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August 30th, 2018

US Constitution Article 3:
Section 1:
- Congress decides what inferior courts are established
- “Good behavior”
Section 2:
- Original jurisdiction vs. appellate jurisdiction
- In cases of impeachment, the House of Representatives charge the President while the Senate
hears the trial.
Section 3:
- Defines treason. No person can be convicted of treason unless there are two witnesses of the
same overt act.
- “No Attainder of Treason shall work Corruption of Blood” – may not affect family members of
the person found convicted of treason.

Federalist Paper No. 78 (Alexander Hamilton):

- A defense of the Constitution and its supremacy.
- Defenses:
- Defends the mode of appointing justices to the Supreme Court;
- Defends the tenure of justices; and that justices serve their office in good behavior.
- Hamilton is saying that the judiciary is the weakest branch in government due to the fact that
the purpose of justices is to uphold and interpret the Constitution.
- “The executive holds the sword…” – there is the possibility that the President may abuse
his power that is contrary to the rights of citizens upheld in the Constitution.
- “The legislature commands the purse…”
- “Parchment Provisions”.
- Hamilton is concerned with the abuse of power that can occur within the
legislature. The judiciary is a safeguard for the rights of the people, in that they
act as an independent body of the government.
- The judiciary cannot obstruct the rights under the Constitution.
- Ex. Chisholm v. Georgia – serves as an example of when the Executive may not always
comply with the judgments of the Supreme Court.
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- Hamilton alludes Montesquieu: “there is no liberty, if the power of judging be not

separated from the legislative and executive powers.”
- Administrative state: bureaucratic agencies within the state.
- An agency has legislative power: meaning that they have the power to make laws.
- Article 1 judges: when civilians/parties are in violation of agency laws, there is an
independent judiciary body within the agency itself.
- Lifetime appointments are important because then justices can remain impartial and not act
according to the whims of the populus.
- “Revolving door”: i.e. Dodd-Frank bill – which reformed the housing market and the
banking institutions.
- The legislature cannot be the judges of their own powers – they cannot determine their duties
and rights.
- “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute
their own pleasure to the constitutional intentions of the legislature,”: the courts cannot
interpret the Constitution based off of their own beliefs.
- Hamilton concludes with the idea that the judiciary must act within the confines of the
Constitution and precedents.

Marbury v. Madison, 5 U.S. 137 (1803)

Primary Holding: Congress does not have the power to pass laws that override the Constitution, such as
by expanding the scope of the Supreme Court’s original jurisdiction.
- Created the concept of “judicial review” – American courts have the power to strike down laws,
statutes, and executive actions that contravene the U.S. Constitution.
- Helped define the boundary between the constitutionally separate executive and judicial
branches in government.
Facts: John Adams, after having been defeated by Thomas Jefferson in the 1800 presidential election,
and Congress passed the Judiciary Act of 1801:
- Created new district courts;
- Expanded the number of circuit courts and added more judges to each circuit;
- Gave the President more control over appointing federal judges; and
- Reduced the number of Supreme Court justices from 6 to 5.
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Adam’s decision was primarily an attempt to obstruct Jefferson’s power and his supporters in the
Democratic-Republican Party.
- The appointments of 16 new circuit judges and the 42 new justices of the peace were approved
in the Adams Senate but were not considered valid until each of their commissions was
delivered by John Marshall, acting Secretary of State.

William Marbury – appointed as a justice of peace in the District of Columbia by Adams. Madison did not
deliver his commission before Adams left office.
- Thomas Jefferson appointed a new Sec. of State (Levi Lincoln) and stopped the delivery of
commissions, rendering new appointees as void.
- Jefferson Congress essentially repealed the Judiciary Act of 1801 by enforcing a new Judiciary
Act of 1802.
- Marbury filed a writ of mandamus – an order from a court to an inferior govt official ordering
that official to fulfill their duties or correct an abuse of discretion – to ask the Supreme Court to
order the executive branch to deliver his commission.

Opinion by the Majority (John Marshall; William Paterson; Samuel Chase; Bushrod Washington)
- Justice needed to decide whether Marbury had a right to his commission and whether such
remedy could be enforced through the courts. Marshall found a that there was an implied
remedy because no such right could exist without a remedy.
- Marshall countered Marbury’s claim that the Constitution served as a foundation upon which

Congress could build later laws. Marshall states that the Constitution is the most superior and

overrides any other law and that Congress does not have the power to modify the

Constitution through later legislation ⇨ “Supremacy Clause”.

- Majority finds that the 1789 Judiciary Act was unconstitutional because it purported to extend
the Court’s original jurisdiction beyond that which Article III established.
- “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the
other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations as the Congress
shall make,” (U.S. Constitution Article 3, Sec. 2 Clause 2).
Marshall sought to establish:
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1. Did Marbury have a right to his commission?

2. If Marbury had a right to his commission, and since the failure to deliver his commission was a
violation of his right, was there a legal remedy for him to obtain it?
3. Was the writ of mandamus within the jurisdiction of the Supreme Court to legally issue it?

1. Did Marbury have a right to his commission?

Marshall states that Marbury did have a right to his commission due to the fact that the President
signed and sealed the letter which indicated the completion of the appointment – the President’s
signature and seal and the subsequent advice and consent of the Senate were sources of evidence of
the commission. 5 U.S. 137.

2. If Marbury had a right to his commission, and since the failure to deliver his commission was a
violation of his right, was there a legal remedy for him to obtain it?
“Writ of mandamus” – an order from a court to an inferior govt official ordering that official to fulfill
their duties or correct an abuse of discretion.
- “To render a mandamus a proper remedy, the officer to whom it is directed must be one to
whom, on legal principles, such writ must be directed, and the person applying for it must be
without any other specific remedy…. To enable the Court to issue a mandamus to compel the
delivery of the commission, it must be shown that it is an exercise of appellate jurisdiction…” 5
U.S. 137.
Marshall: “The very essence of civil liberty certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury.”
- Whether the courts could give Marbury a remedy against Madison (Sec. of State).
- The Court held that so long as the remedy involved a mandatory duty to a specific person, and
not a political matter left to discretion, the courts could provide the legal remedy, given the fact
that Marbury had a legal right to his commission.
- “The government of the United States has been emphatically termed a government of laws, and
not of men.” 5 U.S. 163.

3. Was the writ of mandamus within the jurisdiction of the Supreme Court to legally issue it?
Jurisdiction – official power to make legal decisions and judgments
Original Jurisdiction – a court has the power to be the first to hear and decide a case.
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Appellate jurisdiction – a party to a decision appeals to a higher courts which has the power to review
the previous decision and either affirm or overturn it.
- “It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings
in a cause already instituted, and does not create that case,” 5 U.S. 176.
- Marshall states that to issue a writ of mandamus to an officer (justice of peace) for the delivery
of his commission, then it is to create an original action for that paper; if this were true, it would
have to belong to original jurisdiction. 5 U.S. 177.

- In order for Marbury’s suit with the Supreme Court to be heard, the Supreme Court must have
original jurisdiction over it.
- Court agrees with Marbury through an interpretation of the Judiciary Act of 1789,
Section 13 – which authorizes the mandamus on original jurisdiction.
- However, Article 3 of the Constitution clearly states that the SC’s original jurisdiction is
limited to cases either directly involving States or involving foreign dignitaries – of which
did not apply to Marbury’s case.
- Marshall concluded that Section 13 of the Judiciary Act violated Article 3 of the
Constitution – therefore the Constitution must supersede any statutory laws.
- Marshall states that if Congress has the power to create new laws that have the
same rank as the Constitution, then the purpose of the Constitution is
unnecessary.
- Nothing is presumed to have no meaning.
- In order for the Supreme Court to issue a mandamus, it must have appellate jurisdiction.
- Court introduces judicial review – which determines which acts of Congress could be
unconstitutional.
- SC rules that Marbury was not a justice of the peace.

September 4th, 2018

Marbury v. Madison Continued…
- Concept of non-jurisdiction: In Marbury, the Court decided that it did not have jurisdiction to
make a ruling in the case. How was the Supreme Court able to make a judicial decision in
Marbury?
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- Advisory opinion – an opinion issued by a court or a commission that does not have the
effect of adjudicating a specific legal case, but merely advises on the constitutionality or
interpretation of a law.
- In the American legal system, you need a case and controversy – meaning you have to
have someone who is wrong at that moment and that person has to be able to apply it
to a specific case.
- Ex. In Roe v. Wade, the issue arose whether or not the Court could hear the case
because abortion hadn’t yet been decided.
- In the American legal system, judicial opinions are not necessarily binding.
- However, the Supreme Court has the power to interpret the Constitution and determine
what the law is. Therefore, the Court maintained that it had the power to review
Marbury.
- John Marshall, who was the Secretary of State and then later appointed as Chief Justice of the
Supreme Court, ruled in the case but he himself was a political official in the Cabinet. Marshall
said that it impermissible for politicians to tell judges how to rule Constitutionality. Essentially,
the Court does not have the purview to handle political questions.
- Dicta –

Dred Scott v. Sandford, 60 U.S. 393 (1856)

Terminology:
● Writ of error – A writ (command) emanating from an appellate court, demanding that a lower
court convey the record of a case to the appellate court so that the record may be reviewed for
alleged errors of law committed during a juridical proceeding.
● Demurrer – A defense asserting that even if all the factual allegations in a complaint are true,
they are insufficient to establish a valid cause of action.
● Cause of action – A set of predefined factual elements that allow for a legal remedy.
● Obiter dictum – a remark in a judgment that is “said in passing.”

Facts of the Case

- Scott claimed that he and his family (Harriet Scott and their two daughters Eliza and Lizzie) were
entitled to freedom by being taken by their owner to reside in a territory where slavery is
prohibited by Congress.
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- Emerson violated the Constitution by taking Scott and his family (essentially Emerson’s
property) to reside in a new territory that prohibited slavery (pg. 60 US 396).
- Emerson was ordered for military duty and he rented Scott out to another party.
- In 1834, Dr. Emerson took Scott from Missouri (slave state) to Illinois (free state) until 1836,
then took Scott to Fort Snelling in Louisiana until 1838. In 1836, Dred Scott and Harriet married
at Fort Snelling where they had their two daughters. In 1838, Scott family was sold to Sandford
from Emerson.
- Scott sued Sandford based on the claim that Sandford abused Scott and his family and
imprisoned them.
- Scott sued Dr. Emerson in the Missouri court claiming that he was a freed man, due to his
residency in Illinois. The trial court ruled in favor of Scott.
- Emerson appealed this decision at the Supreme Court of Missouri, which reversed the
trial court’s decision, holding that the Scotts were still legally slaves and that they should
have sued for freedom while living in a free state.
- Missouri at the time was a slave state.
- Scott then sued his slaveowner, Sandford, at the federal court in Missouri which upheld the past
court’s ruling. Scott appealed this decision at the US Supreme Court.
- “Strategic litigation” – involves selecting and bringing a case to the courtroom with the
goal of creating broader changes in society. Essentially, the Court was not supposed to
create cases where the law does not yet exist.
- Scott was an early example of strategic litigation and also there was controversy
that the ruling in Scott was heavily influenced by politics.
- Sandford moves out of Missouri to New York. Dred Scott sues in the slave State, wins in
the lower court level but then loses at the Supreme Court of Missouri.
- “Diversity jurisdiction” – a federal court’s exercise of authority over a case involving
parties who are citizens of different states and an amount in controversy greater than a
statutory minimum.
- In a state, there are three levels of the court: 1) trier of fact; 2) if one believes the Court
misinterpreted the facts, the plaintiff may appeal to a higher court at the Court of
Appeals; 3)
- Court of Fact (these facts are uncontested): In the court of fact, Scott confirms
that he is a slave of African descent and that his ancestors were slaves.
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- He was brought to a free state, Illinois, then Wisconsin, then brought

back to Missouri, a slave state.
- The Supreme Court of Missouri overturned the ruling in the first
decision, making Scott not a freed slave.
- Scott initially had no suit in the federal court, but his owner left Missouri
for New York. Now this was a controversy between citizens of different
states and was now able to be heard in the federal court.
- Scott’s owner was married to an abolitionist.
- Idea of Territory in Scott: Congress decided upon the Missouri Compromise, amidst the growing
debate of what states would be slave states vs. free states. Allowing states to decide for
themselves about the status of slaves in their territories held dire effects.
- Taney had to address the issue of territory and slavery, which could in and of itself be
interpreted as Taney making US policy.
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- Despite the fact that Dred Scott was a freed slave in Missouri, the Constitution treats African
Americans as “articles of property” and “to hold as slaves”. Thereby, stating that Dred Scott was
not a citizen with protected rights under the Constitution, and therefore had no standing in
federal court (didn’t have the right to sue Sandford).
- Furthermore, States cannot amend or add to the Constitution by making any subsequent law
that makes a foreigner or a slave, etc. a citizen of the U.S.
- The federal government had no power to regulate slavery in the federal territories
acquired after the creation of the US.
- The majority rules that judgment of the Circuit Courts of the US, which ruled in favor of Dred
Scott (the plaintiff) was wrong.

