cannot regulate: i) Wages down ii) Prices down iii) Resulting in economic chaos c) Economic vitality at stake ± Fed expansion of power is justified REVIEW: A. Background ± new deal effort to regulate prices i. Goods in violation but not evil vs. Repudiation of Ames i. Dagenhart 1. fed would take over everything. facing great disruptions on availability of goods on the open market ii. Not part of the enumerated powers ii. leaving state concerns irrelevant except for sufferance of the fed i) Police power moving from Fed to States e) Authority of Fed cannot destroy the distinction between commerce 'among the states' and the internal concerns of the state. Direct ± How important is the goal to having a direct effect on the availability of goods on the open market 3. Court strikes down statute i. it would transform the power to regulate commerce as a general power to manufacture goods 4. Wants to transform the direct/indirect test to a realist perspective a. Schenchter 1. Manufacture is part of state right and not congress 3. Direct v. evil B.d) If commerce clause reached all transactions with indirect effect on commerce clause. Practices regulated at the moment they are being regulated have at most indirect effect on interstate commerce Commerce Clause 1937-1995 Carter v. Activities distant from interstate 3. Twofold sense i. Indirect 1. Hammer ± Realist ii. Lochner Era 1. Carter Coal A. Ames ± Formal. No formal mechanism as used in Hammer 2. Actively invalidating statutes on the ground they interfered with right to contract 13 . 1905-1937 2. If congress can¶t regulate. Indirect ± Congress is going to an intrastate transaction hoping it will have direct effect on IC 2. Effort to distinguish a. Cardozo: Think about the issue practically i. Shift from Schechter B. Congress real and practical application was regulation of manufacture 2. Hammer v.

only certain aspects (e. Direct prohibition on paying workers who are producing goods for IC B. then the Court should step in 4. No direct relationship between mining and IC 3. Close and substantial relation i. 5th ± Federal regulation b. overruled Hammer) 1. shipping vessels. Suggests we should care about the overall goal of Congress (whether Congress is acting pretextually ii. McCulloch i. Regulating the wages directly is helpful to regulating the IC ban.Due process clause of 5th and 14th amendments a. A.S. Restricts employers from discriminating against union members i. manufacture of one particular item 2. Two concerns with new legislation: a. Rejects the Direct v. therefore it falls under the µnecessary and proper¶ clause and is constitutional as an important way to regulate IC 5. Court is saying that regulating an activity earlier is the means. Reasoning (US. NLRA (National Labor Relations Act) 1. Not for Court to inquire of the means b. Not interstate commerce. Regulates in the same way as Hammer (goods going IC produced with substandard workers) 2. Not for the court to inquire into the motives or purposes of Congress ii. Jones & Laughlin Steel Corp. Darby A. Moves to practical notion that turns on the magnitude of effects on IC U. Fair labor Standards Act 1. Indirect relation before which was based on the nature (formalist notion where certain activities immune a. McCulloch is saying if Congress is asserting a power it doesn¶t have. Beyond Federal power b. the end is still interstate commerce.) C. Note everything they do is part of interstate commerce. 14th ± State regulation ii. Activity is a web of activity ³likened to the heart of a self-contained highly integrated body´ D. Once Congress regulates good as they move across state lines. railroads.g. Allows workers to unionize 3. Not appropriate to inquire why Congress is regulating goods. only that they are regulating goods 3. Protects right of collective bargaining 2. Jones claim 1. This is a matter of degree ii. NLRB claim 1. etc. Reconcile with Darby a. 14 . they have conformed to the Constitution 2. Employee expression of union feelings B. Minimum wage law (upheld by the court) i. Unconstitutional because interferes with individual¶s rights to sell their labor on market and employers rights to purchase labor on market without interference from government NLRB v. Reasoning (for NLRB) 1. v. Motive & purpose of regulation is a matter of legislative judgment i. Argues State¶s rights are not violated under the 10th amendment i.

Schechter 1. you are competing with IC. 10th amendment falls after the Articles and encompasses everything that is not ruled to be allowed for Congress C. Growing deference to Congress with respect to their ICC power 3. Prevents individuals from claiming exemption from regulations on interstate commerce. Result 1. Aggregation principle 1. 10th Amendment is a ³truism´ and doesn¶t have any interpretive significance Wickard v. Congress¶ power would be extremely limited. not the source of effect 3. Distinction turned on logical effect of regulation of commerce regardless of the practical application B. you¶d be involved in IC ii. This reasoning was only applied to this case as it had a factual basis D. Rejects motive as a proper inquiry i. C. Therefore. Indirect relation on interstate commerce 2. Magnitude applied under Aggregation principle to determine if Congress has ability to regulate 2. Congress can regulate local production in the theory that it¶s a substitute 2. One person¶s action might not affect IC. Impact 1. No cases 1937 to 1990s with limitations on ICC power 15 . Congress wanted to limit supply to keep demand/price higher B. Necessary and Proper to directly regulate things that will impact interstate commerce 3. Otherwise. Introduction of Magnitude of effect. Agricultural Adjustment Act 1. but sticks to category C. Set quotas for wheat that can be harvested 2. Indirect relation (production) 2. If you didn¶t do what you do now. Darby 1. Anytime you are self-sufficient. Focus on collective group of persons being regulated 2. Jones Laughlin 1. Good example of how the court blatantly overstepped what the intent was of the Constitution (with exception of Wicker) REVIEW: A. Filburn A. Continued decline of formalism i. Rejects earlier cases 2.i. Magnitude and Effects 4. Congress is unquestioned on its power to regulate anything crossing lines 2. but that issue by everyone in the collective would 3. Carter v Coal 1. Enormous expansion of power in overruling Hammer and now establishes right of Congress to directly regulate production/wage 2. Effect on commerce. Reasoning 1. Personal production is substitute for purchasing items on open market i. Practical conception D.

³It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the«´ 4.They are not reachable under § 5 power because they do not dictate the private discrimination iv. Doctrinal ± three categories for regulation under ICC i. Lopez (1995) A. Counter-argument that it only declares people citizens of Fed as well as State (narrow argument) c. etc. Instrumentalities of IC B. distance in activity was enough to prevent the chain of causation ii. Channels of IC iii. Does not extend across state lines. and Congress can declare racism to be essential to born citizens b. Court does not address this clause and its ability to allow Congress to do something Commerce Clause after Lopez United States v. Local matters ii. Compare to Schenchter and Carter Coal ± certain activities by their nature cannot be regulated by acts of Congress even if causal chain asserts significance to national economy a. Dominant approach eliminates theory that State is responsible for the private conduct . Civil Rights Act of 1875 1. court did not dispute chain between guns and negative effects on national economy i. State Action Doctrine . Argument that µState¶ does not attach. Prohibits discrimination on race and color in places of public accommodation B. Reasoning 1. 14th Amendment ³nor [any state] deny to any person within its jurisdiction the equal protection of the laws. Structural ± constitution of enumerated powers that implies a balance of power between Fed and States 2. they would rely on Gibbons i. ³Congress shall have the power to enforce this article by appropriate legislation´ a. VERY Important Decision under 14th i. If this was decided under ICC. 3. Congress wants to treat as full cititzens and have equal participation in civil life ii. XIII Amendment abolishes slavery and does not give Congress the ability to regulate local race conditions when they warrant something close to. but not. direct v.´ a. private discrimination could be an action of the State b. slavery b. Congress exceeded power when regulating guns at schools 2. Lopez 1. Power granted to Congress under 13th (and 14th) i. Birthright Citizenship Clause (§ 1 of 14th) a. ³substantial relation´ to IC ii.Individuals do not deprive you of constitutional rights a. indirect ± logical relation and NOT magnitude 16 .´ ii. Unthinkable that Congress is imposing regulations on private business 2.Civil Rights Cases A. Court reasons that under certain circumstances. Modalities of argument 1. in light of all considerations. Argument is that 14th operates on states that deny individuals equal protection under the law iii. Court says ³there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the law.

its application to their use is unconstitutional because their activity does not substantially affect commerce 1. Regulation of intrastate production of marijuana B. unlike Lopez/Morrison. cultivate and use marijuana 3. Local ± CUA (compassionate use act) allows pot use in certain circumstances B. state has given a limited group of people access to pot under very limited circumstances ii. Should the court carve out an exemption when the impact to the commerce is rather small? 1. Wickard ± regulate intrastate activities not commercial as long as rational basis exists 2. Raich A. traditional area of state regulation (health & criminal law) i. only a small exception within 2. Gonzales A. Raich claim ± federal government lacks the power to regulate their use of pot. Fed claim ± comprehensive federal regulation of a commodity in the interstate market 1. Dissent ± ruling punishes congress when they regulate piecemeal. but when they have a more comprehensive ruling. Pre-Lopez 1. Fed is effectively overruling them and invalidating state statute C. First case where the case does not challenge the statute. prudential ± hard to differentiate between grown for personal use and that cultivated for illicit trade in IC 3. lost hours in employment. This is an internal limit (see Lopez ruling stating not ok because no larger regulatory scheme) i. Lopez & Morrison go against this history 17 . right to regulate ³class of activities´ that have substantial effect on IC i. no current findings related to their particular use of pot 2. Morrison (2000) C. travel changes) i. makes it criminal to do anything with regard to the drug (except for approved research studies) 2. All court has to decide is if congress had a rational basis for exerting the specific power that they did in the case REVIEW: A. Federal ± CSA (controlled substances act) comprehensively regulates drugs in country i. Two statutes 1. Morrison 1. They reject idea that Magnitude is determinative when active regulated is private assault and not commercial ii. state made determination about what the policy of the state should be. Congressional findings are not enough Gonzalez v. Rational Basis 1. part of a larger regulatory scheme in which Congress is regulating a commercial market with great magnitude Raich v. Court held that Congress has power under ICC to regulate 1. no jurisdictional element 4.United States v. they are ok within the rights of the constitution D. not economic activity to possess. Court doesn¶t dispute this. Congress documented magnitude of effect (hc costs. as applied challenges are not available 3. Rational-basis review with great deference to Congress 2. Lopez factors usable only when Congress regulates small area E. congress can use necessary and proper clause to regulate individual instances that do not affect interstate commerce but are part of a larger regulatory goal 4.

National League of Cities recognized area of sovereignty as when State is acting in a traditional governmental function i. incentive to not purchase until sick. question is whether necessary and proper clause allows government to require purpose to enact the rest of their policy 2. Congress can reach those small. Darby is good support of Raich Health Care Law A. Creates markets/changes for health insurance 4. non-economic activity is not reachable under ICC a. Challenge 1. 1985 A. Scalia¶s opinion tries to hold all the opinons together i. local activities if part of a bigger program v. Expands Medicaid 5. Gov Argument 1. should the Government be able to compel you to do something? Implied Limits on Federal Power Garcia v. general broad economic scheme in Raich allows Congress to reach the local cultivator of marijuana due to the necessary & proper clause a. regulating generally = regulating States as well b. Characteristics: 1. What is Raich? 1. Not regulating activity. regulating passive conduct instead of an actual activity C. way to understand Lopez/Morrison ± Congress has wide latitude in deciding intrastate economic activity needs to be regulated because of effects on IC ii. Incentives for small businesses to provide health care coverage 6.B. not a judicially enforced external limit (see Darby) 3. Practical concern ± can¶t ID state sovereignty 4. structural check i. Regulates health insurance providers (preexisting conditions) 2. 10th Amendment does not present an obstacle a. States cannot claim state sovereignty iii. Requires people to buy health insurance 3. As long as fed is regulating in a broad way. Court not going to decide areas of sovereignty because there is political protection 18 . states have sovereignty over things like taxes and structure of government 2. can¶t just show that local non-economic activity will hit IC through a chain of events iii. regulating how it¶s paid for i. local. so no one exempt 2. external argument ± does the statute violate due process clause? is it a violation of individual liberty? i. so necessary as part of the scheme D. San Antonio Metropolitan Transit Authority. they have latitude to adopt these measures iv. Does the Fair Labor Standards Act apply to state employees? 1. Court abolished this and allowed federal regulation in any area because they could not see the line drawn in NLoC ii. everyone receives health care. General argument ± political check vs. rejects the idea that Raich is return to pre-Lopez 2. Importance: 1. Unconstitutional to require individuals to have insurance against a penalty i. Tax incentives and subsidies for ind to purchase and bus to provide B.

