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

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

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

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

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

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

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

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

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

Directs indirect effects test i. Activities distant from interstate 3. Actively invalidating statutes on the ground they interfered with right to contract 13 . Hammer v. Congress real and practical application was regulation of manufacture 2. Carter Coal A. evil B. fed would take over everything. No formal mechanism as used in Hammer 2. Cardozo: Think about the issue practically i. 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 v. Dagenhart 1. Effort to distinguish a. Hammer ± Realist ii. Direct ± How important is the goal to having a direct effect on the availability of goods on the open market 3. Schenchter 1. Manufacture is part of state right and not congress 3. Court strikes down statute i. Indirect ± Congress is going to an intrastate transaction hoping it will have direct effect on IC 2. Practices regulated at the moment they are being regulated have at most indirect effect on interstate commerce Commerce Clause 1937-1995 Carter v. Deprive states of responsibility to regulate goods for health and safety of citizens 5. Repudiation of Ames i. Twofold sense i. If congress can¶t regulate. Indirect 1. facing great disruptions on availability of goods on the open market ii. it would transform the power to regulate commerce as a general power to manufacture goods 4. Ames ± Formal. Wants to transform the direct/indirect test to a realist perspective a. Background ± new deal effort to regulate prices i. Lochner Era 1. Goods in violation but not evil vs. 1905-1937 2. Not part of the enumerated powers ii. 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.d) If commerce clause reached all transactions with indirect effect on commerce clause. Shift from Schechter B.

Rejects the Direct v. Regulates in the same way as Hammer (goods going IC produced with substandard workers) 2. only that they are regulating goods 3. the end is still interstate commerce.S. shipping vessels. Regulating the wages directly is helpful to regulating the IC ban. Reasoning (US. 14 .Due process clause of 5th and 14th amendments a. Fair labor Standards Act 1. Not for Court to inquire of the means b. overruled Hammer) 1. etc. Argues State¶s rights are not violated under the 10th amendment i. then the Court should step in 4. 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. Protects right of collective bargaining 2. Close and substantial relation i. Allows workers to unionize 3. Suggests we should care about the overall goal of Congress (whether Congress is acting pretextually ii. they have conformed to the Constitution 2. Activity is a web of activity ³likened to the heart of a self-contained highly integrated body´ D. NLRB claim 1. Once Congress regulates good as they move across state lines. Darby A. v. manufacture of one particular item 2. only certain aspects (e. Indirect relation before which was based on the nature (formalist notion where certain activities immune a. Minimum wage law (upheld by the court) i. Beyond Federal power b. Moves to practical notion that turns on the magnitude of effects on IC U. Two concerns with new legislation: a. Reconcile with Darby a. therefore it falls under the µnecessary and proper¶ clause and is constitutional as an important way to regulate IC 5.g. Not interstate commerce. NLRA (National Labor Relations Act) 1. Not appropriate to inquire why Congress is regulating goods. 5th ± Federal regulation b. Restricts employers from discriminating against union members i. 14th ± State regulation ii. Reasoning (for NLRB) 1. Jones & Laughlin Steel Corp. A. Jones claim 1. McCulloch is saying if Congress is asserting a power it doesn¶t have. Employee expression of union feelings B. Motive & purpose of regulation is a matter of legislative judgment i. This is a matter of degree ii. railroads. Direct prohibition on paying workers who are producing goods for IC B. No direct relationship between mining and IC 3. Court is saying that regulating an activity earlier is the means.) C. Not for the court to inquire into the motives or purposes of Congress ii. McCulloch i. Note everything they do is part of interstate commerce.

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

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

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

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

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

Court interprets themselves as policymaking to keep courts out of Congress¶ statute. Why should state courts have to be under the federal thumb. is there 10th protection i. Stevens ± state courts have to hear claims of federal issues on the same level that they hear state claims. Canon of statutory construction/avoidance canon . Don¶t know if Fed or State is source ii. Perhaps because they don¶t make policy. As long as Congress regulates States in same manner as private employers (generally applicable laws). which would otherwise be unconstitutional . Does this limit create more intrusive policy? a. NY &Printz 1. Imposes 10th Amendment bar to certain forms of Fed regulation 2. 10th Amendment cases more important thematically than practically 1. b. Court argued that the CSA did not allow the federal government to allow this. Oregon i. 4. Maine State can refuse jurisdiction over certain Federal claims 20 . General political accountability concerns a. no 10th Amendment protection ii.avoiding potentially unconstitutional statutes . Physician assisted suicide case in Oregon. Gonzalez v. S. iii. Two ways to enforce federalism-based limits on the Commerce Clause Power: a. Excessive intrusion into state autonomy a.Uses spending power to coerce b.When statutes are close to the line like this. Ashcroft v. i. This shows that perhaps state government can be commandeered for federal purposes to some extent iii. Garcia 1. Can¶t treat states as puppets to effectuate Fed goals 3. Practical questions i. while the state executive and legislative branches aren¶t? ii.C. Most direct discussion of Federalism and distinction between powers of State and Fed 14th Amendment as Alternative Source of Congressional Power Alden v. NY v. Form of the regulation was impermissible because it compelled the state to regulate according to Fed instruction i.Odd that 200 years later.This thought to be ineffective . US ± leaves open Fed regulation when broad regulatory scheme .forces Congress to be very explicit when it nears the edge of its Commerce Power c. Gregory . now says too intrusive to C.3. Articles of Confederation allowed for Congress to regulate through the states . When Congress regulates directly. Directly overrule statutes where Congress has gone too far. which is where sovereignty resides. Example of political checks ± State can protect themselves B. Government wanted to strip physician¶s of their license if they assisted suicide ii. courts can read the statute narrowly to keep it within Congress¶ power REVIEW: A. Question was: Is the Attorney General¶s interpretation of the statute a valid interpretation? a.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 .