Majority Opinion (delivered by Chief Justice Taney)

Question 1: Did the Circuit Court of the US have jurisdiction to hear and determine the case between
these parties?
Question 2: If it had jurisdiction, was its judgment correct or wrong?
Justice Taney states that an individual who is considered a citizen in one State does not confer the
citizenship as a US citizen. Thus, Scott who was a citizen of Missouri but not of the US, had no right to
sue in federal court.
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- The right of naturalization: Taney states that States surrendered or ceded the power of
naturalization to the federal government, and that Congress may only exercise its power of
naturalization exclusively for people born in a foreign country not for those who were born in
the US but of inferior status (i.e. African-American descendents) Pg. 60 US 417.
- Furthermore, individuals who may become naturalized as a US citizen are reserved “to aliens
being free white persons,” (Pg. 60 US 419). The language of the law is confined to the white
race, as understood by Taney.
- Taney exhibits a jurisprudential method of pure, originalism – original intent.
Justice Taney further concludes that the Circuit Court had no jurisdiction of the case and that the
judgment on the plea in abatement was erroneous, pg. 60 US 427.
- The issue of whether or not Scott was a US citizen. Taney argued that the framers had not
originally intended for African Americans to be considered citizens of the US.
- However, Taney ultimately maintained that judicial interpretation of the Constitution must
consider the original intent of the framers.
- Justice Taney not only looks to the Constitution for evidence, but also the Declaration of
Independence. “We the people” cannot refer to slaves because the slave trade was a systematic
institution of the US.
- However, the Declaration of Independence is not a legal document that Taney is
interpreting. He is essentially interpreting the fundamental principles of America.
- Also, in response to Thomas Jefferson’s conception that Constitution should change as
the minds of the nation changes, Taney argued that until Congress makes that
expression of a change in mind by the passing of law, he will not be convinced that the
minds of the Nation has changed. Opponents of originalists would argue that
- Due to the fact that you need a supermajority (⅔ of the Senate, ⅔ of House of
Representatives and ¾ of States) to pass a Constitutional amendment, partisanship
always interferes or hinders many issues. The actions of Congress is not a true reflection
of the minds of the people.
- Taney also looks at the anti-miscegenation laws and the 1787 Northwest Ordinance: He
uses this as evidence that slaves should be treated as an inferior and separate class.

Questions regarding Scott as the plaintiff:

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1. Was Scott and his family free in Missouri?

2. If they were not, is Scott himself free due to the fact that he was removed from Illinois?
Question 1:
- Congress rules that slavery and involuntary servitude (except as a punishment for crime) is
prohibited in the territory once owned by France (i.e. Louisiana).
- Taney is determining whether or not Congress was acting within its powers, as
delineated in the Constitution, when it authorized to pass a prohibition on slavery.
- Taney states that under Article 2 of the Constitution, Congress has the power “to
dispose of and make all needful rules and regulations respecting the territory or other
property belonging to the US.” However, in this particular case, this provision is not
relevant because that provision was intended to apply to only territories once owned by
Great Britain and not any territory that was subsequently ruled by another country.
- Taney states that the Constitution recognizes the right of property of the master in a slave and
no tribunal, whether it be legislative, executive or judicial, has the right to deny citizens of that
benefit/provision and guarantees the protection of private property against the encroachment
of government, Pg. 60 US 451.
- Further argues that Congress’s action to prohibit a citizen from holding and owning
property (slaves) in a territory that prohibited slavery was void and unwarranted by the
Constitution.
- Thus, neither Dred Scott nor his family were free because they were carried into
this freed territory.
- Scott was a slave when he was taken into Illinois by his owner and then brought
back to Missouri; so his status depended on the laws of Missouri, not those of
Illinois, pg. 60 US 452.
- Taney also looks to the Articles of Confederation: “ that the free inhabitants of each of the
States… should be entitled to all the privileges and immunities of free citizens in the several
States.”
- That the idea of “free inhabitants” actually means citizens of the US.
- EX. Citizenship Clause in Article 1 of the Constitution.
- Taney reverses the judgment of the inferior State court which had ruled in favor of Dred
Scott.
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- The only legal remedy that Scott had was to bring a writ of error to the Supreme
Court but as Taney states, the Supreme Court must dismiss the writ due to the
fact that it isn’t within its jurisdiction.
Concurrence by Justice Wayne
- Further agrees that the writs of error to a State court and that to the Circuit Courts are
determined by different laws and principles.
- States that the Supreme Court did not have jurisdiction over the case at hand under the 25th
section of the Judiciary Act.
Concurrence by Justice Nelson
- Nelson found it unnecessary to reach this constitutional issue. To Nelson, the merits properly
turned on a principle of states’ rights; Assumes for purposes of argument that Scott might have
been emancipated during his sojourn in Illinois and/or his sojourn in Upper Louisiana.
- Each state that permitted slavery had the constitutional right to determine what effect it
would give to any emancipation that might have occurred elsewhere once the Negro
person had returned to that state.
- Nelson questions whether or not moving to Illinois (free state) would grant Scott his freedom.
- “Except in cases where the power is restrained by the Constitution, the law of the State
is supreme over the subject of slavery within its jurisdiction” pg. 60 US 459.
- No constitutional power can rightfully control the rights of a State’s sovereignty.
- “Every State or nation possesses an exclusive sovereignty and jurisdiction within her
own territory, and her laws affect and bind all property and persons residing within it. It
may regulate the manner and circumstances under which property is held, and the
condition, capacity, and state of all persons therein, and also the remedy and modes of
administering justice. And it is equally true that no State or nation can affect or bidn
property out of its territory, or persons not residing within it. No State therefore can
enact laws to operate beyond its own dominions…” 60 US 460.

Dissent by Justice McLean:

- McLean opined that Dred Scott was in fact a citizen of the US on the grounds that his status as a
freed man in one state should carry over to another state, regardless of that state’s
emancipation laws.
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- Elicits the question of whether or not the mere moving to a state where slavery is prohibited
automatically renders the slave free and that the master must forfeit his property (the slave).
- Also the question of whether or not after having resided in a free state for some time and then
being taken back to a state where slavery is permitted, if the rights in a free state are
transferable in a slave state.
- Justice McLean attempts to discern whether if the majority was acting/making judicial
interpretations of the law as stated or whether they were asserting an opinion authoritatively.
- “If the common law have the force of a statutory enactment in Missouri, it is clear, as it seems
to me, that a slave who, by a residence in Illinois in the service of his master, becomes entitled
to his freedom, cannot again be reduced to slavery by returning to his former domicil in a slave
State,” 60 US 558.
- In 1808, the US banned the import of slaves, but it implicitly allowed internal production
of slaves.
Dissent by Justice Curtis:
- In 5 of the 13 states, at the time of ratifying the Constitutions, African American men were
allowed to vote and guaranteed the right to citizenship.
- Obiter dicta/Dictum – You have to have a case in controversy to rule on a certain matter. If you
don’t have authority over the issue, then whatever said is just a matter of opinion and the case
should be dismissed.
- Taney responds to this by stating that because the lower Courts had misinterpreted the
law, it was the duty of the Supreme Court to rule correctly.
- Advisory Opinion.

Scott argued that under Missouri law, he should be considered a free man.
- However, the Supreme Court rebutted that state citizenship is determined by the State court.
- State interpretation of the law determined by the State court.
- The matter of territory and slavery as regulation: Taney states that these territories as referred
to in the Constitution, were not actually territories of the US at the time of ratifying the
Constitution.
Taney argues that despite the change in public opinion, this change doesn’t impact the law, as the
framers conceived of it.
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- The framers preferred and intended for government to be fundamentally inefficient and placed
restrictions on the creation of legislation, or at least slow the process to make legislation.
- Does the law maintain its meaning with time?
- E.g. 19th Amendment – Women’s suffrage and the right to vote.
- Originalists commonly look upon the Declaration of Independence, Articles of Confederation,
State and Congressional legislation, the language of the Constitution itself, and Executive orders
(essentially documents that had no legal merit in deciding judicial opinions).

Due Process.
Fourteenth Amendment – passed after the Civil War.
- Applying the Constitution to the States.
- How in fact did Congress get enough votes for this Constitutional amendment?
- The language of the 14th amendment is quite similar to the language of the 5th amendment:
- The right to not incriminate yourself
- The right that private property should be taken for public use, without just
compensation.
- “No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or property,
without due process of law…” – How do we qualify and quantify due process?
- Processes of Law:
- Trial by jury;
- Legal defense in criminal cases, but not in civil cases (because the more serious the
imposition, the more need of a defense).
- Notice/Public Comment
- “Slaughterhouse Cases” – The court interpreted the Fourteenth Amendment as protecting the
rights people have by virtue of their US citizenship, not by virtue of their citizenship of a state. It
then defined the rights of US citizens narrowly, excluding civil rights.
- “Due Process” in Scott, under the meaning of the Constitution, Scott is considered as property.
- Taney states that there are specific things, under the Constitution, that Congress is
prohibited from doing. He makes the case that by making Scott a freed man, it would be
depriving Sandford of his property, if he didn’t have due process.
Missouri Compromise of 1820:
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- Taney argues that depriving Sandford of his property is the critical issue at hand, under Due
Process.
- “Substantive due process” – there is not enough process to take away substance.
- A principle allowing courts to protect certain fundamental rights from government
interference, even if procedural protections are present or the rights are not specifically
mentioned elsewhere in the US Constitution.
- “An act of Congress which deprives a citizen of the US of his liberty or property merely
because he became himself or brought his property within a particular territory of the
US… could hardly be dignified with the name of due process of law…”
- Because you have a right to due process, then in theory, you cannot be deprived
of liberties and properties because there is no amount that is due. No amount of
process can deprive you of these things.

September 13th, 2018

Fourteenth Amendment:
Section 1:
● Southern states, though they were opposed to the indiscriminate nature of the Fourteenth
Amendment, had no choice but to agree to pass it.
● Prior to the Fourteenth Amendment, the Constitution only applied to the federal government,
but now it also applied to the State.
○ The States essentially decided to impose restrictions upon themselves, even when they
had the choice to avoid this.
○ “Privileges and Immunities” – in the Slaughter-House Cases, the Court ruled that the Bill
of Rights does not apply in the Fourteenth Amendment.
○ Differs from the 5th Amendment due to the fact that the 14th amendment provides due
process to all individuals, and that it also prohibits the States from govt infringement of
individuals’ rights.
○ 14th Amendment applies to both federal government and states.
● Equal Protection Clause (which is not featured in the 5th Amendment): prohibits discrimination
in protection of laws.
● “Nor shall any state…” – The phrase implicitly leaves out federal territories and D.C.
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Sidenote:
- Robert Bork – Supreme Court nomination

Planned Parenthood v. Casey (1992).

Have to consider how much have the American people accepted precedents? How much has it become
a societal norm (common law effects)?
- 19 year span between Roe v. Wade and Casey.
- The Court deemed the Spousal Notice provision as unconstitutional.

Scalia’s concurrence of Justice Rehnquist’s opinion:

O’Connor’s dissent in Roe v. Wade essentially becomes a part of the majority opinion in Casey.
● A recognition of a woman’s right to choose to have an abortion before the point of fetal viability
and to obtain it without undue interference from the State.
● A recognition of the State’s power to regulate and even restrict abortions after the point of
viability (provided and exception was made for cases where continuing the pregnancy would
endanger the health or life of the women);
● The principle that the State has throughout a pregnancy interests in protecting both the health
of the pregnant woman and the life of the potential child.
○ Provides a reason for State involvement and consideration.
“Contending sides of a national controversy”: similar to the controversy that arises in Dred Scott v.
Sandford.
● Casey did not create a “pax Roman”

“Undue Burden” Standard:

Three Standards of Scrutiny under the Fourteenth Amendment:

● Rational basis – the lowest standard; essentially applies to everything
● Intermediate Scrutiny – applies to things like gender.
● Strict scrutiny – the highest level, i.e. Korematsu v. US.
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○ Applies to things like race.