National League of Cities ± 10th Amendment limits Fed. NY v. Take-title: state had to take possession of waste produced within its borders by a certain date B. 1. rejects the broadest reading of Garcia (10th A not a Constitutional limitation on Congress power) 2. Spending Power Printz v. Monetary: part of surcharges delivered to secretary to redistribute to states who dispose of own waste 2. Court also says this breaks down accountability and blurs lines of state/fed 2. vs. Access: surcharges could be increased and eventually state could deny entry of waste 3. US ± 10th Amendment precludes ³commandeering´ states. not about protecting the state in its own right 2. Garcia ± Where Congress is regulating states via ³generally applicable law. regulates private parties as well as states 2. Garcia 1. Constitution divides authority. States are acting as puppets of the Fed E. There is a history and practice of federal government using state executive officials 19 . since that is what the Articles of Confederation showed that unless it can do this. Real danger is that it blurs the lines of accountability 1. destruction of 10th Amendment does not apply when imposing obligations directly on states 3. Gibbons ± if people switch allegiance to Fed regulation. Court says that this has an element of imposing policymaking on state executives ii. Art I § 10 1. Commandeers state executive officials i. when in reality. United States ( 1997) A. Discussion: 1. it would be powerless in many areas i. United States. Dissenters say that Government can act directly on the people. therefore. regulation of states in areas of ³traditional governmental functions´ 1. Says 10th Amendment does have limits on Congressional power. revives idea that there are certain things Congress can¶t do under the 10th Amendment REVIEW A. Preemption ii. Federalism is a protection of the people. 10th Amendment doesn¶t exert judicial limitation on Congressional power 2. does on control on this case D. Significance 1. Alternatives: i. at least as far as targeting states. Low-Level Radioactive Waste 1. States cannot enter into compacts with each other without congress¶ approval C. and individuals are harmed if this distinction is removed i.´ checks are political not judicial 1. Protections are political C. Brady Act establishes national instant background check. 1992 A. requires local enforcement to conduct background checks B. individuals might not like the law and could assume this is coming from State. there will be powerful counter-forces that prevent states from being overwritten New York v.ii. areas that undermine state sovereignty B. Background: 1. Structural feature protecting states interests ± State Senators iii.

no 10th Amendment protection ii. General political accountability concerns a. Form of the regulation was impermissible because it compelled the state to regulate according to Fed instruction i. Can¶t treat states as puppets to effectuate Fed goals 3.3. As long as Congress regulates States in same manner as private employers (generally applicable laws). which is where sovereignty resides. NY v. Two ways to enforce federalism-based limits on the Commerce Clause Power: a. Court argued that the CSA did not allow the federal government to allow this. Ashcroft v. Perhaps because they don¶t make policy. now says too intrusive to C. When Congress regulates directly. Gonzalez v. Why should state courts have to be under the federal thumb.When statutes are close to the line like this. 4. Does this limit create more intrusive policy? a. Don¶t know if Fed or State is source ii. This shows that perhaps state government can be commandeered for federal purposes to some extent iii.This thought to be ineffective . while the state executive and legislative branches aren¶t? ii. b. NY &Printz 1. Physician assisted suicide case in Oregon. iii. Garcia 1. Oregon i.Odd that 200 years later. Gregory .Uses spending power to coerce b. Canon of statutory construction/avoidance canon .Court interprets themselves as policymaking to keep courts out of Congress¶ statute. Imposes 10th Amendment bar to certain forms of Fed regulation 2.forces Congress to be very explicit when it nears the edge of its Commerce Power c. Practical questions i. Most direct discussion of Federalism and distinction between powers of State and Fed 14th Amendment as Alternative Source of Congressional Power Alden v. is there 10th protection i. courts can read the statute narrowly to keep it within Congress¶ power REVIEW: A. i.C. Question was: Is the Attorney General¶s interpretation of the statute a valid interpretation? a. Stevens ± state courts have to hear claims of federal issues on the same level that they hear state claims. 10th Amendment cases more important thematically than practically 1. Articles of Confederation allowed for Congress to regulate through the states . US ± leaves open Fed regulation when broad regulatory scheme . Excessive intrusion into state autonomy a. Example of political checks ± State can protect themselves B. which would otherwise be unconstitutional . Maine State can refuse jurisdiction over certain Federal claims 20 .avoiding potentially unconstitutional statutes . Directly overrule statutes where Congress has gone too far. S. Government wanted to strip physician¶s of their license if they assisted suicide ii.

figure out different theories of the enforcement power i. Creates legislative test of strict scrutiny D. Lassiter 1. Why is the 11th Amendment relevant to the scope of the §5 power? City of Boerne v. State has to show legitimate interest rationally related to policy 2. Change in the system not considered unconstitutional D.) 4. Laws (§5) must be congruent and proportional to what the court thinks violates §1. Katzenbach 1. Prevents states from adoption provisions that undercut minority representation ii. Most narrow view of Remedial power 2. For Monday.Katzenbach v. burdened by general state rule constitutional ii. 3. Oregon v. Religious Freedom Restoration Act 1. Important governmental interest and substantially related to policy 3. 14th Amendment 1. etc. Is Congress able to impose on local state subdivisions unless they have a compelling reason to not exempt religious person/organization? 1. Voting Rights Act 1. When you read Boerne . you cannot be prevented from voting. Smith 1. 15th Amendment 1. Morgan A. Scope of protection of free exercise applicable to states in § 1 of 14th A 2. 2. Literary tests are constitutional unless you can say B. § 2 ± substantive protection against vote dilution i. General state-rule punishing peyote use ± individuals are burdened by this rule ± can they be denied important benefits? i. as long as they are targeting disenfranchisement on basis of race. Review of SCOUTS review levels 1. How can Congress use its §5 power to protect the freedoms in §1 (of 14th Amend. not just protection against intentional discrimination 2. The Court had previously asserted that literacy tests can be constitutional. therefore RFRA unconstitutional 21 . 1997 A. Fact that ind. ³Because of not in spite of its religious burdens´ ± intentional discrimination B. Remedy or Substantive i. Impact protection. § 5 ± Prevent. § 1 ± prohibits intentional discrimination under the Courts view i. Figure out hierarchy of broadest theory to narrowest theory of enforcement power (can refer to notes at the end) ii. which theory of the enforcement power does it embrace? Does it overrule Katzenbac? Is the Boerne view of the §5 power more or less deferential than the court¶s approach to the Commerce power under prevailing doctrine? iii. Flores. Intermediate Scrutiny (Sex) i. § 5 ± preclearance provision REVIEW: A. § 1 ± Constitutional violations (intentional discrimination) C. Strict Scrutiny (Religion) i. If you have been educated through 6th grade in a school where English is not the predominant language. Compelling interest narrowly tailored to achieve policy C. Rational Basis Review i.

and reach conduct that doesn¶t itself violate §1  Recourses Congress has  Ability to use prophylactic regulation iii. No regulation of private conduct under §5 . Morgan (complex scheme suspending certain literacy tests) i.Civil Rights Cases 2.2. Commerce clause ± Rational Basis Review B. SC said this is permissible because Congress is able to deter (prevent). which doesn¶t bear much connection what the court says violates §1. Judicially enforced federalism based limits on federal power 1. Court will defer to the scope of the federal regulation b. but the C+P clause is judicial limit ii. remedy. Protection is substantive (new broad protection). Stevens) by Congress using its power in opposition of the construction a. Congress used §5 power in Katzenbach v. Madison ± court is definitive judgment about meaning c. Garcia eliminates protection where Congress is limiting generally private parties and states 2. §1 SC said in Lassiter literary tests were constitutional unless proof of intentional discrimination ii. More substantial than Rational basis review b. What was objectionable. REVIEW: A. Morgan is counterpart to court¶s approach in Commerce clause cases  Deferential in the exercise of Congressional power 3. Uses rational basis review a. was that it regulated everything iii. Contains preclearance provision 22 . Voting rights act of 1965 1. Evidenced by huge regulation protecting a very limited number of intentional discrimination violations D.Congress passed statute post RFRA to regulate land use cases only c. RFRA Regulates in a number of ways they could not under the commerce clause a. Range of conduct reached must be ³congruent and proportionate´ to the number of §1 violations that will be remedied a. Statute violated the establishment clause (J. Reauthorized in 2006 as the Voting Rights Reauthorization Act 2. US) C. Boerne ± court rejects Congress¶ ability to regulate when the scope of the conduct regulated far exceeds the number of constitutional violations it is likely to catch i. Accommodate religious objectors unless compelling interest not to b. Scheme reached some tests that were not unconstitutional under §1 a. Brightline prohibition in ³commandeering´ legislative/executive power of State (NY v. Some room to regulate conduct that is greater than constitutional protection. 10th Amendment 1. SC says congress does not have power (substantive power) to define violations under the constitution  Court decides scope of constitutional circle ³§1 as defined by the supreme court´  Marbury v. 14th Amendment 1. Certain parts would be allowable under the commerce clause  Could regulate commercial transaction of drugs used for religious purpose by forcing States to allow this type of transaction under the CSA (Raich)  Needs to be part of a broad scheme ± ³breadth is a virtue under CC but a vice under §5 of the 14th Amendment´ .

it cannot invent new constitutional rights under §1 ± can¶t change the meaning Kimel v. Two: scope of the statute --. but is it a valid §1 statute? 1. Religious Freedom Restoration Act ii. Louisiana) 2. Boerne court said the statute was not congruent and proportional b. Requires reasonable accommodation by i. treatment of aged people ± kicking in at age 40 b. forced retirement at age 60 because too expensive to employ ii. Locality. just failed the Boerne test under the 11th Amendment C. Suing state officials seeking injunctive relief to prevent State from implementing a policy 2. City of Boerne i. age of employees.) Board of Trustees v. Dissent . Scope of statute is unreasonably broad when compared to the wrongs 3. race) but discrimination determined to be irrational C. Rules against mandatory retirement. 14th Amendment cases 1. restructuring job requirements B. 2. Issue ± should there be heightened scrutiny for mental retardation discrimination? i. but laws that callously burden or injure religious minorities are not a big evil c. Early challenge to the VRA 1965 2.are these congruent and proportionate? a. Draw two circles i. injuries in free exercise of religion  Strong medicine is appropriate against big evils. Doesn¶t fit into the scheme (i. Race discrimination in voting vs. States can waive 11th immunity 4. Is there a 10th Amendment immunity for States limited by Fed policy of age discrimination? . One: court recognized right a. Is there a commandeering problem? ± No B. Distinguished from Katzenbach a.E. Valid Federal statute. Morgan i. Valid CC statute. Suits in State court claiming violations 5. and ii. When Congress enacts remedial statute under 14A §5. making facilities accessible. Garrett (2001) A. This doesn¶t make the statue facially unconstitutional. Katzenbach v. and b. ADA ± Americans with Disabilities Act 1.No 3. Arguments on fact-finding 1. 11th only protects States themselves but not political subdivisions (City. Workarounds not barred by 11th Amendment 1. ADEA ± Age Discrimination in Employment Act 1. One prior case: Cleburne 1. Congress can only abrogate 11th amendment immunity only if statue is enacted under §5 of 14th Amendment (Seminole Tribe & Hans v.g.e.Fair amount of irrationality that need to be protected against 23 . Government had to show discrimination served a. etc. Florida Board of Regents (2000) A. Fed enforcement action 3. E. a compelling government interest. Cannot discriminate if no rational basis for doing so b. is narrowly tailored to meet those goals iii.

Court then closely scrutinizes Congress and their documentation of substantial numbers of constitutional violations under §1 . RFRA as applied to employment or land-use ii. Congress has to do its homework and defend regulating beyond the constitutional standard established in §1 . §5 cases under 14th B. i. Is it ok to retroactively force Congress to meet this standard? 4. Garrett ± ADA 1. Is the converse true? ± No a. Role of Congressional fact finding a. Court treats 11th as embodying a principle of state sovereignty i. Dissent ± this principle relates to federal common law and Congress should have right to abrogate as necessary a. this failed. Congress created ADEA prior to the §5 cases under a different set of rules i. Is the size of the inner (§1) circle theoretical (how likely given rational basis review) or is it a practical questions (how often states engage in unconstitutional conduce) a.Deference to §1 and scrutiny of §5 D. Court. Codifies preexisting ideas of state sovereignty ii. which would change the limitations on the scope of the statute D. Kimel ± ADEA 1.2.e. Congress cannot abrogate 11th immunity under the act because not proportional and congruent 3. Tennessee v. not a protected group) it is almost foregone that any general Fed statue will be constitutionally excessive under §5. Some statutes can only be enacted under §5 (RFRA) a. ADEA is unconstitutional to the extent of its protections under §5 ii. REVIEW: A.Treats congress as a lower federal court ³justify what you¶re doing´ b. Boerne requires Congress to document pervasive unconstitutional practices that would justify the prophylactic general scheme ii. Congress comes back and wants to use §5 power to use broader protection based on disability b. Boerne ± claim on religious grounds is under heightened protection where no intentional discrimination is ok. however.Congress can¶t change §1 and then establish §5 regulation to meet that . When §1 right is only protecting a rational basis review type group (i. so could write more broad statute. Difference is due to majority arguing for State only will dissent arguing for All State actors. Cleburne ± no heightened scrutiny i. Majority ± Only six cases of documented discrimination i. Protection of age is only unconstitutional if it can be deemed irrational i. Some can be regulated under CC & §5 (ADEA) a.Must be a valid §5 power as well 2. however. . Reason for rational basis review is that they want to give proper deference to political branches a. Is this a valid §5 statute? Matters in two contexts: i. Rational Basis review generality 1. No reason to believe necessary to document. views this as a constitutional item C. Issue becomes whether Congress can abrogate 11th immunity when using commerce clause power. Lane 24 .

This is the first (of the ones we studied) where the court had to decide if a policy violates §1 to have women only maternity policies i. it might also be held to violate §1 . Future issue i. Is this a reasonable protection under §1 of the EPC? c. Combination of Boerne and Lopez/Morrison indicate certain things Congress can¶t do 2.A standard that requires removing burdens on social groups might require a certain level of racial awareness that might be unconstitutional in §1 d. Women suffer discrimination in hiring (employers avoid hiring because of costs) 2. Discrimination in the operation of state leave due to widely observed and longstanding sex discrimination i. Maternity leave favors women and is discriminatory to men b.Far broader than what Sup.Court said is discriminatory under §1 d. Family and Medical leave Act 1. §1 protection 1. Prohibits burdens on racial groups even though no intentional discrimination b. Similar to RFRA (establishment of religion) e. Congress trying to prevent sex discrimination (intermediate scrutiny) i. Discrimination in leave policies a. Can Congress be more expansive in protecting against vote dilution and minority votes than the court recognizes as vital under §1? c. Rebut ± benefits to child for breastfeeding.§2 & §5 (preclearance provision) . Does not adopt State¶s view that Congress could create a more tailored policy 25 . Requires 12 weeks unpaid leave on top of eliminating the unconstitutional distinction discussed below B. Certain areas Congress cannot regulate a. which men cannot do 3. Significance of recent doctrine 1.1. anything over is ³childcare´ and either party can do a. 4-6 weeks medical recovery. Congress can only regulate this under the reconstruction acts b. Could be repackaged into narrower statutes ii. Court doesn¶t discuss in detail but makes it seem that it¶s likely these are unconstitutional 2. Act is far broader than proscribing intentional discrimination . Argument for unconstitutionality i. Other cases already had determined the extent of the unconstitutionality of the issues being targeted by Congress C. which allows Congress to abrogate the 11th powers using §5 legislations E. Forces court to be very precise on §1 power to prevent regulations that might have a level of race consciousness that might be unconstitutional Nevada Department of Human Resources v. Scope of the Voting Rights Act a. Court reasoning 1. Interaction with 11th is far less significant than the impact of Boerne in areas where congress cannot regulate i. Relationship between CRA 1964 and §1 a. Court did not reach the question in the recent case that came up to them ii. CRA might not only not be a legitimate §5 power. Hibbs (2003) A. D arguing discrimination under ADA and access provisions (to the courthouse) under §1 were under heightened scrutiny. Therefore ok for State to pursue affirmative entitlement ± needed to prevent the unconstitutional sex discrimination above 2.