noting sections I remember from class discussion Read Chemerinsky for relevant sections .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 .To-Do y y y y y Read Constitution again.Focus on McCulloch Pull Headnotes from Lexis for the important cases .

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. slaughter-house . If Lochner is wrong and slaughterhouse is wrong. 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 .reconcile both despised but diff reasoning. 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. how can we operationalize some protection in the economic sphere? 7) Griswold v.

Morrison CL 224-232 c) Gonzales v. United States CL 195-203 b) Carter 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. Ames (The Lottery Case) e) Hammer v. 8) The New Deal Crisis (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. Flores 65 . CL 333-354 b) New York v. Democracy. Filburn CL 179-189 9) The Civil Rights Crisis. McClung 10) Federalism Revived: New Limits on Congressional Use of the Commerce Power a) United States v. Ogden CL 173-177 6) The Powers of Congress (cont.Reading 1) The Role of the Supreme Court in the Constitutional Scheme a) A Modern Day Look at Judicial Review b) United States v. Jones & Laughlin Steel Corp. San Antonio Metro. United States c) Printz v. E. Dagenhart CL 177-179 7) The New Deal Crisis and the Rise of the Regulatory State a) Schechter Poultry Corp. v.) a) Formalism and Realism in Interpreting the Commerce Clause to Limit and Authorize Congressional Action b) United States v.) a) NLRB v. and the Commerce Clause a) State Action and Federalism: The Civil Rights Cases CL 1544-1549 b) Heart of Atlanta Motel v. Lopez CL 214-224 b) United States v. Representation Reinforcement. Transit Auth. Hunter's Lessee (and notes) CL 52-61 4) The Role of the Supreme Court (cont.) a) The Sources of Judicial Decisions: Text. Carter Coal Co. 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. the Fourteenth Amendment. 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. Darby c) Wickard v.) a) Note: Constitutions.C. United States CL 210-214 c) Katzenbach v. and Judicial Review CL 43-51 b) Martin v. Raich BB d) The Constitutional Debate Surrounding Health Care BB 11) "Implied" Federalism Limits on Congressional Power a) Garcia v. and Natural Law: b) McCulloch v. CL 203-210 b) United States v. Morgan CL 300-314 b) City of Boerne v. Knight CL 189-201 c) The Shreveport Rate Cases d) Champion v.

Sawyer (Steel Seizure Case) c) Medellin v. Sanford d) Frederick Douglass: The Constitution of the U.: 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. Connecticut f) Adamson v.) a) Legislative Authority &Nondelegation CL 412-427 b) INS v. Hoboken Land & Improvement Co. Bd. Mayor & City Council of Baltimore c) Murray 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. Levine BB 15) The Distribution of National Powers & the Role of the Executive a) Introduction: Fed.) a) Morrison v. Chadha 17) The Distribution of National Powers & the Role of the Executive (cont.c) Bd. of Education (I & II) CL 465-479 e) Bolling v. New Jersey CL 239-243 c) Kassel 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. Consolidated Freightways CL 267-275 d) Hunt v.S. Rumsfield CL 379-395 e) Hamdan v. Garrett CL 314-326 d) Nevada Dept.) a) The Incorporation Controversy CL 729-735 b) Barron v. Healy CL 250-257 14) "Implied" Limits on Local Power: Preemption a) Note: Preemption CL 277-280 b) Crosby v. Hibbs BB e) Young. 47 & 48 CL 355-370 b) Youngstown Sheet & Tube Co. New Jersey e) Palko v. of Human Resources v. of Trustees v. Rumsfield (discussed in notes) 16) The Distribution of National Powers & the Role of the Executive (cont. Post c) Dred Scott v. Olson CL 430-439 18) Race and the Constitution a) Slavery and the Constitution CL 441-452 b) State v. v. d) Twining v. Texas CL 375-377 d) Hamdi v. Ferguson c) Note: Separate But Equal d) Brown v. National Foreign Trade Council BB c) Wyeth v. 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. California g) Duncan v. Louisiana 66 .

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

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

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