Hypothetical:
● If a State legislature required that gloves be worn during abortion operations, would that be
allowed under the Constitution?

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992)

Majority Opinion by Justice O’Conner, Souter, and Kennedy.
Concurrence & Dissent by Justice Blackmun, Stevens (plurality) and Scalia, White, Thomas (minority).

Terms/Concepts:
● “Stare decisis” – Respecting the precedent (Roe v. Wade). A principle or rule established in a
previous legal case that is either binding on or persuasive for a court or other tribunal when
deciding subsequent cases with similar issues or facts.
● Amicus curiae – someone, who is not a party to a case and may or may not have been solicited
by a party and who assists a court by offering information, expertise, or insight that has a
bearing on the issues in the case.
○ Supreme Court must invite/ask for amicus curiae.
● Declaratory relief – A judgment of a court which determines the rights of parties without
ordering anything be done or awarding damages.
● Injunctive relief – An injunction (a court order) requiring an individual to do or not do a specific
action. It is an extraordinary remedy that courts utilize in special cases where preservation of
the status quo or taking some specific action is required in order to prevent possible injustice.
● Rational basis review – the default standard of review that courts apply when considering
constitutional questions, including due process or equal protection questions under the Fifth
Amendment or Fourteenth Amendment. Courts applying rational basis review seek to
determine whether a law is “rationally related” to a “legitimate” government interest, whether
real or hypothetical.

Facts of the case:

- The plaintiffs (five abortion clinics, a class of physicians who provided abortion services, and one
physician representing himself independently) filed suit in the U.S. District Court for the Eastern
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District of Pennsylvania to enjoin the state from enforcing the five provisions in the Pennsylvania
Abortion Control Act of 1982 and have them declared “facially unconstitutional.”
- § 3205 Informed Consent: A woman seeking abortion had to give her informed consent
prior to the procedure. The doctor had to provide her with specific information at least
24 hours before the procedure was to take place, including information about how the
abortion could be detrimental to her health and about the availability of information
about the fetus.
- § 3209 Spousal Notice. A woman seeking abortion had to sign a statement stating that
she had notified her husband prior to undergoing the procedure, unless certain
exceptions applied.
- This provision would create an undue burden on women, due to domestic abuse
issues.
- This was an interesting consideration because domestic abuse was more so a
legislature consideration rather than one that should made by the Supreme
Court.
- § 3206 Parental Consent. Minors had to get the informed consent of at least one parent
or guardian prior to the abortion procedure. Alternatively, minors could seek judicial
bypass in lieu of consent.
- § 3203 “Medical Emergency” definition. Defining a “medical emergency” as that
condition, which, on the basis of the physician’s good faith clinical judgment, so
complicates the medical condition of a pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert her death or for which a delay will create
serious risk of substantial and irreversible impairment of a major bodily function.
- §§ 3207(b), 3214(a), and 3214(f) Reporting Requirements. Certain reporting and record
keeping mandates were imposed on facilities providing abortion services.
- District Court for the Eastern District of Pennsylvania held that all the provisions contested were
unconstitutional and filed an injunction against Pennsylvania’s enforcement of them.
- Third Circuit Court of Appeals: The Court held that all provisions were constitutional except for
the husband notification provision.
- Third Circuit concluded that the husband notification was unduly burdensome because
it potentially exposed married women to spousal abuse, violence, and economic duress
at the hands of their husbands.
 18

Majority Opinion by Souter, O’Connor, and Kennedy:

● Essential Holding: Reaffirmed the central holding of Roe v. Wade stating that “matters, involving
the most intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment” (Casey 505 US 851).
○ Women’s right to abortion protected under the Due Process clause of the 14th
Amendment: “No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
● The plurality of the court upheld the constitutional right to have an abortion while altering the
standard for analyzing restrictions on that right, thereby creating the “undue burden” standard
for abortion restrictions.
● Comparison with Roe (Viability vs. Trimester): Casey differs from Roe because under Roe the
State could not regulate abortions in the first trimester whereas under Planned Parenthood v.
Casey, the state can regulate abortions in the first trimester, or any point before the point of
viability, and beyond as long as that regulation does not pose an undue burden on an abortion.
○ The Roe trimester framework completely forbade states from regulating abortion during
the first trimester of pregnancy; permitted regulations designed to protect a woman's
health in the second trimester; and permitted prohibitions on abortion during the third
trimester (when the fetus becomes viable) under the justification of fetal protection,
and so long as the life or health of the mother was not at risk.
■ “The compelling point… is at approximately the end of the first trimester,”
because it is at that point that the mortality rate in abortion approaches that in
childbirth,” Roe, 410 US 163.
○ The Casey plurality believed that viability was a better standard for regulating abortions
than the trimester standard because there was more medical accuracy in viability.
● “Undue Burden” Standard: Prior to viability, the plurality held, the State can show concern for
fetal development, but it cannot pose an undue burden on a woman's fundamental right to
abortion, 505 US 873, 876-78.
○ Roe identified two State interests:
 19

■ “An interest in preserving and protecting the health of the pregnant woman”
and;
■ “An interest in protecting the potentiality of human life,” Roe 410 US 162.

Concurrence & Dissent by Justice Stevens:

- Disagrees on Parts IV, V-B & D of the plurality opinion.
- Agrees with remainder of the plurality opinion.
- Cites Ronald Dworkin: essentially states that a State’s efforts to fulfill its interests may in fact
curtail someone else’s constitutionally protected rights. With certain constitutional protections,
there are those who both benefit or remain in conflict with it, 505 US 922.

Concurrence & Dissent by Justice Blackmun:

- Essentially upholds and reaffirms the constitutionality of the Roe holding, Casey 505 US 923,
based on stare decisis.
- Concurs with the plurality that since the Roe decision, for nineteen years, women have come to
assume Roe’s concept of liberty in defining the capacity of women to act in society and to make
reproductive decisions, 505 US 924.
- Reiterates the plurality’s affirmation that government may not restrict a women’s right to
terminate her pregnancy or else it would deprive her of her right to make her own decisions
about reproduction and family planning, 505 US 928.
- State restrictions on women’s right to terminate also calls into question gender equality
under the Constitution.
- “Under Roe, any more than de minimis interference is undue…” 505 US 944.
- While Justice Blackmun disagrees with the plurality in that the provisions should be
upheld, he believes that the Court’s decision to reaffirm the holding in Roe was correct.
- Disagrees with Justice Scalia, who believes that the matter of a “right to abortion” should be left
entirely to the States, because Justice Blackmun sees this as an abdication of the Court’s
constitutional responsibilities, Casey 505 US 944.
- Justice Scalia maintains a rational-basis view: Courts applying rational basis review seek
to determine whether a law is “rationally related” to a “legitimate” government
interest, whether real or hypothetical.
 20

Concurrence and Dissent by Justice Rehnquist (joined by Justice White, Scalia, and Thomas):
- Essentially believes that the holding in Roe was wrongly decided and should be overruled, Casey
505 US 944.
- Instead, would adopt the holding of the plurality in Webster v. Reproductive Health
Services, 492 US 490 (1989) and uphold the provisions of the Pennsylvania statute.
- The Third Circuit Court of Appeals argued that the provisions at issue did not directly
implicate the decision in Roe, Casey 505 US 945.
- Maintains that the plurality’s decision to use an undue burden standard in abortions is
unconstitutional and leaves the Court with the responsibility to scrutinize all types of
abortion regulations which is not in the domains of the judiciary’s Constitutional
powers, if one views the holding under Roe that the States are free to regulate abortion
procedures, Casey 505 US 945.
- In Akron v. Akron Center for Reproductive Health, 462 US 442-445, the Court
held unconstitutional a regulation which requires a physician to informa woman
seeking an abortion of the status of her pregnancy, the development of her
fetus, the date of possible viability, the complications that could result from an
abortion, and the availability of agencies providing assistance and information
with respect to adoption and childbirth, Casey, 505 US 948.
- Further maintains that the plurality’s usage of stare decisis is almost entirely dicta because of
the fact that the holding in Roe v. Wade did not itself abide by precedents.
- Also states that the plurality’s opinion is based entirely on public opinion rather than
principles based in the Constitution’s texts.
- This is problematic in Justice Rehnquist’s eyes because “the Court’s duty is to
ignore public opinion and criticism on issues that come before it…” Casey, 505
US 958-9.
- The dissenting opinion also undercuts the plurality’s opinion that women have
developed their economic and social standing in society based off of the decision in Roe;
however the dissenting opinion suggests that women’s place in society is not dependent
upon the ruling in Roe but rather a result of “their determination to obtain higher
education and compete with men in the job market, and of society’s increasing
recognition of their ability to fill positions that were previously thought to be reserved
only for men,” Casey, 505 US 956-57.
 21

September 20th, 2018

● Strategic litigation – a method that can bring about significant changes in the law, practice or
public awareness via taking carefully-selected cases to court.
- Includes a process of carefully and strategically choosing the most “ideal” plaintiff in
order to appeal to the court. Trying to find the right people to have a “case in
controversy.”
- Began with Thurgood Marshall in the 60s.
- D.C. v. Heller (2008) was an exemplary model of strategic litigation. It was the first case
to create a major ruling on the Second Amendment.
● Case in controversy.
● Common-use at the time. U.S. v. Miller
○ Whatever is in common-use at the time is protected under the Constitution.
● In McDonald v. Chicago, the Court rules that every single right in the federal Constitution does
not necessarily apply to the States. The only way they can determine if such rights are applied to
the State is Fourteenth State, “implicit in the concept of ordered liberty” or “deeply rooted in
nation’s interests.”
○ An example of substantive due process is the 2nd amendment
○ “Selective incorporation” - some amendments do apply to the States due to the 14th
amendment.
○ Privileges and immunities + slaughter-house cases.

McDonald v. Chicago, 561 U.S. 742 (2010)

Terminology & Concepts:

Slaughter-House Cases – the Court held that the Privileges or Immunities Clause protects only those
rights “which owe their existence to the Federal government, its national character, its Constitution, or
its laws; and that the fundamental rights predating the creation of the Federal Government were not
protected by the clause.
- The Fourteenth Amendment’s Privileges or Immunities Clause did not apply the Bill of Rights to
the actions of states (and by extension, local governments).
 22

- If it had been overturned, the Selective Incorporation process may have become unnecessary,
since the entire Bill of Rights, including the 2nd Amendment, would arguably be applied to the
states.
- If Slaughter-House had been overturned, it would have been possible that constitutional
guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and
other parts of the Bill of Rights, as well as future court rulings and existing federal precedent,
not universally guaranteed in actions by the states, would have been applied against the states
automatically

Due Process Clause –

Privileges or Immunities Clause – the fundamental rights that people enjoy in free governments,
protected by the U.S. Constitution in Article IV (“The citizens of each state shall be entitled to all
privileges and immunities in the several States”) and specifically to be protected against state action by
the 14th Amendment (1868) (“No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States.”)
- Thomas states that discussed, “privileges” and “immunities” were understood only as synonyms
for “rights.”