Quarantine analogy ± prevent health issue a. Exemptions to the 60 foot limit in border cities ± they don¶t bear burdens of exclusion B. only incidentally to achieve an important health and safety reason i. Presumptively unconstitutional unless there is no alternative that could be enacted to achieve the same compelling purpose 3. Why is court concerned about facially discriminatory statutes? 1. Barriers to trade could lead to trade wars i. DCC doctrine 1. but Court finds that even though at the outer rim. could create retaliation b. Statue limited size of the trucks 1. Rule 1.Out-of-states who are most harmed will be demoralized by being excluded. Other states are demoralized by being treated as less. One purpose of Constitution was to override 2. N. Consolidated Freightways Corp. If evenhanded to effectuate a local purpose.J. Facially discriminatory statute ± unconstitutional i.J. upheld unless burden on interstate commerce is clearly excessive in relation to the local benefits 2. Unconstitutional if burden on interstate commerce is excessive in relation to the local health and safety benefits REVIEW: A. N. Similar to Main v. If incidentally impacts commerce. Title 7 provides remedy broader than §1. Sate have police power over health and Congress has commerce power ii. If facially neutral (same restriction on in and out of state trucks) i. BUT in-state landfill operators would speak up against the legislation . It¶s problematic for people central to the decision to not be able to participate Kassel v. State argument i. therefore distinctive from the waste. Defect in the political process i. First case ± Gibbons 26 . State cannot directly regulate commerce. Can a state act in a certain way where Congress has not acted? 2. has a ³good´ (storage space) and is telling out of state people they can¶t have the good ± clearly unconstitutional ii. it¶s congruent and proportionate § 7 State Powers & Limitations Implied Limit on Local Power: Dormant Commerce Clause Philadelphia v. A. Creates isolationism a. Test/Rule 1.3. which is general and not special B. Passed in 1963 limited trucks to 60 feet 2. Taylor ± had to block baitfish because there are no other means to prevent waterways from being inundated. New Jersey A. passes statute prohibiting importation of certain types of waste 1. 1974 statue vetoed that would have increased the limit to 65 feet 3. must have a compelling reason to do so C. Costs of the legislation are exported to out-of-staters and they do not get to participate in the legislative process a.

Kassel 1. Creates inefficient use of resources a. Washington State Apple Advertising Commission (1977) A. ³Even Handed´ regulation. Political accountability i. Creates anxiety and discord between the states ii. Need a ³national´ economy for strength of country ii. Export costs a. compelling state interest that cannot be served by other non-discriminatory means ii. No political dynamic to prevent this ± mixed theory of both political and economic D. Exact same statute can be unconstitutional in one part of the country but permissible somewhere else 5. Facially discriminatory = virtual per se rule of invalidity (³strict scrutiny´) i. Why is this interest good enough for other states but not in Iowa a. Regulation substantially burdens ($12M shown as a cost) i. Lead to retaliatory measures iii. then Iowa statute becomes constitutional a. . New Jersey 1. but court held could be handled different ways) C. Default rule ± Congress can change and make what was unconstitutional constitutional i. Out of state people are not fairly represented a. Unless. Washington introduced its own scale to distinguish its very good apples above and beyond that of the USDA regulations 2. Is court overreaching by creating judicially recognized doctrine based on implication that grant of CC power to Gov withdraws the power from the state? 1. Not justified by safety arguments 4. Echoes argument in McCulloch 2. Exception to Exception ± Dean Milk (all milk sold has to be pasteurized. Philadelphia v. Exception ± Main v. State does not offer health and safety interest in enacting the regulation 3. Congress passes statute allowing States to set length. Surface transportation regulation ± passed in response to allow Fed power to authorize decisions by the states (e. Explicit differential treatment of out-of-state waste 2. History 1.State law would be unconstitutional even if the Fed had not had a law on the books ± Johnson¶s Opinion 3. Iowa) Hunt v. Economic accountability i. Can always reverse course under it¶s CC power and ³ratify´ what was deemed unconstitutional ii. Dissent: i. Facially neutral only violates if the burden is grossly excessive in relation to the local health and safety 2. Taylor (quarantine justification) iii.g. North Carolina regulate by limiting all marketing to USDA grades only B. Robust starting last half century B. Many states limits the truck lengths ± looking at marginal length of safety is not appropriate because people could challenge at every increment ii. Arguments 27 i. then burden on commerce must be excessive in relation to legitimate state interests i.

Similar to Kassel ± excessive burdens (and skeptical of health and safety interest West Lynn Creamery. might be something else going on 2. Taxes are legitimate and subsidies are legitimate. Are constitutional unless i. 2. State acting as a business. New Jersey 2. Inc. Virtual per-se rule of invalidity ± Philadelphia v. History 1. Congress can come back and authorize something immediately (one area of law they can declare something constitutional) ii. Local health and safety interest is so small. Might be passed at behest of local apple producers a. The burden on interstate commerce is clearly excessive in relation to a legitimate local health and safety interest ii. Court 1. Kassel) i.g. Massachusetts can write check to dairy industry (subsidy from general funds) 1. no trash from out of state) 2. Criticism ± doctrine of implication ± Art 1 power not Art 3 power REVIEW: A. Tax on all milk sales. Hunt ± evenhanded labeling requirement because imposed significant burden on out of state producers and questioned local health and safety interest 28 . Do not make a geographic distinction (e. Hughes case ± Maryland case buying immobile cars but only those with Maryland plates. Courts are more aptly suited to pinpoint the certain regulations/statutes that are discriminatory and unconstitutional a. no trash.1. States try to avoid these now that there is an established rule B. cases strike this down a. Always the way they have done it. Any law that benefits one group might indicate discriminatory purpose ii. Market-participant doctrine ± allows state expenditures to discriminate against out of state interests i. which was redistributed to in-state producers via the ³dairy equalization fund´ B. NC ± states could all have own grading and confuse buyers C.Needs to protect the values of federalism b.g. Not facially discriminatory (or ³evenhanded´) 1. Facial Discrimination with statute 1. Kasel ± truck length limit b. Discriminatory intent i. v. Why not let Congress use their Commerce Clause power to correct this? 1. ii. They don¶t have time to do anything 2. vs. Line drawn where tax is distributed right back to the special group a. Wash ± harmed by NC law because deprived of comparative advantage and expensive to change labeling from one state to another ± injured economically 2. However. Distorts the political process . Clear that there is difference between regulation and tax & spend i. it can make business decisions without worrying about violating the DCC ii. Dominant theory ± State protecting health and safety iii. Healy (1994) A. Tax and direct subsidy is no different than taxing out of state and in state products differently C. Filing a lawsuit is much easier than having Congress pass laws to remediate certain situations (e.

then states cannot discriminate against out of staters with respect to any of those interest (e. ³evenhanded´ b. Exceptions to the rule ± Kassel ii. City said contractors had to prefer Camden residents in hiring. States have greater level of freedom when they are using their own recourse in the market as oppsed to regulating i. i. Deference fades away if there is some evidence of discriminatory purpose i. Must be a legitimate local health and safety purpose ± majority casts doubt on legitimacy of the statute if there is any evidence of discriminatory purpose a. which has resulted in more State¶s losing on these grounds C. Legislative history ± Hunt iii. they have the right to discriminate ii. Hughes ± Maryland bounty for dilapidated cars only to cars with Maryland plates.Combination of evenhanded tax and subsidy from these particular revenues is akin to a discriminatory tax .c. that the Equal Protection Clause is triggered. Equal protection clause 1. however.g. Corefield v. Non-discrimination principle a. however. E. Market-participant doctrine 1. Acts as an exception to the market-participant exception of the DCC . Article IV ± robust DCC protection 1. Privileges and Immunities clause of Art IV only protects people. However. Winnike ± forcing limber producers to treat wood in state before exporting ± unconstitutional because states cannot affect the ³downstream´ market D. Not rational basis ± searching inquiry seems to be a higher standard. Violates DCC if it¶s Camden dictating to private business. Court said. Said there had to be a ³strong reason´ for employing local residents under Art IV. the EPC protects all persons natural and incorporated. The tests help the court decide if the statue is ³facially discriminatory´ vs. out of state tuition ± state can cheapen school but can¶t prohibit access from out of staters iii.Camden ± hiring contractors for public projects. Court elevates rational basis review when the class regulated is the state of the business ii.Discriminatory tax is virtually per se unconstitutional 3. No affirmative rights b. 29 . Example of difference between regulation and market participation ± see in-state tuition vs. Since it is their money. Met-life Alabama ± Alabama wants to charge out of state insurance companies more unless they make significant investments in Alabama. Not DCC because Congress authorized states to have power over insurance companies. Reeves ± State owned cement plant will only sell cement to state residents (compare to law forcing private producers to prefer in state people iii. Privilege and immunities clauses in Constitution ± Art 4 and 14th 2. Texas can¶t limit law to only Texans) ii. but because Camden using own money Market-participant except shielded them. court said there were Art IV problems in preferring local residents for job. Different than regulation ± law saying junkyards had to give preference would be unconstitutional. West Lynn ± can discriminate against out of staters only if subsitdy is direct from general revenues instead of special subsidy from the special tax . Whatever a state gives to its own citizens (direct subsidies don¶t count) it cannot withhold from out of state people c. Art 4 prevents states from discriminating against out of staters for thoese rights that are fundamental i. Coryell ± where any interest is fundamental.

Presumption against preemption 1. the State statute would be unconstitutional i. but not controlling Crosby v. States lack power to regulate foreign commerce 2. Only sanctions government business and employee ii. Court might give some weight to agency determination. When Congress is pervasively regulating in an area. Levine ii. Overall circumstances of agency implementation that determines if there is preemption 3. See FDA preamble in Wyeth v. Conflict preemption i. More extensive i. Even if Congress did not pass a statute. Preemption is a Congressional determination i. Forms of preemption 1. President needs to be able to speak with one voice with dealing with foreign entities. why wouldn¶t they include express preemption in the statue 3. Gives substantial discretion to the President a. National Foreign Trade Council (2000) A. Would this be unconstitutional under DCC? 1. Two provisions ± Massachusetts v. Fed statute i. Yes ± 1st Circuit found it unconstitutional under DForeignCC i. Fed should act clearly when it infringes on traditional state rights of health and safety 2. Impossible to comply with both ii. Wyeth v.a. Prohibits more business and people than the Fed scheme ii. Background 30 . there is an implication that Congress has intended to leave no room for State regulation ii. Exception to the Market-participant exception to the DCC Implied Limits on Local Power: Preemption A. State should be able to allow itself to withdraw its funds from evil states ii. This is a very loose test ± justices have argued that this is inconsistent with federalism ± if Congress took time to exhaustively regulate. harder and unpredictable B. Massachusetts argument i. Federal 1. SC did not touch these issues because they are unsettled. Counter ± states part of the nation and nation has the power to deal with foreign entities. Executive agency pronouncements about preemption is not controlling i. Field preemption i. Levine (2009) A. Express preemption 2. No time limit on the sanction 2. May be a market-participant exception if the state is using their own state construction dollars ii. Power to create comprehensive strategy c. Power to add and remove sanctions as needed 3. Fundamental question = Congressional intent C. Undermines the purposes of federal law ± ³the law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress´ 4. Business can litigate under the EPC when state is excepted from DCC b. Could not prohibit businesses from doing business ± would not survive a DCC challenge 3. Power in order to get Burma to comply with various goals b.

however. Levine claim is a failure to warn claim i. Impossibility ± could not comply with both state law duty and federal regulation a. Conflict i. Bryer ± Concurring i. Couldn¶t change the label without approval and could only do so if they had new evidence ii. Court rejects the claims . Preamble to the law said tort claims complicated their charge C. Levine injured by IV-push method of administering Phenergan.1. contracting gangrene. Obstacle to achieving the full purposes and objectives of federal law a. Status of agency determinations that are relevant to preemption a. . Conservatives ± more eager to find preemption and invalidated state law 31 . This scheme is FDA trying to decide what the optimum warning is and not what the minimum warning is .Changed from 1998 to 2000¶s due to shift in executive power b. When technical matter is technical and the history is complex and extensive.State tort liability could countermand FDA¶s judgment D. Argues that it might be better to not remove the push-method labeling because it provides more instant relief a. Medical devices statute has a preemption clause and savings clause (direct and positive conflict) 2.Burden should be on Wyeth to show 3. Tort claim was failure to have airbags ± did the law forbid states from enforcing separate laws? State¶s punishment of an allowable choice interfered with the purposes of the law to spur technological advancement. which resulted in amputation 2. court has paid attention to the agency¶s explanation of how state law affects the regulatory scheme. Federalism through the lens ± when a state is disabled from acting i. Alito ± Dissent i. Encourages federal agencies to go through more formal and deliberate discussions on preemptions if they want the court to accede to their determination 4. but abandons because the savings clause makes the field preemption impossible 3. argues field preemption. Then argues conflict preemption i. court does not defer to an agency¶s conclusion . Presumption against preemption a. Not that there aren¶t warnings but that the warnings should have been stronger ± should have warned that IV-push should not be used 3. FDCA requires premarketing approval of labeling of drugs being introduced to the market i. Geier (airbag case) gave auto manufactures a range of choices in passive restraints.Range of choices provided a ceiling of what was required by manufacturers b. In some instances the court should defer to agency determinations after due deliberation a.Stevens 1. States will retain historical police powers (local health and safety) unless clear and manifest purpose of Congress . This involved a conclusion with no open deliberations ii. Impossibility i. In Vermont. Wyeth claims that the FDCA preempts state tort law 1. Levine wins in Vermont B. Careful reading of the FDA supplemental warning requirements shows there is no impossibility because Wyeth not subject to any federal 2. How compares to federalism discussions in other cases 1.

a. and Congress B. If court extends president¶s ability to have power over anything relating to war. Sawyer (The Steel Seizure Case) (1952) A. No statute that would allow him to do this. Issue . President cannot initiate this unless congress gives him the authority b.P. and DCC generally. § 1 gives executive power to the president (note that § 1 of Art I restricts congress to powers ³herein granted´) . v. Progressives ± more protective of state power and prerogative 2. Congressional Power | Preemption | DCC i. so no authority 2. Court gives a lot of deference to history in this area Youngstown Sheet & Tube Co. Time of Emergency i. Congress ± Legislation a. § 2 gives president ³commander in chief power´ over armed forces .Court is worried about separating the commander in chief power as it relates to Foreign affairs compared to Domestic. § 3 responsibility to ³take care that the laws be faithfully executed´ ii. Liberals are the exact opposite Distribution of National Powers § 8 Powers of the Executive Distribution of Powers A. Only part of government authorized to take property is congress a. However. Private Property i. Constitution ± Article II a. it would essentially make him commander in chief of the country and not just the military c. Background 1.Executive is solely in the president & Legislative power is split between congress and the states OR . Horizontal relationship between Exec. but seem to flip on Preemption ideas ii. Anti-regulatory with regard to Congressional power b.Certain things are inherent in an Executive power but Legislative powers are more easy to enumerate and specify b. Anti-regulatory with regard to State power after Congress has already enacted law ii. Conservatives prefer Local right in C. Constitutional protection of private property ± 5th amendment (due process clause and no taking of private property without just compensation ii. the ability to seize was proposed and then rejected by congress during enactment of Taft-Hartley B. Taft-Hartley act gave president power to impose injunction to prevent labor strike i.Does the president have power to seize the mills? 1. Two sources of presidential power i. President Truman ordered seizure of the steel mills due to pending strike because country was in war 2. Framers were keen to suspect that giving emergency power would give great incentive to create emergency to enlarge presidential power 3. Compensation comes from Congress 32 .

congress has to agree to it. Most power b. might enable/invite the president to assume responsibility . Absence of grant or denial of authority with concurrent authority of congress a.historical powers . which wants meaningful review of claim 5. president can only act if he has explicit power and congress is acting illegitimately d. Lowest power b. they are supposed to notify consulate and provide information to arrested about how to contract and get assistance form consulate a. boundary might overlap and create the zone c. Issue ± should the claim prevent his conviction? 1. If congress hasn¶t acted. Acting pursuant to express or implied authorization of congress a. ³Twilight zone´ b. US signed Vienna Convention i. but not the U. Mexican national arrested & convicted of capital murder in Texas 2. Background 1. in domestic property iii. Congress might have authority to reach in and withhold certain courses of action from the unspoken Art II general powers of the president that he might have c. US signed Optional Protocol i. Includes both powers granted under legislation plus those granted under Art II c. which is reserved for congress (Art I) ii. Real Power a. Thinks it would be bad to ignore the ICJ. ICJ issued ruling requiring US to hear issue 4. Sounds a lot like preemption . Bush signed order requiring states to comply i. Does not fall into this zone because not power entrusted by congress ii. When any foreign nation arrested. Texas (2008) A.S.practice . If this is the case. Jackson Opinion ± three levels of power i. Illustration of the steel seizure cases ± power to make treaties (Art II) does not give power to make domestic law.4. SC says Bush acted beyond his authority to require as a matter of domestic law state courts to hear these claims i.Simplistic to only have Art I and II powers.S. Measures incompatible with the expressed or implied will of Congress a. Paper Power vs. Balancing test being offered based on . Pages 364-365 Medellin v. Self-executing treaties vs.extent of exigency iii. Even when foreign affairs implicated 33 . personal property seizures ± extensive regulation of this area ± therefore. Non-self-executing treaties i. and congress did not agree to make this domestic law controlling domestic matters 2.Congress has legislated labor strikes. In order for treaty to be enforceable as domestic law. Texas denies review B. Ignored by most jurisdictions in US to due complications 3. President can bind the U. it suggests that congress did not want to give the president the power (see field preemption) iv. Issues and disputes should go to ICJ ii.

No such thing as enemy combatant status for citizens C.Black: discusses powers in Art II and assesses whether actions fall under Art II .Jackson: more influential and less formalistic.REVIEW: A. Separation of Powers i. etc. Majority finds the statue authorizes the detentions 2. Steel seizure case ± Truman orders seizure of steel mills during time of war with Korea . ³no citizen shall be imprisoned or otherwise detained by the US except pursuant to an act of Congress´ ii. Does the detention violate due process? i.Right to charges . Background 1. A fair opportunity to rebut the government¶s factual assertions . courts deemed he lacked the authority Hamdi v. Other 34 . Art II less those taken by Congress (iii) No action ± twilight zone. b. Court shouldn¶t try to constitutionalize protections for people detained. citizens should be afforded the full protections of due process ii. History has some claim over whether or not President has this power. Hamdi claims Non-Detention Act limits president¶s ability to detain citizens of the United States. Medellin ± see above .Opportunity to rebut the evidence. Contrasts limited paper power with the actual power exercised over time. Relationship between branches of Fed government 1. Dissent: Scalia i. and b.President tried to unilaterally commit courts to the treaty without congressional authorization. Sets up hierarcy of power (i) Congress given powers ± highest ebb of power because both Art II and those prescribed by Congress (ii) Congress circumscribed powers ± lowest ebb of power. Gov claims this is executive power under Art II to be commander in chief ± power not to be tied in effectively carrying out this responsibility a. Three branches exercise power associated with another branch ii. Rumsfeld (2004) A. organizations. Congressional statute (AUMF) gives president authority to use ³all necessary and appropriate force against nations. People associated with Taliban are part of those ³associated´ with 9/11 attacks because they facilitated the growth and strength of the al Qaeda B. or persons´ associated with 9/11 attacks a. Presidential power and limits a. Does president have the power? i. President powers stem from Art II powers or the powers conferred upon him by Congress. Hamdi is US citizen caught in Afghanistan with a group of Taliban 2. Court adopts idea that due process does constrain detention somewhat a. Checks & Balances vs. Must give detainee notice of the factual basis for his classification.Right to hear the charges . Detained because he was deemed to be an enemy combatant i.Right to counsel . Should be up to the executive to fashion these protections ii. 3. Until Congress suspends habeas corpus. Issue 1.

Removes judicial review and vests in executive authorities B. Meaningful substantive review of the detention . ³maters of law´ 3. Issue ± this this system of tribunals permissible? 1. Will make decisions about legitimacy of detentions ii. President acting in violation of a congressional statute ii. They can only look at a. etc. US doesn¶t want to disclose methods of obtaining the information 2. Congress response i. Can targeting (assassination. Bush i. b. Do not know if there would be a meaningful judicial review over whether a suspension is valid. Eldridge test) looks at a. Writ of habeas corpus has certain protections they can¶t circumvent unless they suspend the writ. Violates requirements of UCMJ a. Guantanamo Bay is under de facto control of the U. Violates the Geneva Convention a.) be reconciled with this decision? i. Constitutional limits of the executive power to detain 2. Enact detainee treatment act giving COA court authority to review legality of detention ii. Art 3 gives certain protections b. etc. Hamdan finds executive tribunals conflicts with statutory authorized procedures under UCMJ & Art 3 of Geneva Convention 1. Constitution requires some minimal habeas rights that cannot be withdrawn by Congress unless they suspend the writ of habeas corpus under Art I § 9 a. Boumedienefinds Congressional scheme of determining length of detention is an unconstitutional interference with habeas corpus rights i.S. Court must have ability to review.) Gives robust view of the writ. General framework (Matthews v. REVIEW: A.S. and habeas corpus reaches to the base a. Does this extend to Guantanamo? Court looks at the functional status of the base (perpetual lease. President sets up military tribunals to deal with person alleged to be enemy combatants i. need for administrative need and tries to balance these competing interests when deciding the level of process needed ii. Challenges i. Executive decision not consistent with statutory limitations 2. 1. the nature of the deprivation. ii. Bound by international treaty 2. constitutional overlay over a constitutional statute limiting president authority Hamden v. Wants to detain indefinitely to keep access to information from people hostile to the US 3.1. How far does this extend? ii. Leaves open the question over whether Congress¶s suspension of writ given the invasion on 9/11 is a decade old. Hamdi establishes at least some due process for citizens detained in U. Congressionally authorized structure for dealing with prisoners on the battlefield b. Court response in Boumediene v. Background 1. ³Whether the final decision was consistent with the standards and procedures specified´ b.Those established in DCA (?) are not adequate 35 . Rumsfeld (2006) A. Uncertain how this would be resolved B.

US ± postmaster general case ± Congress can¶t require he be fired ii. See Humphrey¶s Executor v. Legislative veto is form of lawmaking and must satisfy requirements of Art I 3. therefore veto is not a legislative power. Holding i. Is it permissible for one House to act alone under the constitution if this is a legislative act? Does this device trample on the idea of separation of powers? Does it disturb the allocation of powers within the Constitutional scheme? 1. Lawmaking/policymaking power in the agency (or adjudicatory function) a. experts who are implementing and refining policies given generally by Congress . Executive Agency 1. and creates resolution to deport Chadha and five others. INS allows him to stay in the US because he satisfied the criteria to avoid deportation (i.g. Why designate? i.Court has interpreted some federal statutes narrowly in light of non-delegation doctrine (would be in conflict if too broad) 4.Held that Congress had to give some reasonable precision in its legal standard so the regulatory implementation would be faithful to Congress¶ will as opposed to that of the Executive branch . It is equally improper to give away power as it is to try to get more 1. Line-item veto act 2.FTC . US 36 . good moral character. Background 1. Response i. Congress exercising control is violation of presidential removal power b. Congress cannot invent device to respond to executive¶s increased power a. E. therefore conformed to Art I ii.INS v. Legislative veto was passed by both houses and presented to the president. It¶s just preventing a decision from going forward and is equivalent to presidential veto.e. No purely administrative role c. New York v. See Panama Refining &Schenchter ± delegating authority to the executive branch crafting the non-delegation doctrine . Court thinks this argument would lead to usurping executive functions and taking away from the Art II power exclusively vested in the president iii. See Myers v.Agency charge to regulate ³reasonable risks´ .FERC b. True that very limited non-delegation doctrine. US ± was permissible for president to fire the head of an independent agency for just cause B. however. Exec ± president cannot be limited in the removal power of the head of the agency 2. Congress has the means to enact new law to overrule the agency determinations D. Independent vs. House has ³veto power´ over decisions made by immigration judges. Chadha (1983) A. Chadha in US on visa and stays past expiration. Purely executive power should have chain of command right to the president a. Art I § 7 requires bicameralism (passed by both the House and Senate) and presentment (presented to president to sign) 2. a. President can veto. over seven years. Legislative veto is response to the rise of legislative power in the executive branch via agencies a. C. extreme hardship if deported) 2.

then a. ³Take care´ clause is general command to executive branch to enforce compliance with law. Two methods of review i. not a command just to the president. then separation of powers concerns. AG goes to special court and notifies them of decision b. Olson (1988) A. Background 1. Morrison is much more functional vs. Need to have the independent counsel to make sure the president is complying with the ³take care´ provision. Therefore. Does it violate appointment power? (formal reasoning) President has appointment power in Art II § 2. Same as Clinton v. ³quasi-legislative or judicial´ to whether statue impedes on presidential ability to perform a constitutional duty b. Now not answerable to anybody. Inferior officers: a. Changes test from ³purely executive´ vs. Court would never allow this method of functional review in other branches C. Creating executive official who has none of the ordinary accountability that official should have a. Inferior officers can be appointment by congress. Dissent: (Scalia) i. Vs. Ethics in Government Act creates independent counsel to investigate high ranking officials for violations of federal law 2. NY (formal) 2. Executive has all the power of the executive b. the ³wooden´ feel of Chadha that is largely formalist a. Limited jurisdiction and tenure of appointment ii. then a. No restrictions on resources and can be politically motivated iii. ii. Court: (Rehnquist) i.´ Otherwise.3. On balance. No accountability creates incentive to dig as deep of a hole as possible to trap as many people as possible because this is what would be recognized a. He is unconstrained in his power of how and who to prosecute ± AG can only fire for good cause 2. Does it violate president ³take care´ provision? (functional reasoning) a. the independent counsel would help the exective branch perform its goals 3. One form of accountability is being able to be fired by the president. Reasonable grounds for believing. Chadha ± Wrestling with separation of powers question ± is this interfering with constitutional power i. it helps restore constitutional accountability. AG can remove counsel for ³good cause. Special court will appoint an independent counsel 3. Lower on chain of command (removed by AG) b. 3. No reasonable grounds for believing further investigation is warranted. or ii. Independent counsel is separate from the executive branch. Separation of powers is not for the purpose of protecting institutions. Separation of powers concerns informs court how to interpret specific doctrine 37 . Issue 1. Court has no power to appoint independent counsel ii. Analysis 1. Not constitutionally authorized a. it¶s to protect people and the country Morrison v. counsel can only be removed by the special court B. Specific doctrine first. People therefore hold accountable by decision on Presdient b. so there is no political accountability. If AG finds i.

Bowsher ± comptroller general a. Hostile 2. Court uses concerns about excessive delegation to inform statutory interpretation 3.D. Strike down limits on termimination iii. Chadha ± court finds leglislative veto is unconstitutional under a separation of powers analysis (preserving prerogatives of each branch) i. Formal consideration a.Extremes are no inclusion for representation or full inclusion b. Three choices of constitution¶s approach to slavery 1. Tolerant i. NY ± court finds line item veto impermissible i. Post-Panama Refining &Schenchter. Court strikes down statutes that invate presidential removal power i. Art I § 2 cl 3 ± representation in voting . Non-delegation doctrine 1. Court finds independent commission in the judicial branch to create sentencing guidelines permissible 2.g. Mistretta 1. Form of lawmaking and must conform to bicameralism and presentment C. Cancellation of particular line itme is a form of legislation and must confirm with presentment and bicamerism ii. Congressional effort to retain control 1. When executive actor is performing actions not purely executive (e. ³other persons´ counting as 3/5 a person . Congress is giving a lot of authority to executive. but used a formalist approach to identify B. Involves congress too much in policing the executive branch b. the court has never found a case under the non-delegation doctrine 2. Conforms with non-delegation doctrine. Congressional contrl over relationship between executive and agencies 1. Another attack on the non-delegation doctrine REVIEW: A. Meyers ± postmaster general ii. Court held (in both) purely exeutive activities makes it imporoper for congress to interefere with direct presdientail control b. Dissent ± this doesn¶t capture reality. congress cannot constrain importation of persons as states may see fit 38 . Broad. FTC. functional consideration a. adjudicatory war crimes commission [weiner]) it¶s permissible to place limits on executive removal power Individual Rights § 9 Race and the Constitution The Classifications Based on Race Refer to Con p441-52 and Chem p690-94 A. Clinton v. so veto helps retain balance of separation of powers ii. No mention of the word ³slavery´ ii.Free persons vs. Art I § 9 ± until 1808. Three provisions that refer to the practice of slavery a.