“Selective incorporation” – the Supreme Court would incorporate certain parts of certain amendments,
rather than incorporating an entire amendment at once. The Court began to hold that the Due Process
Clause fully incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v.
Wainwright, 372 U. S. 335, 341 (1963); Malloy v. Hogan, 378 US 1, 5-6 (1964)...

amici curiae – a person or group who is not a party to an action, but has a strong interest in the matter,
will petition the court for permission to submit a brief in the action with the intent of influencing the
court’s decision.

common-law method – taking cases and controversies as they present themselves, proceeding slowly
and incrementally, building on what came before.
 23

Facts of the Case:

- Otis McDonald (76 years old) was a retired maintenance engineer living in Morgan Park in
Chicago, a progressively high-crime neighborhood ridden with gangs and drug dealers.
McDonald was a community activist whose efforts to improve his neighborhood have subjected
him to violent threats from drug dealers. The Chicago petitioners, including McDonald, Lawson
and others, filed suit against the City in the US District Court for the Northern District of Illinois.
- Petitioners’ Argument: They sought a declaration that the handgun ban and several related
Chicago ordinances violate the Second and Fourteenth Amendments to the Constitution.
- In NRA, Inc. v. Oak Park, 617 F, the District Court rejected plaintiffs’ argument that the
Chicago and Oak Park laws are unconstitutional.
- The petitioners filed a federal suit against Chicago alleging that the handgun ban left
them vulnerable to criminals.
- Petitioners argued that (1) the right to keep and bear arms is protected by the Privileges
or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House
Cases’ interpretation of the Clause should be rejected; (2) the Fourteenth Amendment’s
Due Process Clause incorporates the Second Amendment right (the petitioners argued
that the Second Amendment in addition to the federal jurisdictions, should also apply to
state and local laws through a process of selective incorporation.)
- In the Slaughter-House Cases, the Supreme Court upheld a Louisiana statute
granting a monopoly on livestock butchering in the city of New Orleans to a
newly incorporated company. The butchers sued, claiming that the Statue
violated the Privileges or Immunities Clause because it interfered with their
right to pursue and “exercise their trade.” However, the Court rejected their
claim, stating that their asserted right wasn’t a privilege or immunity of US
citizenship but one governed by the States.
- The Court held that the Privileges or Immunities Clause protected only rights of
federal citizenship and didn’t protected any of the rights of state citizenship.
- The Court defined the two sets of rights as mutually exclusive.
- The Seventh Circuit ruled that the Fourteenth Amendment did not include Second
Amendment rights and upheld the constitutionality of a handgun ban, by relying on the
precedents of the Slaughter-House Cases.
 24

- Municipal Respondents’ Argument: A right set out in the Bill of Rights applies to States only
when it is an indispensable attribute of any “civilized” legal system.
-

Majority Opinion (Alito, joined by Roberts, Scalia, Kennedy; Thomas (all except parts II-C, IV and V):

- Main Ruling: the Fourteenth Amendment incorporates the Second Amendment right,
recognized in Heller, to keep and bear arms for the purpose of self-defense.
- The right to keep and bear arms applies to the States through the Fourteenth
Amendment’s Due Process Clause because it is fundamental to the “American scheme
of ordered liberty,” Duncan v. Louisiana, 391 U. S. 145, 149 (1968), and “deeply rooted
in this Nation’s history and tradition,” Washington v. Glucksberg, 521 US 702, 721
(1997).

- Precedent: District of Columbia v. Heller. In Heller, the Court held that the Second Amendment
protects the right to keep and bear arms for the purpose of self-defense and struck down a
District of Columbia law that banned the possession of handguns in the home.

Late 19th c. Court’s approach to whether or not the Due Process Clause prohibits the States from
infringing rights set out in the Bill of Rights:
1. Due process question was entirely separate from the question of whether a right was a privilege
or an immunity of national citizenship (Twinning v. New Jersey, 211 US 78, 99 (1908).
2. The only rights protected against state infringement by the Due Process Clause were those
rights “of such a nature that they are included in the conception of due process of law.”
(Twinning v. New Jersey, 211 US 78, 99 (1908).
3. … “if a civilized system could be imagined that would not afford the particular protection,”
Duncan v. Louisiana, 391 US 145, 149 (1968).
4. A right under the Bill of Rights does not necessarily validate inclusion within the protection of
the Due Process Clause, while some rights qualified (freedom of speech and press; assistance of
counsel in capital cases; freedom of assembly; free exercise of religion; but not grand jury
indictment’’ privilege against self-incrimination).
 25

5. “even when a right set out in the Bill of Rights was held to fall within the conception of due
process, the protection or remedies afforded against state infringement sometimes differed
from the protection or remedies provided against abridgment by the Federal Government,”
McDonald v. Chicago.

Efforts to recognize that the right keep and bear arms was a fundamental right to everyone.
● “Bloody Kansas” & Post Civil War:
○ Efforts by Southern States (former Confederate States) to disarm African Americans who
served in the Union Army.
● §14 of the Freedmen’s Bureau Act of 1866, which provided that “the right . . . to have full and
equal benefit of all law sand proceedings concerning personal liberty, personal security, and the
acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional
right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race
or color, or previous condition of slavery.”
○ The provision held that all citizens regardless of color or ethnicity would have the
constitutional right to bear arms.
● The Civil Rights Act of 1866, 13 Stat. 27: also sought to protect right of all citizens to keep and
bear arms.
● Both legislations failed to pass in Congress.

- Alito states that the municipal respondents falsely interpreted §1 of the Fourteenth Amendment
as an “antidiscrimination rule”.

Concurrence by Justice Thomas:

- While Thomas agrees with the Court’s decision, he disagrees the right to bear arms is
enforceable against the State only through the due process clause,” McDonald v. Chicago, but
also through the Fourteenth Amendment’s Privileges or Immunities Clause.
- Thomas indubitably believes that the Privileges and Immunities Clause should be
interpreted to include Second Amendment rights, because the Clause uses the verb
“abridge,” rather than “discriminate,” to describe the limit it imposes on state authority,
McDonald, 36.
 26

- “The plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by
focusing its inquiry on those rights deeply rooted in American history and tradition invites less
opportunity for abuse than the alternatives,” McDonald v. Chicago, 561 US __ (2010).
- Thomas states that the original meaning of the Fourteenth Amendment is a far superior
alternative that offers greater clarity and predictability than the substantive due process
framework, McDonald, 561 US __ (2010).
- Civil Rights Act of 1866 – the history behind the passing of the Fourteenth Amendment and
former Confederate States’ efforts to disarm freed African American men. Discrimination or
equal due process for all?
- Thomas appeals to statements made by Senators Bingham, Howard, and Hale – in order to
arrive at the conclusion that “the Privileges or Immunities Clause enforces at least those
fundamental rights enumerated in the Constitution against the States, including the Second
Amendment right to keep and bear arms,” McDonald v. Chicago, 32.
- Civil Rights Act of 1871, 17 Stat. 13 – The statute prohibits state officials from depriving citizens
of “any rights, privileges, or immunities secured by the Constitution.”
- At the time of ratifying the Fourteenth Amendment, it was consequential that States
must yield to the Constitution and federal laws because former Confederate states were
vulnerable to Confederate war debts and biases to deprive blacks from their
Constitutional rights.
Permissibility of Slaughter-House Cases:
- Thomas rejects the Slaughter-House decision to the extent that it precludes any overlap
between the privileges and immunities of state and federal citizenship.

Stare Decisis Consideration:

Dissent by Justice Stevens:

- The questions Stevens is posing is whether the Constitution guarantees individuals a

fundamental right enforceable against the States to possess a functional, personal firearm,
including a handgun, within the home.
 27

- McDonald has shown that the Second Amendment right does not necessarily apply to
States because it has not yet been determined whether or not the Amendment has
been incorporated into the Fourteenth Amendment.
- Stevens is primarily concerned with 1) if the nature of the right to keep and bear arms
has been asserted and 2) whether that right is an aspect of a Fourteenth Amendment
“liberty.”
- Stevens argues that McDonald is fundamentally a substantive due process case.
- It is settled that the Due Process Clause applies to matters of substantive law as well as
to matters of procedure, Whitney v. California, 274 US 357, 373 (1927).
- In both the Fourteenth Amendment and the Fifth Amendment, the Due Process Clause
guarantees more than fair process, and it includes more protection of liberties than just
protection from physical restraint.
- Stevens addresses that there is a problem with defining “liberty,” for the Framers did not
express a clear understanding. Stevens observes that there is a danger of subjective, totalizing,
judicial interpretation by using substantive due process to advance a broad theory of the right.
- Stevens states that because “liberty” has been left without a clear meaning, judges
today have a duty to redefine and reinterpret the word according to our standards
today.
- “Sensitivity to the interaction between the intrinsic aspects of liberty and the practical
realities of contemporary society provides an important tool for guiding judicial
discretion,” McDonald, pp. 146.
- “More fundamental rights may receive more robust judicial protection, but the strength of the
individual’s liberty interests and the State’s regulatory interests must always be assessed and
compared. No right is absolute.” McDonald, pp. 145.
- Rather than seeking out a categorical understanding of the liberty clause, Stevens
argues that judicial precedents have revealed a “conceptual core.”
- “Self-determination, bodily integrity,freedom of conscience, intimate relationships,
political equality, dignity and respect—these are the central values we have found
implicit in the concept of ordered liberty,” McDonald, pp. 145.
- Importance of stare decisis and common-law method in substantive due process:
- Allows the Court to scrutinize more closely the right at issue in any given dispute,
reducing both the risk and the cost of error.
 28

- In Heller, the Court decided that it is constitutional to keep a firearm in one’s home for
lawful self-defense; thus, the precedent limits the Court on that one issue: home.
- Heller observed that “the need for defense of self, family, and property is most
acute” in one’s abode, and celebrating “the right of law abiding, responsible
citizens to use arms in defense of hearth and home.” 554 U. S., at ___, ___ (slip
op., at 56, 63).

Stevens’s Main Points in Ruling in Favor of the City:

1. Firearms may be misused, in the event of self-defense. Guns may pose greater potential harm to
oneself.
a. An all-encompassing prohibition of domestic possession of guns may be
unconstitutional; thus, it must be up to the state or local legislature to determine bans
on firearms in one’s own home.
2. The right to possess a firearm is different in kind and in nature from the liberty interests
recognized under the Due Process Clause. Owning a gun is not critical to leading a life of
autonomy, dignity, or political equality.
3. It is not entirely out of the question to consider how other nations’ regulate firearms.
Petitioners in this case have argued that the right to possess a gun of one’s choosing is
fundamental to a life of liberty, but in other nations, citizens do live a life of liberty even with
prohibitions on guns.
4. The purpose for which the Second Amendment right was codified was to prevent the
elimination of the militia, Heller, 554 US. It was the States, not private persons, on whose
immediate behalf the Second Amendment was adopted.
a. “Americans’ conceptions of the Second amendment right has evolved over time in a
more individualistic direction,” McDonald, pp. 164.
5. States have had a long history of regulating firearms.
6. It is not dubious that certain public policy issues should be subject to local legislature and
contexts.

D.C. v. Heller, 554 US (2008).

 29

Terminology & Concepts:

● Prefatory clause – “[a] well regulated Militia, being necessary to the security of a free State…”
The Court determined that while this clause announces a purpose for recognizing an individual
right to keep and bear arms, it does not limit the operative clause.
● Operative clause – Codifies the “right of the people.”
● Declaratory Relief – a judgment of a court which determines the rights of parties without
ordering anything be done or awarding damages.
● Injunctive Relief – A court order called an injunction, requiring an individual to do or not do a
specific action.
○ Courts will utilize this remedy in special cases where preservation of the status quo or
taking some specific action is required in order to prevent possible injustice.
● En banc – When a case is heard before all the judges of a court (before the entire bench) rather
than by a panel of judges selected from them.
● Strategic litigation – a method that can bring about significant changes in the law, practice or
public awareness via taking carefully-selected cases to court.
○ Includes a process of carefully and strategically choosing the most “ideal” plaintiff in
order to appeal to the court.

Facts of the Case:

- Dick Heller, a D.C. special police officer who is authorized to carry a handgun while on duty at
the Federal Judicial Center, applied for a registration certificate for a handgun that was to be
kept at home. The District refused this application, on the grounds that:
- D.C. laws prohibit the possession of handguns; carrying an unregistered firearm;
registration of handguns. However, the chief of police may issue 1-yr. licenses for
handguns, on the grounds that residents keep any lawfully owned firearm, “unloaded
and dissembled or bound by a trigger lock or similar device” unless they are located “in
a place of business or used for lawful recreational activities.”
- Heller filed a lawsuit to the District Court which dismissed his complaint. The Court of Appeals
reversed this decision on the grounds that Heller was seeking the right to render a firearm
operable and carry it about his home in that condition only when necessary for self-defense.
- There were 5 plaintiffs along with Heller, but the Court of Appeals ruled that Heller was the only
one who had a case/had standing.
 30

Majority Opinion (Justice Scalia, Kennedy, Thomas, Alito, )

- Central holding: The Court holds that the District’s ban on handgun possession in the home
violates the Second Amendment, as well as its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate self-defense.

The Supreme Court held:

1) The Second Amendment protects an individual right to possess a firearm unrelated to service in
a militia, and to use that arm for “traditionally lawful purposes,” such as self-defense within the
home, Heller 554 U.S. 2–53.
a) The Amendment’s prefatory clause ( “A well regulated Militia being necessary to the
security of a free State…”) announces a purpose but does not limit or expand the scope
of the operative clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms, Heller 554 U.S. 2–22.
i) The prefatory clause comports with the Court’s interpretation of the operative
clause. The “militia” comprised of all males physically capable of acting in
concert for the common defense.
ii) During the 1788 ratification debates, the Antifederalists feared that the Federal
Government would disarm the people in order to disable this citizens’ militia,
enabling a politicized standing army or a select militia to rule.
(1) Federalists replied that because Congress wasn’t given any power to
abridge the right of individuals to keep and bear arms, no force could
ever oppress the people. The response was to deny Congress power to
abridge the ancient right of individuals to keep and bear arms, so that
the ideal of a citizens’ militia would be preserved, Heller 554 U.S. 22–28.
iii) The fear was security from tyranny from within.
(1) The “militia” wasn’t merely just protection from England but also from
an internal, official army that could possibly overthrow the government.
The founding generation believed that having a standing army could be
a threat to the state itself.
 31

(2) The government was formed with great attention to the civilians, rather
than upon a military. This is why the government believed that the
people were the ones to keep and bear arms.
b) The Court’s interpretation is confirmed by analogous arms-bearing rights in state
constitutions that preceded and immediately followed the Second Amendment, Heller
554 U.S. 28–30.
i) The majority states that because seven of the nine states in their state
constitutions, ratified immediately after 1789, which had protections for the
right to bear arms also included provisions that an individual citizen has a right
to self-defense.
ii) The majority claims that this is evidence of how the mindset of the founding
generation.
iii) The Second Amendment’s drafting history reveals three state Second
Amendment proposals that unequivocally referred to an individual right to bear
arms, Heller 554 U.S. 30–32.
c) Interpretation of the Second Amendment by scholars, courts and legislators, from
immediately after its ratification through the late 19th century also supports the Court’s
conclusion, Heller 554 U.S. 32–47.
i) The majority argues that Justice Stevens’ equating legislative sources with
postenactment legislative history is a misunderstanding of the Court’s
interpretative task.
(1) “Postenactment legislative history” refers to statements of those who
drafted or voted for the law that are made after its enactment; the
majority believes that this has no effect on the congressional vote.
(2) St. George Tucker’s version of Blackstone’s Commentaries (Blackstonian
interpretation) – claimed that the right to self-defense is the first law of
nature.
(3) William Rawle – the Second Amendment proposes multiple rights: the
first being the existence of a militia for the security of a free state; and
the second being the right of the individual peoples to keep and bear
arms. Furthermore, there is no provision under the Constitution that
gives Congress the power to disarm the people.
 32

ii) Pre-Civil War Case Law.

(1) Houston v. Moore, 5 Wheat. 1, 24 (1820): The Court held that States
have concurrent power over the militia, at least where not preempted
by Congress.
(2) Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, a
circuit judge, cited both the Second Amendment and the Pennsylvania
analogue, that a citizen has “a right to carry arms in defence of his
property or person, and to use them, if either were assailed with such
force, numbers or violence as made it necessary for the protection or
safety of either.”
(a) These 19th century cases show that though the Second
Amendment right to bear arms was an individual right
unconnected to militia service, these rights were subject to
certain restrictions.
iii) Post-Civil War Claims:
(1) Black people were guaranteed the right to keep and bear arms.
(2) Even if the purpose of the Second Amendment is to secure a well-armed
militia, the militia itself would be useless if there were not citizens who
were capable and trained to use arms.
d) None of the Court’s precedents forecloses the Court’s interpretation. Neither United
States v. Cruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252, refutes the
individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the
right to keep and bear arms to militia purposes, but rather limits the type of weapon to
which the right applies to those used by the militia, i.e., those in common use for lawful
purposes.
2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For
example, concealed weapons prohibitions have been upheld under the Amendment or state
analogues.
a) The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally ill, or laws forbidding the carrying
 33

of firearms in sensitive places such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial sale of arms.
b) Miller’s holding that the sorts of weapons protected are those “in common use at the
time” finds support in the historical tradition of prohibiting the carrying of dangerous
and unusual weapons, Heller 554 U.S. 54–56.
i) Common-use at the time.
c) The protected right is not just “the right to keep and bear arms” but also “the right to
self-defense of yourself and your home.”
3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the
Second Amendment.
a) The District’s total ban on handgun possession in the home amounts to a prohibition on
an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose
of self-defense. Under any of the standards of scrutiny the Court has applied to
enumerated constitutional rights, this prohibition – in the place where the importance
of the lawful defense of self, family, and property is most acute – would fail
constitutional muster.
b) Similarly, the requirement that any lawful firearm in the home be disassembled or
bound by a trigger lock makes it impossible for citizens to use arms for the core lawful
purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral
argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and
capriciously, the Court assumes that a license will satisfy his prayer for relief and does
not address the licensing requirement.
c) Assuming he is not disqualified from exercising Second Amendment rights, the District
must permit Heller to register his handgun and must issue him a license to carry it in the
home, Heller 554 U.S. 56–64.

1) The Operative Clause.

a) “Right of the People.” This phrase has been used in the First Amendment’s “Assembly-
and-Petition Clause” and in the Fourth Amendment’s “Search-and-Seizure Clause.”
i) These “rights” refer to individual rights and not “collective” or rights that may
be exercised only through participation in some corporate body, Heller, 554 US
5 (2008).
 34

ii) In contrast to “the people” as used in §2 of Article I (electing members of the

House), and the Tenth Amendment (providing that those powers not given the
Federal Government remain with “the States” or “the people”).
(1) The majority argues that these provisions refer to “the people”
collectively because they concern the exercise or reservation of powers,
not rights.
iii) “The militia” in contrast is separate from “the people,” in that the militia is a
subset of “the people.”
(1) Thus the Second Amendment right refers to individuals and all
Americans.
b) “Keep and bear arms.” The majority argues that “arms” refers to weapons that weren’t
specifically designed for military use or employed in a military capacity. Thus, “arms” in
the Second Amendment refers to all instruments that constitute bearable arms.
i) “Keep arms” – meaning “to have arms.”
ii) “Bear arms” – meaning “to carry,” but for the purpose of “offensive or defensive
action,” which does not imply participation in a structured military organization.
(1) Justice Stevens stated that “bear arms” meant to “to serve as a soldier,
do military service, fight” or “to wage war,” but the majority states that
that meaning holds only when it’s followed by the preposition “against.”
(2) Stevens also argues that the founders’ intention for the Second
Amendment was primarily vested in military service.
c) Meaning of the Operative Clause.
i) The historical background of the 2nd Amendments stems to the idea that British
loyalist militias suppressed and disarmed political dissidents, especially those
who were Protestants.
(1) The majority argues that the rights was secured to individuals, not
necessarily those were members of a militia.
Issues Addressed by the Majority:
● The natural right to self-defense:

Dissenting Opinion by Justice Stevens:

 35

1) The Founders would have made the individual right aspect of the Second Amendment express if
that was what was intended;
a) For Stevens, the question does not regard individual vs. collective rights, due to the fact
that the rights listed under the Constitution contemplate a collective of individual
peoples.
2) The “militia” preamble and exact phrase “to keep and bear arms” demands the conclusion that
the Second Amendment touches on state militia service only (“They [the words ‘the people’ in
the Second Amendment] remind us that it is the collective action of individuals having a duty to
serve in the militia that the text directly protects… that the ultimate purpose of the Amendment
was to protect the States’ share of the divided sovereignty created by the Constitution,” Heller,
554 U.S. 10)
a) “To keep and bear arms” expresses a unitary right: “to possess arms if needed for
military purposes and to use them in conjunction with military activities,” Heller, 554
U.S. 11.
b) The most natural interpretation of “bear arms” refers to a military purpose; “if the
Framers wanted to expand the meaning of “bear arms” to encompass civilian possession
and use, they could have done so by the addition of phrases such as ‘for the defense of
themselves,’ as was done in the Pennsylvania and Vermont Declaration of Rights,”
Heller, 554 U.S. 12.
i) Stevens uses the majority’s use of grammar against themselves because the
majority stated that an addition of the modifier “against” would change the
meaning of “bear arms.”
c) Stevens argues that through a historical examination of the Amendment’s adoption,
“there was an overriding concern about the potential threat to state sovereignty that a
federal standing army would pose and a desire to protect the States’ militias as the
means by which to guard against that danger,” Heller, 554 US 27.
3) Many lower courts’ later “collective-right” reading of the Miller decision constitutes stare
decisis, which may only be overturned at great peril;
a) The Miller Court unanimously concluded that the Second Amendment did not apply to
the possession of a firearm that did not have “some reasonable relationship to the
preservation or efficiency of a well regulated militia.” 307 U. S., at 178.
 36

b) Other precedents which confirm the idea that the right to keep and bear arms is
constrained for military purposes: United States v. Cruikshank, 92 U.S. 542 (1876) and
Presser v. Illinois, 116 U.S. 252 (1886): “Presser, therefore, both affirmed Cruikshank’s
holding that the Second Amendment posed no obstacle to regulation by state
governments, and suggested that in any event nothing in the Constitution protected the
use of arms outside the context of a militia “authorized by law” and organized by the
State or Federal Government,” Heller, 554 U.S. 39 (2008).
4) The Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional.
5) The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers
made a choice to limit the tools available to elected officials wishing to regulate civilian uses of
weapons.... I could not possibly conclude that the Framers made such a choice."

Dissenting Opinion by Justice Breyers:

- Breyers’s dissent sought to demonstrate that D.C.’s hand gun ban and trigger lock requirement
woul dnevertheless be a permissible limitation on the second amendment right, regardless of
whether or not that right pertains to militiary objectives.
1) The Second Amendment right concerns militia-related duties, not as a matter of self-defense
alone, detached from any military objectives.
a) The Amendment protects an “individual” right—i.e., one that is separately possessed,
and may be separately enforced, by each person on whom it is conferred.
b) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to
assure the continuation and render possible the effectiveness of [militia] forces.” United
States v. Miller, 307 U. S. 174, 178 (1939); see ante, at 26 (opinion of the Court); ante, at
1 (STEVENS, J., dissenting).
c) The Amendment “must be interpreted and applied with that end in view.” Miller, supra,
at 178.
2) The right protected by the Second Amendment is not absolute, but instead is subject to
government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897); ante, at 22, 54
(opinion of the Court).
a) The protection the Amendment provides is not absolute because it allows the
government to regulate the interests that it serves. Breyers states that the majority’s
 37

view is erroneous because it cannot show that D.C.’s regulation is unreasonable or

inappropriate in 2nd Amendment terms.
b) D.C.’s handgun law considers the fact that a presence of handguns in high-crime urban
areas is a permissible legislative response to a serious and life-threatening problem,
Heller, 554 U.S. 2.
i) This idea is not inconsistent and does not interfere with the majority’s
interpretation of a 2nd Amendment right to self-defense.
ii) It is within the nature of the Constitution that these rights are not absolute and
thus are open to regulation by legislatures, Heller 554 U.S. 2.
c) Under a “rational basis” standard – which requires a court to uphold regulation so long
as it bears a “rational relationship” to a “legitimate governmental purpose.” Heller v.
Does, 509 U.S. 312, 320 (1993).
i) Breyers argues that the D.C. law seeks to prevent gun-related accidents and
thus bears a “rational relationship” to that “legitimate” life-saving objective.
d) Under United States v. Salerno, 481 U.S. 739, 755 (1987), the Court states that the
Government’s general interest in preventing crime is compelling due to the fact that
gun-control regulations seek to advance a primary concern regarding the safety and
lives of citizens.
e) “Interest-balancing inquiry” – “the interests protected by the Second Amendment on
one side and the governmental public-safety concerns on the other, the only question
being whether the regulation at issue impermissibly burdens the former in the course of
advancing the latter,” Heller 554 U.S. 10 (2008).
i) “where a law significantly implicates competing constitutionally protected
interests in complex ways,” the Court generally asks whether the statute
burdens a protected interest in a way or to an extent that is out of proportion to
the statute’s salutary effects upon other important governmental interests,”
Heller 554 U.S. 10.
ii) Breyers argues that the majority concludes ipse dixit (an assertion without
proof) that the Framers had intended for civilian use of arms and completely
ignored the possibility that future generations could mistakenly gain access to
severely harmful weapons.
 38

Gibbons v. Ogden, 22 U.S. 1 (1824)

Terminology & Concepts:
Plenary power – A power granted to a body of government by the U.S. Constitution absolutely and
without limitations.