. does not trump the other types of law. Founders would be hypocrites if they meant for everyone to have rights but also owned slaves. Slaves born after certain date are freed after age 25 2.Statute . Abolishing slavery in the late 1840s would leave a lot of old slaves out on the street ii. Choices a. - 39 . so left to courts to decide how much weight to give the natural law types of language g. obligation to return person if in different jurisdiction (Fugitive Slave Law) 3. so adding this into the fabric to support f. however. constitution has a few broad abstract writings of natural rights)? Is it right for court to favor the legislative law over the natural law? .Natural law like language in state constitution ii.Have to resist the pathetic pleas to do what¶s right and make best sense of the positive law that¶s before us. Considerable belief that under natural law slaves were equal. ³Judges must be more than men´ . Compromise.Unwarranted exercise of judicial power to read the abstract language and wreak havoc on the legislative scheme d. Ironic in this case that constitution writes of natural law rights and the court does not defer to this . Protective State v. More traction to anti-slave arguments in the northern states B. owners pay to maintain in old age 3.Limits congress commerce clause power to affect slave trade. There has never been a tradition that natural law prevails over positive law a. positive law (emanating from culture directly controlling). when you¶re exercising judicial power and confronted with natural law and there is a conflict between natural law and more specific. what do you choose between? Do you pick the one that seems to constrain (slavery is permissible) or do you privilege natural law (in an unwritten way. Art IV § 2 ± if person held to service in one state. Under current system. All men are free and independent with certain inalienable rights a.Etc. Could choose positive law over natural law b. Courts did not usually find natural law to be a trump card over the other types . however. Arguments 1. Post (1845) A.Textually does not refer to color but people. Could chose that natural law trumps positive law c. See chart b. Best way to understand the framing is as one that denied the rights to African Americans. e. Could resign iii. Constitutional language i. Practical realities i. but envisions that congress will have the power to limit later on.Const.Must subordinate natural law to positive law .Common Law . Background 1. Massachusetts used the same type of argument to find slavery unconstitutional . therefore they must have meant that they were second-class c. c.

Defers to Congress in lawmaking power b. leading to ³bloody Kansas´ B.Slave v.Basically says the U. Missouri Compromise of 1820 . Sandford (1857) A. Priggs v. Background 1. Historical discussion concerning treatment of slaves d. Held: Dred Scott not a citizen for purposes of Art III. 1850 Act . Some indication of the squeamishness of actually protecting the institution of slavery in the constitution.LA purchase adds a lot of territory. Legislative developments try to preserve political balance between slave and free states a. They make their own laws on their way to statehood. . Story finds the PA Self-help Statute was unconstitutional because interferes with fugitive slave clause of the constitution (either directly or indirectly through preemption related to the fugitive slave act) ii. slavery not above 36¶30´ b. Argument for: i.J.State law prohibited people from recapturing slaves . Property of slaves i.No overt protection for slavery and no overt mentioning of the legality of slavery in the constitution. Original intent re: citizenship of slaves i. Free status would be determined by the popular sovereignty of the incoming settlers. It¶s improper for Congress to make laws for after acquired territories. owned at the founding (Textual argument) (Territory clause) .S. is not an empire and does not make rules for other territories. Best argument against .S. slaves considered second class beings with no rights and privileges (Originalist Argument) a. Slavery constitutional challenge manifestations i.3/5th count for representation . Provisions .Protects importation for 20 years ± Art I § 9 b. Law of Illinois & LA territory renders Dred Scott free (due to ban on slavery) and this status does not change when brought back to Missouri 2. Ways in which states opposed to slavery could resist a.Provisions labeling white were rejected iii. Not the province of the court to decide on the morality of these laws a. so no jurisdiction to hear case ii.Insurrection ± congress has power to suppress Art I . Discussion 1. 1854 Kansas-Nebraska Act . Art IV § 3 power ± Limited to the territory that the U.Fugitive slave provision ± Art IV § 2 . PA .Brings CA as free but leaves UT/NV open c.Dred Scott v. Congress power over territory a. At the time of the founding. it could encompass the future addition to the original territory . Descendants and freed slaves not considered part of the people either c. ii. Choice of Law 40 . therefore not commonly accepted as the way of the world.If it said territories. Duty of court is just to interpret the ³instrument framed´ 3. Opinion overstates the original meaning.

Debates were not circulated ± everything behind closed doors a.No provision giving less protection for slave property C. Could also show strength of textualism ± hold evildoer feet to fire if they want to accomplish a certain purpose REVIEW: A. Frederick Douglass Speech 1. Should bend toward good and away from evil all things being equal ± let¶s not allow our constitution to serve a degraded purpose 2. Framers intended to create a document and release it only ii. Is it appropriate to exclude blacks from the community? ii. and who had committed no offense against the laws. Constitution does not condone slavery a. Only power conferred to Congress is in protection ownership . Congress power to regulate to the territory did not extend to after acquired territory a. applied to slaves would render constitution nonsensical as it would not agree with the other provisions (creating internal contradictions) iv. Seems like a stretch ii. a. could hardly be dignified with the name of due process of law´ b. Dred Scott 1.Lend themselves to both pro and anti-slavery slant.a. 3/5th clause & 20 year protections are compromises a. 20 years of express protection b. Refuses to use the word ³white´ or ³slave´ b. Fugitive slave clause ± language ³bound to service´ cannot be about slaves because slaves are not bound to service. 20 years until abolish & slave owners don¶t get full representation. Clauses i. but shows a limitation. merely because he came himself or brought his property into a particular territory of the US.No power over slave property . Court view that Scott could not have gotten his freedom by going to the territory i. so indeterminate and should move from originalism to textualism iii. Originalist i. Constitution expressly protected slavery a. so they can¶t fully commit to their language. No power 41 . Framers recognize a tension between grand pronouncements of congress and a constitution allowing slavery. Due process protects ownership interest a. Wit habeas/due process/etc. without due process of the laws´ c. ³act of congress which deprives a citizen of the US of his liberty or property. Some power to argument that evil has to announce itself ± constitution must specifically allow slavery or words will lend themselves to other interpretations b. Not an argument totally against textualism. Framers went out of the way to no include ³caste´ type words 2. or property. which might be more hostile to slavery . Textualist vs. Missouri says slaves are property and Illinois can¶t deprive iii. Right of property of slave is affirmed by constitution under due process clause 5th ³nor be deprived of life. Legal significance questions i. Can be viewed as protecting or limited slavery b. they have no contract with everyone a. liberty. Protection for owners of runaway slaves (Art IV § 2) c. Illinois law said you lose slave rights when bring them to state.

However. that declaration would not allow for individual slaver owners to lose their property merely by entering a territory a.Argues this is a war measure and not aggregation of power for fed to regulate the institution of slavery Reconstruction Era A. People can purchase the labor of these people. Doubts about the constitutionality of the civil rights act of 1866 a. Took political issues and removed from political resolution a. Protection of birthright citizenship b. Use of originalism to exclude blacks ii. Laws targeting blacks by color and imposing greater punishments ii. Enforcing contracts b. Might not be a legitimate commerce clause power ii. Would protect property interest even if Congress could regulate 3. Makes it permanent B. Sue and be sued c. 13th extends the emancipation proclamation 1. Precipitated the civil-war a. Radicalized the republican party and determination to stop slavery which triggered secessionist impulse .ii. Lincoln issues emancipation proclamation during the middle of the war . Extends to all slaves 2.Alternative is peaceful allocation of slavery across the country c. which peopled liked a. D. Makes it constitutionally permanent to protect their basic rights 2. School segregation c. Interracial marriage b.Steiker does not really get this argument because it was pro-south in effect b. Rejected a. Due process argument ± even if congress had power to regulate. Formulas i. Debate: how to frame protection for newly freed slaves? i. 14th amendment 1. essentially slavery C. color or decent ii. Etc. Was the civil war a bad thing? . Acquire property iii. Protection of privileges and immunities 42 . Laws against vagrancy and long-term employment contracts a. Black Codes 1. Why reviled? i. Couldn¶t pass general declaration because would eliminate segregation. Hostile to the status of newly freed slaves i. Goal is to give constitutional authority to regulate race discrimination in states iii. Why need when have the CRA 1866 i. Adopted formula a. Civil rights formula prohibits race discrimination on basis of race ii. Civil Rights Act of 1866 1. adopts formula of prohibiting discrimination on race with regard to economic rights of personhood a. Example 1 of judicial activism ± see Scalia argument in Casey iii. Testifying in court d. No distinctions based on race.

Can¶t be made equal by the state to equalize social status ii. Fact that blacks are harmed should result in prohibition iii. Laws must be reasonable and not intended to ³annoy or oppress´ ± sounds similar to ³no unfriendly legislation´ iii. Equal protection extends to political and civil rights and viewed public transportation as a social right i. Up to the states to categorize a. Women¶s rights (see US v. Virginia) Strauder v. What is the standard of review? i. Express burden/disadvantage on black jurors ± only whites can serve i. Statute is born out of racial hostility . Is it unfriendly because it does bad thing or it¶s ill-motivated? . ³The law shall be the same for the black as for the white´ b. Background ± railroad operating segregated cars ³separate and equal´ facilities B. so morphs this into a civil rights case 3.Counter: could be instituted because whites were participants in society and a better juror b. De-constitutionalizes racial classification i. Remains a central fault line for anyone who wants to have racial classification 43 . Discussion 1. Protection of equal protection of the laws iii. Discussion 1. No racial classifications allowed a. Ironic because the adopted formula transforms in a much more encompassing way than a mere declaration of equality.Becomes much more difficult to operate . No constitutional violation in segregation of the railway cars 2. Ferguson (1896) A. Black man convicted of murder before all-white jury 3. Protection of due process d. This law expressly singles out and disadvantaged blacks 2. 14th designed to ensure blacks the enjoyment of all civil rights that are enjoyed by white people ii. Framers clearly rejected this as a rule in formulating the 14th ii. § 2 contemplates there would be disenfranchisement and enacts a penalty b. Not intended to create a caste system ± fault of perception not the statute itself 3. West Virginia (1880) A.c. Overt race exclusion on jurors will hurt defendant because of generalized attitude toward black defendants i. No discriminatory intent allowed a. No racial harm allowed a. Court says defendants are handicapped by a system that presumes them to be inferior.Case-law constantly tries to mediate between the two Plessy v. Constitutional question: do citizens of the US have constitutional right to trial by jury selected without discrimination against race or color? B. Broad language leads to other types of proections a. How can they make this argument in the face of 15th which covers political rights a. Suggests that that might be an appropriate test ± no racial distinctions c. WV statute limited jurors to only white males 21 years and older 2. Background 1.

Swett/McLaurin ± higher education institutions established were unequal a. just reflects an underlying reality that whites enjoy a better social position REVIEW: C. Gains (1938) ± MO has public law school and doesn¶t want blacks to come but will pay tuition to go to neighboring state school a. Swett ± challenge to black law school at UT. Stand mandated racial separation is unreasonable ± heightened protection for property interests as opposed to social interests of rail car seating vi. 44 . No unfriendly legislation (motivation/effect) 2. Equal pay for teachers in black schools. Giles ± (1903) P says conspiracy in Alabama to disenfranchise men a. alumni.not even pretense to having black graduate schools. Cummings ± faced challenge taxes used to fund white school but not black school a. Plessy hoped to exploit the fact that people are uncomfortable to categorize people iii. ± ³the intangibles´ b. Centered on other things such as network. Court says unconstitutional to provide equality in opportunity to dine in railway cars iii. constitution might provide remedy for misclassification a. Equity suits ± try to establish inequality in segregated schools a. library and cafeteria . They are ill equipped to handle a massive conspiracy ± ruling would be empty form and not provide a remedy in equity. etc. Provides valuable ammunition for when Brown is decided 3. therefore no relief . Intervening cases: i. If there is misapplication once this situation is established. Open-ended language of P+I .Declaration of the court¶s impotence in dealing with massive resistance to racial equality c.Court ± focuses again on intangibles.Suggests court is not interested in pursuing equality side of separate but equal .Court ± manifest inequality.Later cases confirm court will recognize ii. Arguing within the framework of Plessy b. Strategy to deal with segregation i. McLaruin ± OK doesn¶t want to create school for education. Buchannan ± Exception to the ones above a. testing. Protection of rights 1. political i. so make blacks sit in special part of the classroom. . Court says suit in equity and not obvious position is improved. Obvious tensions ± injury to be labeled black incorrectly but states there is no caste system ± reflection isn¶t meant to annoy. Prohibits housing restrictions because they violate property rights b.ii. Higher education was most manifest example of inequality . . grandfather clauses v. 1900 = near 0% b. 1870 = 60% black voting. Law should be the same for whites as blacks (similar to not passed legislation) ii. Court ± violates principles of separate but equal ± becomes constitutional requirement in Gains iv. Material quality is eroded in the actual functioning of the system. Strauder ± civil vs. McCabe (1919) ± no dining car for blacks a. Restrictions ± literacy tests. Adoption of 14th 1. Court ± can¶t do anything about this. equal protection D.