Facts of the Case:

- New York state gave Robert Fulton, who invented the steamboat, a license to exclusive
navigation privileges of all the waters within the jurisdiction of that State, with boats moved by
fire or steam, for a term of thirty years.
- Allowed Fulton and Livingston compete monopolies over the waterways.
- The competitors challenged this monopoly, provided by New York.
- Both Gibbons (plaintiff) and Ogden (respondent) operated steamboats in New York in an effort
to regulate coastal trade. Gibbons was given permission from Congress, while Ogden received a
license under state law.
- In response, Ogden filed suit in the state Court of Chancery to enjoin (prohibit) Gibbons from
operating his steamboat in state waters.
- Gibbons claimed he was validly operating his boats pursuant to an order of Congress
and as a result, had exclusive power under the constitution to regulate commerce
between the states.
- The lower court ruled in favor of Ogden, issuing an injunction to stop Gibbons from operating his
steamboats. Gibbons appealed the NY Court of Chancery decision to the NY Court of Errors.
- The Court of Errors affirmed the Court of Chancery decision, and Gibbons then appealed to the
Supreme Court.

Issue at hand: Can states regulate interstate commerce within its borders when Congress also regulates
the same area of interstate commerce?

Majority Opinion (Delivered by Justice Marshall):

- The Supreme Court reversed the lower court, holding that Article 1 Section 8 of the Constitution
grants Congress the power to regulate interstate commerce.
 39

- When Congress and a state pass conflicting laws which regulate interstate commerce,
the federal law will govern under Congress’s grant of power to regulate interstate
commerce under the Constitution.
- Commerce includes intercourse and navigation, traffic and commodities in interstate
commerce. Article 1 section 8 of the Constitution grants Congress the power to regulate
interstate commerce. Congress may also regulate all commercial activity occurring
amongst different states, but not within the state (intrastate).
- Essentially that the word “commerce” has undeniably come to include “navigation” because the
regulation and transportation of commercial goods, etc. would only be possible through
navigation.
- “Interstate Commerce”:
- New York also issued Fulton a patent; which gave rise to the question of whether or not State
patent or federal patent governed the laws of land.
- The definition of “commerce” is not limited to “traffic,” because it also connotes “intercourse”
between nations and parts of nations and is further regulated by the rules of that intercourse.
- Furthermore, the idea of navigation cannot be excluded from the consideration of
commerce, or else, the government does not have direct power over it, and “can make
no law prescribing what shall constitute American vessels or requiring that they shall be
navigated by American seamen,” Gibbons, 22 U. S. 190.
- “Among” states – The majority states that Congressional power over commerce rests over trade
between states and between states and foreign nations, but it does not regulate commerce
within a single state.
- The internal commerce of a State may only be regulated by that State itself.
- The part of the ruling which stated that any license granted under the Federal Coasting Act of
1793 takes precedence over any similar license granted by a state is also in the spirit of the
Supremacy Clause, although the Court did not specifically cite this clause.

Wickard v. Filburn, 317 U.S. 111 (1942)

Terminology & Concepts:

 40

- “Interstate Commerce”

Facts of the Case:

- Government issued a law that would restrict the amount of wheat farmers could grow, in order
to regulate price of wheat and to fix the supply of wheat.
- Filburn produced almost double the allotted amount of wheat, but he argued that it the excess
wheat would be used for home consumption.
- Filburn argues that it does not constitute “interstate commerce.”

Majority Opinion:
- Holding: An activity does not need to have a direct effect on interstate commerce to fall within
the commerce power, as long as the effect is substantial and economic.
- The Court essentially rejects the precedents regarding the Commerce Clause.
- The Court argues that because Filburn is not buying wheat due to his excess production,
he is affecting interstate commerce.
- The issue at hand was whether the activity “exerts a substantial economic effect on interstate
commerce.”
- “But even if appellee’s activity be local and though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on
interstate commerce and this irrespective of whether such effect is what might at some earlier
time have been defined as ‘direct’ or ‘indirect’,” Wickard, 317 U.S. 124-125.
- The aggregate effect of the singular actions of a farmer. Then, in actuality, everything would be
considered “interstate commerce” and thus everything could be regulated by Congress.
- “Limiting principle” – Wickard v. Filburn broadened the powers of Congress, in specificity to
regulate interstate commerce, with certain limits to its powers.
- Congress derives a great amount of its powers from the interstate commerce clause.
Because of Wickard, the powers of the federal government expanded to an exponential
effect, at the expense of State governments because it reduced the powers of the States
to regulate intrastate commerce.
- Court-packing scheme:
- FDR administration from 1933 to 1945: 8 of the 9 justices were appointed by FDR.
 41

- There was a controversy that FDR attempted to appoint as many justices as possible
during his term in order for the Court to rule his New Deal plan constitutional.
- When we have presidents attempting to abuse his power by appointing justices of their
choice, it creates a controversial and debilitating effect on the rule of law and a stable
judiciary.
- US v. Lopez was an example that created limits on congressional powers to regulate interstate
commerce because the Court believed that Lopez didn’t have an effect on interstate commerce.

Gonzales v. Raich, 545 U.S. 1 (2005).

Terminology & Concepts:

Facts of the Case:

Respondents Raich and Monson were growing marijuana in their homes, which Congress deemed illegal
under the CSA.
- The CSA was a statute, enacted in 1970, that created a comprehensive framework for regulating
the production, distribution, and possession of five classes of “controlled substances.”

Majority Opinion (delivered by Justice Stevens):

Primary Holding: Under the Commerce Clause (Article 1 Section 8), Congress may criminalize the
production and use of homegrown cannabis even if state law allows its use for medicinal purposes.
- The Court draws parallels with Wickard, stating that even if the home-grown commodity was
not intended for commercial use (to be sold on the market), it still holds a substantial effect on
interstate commerce, if one takes into account that all individuals would grow their own
products for their own use. Furthermore, homegrown products prevents one from buying that
product from another distributor.
- The Court reiterates the fact that where a class of activities is regulated and that class is within
the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’
of the class. Perez, 402 U. S., at 154.
The Court states:
 42

- First, the fact that marijuana is used “for personal medical purposes on the advice of a
physician” cannot itself serve as a distinguishing factor.
- The CSA designates marijuana as contraband for any purpose.
- Congress characterizes marijuana as a Schedule 1 drug and that it has not
acceptable medical uses.
- The CSA is a comprehensive regulatory regime specifically designed to regulate
which controlled substances can be utilized for medicinal purposes, and in what
manner.
- Even if respondents are correct that marijuana does have accepted medical uses and
thus should be redesignated as a lesser schedule drug, the CSA would still impose
controls beyond what is required by California law.
- Second, limiting the activity to marijuana possession and cultivation “in accordance with state
law” cannot serve to place respondents’ activities beyond congressional reach.
- The Respondents acknowledge the Supremacy Clause proposition, but they believe that
their activities were not “an essential part of a larger regulatory scheme” because they
had been “isolated by the State of California, and [are] policed by the State of
California,” and thus remain “entirely separated from the market.”

Baker v. Carr, 369 U.S. 186 (1962)

Terms & Concepts:
● “Justiciability” – Appropriateness of the subject matter for judicial consideration, Art. III.
○ In determining justiciability of a suit, cause is not of import, but rather whether the duty
asserted can be judicially identified and if its breach can be judicially determined; and
whether protection for the right asserted can be judicially molded.
○ Required Conditions:
■ (1) The parties must not be seeking an advisory opinion.
■ (2) There must be an actual controversy between the parties – the parties
cannot agree to a lawsuit where all parties seek the same particular judgment
from the court (collusive suit or friendly suit). Each party must seek a different
outcome.
■ (3) The question must be neither unripe nor moot.
 43

● An unripe question is one for which there is not yet at least a

threatened injury to the plaintiff, or where the available judicial
alternatives have not all been exhausted.
● A moot question is one for which the potential for an injury to occur has
ceased to exist, or where the injury has been removed.
■ (4) The suit must not be seeking judgment upon a political question.
● “Case or controversy” – Art. III, §2, cl. 1 – Delineates two distinct limitations on exercise of
judicial review.
○ (1) The scope of matters which a federal court can and cannot consider as a case and
limits federal judicial power only to such lawsuits as the court is competent to hear.
○ (2) Limiting Congress’ ability to confer jurisdiction on federal courts by establishing an
outer limit of the types of matters within which Congress may constitutionally confer
jurisdiction.
● Guaranty Clause – requires the U.S. to guarantee to the states a republican form of government,
and provide protection from foreign invasion and domestic violence.
○

Facts of the Case:

Prior to the decision of Baker v. Carr, legislatures throughout the country were organized based on
geography, rather than population. Prior to Baker, rural counties dominated state legislators, and
individuals in cities might elect one representative when a rural county, much smaller in population size,
would have greater weight in the votes than the urban counties. The vote under-represented city
voters.
- This had important political consequences in terms of the allocation of money and resources,
etc.
A group of plaintiffs brought suit in a Federal District Court in Tennessee to redress the alleged
deprivation of their federal constitutional rights by legislation classifying voters with respect to
representation in the General Assembly.
- The 1901 statute of Tennessee arbitrarily apportioned the seats in the General Assembly among
the State’s 95 counties, and the state’s legislatures have failed to reapportion the seats based on
the substantial growth and redistribution of the population.
 44

- The plaintiffs argued that their votes were under-represented and thereby they were denied the
equal protection of the laws guaranteed them by the 14th Amendment.
- They sought a declaratory judgment that the 1901 statute is unconstitutional and an injunction
restraining certain state officers from conducting any further elections under it. The District
Court dismissed the complaint on the grounds that it lacked jurisdiction of the subject matter
and that no claim was stated upon which relief could be granted.

October 9th, 2018

“Political question” doctrine – the Courts have imposed on themselves the idea that when the case at
hand is too political, the Courts should not adjudicate on the matter and the case should be left to deal
with by the legislative bodies.
- If the court intervenes in political matters, the court would look too much of a political body.

In Baker, Shelby County did not update its districts and representation according to the census because
(a) there is no constitutional penalty in failing to update the census, and (b) the county did not want to
lose any seats in the legislature.

Baker states that the state’s apportionment of district diluted his vote and violated the Equal Protection
Clause.
The Supreme Court remanded the case to the Federal District Court to provide a remedy.

“One person, one vote” standard: that every vote should be weighted equally.
- Differed from the idea that every individual has the right to a vote but now this case considered
the weight of the vote.
- However, at the federal level, this standard isn’t necessarily upheld, but the Supreme Court
ruled that at the state level, the “one person, one vote” standard should be upheld.
- Over time, rural counties were disadvantaged by not updating the census because more people
were moving to more urban areas.
- Once the counties did update it, rural votes shifted to urban districts.
- Hence, this benefited the liberals because urban areas typically had democratic
candidates.
 45

Opinion of the Court:

Issue at hand: Is an equal protection challenge to a malapportionment of state legislatures considered
non-justiciable as a political question? No.
The Court held:
1. The District Court had jurisdiction of the subject matter of the federal constitutional claim . Pp.
198-204.
2. Appellants had standing to maintain this suit. Pp. 204-208.
a. The Supreme Court held that an equal protection challenge to malapportionment of
state legislatures is not a political question because is fails to meet any of the six political
question tests and is, therefore, justiciable.
3. The complaint’s allegations of a denial of equal protection presented a justiciable constitutional
cause of action upon which appellants are entitled to a trial and a decision. Pp. 208-237.
a. Baker is different than Luther v. Borden, 48 U.S. 1 (1849), because it was brought under
the Equal Protection Clause and Luther challenged malapportionment under the
Constitution’s “Guaranty Clause.”
b. An issue is considered a non-justiciable political question when one of six tests are met:
i. Textually demonstrable constitutional commitment to another political branch;
ii. Lack of judicially discoverable and manageable standards for resolving the issue;
iii. Impossibility of deciding the issue without making an initial policy determination
of a kind not suitable for judicial discretion;
iv. Lack of respect for the other branches of government in undertaking
independent resolution in the case;
v. Unusual need for unquestioning adherence to a political decision already made;
or
vi. Potential for embarrassment for differing pronouncements of the issue by
different branches of government.
c. Baker’s claim does not meet any of the six tests and is justiciable. There are no textually
demonstrable commitments present regarding equal protection issues by other
branches of government. Judicial standards are already in place for the adjudication of
like claims. Since Baker is an individual bringing suit against the state government, no
separation of power concerns result.
 46

Dissenting Opinion (by Justice Frankfurter and Harlan):

1. The majority’s decision fails to base its holding on both history and existing precedent.
a. Such failure violates both judicial restraint and separation of powers concerns under the
Constitution.
b. Prior cases involving the same subject matter have been decided as nonjusticiable
political questions. The difference between challenges brought under the Equal
Protection Clause and the Guaranty Clause is not enough to decide against existing
precedent.
2. In addition, the majority’s analysis is clouded by too many indirect issues to focus on the real
issue at hand.
a. The issue here relates not to a method of state electoral apportionment by which seats
in the federal House of Representatives are allocated, but solely to the right of a State to
fix the basis of representation in its own legislature.
b. Believes that the complaint should have been dismissed for “failure to state a claim
upon which relief can be granted.” Fed. Rules Civ. Proc., Rule 12 (b) (6).
c. The Equal Protection Clause of the Fourteenth Amendment does not suggest
legislatures must intentionally structure their districts to reflect absolute equality of
votes.
d. The complaint also fails to adequately show Tennessee’s current system of
apportionment is so arbitrary and capricious as to violate the Equal Protection Clause.
i. States that what lies at the core of this controversy is a difference of opinion as
to the function of representative government.
ii. Affirms that the judicial branch must exercise the principle of self-restraint when
the issue involves the freedom of a State to deal with the structure of its own
legislative branch.
e. “A State’s choice to distribute electoral strength among geographical units, rather than
according to a census of population, is certainly no less a rational decision of policy than
would be its choice to levy a tax on property rather than a tax on income.” Baker, 339
U.S. 276.
 47

Reynolds v. Sims, 377 U.S. 533, (1964).

Terms & Concepts:

Facts of the Case:

In 1961, a group of plaintiffs (M.O. Sims, David J. Vann, John McConnell, and other voters from Jefferson
County, Alabama, challenged the apportionment of the state legislature.
- Lines dividing electoral districts had resulted in dramatic population discrepancies among the
districts.
- The state constitution required at least one representative per county and senatorial
district. However, the district in Jefferson County, which is near Birmingham, contained
41 times as many eligible voters as those in another district of the state.
Sims and the other voters argued that this lack of proportionality prevented them from effectively
participating in a republican form of government.
- Plaintiffs alleged that the last apportionment of the Alabama Legislature was based on the 1900
federal census, despite the requirement of the State Constitution that the legislature be
reapportioned decennially.
- They asserted that, since the population growth in the State from 1900 to 1960 had been
uneven, Jefferson and other counties were now victims of serious discrimination with respect to
the allocation of legislative representation.
As a result of the failure of the legislature to reapportion itself, plaintiffs asserted, they were denied
“equal suffrage in free and equal elections . . . and the equal protection of the laws” in violation of the
Alabama Constitution and the Fourteenth Amendment to the Federal Constitution.

Plurality Opinion (delivered by Chief Justice Earl Warren):

Issue at hand: Whether there are any constitutionally cognizable principles which would justify
departures from the basic standard of equality among voters in the apportionment of seats in state
legislatures.

Did Alabama’s apportionment scheme violate the Fourteenth Amendment’s Equal Protection Clause by
mandating at least one representative per county and creating as many senatorial districts as there were
senators, regardless of population variances?
 48

“When a State exercises power wholly within the domain of state interest, it is insulated from federal
judicial review. But such insulation is not carried over when state power is used as an instrument for
circumventing a federally protected right,” [Gomillion v. Lightfoot, 377 U.S. 533, 567].

Bicameral legislature – divided into two houses

435 representatives for House of Reps. – approximately 1 representative for every 800 thousand
persons.
2 senators for each state.

In Reynolds v. Sims, the State legislatures do not simulate the structure of the federal legislature. The
Equal Protection Clause and the “one person one vote” standard should only apply to the States. The
Equal Protection Clause in only in the 14th amendment and it only applies to the States.

At the time of Baker and Reynolds, numerous states had substantial population growths as a result of
urban migration.

Dissenting Opinion (delivered by Justice Harlan):

National Federation Of Independent Business v. Sebelius, 567 U.S. (2012).

Terminology & Concepts:

- “Necessary and Proper Clause”: Under Article I, Section 8 of the Constitution, Congress has the
power “to make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of the
United States, or any Department or Officer thereof.”
- Congress is not limited to the powers actually expressed or enumerated in the
Constitution, but also has implied powers to make laws necessary to ensure that their
expressed powers can be carried out.
 49

- Direct Tax Clause: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken,” Article 1, §9, clause 4.
- Capitations – Taxes paid by every person, without regard to property, profession, or any other
circumstance.
- ne plus ultra of expansive Commerce Clause jurisprudence –
- Carte blanche – unlimited discretion to exercise power/authority.
- Severability – The Court has now found that the Medicaid expansion, it has to determine
whether or not, because the Individual Mandate and the Medicaid expansion are
unconstitutional, the entire ACA is unconstitutional.

Facts of the Case:

- In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase
the number of Americans covered by health insurance and decrease the cost of health care.
- The individual mandate: requires most Americans to maintain “minimum essential”
health insurance coverage. For those individuals who are not exempt and do not receive
health insurance through an employer or government program, they must purchase
insurance from a private company. Those who do not comply with this provision must
make a “shared responsibility payment” to the IRS.
- The individual mandate has now been repealed in the most recent tax bill.
- Medicaid expansion – offers federal funding to States in assisting individuals who are
133% of the poverty level pregnant women, children, needy families, the blind, the elder
and the disabled in obtaining medical care: the ACA expands the scope of the Medicaid
program and increases the number of individuals that the States must cover. However,
if a State does not comply with the Act’s new coverage requirements, it may lose not
only the federal funding for those requirements but all of its federal Medicaid funds.
- Medicaid is not fully funded by the federal government. States and federal
government split the funding.
- Expand Medicaid to the newly eligible people or lose all federal Medicaid funds.
- The ACA did not charge people with the shared responsibility payment until years later, and
there is a common law idea that you can’t charge someone under the Tax and Spending Clause
unless someone has been taxed.
- The Court considered “penalty” for jurisdiction.
 50

- A number of parties, including 26 states, several individuals, and the National Federation of
Independent Business, sued, claiming that the sweeping reform law was unconstitutional for
various reasons.
- The plaintiffs brought suit in the Federal District Court, challenging the individual
mandate and the Medicaid expansion.
- The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid
exercise of Congress’s spending power, but concluded that Congress lacked authority to
enact the individual mandate. The Eleventh Circuit left the rest of the Act intact because
it found the mandate to be independent of the ACA’s other provisions.
Question at hand:
- Does Congress have the power to enact the challenged provisions (i.e. the individual mandate
and the Medicaid expansion) under the Constitution?

Summary of Primary Holding:

1. Justice Roberts upheld that the Anti-Injunction Act does not defy the Constitution because the
“shared responsibility” payment was not intended by Congress to be a “tax” but as a “penalty.”
2. The individual mandate is not within Congress’s power under the Commerce Clause and the
Necessary and Proper Clause.
a. Commerce Clause: The individual mandate is unconstitutional under the Commerce
Clause, but constitutional under the Tax and Spending Clause. The individual mandate
does not regulate existing commercial activity. It instead compels individuals to become
active in commerce by purchasing a product, on the ground that their failure to do so
affects interstate commerce.
i. What is important is that Congress is given the power to regulate commerce,
not compel it.
ii. Unlike Wickard and Raich which dealt with actual regulations on activity, this
case compels commerce. It would be regulating inactivity.
iii. “Commerce clause” reconsidered: Must also consider the “aggregate effect,”
Wickard v. Filburn but Congress cannot regulate “inactivity,” NFIB v. Sebelius.
iv. Severability
 51

v. Timeliness – It can’t be considered a tax because no one has been taxed yet.
However, under the Tax + Spend Clause, it is considered a tax because it
generates revenue, etc. The Court wouldn’t have jurisdiction if this wasn’t a tax.
b. Necessary and Proper Clause: This clause involves the exercises of authority derivative
of and in service to a granted power. “Even if the individual mandate is “necessary” to
the Affordable Care Act’s other reforms, such an expansion of federal power is not a
“proper” means for making those reforms effective.” NFIB, 567 U.S. 27–30.
i. Because Congress does not have the power to compel individuals to purchase
insurance but it does have the power to “lay and collect Taxes,” Art. 1 section 8,
cl. 1, the Government asks the Court to view the mandate as imposing a tax on
those who do not buy insurance.
3. The Medicaid expansion violates the Constitution because it imposes on States a threat that
they may lose their existing Medicaid funding if they fail to comply with the expansion provision.
a. The Tax and Spending Clause grants Congress the power “to pay the Debts and provide
for the… general Welfare of the United States.” Art. I, §8, cl. 1.
i. However, under Pennhurst State School and Hospital v. Halderman, 451 U. S. 1,
17, the Court ruled that the Spending Clause necessitates that a State
voluntarily and knowingly accepts the terms of such programs (cooperative
state-federal Spending Clause programs).
b. Furthermore, if States do not comply with the expansion, then there is a possible 10%
loss of a State’s overall budget.

Opinion of the Court (delivered by Chief Justice Roberts):

- Roberts had felt that overturning the case would make the Court appear a political body.

A. The Court discounts the Government’s claim regarding the constitutionality of the individual
mandate:
1. The govt. argues that Congress has the power to enact the individual mandate under the
Commerce Clause; Congress may order individuals to buy health insurance because the failure
to do so affects interstate commerce, and could undercut the Affordable Care Act’s other
reforms.
 52

a. The govt. argues that if the commerce power doesn’t support the mandate, then the
Court should uphold it as an exercise of Congress’s “power to tax.”
b. The government’s claim rests on the assumption that because at some point in his/her
life, one is going to require some health care and thus incur health care costs, everyone
is active in the market and thus subject to the regulation.
i. However, the Court rejects this claim because there is no precedent that
supports this. In the past, the Court has said that Congress may anticipate the
effects on commerce of an economic activity but it has never permitted
Congress to anticipate that activity itself in order to regulate individuals not
currently engaged in the commercial activity.
ii. Justice Roberts states that Congress does not have constitutional license to
regulate the transactions of all individuals, merely because he/she is likely to
engage in a future transaction, and that that power is vested in the States.
2. The Government contends that Congress has the power under the Necessary and Proper Clause
to enact the individual mandate because the mandate is an “integral part of a comprehensive
scheme of economic regulation,” NFIB v. Sebelius, 567 U.S. 28.
a. Roberts states that the power to “make all Laws which shall be necessary and proper for
carrying into Execution” the powers enumerated in the Constitution, Art. I, §8, cl. 18,
vests Congress with authority to enact provisions “incidental to the [enumerated]
power, and conducive to its beneficial exercise,” McCulloch, 4 Wheat., at 418. However,
this doesn’t give Congress the power to legislate on any “great substantive and
independent powers” beyond those specifically listed.
b. Roberts restates that state sovereignty may not be compromised by the assertion of
federal power under the Necessary and Proper Clause.
i. Roberts is primarily concerned with expanding the powers of Congress beyond
what is enumerated in the Constitution and that Congress would assert its
authority and draw within a regulatory scope those who are actually outside of
it.
B. The Court rejects the Government’s alternative claim that the mandate may be upheld as within
Congress’s enumerated power to “lay and collect Taxes.”
1. The facts: For taxpayers who do owe the payment, the amount of the “shared responsibility
payment” is determined by such familiar factors as taxable income, number of dependents, and
 53