Doctrinal ± cites 5 or 6 cases a. Court is not willing to say segregation is intended to harm anyone. Studies (psychological studies) show this can impact their learning iii. No discussion on standard of review b. Modalities i. Challenges segregation in DC through application of the 5th amendment due process clause B. Unfriendly. but it would make for a clearer decision a. ii. Why? Fear of backlash. Challenge to separate but equal not just equality of the educational facilities B. ³Separate on the basis on the color of their skin is likely to generate a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. States would have to ³declare their racism´ in defining their intentions in segregating Bolling v. problem in getting court to unanimously agree . Therefore.Brown v. Historical/Intent of the 14th (Originalism) i. declared decision to be illegitimate. non-compliance with decision. Due Process . State supported compulsory education was not widespread (basically didn¶t exist) b.´ 3. Board of Education of Topeka (1954) A. Doesn¶t hint at the possibility of strict scrutiny . Very few historians agree with the court¶s view of the framers view of segregation. Separation creates sense of inferiority with the black students ii. a. Problem with social science reasoning a. meant to annoy and oppress and is unconstitutionally motivated b. Background 1. Could change easily if the science behind the decision changes 4. issue would be unrecognizable to the framers of the 14th iii. Discussion 1. Criticism ± Brown unwilling to confront the depth of racism at the time of the 14th amendment and the resulting embrace of segregation. Background 1. Intangibles of education (Prudential) i.Could address the decision much easier. it had basically become a right for children c. No fixed meaning or understanding of the original intent of the 14th related to segregation of schools ii. Court sidesteps originalism by contending it is contested 2. separate but equal inflicts harm and is therefore constitutional i.Southern manifesto ± signed by every member of the south. Can¶t manufacture uncertainty like they did in Brown 2. Therefore. Prudential ± social science iii. Textual ± none ii. Originalism ± even farther removed since 5th established in 1700s.³Segregation in public education is not reasonably related to any particular governmental objective´ 45 .Addressed in Korematsu (Japanese internment camps) . At the time of the case. Sharp (1954) A. Status of public education a. No one thought or had any intention toward segregation since still slavery. Harped on the errors in reasoning by the court. Discussion 1. Record is not very unclear therefore.

Those opposed found non-racial ways to continue the segregation i. there is no integration (that the color was broken. not actual integration) ii. Most people think of Brown II as emboldening the resistance to Brown I i.Massive non-compliance ii. Winning lawsuit did not result in a remedy ii. but no whites go to black schools 3.Brown could have been decided in the same way based on 14th use of due process ± declare it is irrational 3. Racial balance within school district (30% black district = 30% black per school) B. but just schools´ b. Board of Education of Topeka (Brown II) (1955) A.Administrative burdens on system ± redesign school districts that wouldn¶t compromise too much the interests of white students in having the same level of education that they had 2. so schools would have been segregated immediately a. Pupil placement plans 2. Give orders ³necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed´ 1. Ultimate irony 1. 1 85% white and 1 100% black iii. Passage of civil rights act finally fixes things i. Required Fed courts to enforce something much closer to racial balance C. Eliminating racially identifiable schools (make sure no school entirely one race) iii. which ended up having a broader effect on law 2. 10 years after Brown. 1964 is the ³beginning´ of the implementation of Brown 4. Prevailing doctrine that Federal government is subject to same limitations as state governments ± treated identically to the way states are treated Brown v. Court says Brown II requires the end of racial identify-ability a. Brown II ± looks like it¶s protecting states because doesn¶t give immediate remedy i. Appropriate time with all deliberate speed to remedy the error a. Greene (case) i. Mandating local assignment ± housing wasn¶t segregated. ³Unthinkable to reach a different result for the federal government´ i. School districts in the deep south would not have done this . US DOJ could enter into lawsuits and withhold funds unless they showed greater compliance iii. First time the court separated the remedy from the ruling i. Post-Brown 1. 14th Amendment ± didn¶t want to say no racial classifications. Court did this because: . What would have been better? i. Begins to be accomplished in that a very small number of black students go to white schools. Court finally took on question ± end race in placement or achieve racially non-identifiable schools ii. not white school and not black schools. By not tieing remedy to particular plaintiffs. . Freedom of choice: all students assigned to school originally assigned to and given a onetime decision to transfer with strict requirements ii. Two schools following freedom of choice plan. States that maintain schools on the basis of race will no longer receive federal funding ii. ³obligation of districts is to produce. it caused a greater amount of intrusion into state institutions because transformed fed courts into guardians of these institutions 46 i.

Beginning of public law litigation in the US a. however. Doesn¶t tell us whether a. Brown i. Bolling i. No effort to explain why gov should be constrained by equality guarantee a. 14th amendment is not applicable to the District of Columbia i. Looks like a bait and switch . Instead of individuals getting remedies.Cites studies showing segregation harms minority schoolchildren . No one argues that Brown was wrongly decided. civil divide ± denial of education is civil right b. Fails to adequately justify the opinion 3. Simply states it would be unthinkable ii. Decision to separate is what is unequal . Shelley v. complete fiction ± equality was stipulated by the parties) a. or b. Korematsu: used language of strict scrutiny b.) 1. Board 1. What did Brown say? i. Court declares it unthinkable to not have the same constraints in regard to equality ii. Declaration that segregation serves no purpose has no support a. Is federal government constrained in same way as states? i. inherently unequal B. interest groups try to transform institutions b. Failure to discuss history/meaning of segregation ± provides no context to support conclusion ii.Therefore. Failure to mobilize available precedent ± only uses Swett a. Record is indeterminate on what framers believed b. Intangibles are unequal . Fact of separation is what makes schools unequal.Following cases challenge segregation in public places that are more akin to those rights in Plessy. Smith v. No reasonable purpose served by segregation C. Gets over social v. Unpersuasive use of social science a. Buchannan: court says interference with property right c. Cannot make decision based on original understanding and turn back to 1868 a. Court just finds these practices unconstitutional based on Brown using per curium decisions (unsigned unargued) 47 . Brown v. juvenile facilities iii. Wright(?): certain voting restrictions unconstitutional iii. Spreads to a lot of different contexts ± prisons. Other researchers could find benefits.See Brown II below 2. Forced to rely on the due process clause of 5th amendment 2. Kramer: Gov can¶t be involved in enforcing racially discriminatory covenant w/r/t housing d. Segregation harms minority children even though nominal equality between schools (however.ii.C. Why does this matter? i. would this make opinion unreasonable? iv. no one has anything good to say about how Brown was actually written 2. Bolling (D. Most significant legacy and unintended consequence of the Brown fiasco REVIEW: A. Brown makes it sound like it¶s only an education case ± no justification for post dcisions a. Critiques 1. Changing status/character of public education ii.

Such construction (application to states) would equal ³perpetual censor upon all legislation of the States. No standard of review (e. Enacted to protect the rights in the CRA of 1866 D. effectively writing it out of history i. strict scrutiny) b. Series of observations followed by judgment iii. Court rules on each of these provisions narrowly.ii. Butchers sue concerning LA giving exclusive right to slaughterhouse in certain area of New Orleans B. Denies equal protection of the laws ± 14th iv. Crandall v. Declares P+I of Art IV § 2 to specifically relate to those rights given to state citizens that must also be given to out-of-state citizens [textual] a. Deprives of property without due process ± 14th iii. on the civil rights of their own citizens´ [Prudential] a. Importance of case: ³No questions so far reaching and pervading in their consequences«have been before this court during the official life of any of its present members. Nevada iv.g. Goal was to issue a succinct judgment with nothing objectionable b. P+I Clause: 1. Textual. just general discrimination protection c. No such results intended by Congress in proposing amendments [Historical Intent] . Birthright citizenship ³citizen of the state and of the US´ [Textual] 48 . Gives list of provisions that were already guaranteed rights. No clear doctrine going forward a. Decides that 14th protects slaves only i.Instead it was sociological argument saying segregation does bad things § 10 Implied Rights Privileges and Immunities Clause Slaughter-House Cases (1873) A. so no meaning [Doctrinal] a. Original intent (limited goal of the amendment) b. Why? i.´ 2. Distinction between citizen of US and of States . Did not create the rights b. Unity of purpose and history of the times suggests 13/14/15 amendments were to promote freedom of the slave race a. Historical. Challenges 1. Infringing on right to pursue a profession. Creates involuntary servitude ± 13th ii.Didn¶t intend to transfer basic rights from the states to the federal government iii. Types i. Does not persuade audience a. Abridged privileges or immunities as citizens ± 14th 2. rejecting arguments 1. Rights under P+I (Corfield) are broad and extensive ± applying to P+I in 14th would grant protection for all fundamental rights ii. Overturns Dread Scott c.Speaks only of P+I of citizens of US and not of the States ii. No use of the modalities of argument . individual liberty C. Background: 1. Whatever P+I a state grants cannot discriminate against those who come from other states ± not absolute protection. Court narrowly reads the provision.

Therefore not fundamental in due process of law ii. Most important part i. Objections to using as a basis for substantive indiv. Only relates to the preexisting rights ii.a. No reason to strain due process of law to include this privilege D. Rights i. Palko v. Bill of Rights only intended to limit the federal government ± Congress shall make no law respecting «. P+I is more appropriate. History 1. Fear of tyranny was from the federal government B. They are not a ³principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental´ 2. Twining v. Baltimore (1883) 1. Connecticut (1937) 1. Opinions of the policymaking organs of state governments c. Natural law ± ³implicit in the concept of ordered liberty´ 3. New Jersey (1908) 1. California (1947) 1. Rejected argument that state cannot appeal criminal cases due to double jeopardy clause of 5th i. Due process of law and privilege against self-incrimination are exclusive from one another a. Duncan v.Very few rights are given by your status as a citizen of the federal government . Only incorporate the social and moral values defined in the BOR when ³liberty nor justice would exist if they were sacrificed´ 3.´ resulting in four approaches: a. i. but see S-H ii. Natural Law E. 5th ³nor shall be compelled in any criminal case to be a witness against himself´ 2. Louisiana (1968) 1. Post 1960 ± this ³fundamental fairness´ doctrine faded away F. Opinions of other countries in the Anglo-American tradition not less civilized than our own 2. Reasserts idea in Twining ± no incorporation of doctrine of self-incrimination i. Supremacy clause already protects people from state deprivation of federal P+I rights 3. P+I does not add to the stock of fundamental federal rights. Barron v. Reason it becomes nullity i. Dissent view becomes majority ± liberty and property protects rights and arbitrary interference violates 14th Incorporation Cases A. Argues that courts should avoid basing due process decisions based on ³idiosyncrasies of a merely personal judgment. P+I clause says not to abridge P+I of the citizens of the US . Question: What are fundamental rights under the P+I Art IV? Is it violated in this case? E. Think of those things indispensible to a criminal justice system ± ³immutable principle of justice´ i. Marshall held that the BOR did not apply to the states: each state established a constitution for itself and the US constitution was established for central government C. Dissent: Black: argues for total incorporation based on intent of framers of 14th 3. Opinions of the architects of American institutions b. Adamson v. 6th amendment right to a jury trial applicable to the states via the due process clause 49 . Explicit opinions of other American courts that have evaluate the fundamentality of the asserted right d. Due Process: 1.Most of the rights are given by citizenship of the States 2.

2nd ii. strict scrutiny for labor relations) 50 . Suspicious of redistribution as an end (State strikes the bargain) ii. Significant health risks to bakers ii. There must be a direct public interest affected by statute to uphold the statute iii.´ iv. Cruel and unusual punishment iii. Should view of individual liberty be constrained to the BOR i. Only remaining ones: i. . Court treats the bill of rights as applying to the states i.and the end itself must be appropriate and legitimate´ ii. Right to contract (both employer and employee) ± fundamental part of human liberty to determine terms of employment . 5th¶s grand jury indictment G. Definition of liberty under DP clause a. nothing more) Substantive Due Process: Protection of Economic Rights Lochner v. New York (1905) Background Best illustration of the scrutiny of the era«contract rights under constitution Statute forbids bakers from working more than 10 hours/day or 60 hours/week i.2. Is it necessary to an AngloAmerican regime of ordered liberty i. with liberty. ownership of labor is essential to labor. is a particular procedure fundamental. Double jeopardy ii. health risk of workers is sufficient for legislature to limit work hours i. Court believes this is an outlier because of the significant risks mines pose.Arguably. interf. Health risks for public? Holden v Hardy ± limits work hours of miners. Excessive bail 4. ³act must have a more direct relation . Black¶s view total incorporation and nothing more so due process wouldn¶t be read to have any further application a. right to be economic persons What part of Lochner is wrong? (Liberty is essential. Post 1.When state mandates hours/wages ± deprives people of choice . Civil War fought to give AA right over their own labor.Unregulated markets generate happiness? . 3rd iii. seems to be malleable standard in Nebbia Court has two concerns i. Every one applied (except 7th and 3rd) 2. No states have enacted safeguards or protections for non-jury trials ii. Given a type of system. Trial by jury is therefore fundamental to the American scheme of justice 3. Resulted in further incorporation: i. SC hasn¶t embraced either side of the argument (total incorporation vs. Strict scrutiny? ³More than the mere fact of the possible existence of some small amount of unhealthiness to warrant legis. . whereas bakers do not fall under this provision Discussion Basis of Review i.

Impermissible ³class legislation´ designed to benefit particular private interest 6. ³talking about substantive due process. Interference must be justified by ³public interest´ i. etc. Incorrectly deferential to the political process ii. Bill of rights . Taking sides in an economic contest and constitutionalizing the right of employers 3. Freedom of K is not a fundamental right when there is great inequality in bargaining power/position 2. There is nothing in constitution that mentions contracts 51 . K not fundamental 2. speech. According to law ± included some robust protections of certain kinds of liberty b. voting. Invalidates max hour law for bakers via DPC of 14th A 3. Caroline Products a. ³wrongness´ of result in Lochner 2. . Court was too unwilling to recognize when there was one REVIEW: A. Agree must serve public interest.Perfect political processes ± restrictions prohibit process o E. but judiciary should not decide if it is legit ii. Cases where court should give heightened review . Critiques of Lochner 1. Heeley ± as a constitutional theory. safety) B. individual freedom/collective benefit b. Harlan ± as long as some rational basis for interference.´ ± oxymoronic to talk about substantive due process. protects employers A. High level of scrutiny of ³means´ designed to achieve public end (e.g. Due Process is term of art a. Holmes ± court is constitutionalizing an economic theory and binding states to the view that a laissez-faire system is best i. Safety intent here is too weak to justify regulation. Green pastel redness. Embraces laissezfaire economic theory a. Redistribution of wealth is not valid ³public interest´ either i.Discrete & insular minorities ± can¶t express adequately 5. would be ok in case of child workers 5. Freedom of K is fundamental aspect of liberty protected by DP 4. Courts are best able to iii. Lochner i. the court should go no farther in judicial review i. Finding any substantive limits in the due process clause ± contemporary conservative critique i.i. Background (common law) is treated as neutral and natural and any legislative modification is an impermissible interference with the market 4. Does not consider that it may be good to redistribute some wealth from employers to employees iii. Imposes too high of a scrutiny on the legislative declaration of a public interest i. ³rightness´ of Brown holding ii.Specific textual protections o E. Dissent 1.g. Old: Scott/Lochner ± New: Griswold/Row/Lawrence ii. Narrow conception of ³public interest´ 6. association.g. the purpose of constitutional review is to ensure procedural fairness and be very reluctant to make substantive decisions.

Specific textual protections i. Caroline Products 1. one could construct a justification for the law i.g.g. Identifying a fundamental right to K without regard to facts or context of the period iii. Majority opinion will eventually impose on individual freedom who object. After (public interest): no areas outside the bounds of public interest 52 . b. What happens if court doesn¶t intervene? 2. Should the constitution be mobilized to intervene? What is the justification? 3. Questioned Strict scrutiny of what accounted as fundamental interest i. association. Perfect political processes ± restrictions prohibit process i. Wrongly equating an equivalence between employers and employees in interests (claim of employers to freedom of K seems to mask preference for business in struggle over labor regulation) iv. Even if correctly identify K as fundamental: (state interest in regulation) i. What level of review? D. etc. etc. Court was endorsing controversial economic theory laissez-faire ± anti regulatory bias 2. Bill of rights 2. Court too strict in determining relation between means and ends iv. Court tis too stingy n recognizing valid competing social interests ii. Early years of the depression 1. Before (public interest): utilities. Should there be constitutional supervision over justifications for regulating the marketplace? 1. E. Court has naive and unrealistic view of the political process (notion that all politics produces public goods as opposed to competition over private interests) US v. Hypothetically. Does not have to be right ii. Eroded any real support for right of K as any fundamental right 2. Critiques of Lochner 1. (1938) A. 1938 2. transportation. E. Court said this is legislature determination B. b. Must just not defy reason REVIEW: A. Substantive due process rights instead of just procedural protection ii. etc. voting. speech. 3. Defects in the political process a. Discrete & insular minorities ± can¶t express adequately C. Rational Basis Review 1. speech.ii. Addressing anxiety of substantive due process i. Court too limited view of ³public interest´ iii. Substantive rights when explicit textual connection to BOR ii. ??? (rights) i. so court should not try to get involved C. Looked like governmental intervention was permissible and beneficial in many areas a. Lockups ± majority interferes with political activity of the population in terms of voting. Discrimination ± discrete & insular minorities are not able to exercise or meaningfully participate B. Caroline Products Co. Cases where court should give heightened review 1.

1937 ± marker of court removing itself from substantive due process power 2. Court is very skeptical about min/max price setting 4. Skrupa A. Death of Lochner Ferguson v. Lawyers have more expertise 2. Court reviews to see if it is arbitrary or discriminatory b. Rational Basis standard of review West Coast Hotel (1937) A. Struck down in Akins and upheld in Mueller B. ³the Constitution does not speak of freedom of contact´ i. Background 1. Background 1. If want to be in debt adjusting. ³there is no closed conception of what kinds of businesses can be affected with a public interest and the function of the courts is only to determine if it¶s arbitrary or discriminatory´ ii. Assaulted the ³fundamental interest in K´ 1. ³what can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers?´ 3. Methodological critique of the right of K reasoning 2. No privileged position constitutionally 53 . Economic regulation that distributes benefits and burdens is presumptively constitutional b. Yes ± rational basis i. Society interest will be harmed if one party lacks bargaining power ii. Same as Ferguson ± whole trade limited to lawyers only ii. ³The exploitation of a class of workers relatively defenseless against the denial of a living wage is not only detrimental to their health and well-being but casts a direct burden for their support upon the community. Post-1937 ± no decisions upholding right to K on due process grounds i. Background 1. Man sold milk for less than he was authorized under New York¶s Milk Control Board 2. No question of ³public interest´ except for very limited hypothetical question of ³is there a feasible reason for doing this? 2. must be a lawyer B. Slaugherhouse right under DP case? 1. New York (1934) A. State can claim regulation in any area a. WCH ± failure to redistribute wealth creates social liability B.´ i.Nebbia v. Suggests illegitimacy in unremunerated rights a. What is justification? 1. Economic rights have a subordinated status i. Lawyers would lose license if they do something unethical Application to Slaughterhouse A. Arguments 1. Legislature gets to decide if business i. Clearly result under modern constitutional analysis a. Established minimum prices because worried that there would be crisis of supply since milk producers weren¶t making any money 3. Ok with some wage min/max laws i. Lochner ± redistribution of wealth inherently unconstitutional iii.

ii. States can interfere in the marketplace for any reason it articulates Comments on Lochner Area and Transition A. Most people identify it as entirely about defending right of K 1. Unfair and limited conception of the era i. Court embraced broader theory of unremunerated rights a. Claims in term of directing education of children and family - Meyer v. Nebraska: Neb passed law prohibiting teaching of foreign languages. Sup. Court said this is unconstitutional interference with liberty. Described as acquire useful knowledge, worship god according to the dictates of one¶s own conscience, etc. - Pierce v. Society of Sisters: Can state prohibit private education? No. Indispensible aspect of liberty to be able to education and direct the upbringing of children. b. Notion of liberty is broader than that characterization 2. When rejected? Does it remove all enumerated rights? i. Incorporation debate ± an effort to ground the due process clause in text a. Way of avoiding the ³Lochner anxiety´ b. Consistent with Caroline Products - If you look for rights in the due process clause, look for specific textual reasons - ³Birth´ of modern incorporation. Accelerated incorporation post 1937. - Limit freedoms protected by due process by the bill of rights c. Does this overrule Meyer v. Pierce. ? Substantive Due Process: Modern Fundamental Rights Griswold v. Connecticut (1965) A. Background 1. Doctor of a clinic providing contraceptives and information to married couples charged under a Connecticut law prohibiting distribution of any materials to prevent conception B. Discussion: 1. State justifies the statute by saying easy access to contraception increases fornication (extramarital sex) i. Argument: contraception is excessive in trying to achieve its stated goal. 2. Ways to uphold Griswold i. Would it succeed under rational basis review? a. Yes. There is a reason for the law. ii. Nations¶ ethos ± any national consensus = protected freedom iii. Burden is unequal ± women have to get pregnant and deal with it, men don¶t a. Before 1970, sex discrimination was based on rational basis review - Hoyt v. Florida ± RBR, men have to serve on juries, women can decline for no reason iv. Privacy implications in lower amendments a. 1st freedom of speech (association), 3rd freedom from quartering in peace times, 4th search and seizure, 5th b. Douglass: reflecting on these protections leads us to believe there is a deep concern for protecting privacy - Goes through the trouble of reflecting on the text of the constitution to generate a theory of privacy/individual liberty to avoid due process c. Since there is provision protecting privacy, use ethos to weed out what is and what isn¶t protected - Argument: legislature is best representative of ethos - How can court draw the distinction between contraception and incest/adultery/etc. 54

(i) Court makes the case about privacy in marriage only and puts everything else in the ³not accepted bucket´ d. Criticisms - Taking prohibitions, reasoning up a general right to privacy, and then reasoning back down to create a new list v. Harlan a. Let¶s not hide the argument in the BOR, rely on DP b. Instead, would use formula in the incorporation cases. Think about those rights implicit in the concept of ordered liberty vi. Goldberg a. 9th amendment recognizes reservoir of enumerated rights b. Let¶s not pretend this is textual liberty. Instead, let¶s reflect on what are the enumerated rights people enjoy. - Argument: this is the same as Lochner, so would need a theory that would exclude those rights (Ks) and embrace those in issue under the Connecticut law vii. Problems: a. How to find these rights? - Natural rights: - Tradition: allows courts to follow a lead, but level of generality creates the problem of indeterminacy. Too narrow then not protected, but too broad than too much proection. Douglass: - Textual: rights not specifically enumerated have been established as fundamental by extending the scope (5th, 1st, 3rd, 4th,) - 4th protects governmental invasion in the sanctity of a man¶s home and privacies of life - Contraception in marriage falls under the sphere of privacy - Historical: marriage right of privacy older than bill of rights o Then why not part of the BOR if founders thought fundamental? Goldberg: - Textual: 9th amendment shows framers believed other rights not in BOR that are fundamental o To allow privacy in marriage to not be fundamental just because not in BOR renders 9th meaningless - Structural - Look to traditions & collective conscious of the people to see what is fundamental - Rational relation, but no compelling interest. Even so, could have more discriminately tailored statute Harlan - Due process clause protects values ³implicit in the concept of ordered liberty´ o Then why no K right as in Lochner? - Use due process in relation to ³respect for teachings of history, solid recognition of the basic values that underlie society, and appreciation of the roles and doctrines of federalism and separation of powers´ o Wouldn¶t legislature be better judge of society values since elected by society? - 3rd & 4th protecting home, so what goes on in home should also be protected o Sounds like he¶s reaching Black (Dissent) - No protection of a general ³right to privacy´ only protections in some instances (4th) (3rd) o ³like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision´ 55

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Majority espouses same Due process conventions as those rejected by Lochner 9th has never been used to limit state govs, only included to limit federal government

REVIEW: A. Griswold 1. CT criminalized use of contraception for both married and unmarried 2. Unconstitutional because interfered with protected liberty interest i. Characterized as privacy within context of marriage and home ii. Enforcement would involve the state in policing the marital bedroom in the home 3. Methodological approaches i. Douglass ± attached right to specific provisions of the BOR. Therefore, constitution recognized an area of privacy and the interest of this case fall within ii. Goldberg ± less comfortable grounding in specific provisions. Highlighted existence of unenumerated rights in the 9th. a. What is 9th relation to the 14th? Does not argue incorporated under 14th. Rather, indicates there is a reservoir of unenumerated rights that should be recognized iii. Harlan ± Created broad test of unenumerated rights. ³Those rights implicit in the concept of ordered liberty.´ Court determines what rights were fundamental 4. Dissent approaches i. Black ± criticize court declaring state laws unconstitutional that do not violate any provision of the constitution B. Extension of Griswold to Eisenstadt 1. Griswold relies on tradition 2. Eisenstadt± court has to shift focus away from tradition and come up with understanding of the right as grounded in some important aspect of ordered liberty i. ³If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.´ ii. Applied rational basis review; however, language expands the nature of the underling right identified in Griswold Roe v. Wade (1973) A. Background 1. Texas statue criminalizes abortion unless abortion is necessary to save life of the mother B. Discussion 1. Established liberty interests i. Cases a. Eisenstadt ± no discrimination against unmarried in access to contraception. b. Griswold ± contraception within marriage c. Stanley v. Georgia ± protecting home and private speech within home d. Meyer/Pierce ± struck down statutes interfering with liberty of education e. Skinner v. Oklahoma ± allowed for sterilization of certain criminal defenders. Court found this was violation of equal protection f. Loving v. Virginia ± liberty to marry outside of race ii. ³The right of privacy, whether it be founded in the 14th concept of personal liberty or in the 9th is broad enough to encompass a woman¶s decision whether or not to terminate her pregnancy. ³ iii. Types of liberty a. Sovereignty over one¶s body, control over family (whether to procreate), b. Autonomy of the person 56

state¶s interest doesn¶t override mother¶s right to control family & self b. Eisenstadt ± equal protection case. Stare Decisis a. Roe v.If not.Women as mothers ± gender role underlying physical autonomy. 2. could the government have compulsory abortion? No autonomy would give state immense power c. Trimester system a. Information provided by doctor iv. Right to privacy is broad enough to encompass women¶s right to terminate pregnancy. Court says this is a contested question. State¶s interests i. so can¶t concede or undermine court¶s role ii. Only women have the burdens .Strong social interest in protecting from bodily invasion (see 4th cases ± bullet in criminal not allowed to be removed) . ii. Balancing i. Wade 1. Wrong in undervaluing state¶s interest B. Women¶s right is limited by health & safety concerns in 2nd c. Women¶s right is in total for 1st b. - 57 . Protect life (some states regard as unborn person) a. Spousal notification 2. 24 hour requirement iii. it transformed society and couldn¶t go back iv. Protect health & safety of the mother a. however privacy is not just privacy to be free from state interference. There isn¶t much a conflict between this and protecting autonomy interests (at least through the first trimester) 3. State¶s interest in life is compelling in 3rd Planned Parenthood of Southeastern Pennsylvania v. Court is concerned about the legitimacy of the court a. Political pressure on Court to overturn. Even if Roe was wrongly decided. Women have emerged in a new position in society that would be very different in a world where abortion was illegal iii. Textual argument that Constitutional does not refer to persons as unborn. Wrong in identifying fundamental liberty interest ii. Wade i. Pennsylvania Abortion Control Act established various regulations that must be met before abortions could be perform i. Not unworkable rule b. Minor ± parent informed consent v. Discussion 1. . Informed consent ii. Casey (1992) A. Background 1. rather. Why concerned about overturning i.A declaration of right with no defense. No change in facts since Roe decided REVIEW: A. Therefore. freedom of reproduction. US filed on behalf of PA and argued that Roe v.

Court refuses to overrule Roe i.Plessey always wrong and nothing to be said on its behalf. Issues i. Effort to explain away state interest of protecting life iii. Is it accurate to describe this as a fundamental right? a. Background 1.Court evaluates whether regulation will place undue burden on women¶s right to have an abortion iv. Casey 1. 1st ± none b. ³right to define one¶s own concept of existence of the universe and meaning of life 2.Surrounding facts/precedents have changed framework to erode b. Simply declares right to privacy is broad enough to encompass woman¶s decision to terminate pregnancy. Same error in Roe as in Lochner. See above v.Desirability of Laissez-faire economics changed from Lochner to West Coast Hotel (i) Depression (ii) Change in membership on court . Plessey .Substantial reliance interest .Dissent (Rehnq): Decision not based on economics but the thought that freedom of contract was a fundamental liberty. ³these matters involving the most intimate and personal choices a person may make in a lifetime« vi. cannot overrule iii. Court asserts and does not defend this as a fundamental aspect of liberty (see above) ii. Factors include: . 3rd ± viability (in order to protect life) B. 3. Facts or understanding of facts had changed a.2. a. Does not offer affirmative defense of Roe ii.Is it unworkable . Court constitutionalized a disputed theory of liberty and enshrines as a fundamental protection. Argues that Stare Decisis prohibits overturning.1986) & Lawrence (TX . Why is Lochner and Plessey overruling justified but Roe would not be? i. Legislative declaration as to when a state can and cannot regulate a. Moves from the fact of uncertainty to the claim that the state¶s interest isn¶t strong enough during the first trimester to overcome the liberty interest that a woman has 4. Court says even if wrong. Court declares state interest does not outweigh the interests of privacy of the women a. Relation to Pierce/Meyer/Stanley/Griswold/Eisenstadt/Roe/Casey 58 .2003) A. Criticized i. Upholds the bulk of the law under the undue burden test a. Changed from strict scrutiny to undue burden test . Changes the Roe framework a. Lochner . TX: Prohibits homosexual sodomy B. Bowers (GA . GA: General prohibition on sodomy 2. b. 2nd ± health and safety c. Liberty interest too broad ii.

How does this sync up with modalities of argument? Is this good? Strengths & weaknesses of various approaches? REVIEW: A. P+I ± slaughterhouse renders 2. Argument shift: a. If right is broad right to protecting any form of sexual freedom. Griswold 1. incest. adult incest. etc. Moves to natural law/rights argument as essential to freedom/liberty ii. procreation. Leaves open idea of prostitution. then state should not be allowed to regulate the practices above. how defined? .Relation to textual commitments (Griswold) .Natrual law/fundamental liberty approach (i) Rights essential to freedom . Due Process i.Does it apply with the same force c. and prostitution. procreation and family ii. Casey ± reinforced this conception of roe 1. Only protect rights enumerated in the constitution b.1. Longstanding tradition of opposition to homosexuality 2. Right is freedom from unwarranted governmental intrusion into these matters D.Look to particular traditions in our country. Kennedy does not use historical modality to define homosexual conduct as protected ii. b. bestiality. Partial incorporation? . Other cultures recognized homosexuality as fundamental liberty 3.Dissent (Scalia): state regulates polygamy. Consensual intimate relationships should not be regulated by the sate . Places very little on the side of the scale for state interests in regulation 2. Argument a. How to define scope of rights protected a. BOR DP protection i. self-identity 2. Made effort to avoid Lochner and find rights protected had some connection to the text of the constitution i. Liberty rights related to marriage. Emphasizes nature of the fundamental right at state E. Anxiety toward looking at unenumerated rights C. (i) What counts as a tradition? B. Lawrence ± court identifies this broad area of autonomy as a protected right 1. home. Lawrence i. Incorporation ± applying BOR to states via DP clause ii. If recognized unenumerated rights. Roe ± anxiety is lessened 1. Bowers i. Full vs. Broad right of autonomy in matters of marriage.What would the test be? . 59 . 14th Amendment 1. Stevens argues they are the same thing iii. Substantive Due Process ± are there rights the DP clause protects against state and federal deprivation a. Started as soft textual definition of zone of privacy b. ³mere moral disapproval´ does not equal a valid state interest . bigamy.Individual identity & self-definition c.

Ever since ³the deviant economic due process cases [were] repudiated. and able to be abused i. No right is absolute. Factors a. or simply lacks a rational basis will alwaysbe vulnerable to judicial invalidation. Scalia 1. family relationships. Stevens 1. We have insisted that only certain types of especially significant personal interests may qualify for especially heightened protection. trespasses into sensitive private realms orlife choices without adequate justification.´ and has instead centered on ³matters relating to marriage. Constitution b. English law d. Legislative facts e. Nor does the fact that an asserted right falls within one of these categories end the inquiry.McDonald v.g. but the strength of theindividual¶s liberty interests and the State¶s regulatoryinterests must always be assessed and compared. Judicial precedents c. Due process tradition is too open-ended. Other societies f. tradition of contraception to tradition of privacy in marriage). or social conditions. If you follow Scalia claim. Odd to say that now that we have a clause. 14th was made after BOR and framers had zero intention of incorporating BOR provisions ii. Stevens: have to expand the history (e. Judges shouldn¶t be tied to constitutional text because DP itself is defined at a high level iii. Crazy to take the one amendment specifically written for states and hold it against them B. contraception. procreation.´our doctrine has steered away from ³laws that touch economic problems. and child rearing and education.´ These categories are not exclusive. a. flexible. Traditions of our people ii. 2nd amendment is right of states i. pointlessly infringes settled expectations. business affairs. then he cannot defend any of these decisions 3. Government action that shocks the conscience. History and Tradition is a constraint but only to the most narrow formulation of the right in question i. look back to see what was protected when the DP clause was enacted 60 . ³vague ethico-political first principles´ 2. More fundamental rights may receivemore robust judicial protection. Search for fundamental rights is open-ended iv. None of the rights in the ³autonomy´ circle would be there if there was a strict textual interpretation. Much more ambiguous than the argument made in behalf of the 4. 2. Number of things to consult i. perpetrates gross injustice. Right of personal gun ownership in the home doesn¶t fall within the ³autonomy´ circle (the liberty that should be deemed fundamental) i. Should tie liberty textually to the constitution 3. Chicago A. otherwise due process cause protects zero liberties a. Need a larger number of reference points to define the circles b.

Definitions 61 .

Things to Remember y y Keep track of quotes to vomit onto exam Remember case dates and history for exam .See To-Do for Lexis headnote tool 62 .

Use this as a means to review what happened in the cases when it gets close to Final exam Read Fed 45 Look up NYT Opinion piece on Preemption 63 .Focus on McCulloch Pull Headnotes from Lexis for the important cases . noting sections I remember from class discussion Read Chemerinsky for relevant sections .To-Do y y y y y Read Constitution again.

how can we operationalize some protection in the economic sphere? 7) Griswold v. slaughter-house . not expanding power in a time of crisis 3) Why is court so much more solicitous in Hibbs than other cases (Boerne)? a) Does this override Boerne? 4) Why court should assume this role in policing state burdens on commerce under the dormant commerce clause? 5) Level of deference court gives to the other branches of the government a) Consistent themes in positions b) Changes in deference over time 6) What does west coast add to nibbea/lochner? return to lochner vs.reconcile both despised but diff reasoning. Connecticut: does court make any persuasive effort to justify it¶s holding? What are different theroies about where right comes from and what is the scope of the right? What is the right it protects and what is the source of that right according to various therories in opinion? 8) What opinion is most persuasive to be free from state regulation on contraception? 64 .List of ³Questions´ Started compiling on 10/13 1) How well has court done in defining limits of FCC through caselaw? a) Should these be in Congress or Supreme Court? 2) Who has better argument in Schenchter or McCulloch a) Adaptable to ³crises of human affairs´ vs. If Lochner is wrong and slaughterhouse is wrong.

) a) Note: Constitutions. Filburn CL 179-189 9) The Civil Rights Crisis. v. Transit Auth. Democracy. and Natural Law: b) McCulloch v. Maryland CL 61-75 5) The Powers of Congress a) Introduction CL 167-173 b) Note: Political Constraints versus Judicial Enforcement CL 180-189 c) Classical View: Gibbons v. Morrison CL 224-232 c) Gonzales v. Dagenhart CL 177-179 7) The New Deal Crisis and the Rise of the Regulatory State a) Schechter Poultry Corp.C. CL 333-354 b) New York v. CL 203-210 b) United States v. Representation Reinforcement.) a) NLRB v. the Fourteenth Amendment. Darby c) Wickard v. Virginia CL 637-48 2) The Role of the Supreme Court in the Constitutional Scheme a) Introduction: Notes on the History and Theory of the Constitution CL 1-29 b) The Basic Framework: Marbury v.Reading 1) The Role of the Supreme Court in the Constitutional Scheme a) A Modern Day Look at Judicial Review b) United States v. Flores 65 . United States c) Printz v. Ogden CL 173-177 6) The Powers of Congress (cont. Carter Coal Co. Jones & Laughlin Steel Corp. and Judicial Review CL 43-51 b) Martin v. San Antonio Metro. Raich BB d) The Constitutional Debate Surrounding Health Care BB 11) "Implied" Federalism Limits on Congressional Power a) Garcia v. Morgan CL 300-314 b) City of Boerne v.) a) Formalism and Realism in Interpreting the Commerce Clause to Limit and Authorize Congressional Action b) United States v. Knight CL 189-201 c) The Shreveport Rate Cases d) Champion v. Madison CL 29-43 c) Article III CL xlix d) The Power of Reprisal: Political Control of the Supreme Court: Notes CL 78-84 3) The Role of the Supreme Court (cont. United States d) The Tenth Amendment as a Federalism-Based Limitation on Congressional Power (note) BB 12) The Fourteenth Amendment as an Alternative Source of Congressional Power a) Katzenbach v. E. Lopez CL 214-224 b) United States v.) a) The Sources of Judicial Decisions: Text. United States CL 195-203 b) Carter v. McClung 10) Federalism Revived: New Limits on Congressional Use of the Commerce Power a) United States v. Hunter's Lessee (and notes) CL 52-61 4) The Role of the Supreme Court (cont. United States CL 210-214 c) Katzenbach v. 8) The New Deal Crisis (cont. and the Commerce Clause a) State Action and Federalism: The Civil Rights Cases CL 1544-1549 b) Heart of Atlanta Motel v. Ames (The Lottery Case) e) Hammer v.

Hoboken Land & Improvement Co. Mayor & City Council of Baltimore c) Murray v. of Trustees v. Texas CL 375-377 d) Hamdi v. California g) Duncan v. Levine BB 15) The Distribution of National Powers & the Role of the Executive a) Introduction: Fed. Consolidated Freightways CL 267-275 d) Hunt v. Louisiana 66 . Rumsfield CL 379-395 e) Hamdan v.) a) The Incorporation Controversy CL 729-735 b) Barron v. Post c) Dred Scott v. Garrett CL 314-326 d) Nevada Dept. Sawyer (Steel Seizure Case) c) Medellin v. National Foreign Trade Council BB c) Wyeth v. New Jersey e) Palko v. New Jersey CL 239-243 c) Kassel v. of Education (I & II) CL 465-479 e) Bolling v. Connecticut f) Adamson v. Sanford d) Frederick Douglass: The Constitution of the U. Chadha 17) The Distribution of National Powers & the Role of the Executive (cont.S. Olson CL 430-439 18) Race and the Constitution a) Slavery and the Constitution CL 441-452 b) State v.) a) Morrison v. Healy CL 250-257 14) "Implied" Limits on Local Power: Preemption a) Note: Preemption CL 277-280 b) Crosby v. Washington State Apple Advertising Commission CL 257-262 e) West Lynn Creamery v. West Virginia CL 512-514 19) Race and the Constitution a) Note: The Judicial Reaction CL 453-465 b) Plessy v. 47 & 48 CL 355-370 b) Youngstown Sheet & Tube Co. Hibbs BB e) Young.c) Bd. d) Twining v. of Human Resources v.: Is it Pro-Slavery or Anti-Slavery? BB e) Note: Dred Scott and the Power of Judicial Review f) Note: The Work of the Reconstruction Congress g) Strauder v. Ferguson c) Note: Separate But Equal d) Brown v. Bd. Sharpe BB & note on CL 468 20) Implied Fundamental Rights a) The Privileges or Immunities Clause CL 720-729 b) The Slaughter-House Cases 21) Implied Fundamental Rights (cont. Rumsfield (discussed in notes) 16) The Distribution of National Powers & the Role of the Executive (cont.) a) Legislative Authority &Nondelegation CL 412-427 b) INS v. State Sovereign Immunity (excerpt) BB f) Congress¶s Enforcement Power Under the Reconstruction Amendments BB g) Note: Enforcing the Thirteenth Amendment CL 326-329 13) "Implied" Limits on Local Power: The Dormant Commerce Clause a) The Fundamental Framework CL 232-239 b) City of Philadelphia v. v.

Lee Optical d) Ferguson v.) CL 752-761 a) West Coast Hotel Co. c) Williamson v. New York 23) Substantive Due Process: The Protection of Economic Interests (cont. Hardwick CL 910-911 e) Lawrence v. Wade CL 843-855 c) Planned Parenthood v. New York d) Nebbia v. Casey CL 864-883 d) Bowers v. Parrish b) United States v. Skrupa 24) Substantive Due Process: The Modern Doctrine The Right of Privacy: a) Griswold v. Connecticut CL 831-843 b) Roe v. Carolene Products Co. v. Texas CL 912-927 67 .22) Substantive Due Process: The Protection of Economic a) Interests CL 735-752 b) The Road to Lochner c) Lochner v.

relationship. Quotes 1. Functional v. 2. write non-linearly J. EP congruent & proportional D. raich. Court is ultimate decider i. formal (steel seizure) G. CC. cases 1. Good Exams 1.g. Deference to Congress 1. Bad Exams 1. Review the standard of review for 14th. Abrogation of sovereign immunity 1. No details. rational basis.Unfiled Notes Class 11/31 Exam Review A. Heightened v. Boerne ± congruence & proportionality C. Congress can only abrogate under § 5 and not commerce clause 2. Burdens excessive in relation to local health and safety interest 2. for both sides) 4. Quality of writing ± well organized I. dcc F. 10th. Sophistication and though how areas relate to themes 3. Seemed dodgy about political processes ± study for exam 1. Recognize nuance (e. DCC 1. Mcculloch. See Hunt &Kasel (ct recognizes bad motive but decides on balancing) E. Nevada. Seminole Tribe H. Strong command of basic doctrines and cases 2. etc. Focus on McDonald for due process incorporation B. etc. Review modalities more 1. line of cases more justified ± good arg. Commerce clause sufficiency ii. Need to be able to identify opinion and justice who wrote it (SHIT) 68 .

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