joint filing status. It also requires that the payment be made out to the IRS – and because it
produces some revenue for the government, it holds an essential feature of any tax.
2. Distinguishing “penalty” from “tax”: The Court defines “penalty” as a “punishment for an
unlawful act or omission or an exaction imposed by statute as punishment for an unlawful act.”
(U.S. v. Reorganized CF&I Fabricators of Utah Inc., 518 U.S. 213, 224 (1996)).
a. While the individual mandate requires that individuals purchase health insurance and if
they do not, they will incur a cost, this does not mean that Congress intended that those
who choose to forego health insurance are outlaws. The government suggests that
individuals make shared responsibility payments as a tax.
3. Direct Tax Clause: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken,” Article 1, §9, clause 4.
a. The plaintiffs argued that if the individual mandate imposes a tax, it is a direct tax, and it
is unconstitutional because Congress made no effort to apportion it among the States.
b. Roberts states that a tax on going without health insurance cannot be recognized as a
direct tax, because it’s not a capitation.
i. The shared responsibility payment requires specific circumstances—earning a
certain amount of income but not obtaining health insurance.
ii. The payment is also not a tax on the ownership of land or personal property, so
it’s not a direct tax that must be apportioned among the States.
C. Medicaid Expansion (7 to 2 ruling):
1. Congress may use its spending power to create incentives for States to act in accordance with
federal policies. But when “pressure turns into compulsion,” the legislation runs contrary to our
system of federalism. “[T]he Constitution simply does not give Congress the authority to require
the States to regulate.”
a. This is true whether Congress directly commands a State to regulate or indirectly
coerces a State to adopt a federal regulatory system as its own.
b. The States do not have the option of opting out of the Medicaid expansion, because if
they do, they lose their Medicaid funding. The federal program is simply a threat
backed by a sanction.
i. In South Dakota v. Dole, the Court found that the federal law which threatened
to withhold 5% of a state’s federal highway funds, if the States didn’t raise the
 54

drinking age to 21, was constitutional because it purported to ensure safe

interstate travel – which is one of the main purposes of highway funds.
ii. The NFIB Court maintained that
2. “Altering or amending” provisions under the Social Security Act of 1972:
a. Congress claims to reserve the right to alter or amend certain provisions under the SSA,
and they state that the Medicaid expansion does so. However, Justice Roberts states
that the expansion is actually “a shift in kind, not merely degree,” NFIB 567 U.S. 59.
i. The original program was designed to cover medical services for four particular
categories of the needy: the disabled, the blind, the elderly, and needy families
with dependent children.
ii. Under the ACA, Medicaid must also cover the health care needs of the entire
nonelderly population with incomes below 133% of the poverty level. Thus, it’s
been transformed into a comprehensive national plan to provide universal
health care, NFIB, 567 U.S. 60.
3. The penalty cannot incur such a great cost to the States that it completely removes the
opportunity for States to deny the expansion.

Dissent (by Scalia, Kennedy, Thomas, and Alito):

- The minority states that the provisions under the ACA and the Patient Protection Act are beyond
the reach of the Constitutional powers of Congress.
The Court must determine whether:
1. The failure to engage in economic activity (the purchase of health insurance) is subject to
regulation under the Commerce Clause.
2. The congressional power to tax and spend (Art. I, §8, cl. 1) permits the conditioning of a State’s
continued receipt of all funds under a massive state-administered federal welfare program upon
its acceptance of an expansion to that program.

- The dissent relies upon the Constitution’s text, the 10th Amendment, and following cases.
- The dissent states that there are structural limits upon federal power—upon what it can
prescribe with respect to private conduct, and upon what it can impose upon the sovereign
States, NFIB, 567 U.S. 128.
 55

- The dissent looks to Wickard v. Filburn, in order to show that something that is not an economic
activity, or any activity at all, does not affect commerce and cannot be federally regulated. To
say otherwise would be to extend federal power to virtually all human activity, NFIB, 567 U.S.
129.
- They state that the individual mandate and the Medicaid expansion not only exceeds federal
powers but that the entire statute should be inoperative/void.

Individual Mandate:
1. The individual mandate essentially cannot regulate a class of individuals to maintain minimum
essential coverage because the provision regulates the failure to attain health insurance, or else
the individual must incur a payment of penalty.
a. However, this failure – the abstention from commerce – is essentially not “Commerce”;
“commerce” is the purchasing of insurance. Thus, the government cannot regulate
something that does not yet exist to be commerce by compelling it existence, NFIB, 567
U.S. 130.
2. “Guaranteed issue” provision – “each health insurance issuer that offers health insurance
coverage in the individual or group market in a State must accept every employer and individual
in the State that applies for such coverage.” §300gg–1(a).
a. An insurer may not deny coverage on the basis of any pre-existing medical condition
that the applicant may have, and the resulting insurance must cover that condition.
3. “Community rating” provision – seeks to ensure that insurers do not respond by raising
premiums to individuals with pre-existing conditions.
a. The community-rating provision requires insurers to calculate an individual’s insurance
premium based on: (i) whether the individual’s plan covers just the individual or his
family also, (ii) the “rating area” in which the individual lives, (iii) the individual’s age,
and (iv) whether the individual uses tobacco.
b. The dissent claim that without the contribution of above-risk premiums from the young
and healthy, the community-rating provision will not enable insurers to take on high-risk
individuals without a massive increase in premiums.
4. The dissent proposes two alternatives to the Individual Mandate, that would reduce insurance
premiums and ensure the profitability of insurers.
 56

a. Those who did not purchase insurance could be subjected to a surcharge when they do
enter the health insurance system;
b. Or they could be denied a full income tax credit given to those who do purchase the
insurance.
5. The dissent finds errors with the government’s claim that the health-care market involves
“essentially universal participation.”
a. They argue that the health care “market,” which is the object of the Individual Mandate,
consists of goods and services that young people primarily affected by the Mandate do
not purchase.
b. The young are not participants in that market and shouldn’t be made so by stating that
they will, sometime in their lifetime, probably purchase the goods or services covered
by the mandated insurance.
6. The dissent acknowledges that Congress only needs a ‘rational basis’ to conclude that regulated
activity substantially affects interstate commerce.
7. The individual mandate threatens Constitutional order because it gives such an expansive
meaning to the Commerce Clause that all private conduct (including failure to act) becomes
subject to federal control, effectively destroying the Constitution’s division of governmental
powers.
a. What becomes highly problematic with NFIB is that Congress has never attempted to
use the Commerce Clause to compel entry into commerce.

The Medicaid Expansion:

- While the ACA does not legally compel the State to participate in the Medicaid expansion
program, it imposes a sanction on any State that refuses to comply (e.g. termination of the
State’s entire Medicaid funding).
- The States’ annual federal Medicaid subsidy is equal to more than ⅕ of the State’s
expenditures.
- Implication: the States would have to increase its own health-care expenditures
drastically and would have to either reduce funding for other programs or increase state
taxes.
- Contractual relationship between the States and Federal government: Congress’ power to
legislate under the Spending Clause is only legitimate if the State voluntarily and knowingly
 57

accepts the terms of the ‘contract.’ Federal coercion of States’ participation undoubtedly means
that the States have not exercised their ability to make an informed choice.

Myers v. United States, 272 U.S. 52 (1926)

Terms & Concepts:

Facts of the Case:

- An 1876 law provided that postmasters of the first, second, and third classes shall be appointed
and may be removed by the President with the advice and consent of the Senate. Myers, an
appointee to the postmaster had been appointed with the Senate’s advice and consent.
However, in 1920, President Wilson removed Myers, who was a postmaster first class in
Portland, Oregon, without seeking Senate approval.
- Provision of Article 2 § 1 of the Constitution states that “the Executive power shall be vested in a
president.” This is a grant of the power and not merely a naming of a department of the
government.
- Myers is asking for the pay that he would have received had he not been fired.

Majority Opinion (Delivered by William Howard Taft):

Issue at hand: Whether under the Constitution the President has the exclusive power of removing
executive officers of the United States whom he has appointed by and with the advice and consent of
the Senate.

Ruling:
- The Court found that the Tenure of Office Act of 1876 was unconstitutional, for it violated the
separation of powers between the executive and legislative branches.
- It prevented the President from removing executive officers who had been appointed by him by
and with the advice and consent of the Senate, was invalid, and that subsequent legislation of
the same effect was equally so.
 58

- The Court used classic originalism - by looking at the notes of the Constitution during its
ratification.
- Cannot limit executives’ firing power.
- Must provide a “political remedy.”

The Constitution “grants to the President the executive power of the government- i.e., the general
administrative control of those executing the laws, including the power of appointment and removal of
executive officers-a conclusion confirmed by his obligation to take care that the laws be faithfully
executed; that article 2 excludes the exercise of legislative power by Congress to provide for
appointments and removals, except only as granted therein to Congress in the matter of inferior offices;
that Congress is only given power to provide for appointments and removals of inferior officers after it
has vested, and on condition that it does vest, their appointment in other authority than the President
with the Senate’s consent; that the provisions of the second section of article 2, which blend action by
the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly
construed, and not to be extended by implication; that the President’s power of removal is further
established as an incident to his specifically enumerated function of appointment by and with the advice
of the Senate, but that such incident does not by implication extend to removals the Senate’s power of
checking appointments.

Dissent.
- Justice McReynolds found that “it is impossible for me to accept the view that the President may
dismiss, as caprice may suggest, any inferior officer whom he has appointed with consent of the
Senate, notwithstanding a positive inhibition by Congress after his own lengthy review of
precedent.
- Justice Brandeis felt that the central issue was “May the President, having acted under the
statute in so far as it creates the office and authorizes the appointment, ignore, while the Senate
is in session, the provision which prescribes the condition under which a removal may take
place?” Justice Holmes emphasized the fact that the office was created by Congress.
 59

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Facts of the Case:

- To further the war effort during the Korean War, the government relied on defense contractors
which relied on the steel industry.
- Truman created a Wage Stabilization Board to minimize labor disputes while also
lowering inflation of prices and wages.
- The United Steelworkers of America planned to launch a nationwide strike across all of
the major steel producers because of the industry’s reluctance to increase wages (the
producers were concerned about increase in prices).
- In 1952, after the employees of steel companies threatened to strike, President Truman ordered
the Secretary of Commerce (Charles Sawyer) to seize the Nation’s steel companies. The steel
companies sued.
- After Truman announced the seizure to the national media, the steel industry sought a
temporary restraining order from a federal district judge. He denied the motion on equitable
grounds, but a different judge issued a preliminary injunction after a possible tactical error by an
assistant Attorney General, which suggested that the government supported a spectacularly
broad interpretation of executive power
- Once the government was ordered to surrender its control of the steel plants, the union began
the strike. On appeal, however, the government received a stay of the injunction pending review
by the Supreme Court. Negotiations stalled after the court issued the stay, since it also barred
increasing wages while review was pending and left the steel industry with no motivation to
meet the union's demands.
- It’s essential to note that the Korean War was not legally a war but a military intervention. It had
not been declared by Congress. This is important because Truman was declaring wartime
powers.
- Truman ties to negotiate with labor unions, but ultimately he fails. He seizes all the steel
plants.
- The laborers file an “injunction” – an order from the government to an individual to
fulfill its responsibilities.
- The Court of Appeals do not approve the injunction.
 60

- There is considerable power vested in the executive during a war.

Importance:
- The court’s decision limited the power of the President to seize private property in the absence
of either specifically enumerated authority under Article 2 of the Constitution or statutory
authority conferred on him by Congress.
- This case was truly the only rebuke of executive power.

Majority Opinion (Delivered by Hugo Black):

- Argued that only authorization by Congress or the Constitution, whether explicit or implicit,
could give the President the power to act.
- There is two ways for Congress to lawfully allow the Executive to seize things.
- The Executive Order was not authorized by the Constitution or laws of the United States,
- and is invalid.
- (a) There is no statute which expressly or impliedly authorizes the President to take
possession of this property as he did here. Pp. 343 U. S. 585-586.
- (b) In consideration of the Taft-Hartley Act in 1947, Congress refused to authorize
governmental seizures of property as a method of preventing work stoppages and
settling labor disputes. P. 343 U. S. 586.
- (c) Authority of the President to issue such an order in the circumstances of this case
cannot be implied from the aggregate of his powers under Article II of the Constitution.
- (d) The President’s executive order is not valid under the Necessary and Proper clause
either because the power of seizure is not a valid law, given to the Executive, vested in
the Constitution.
Alternative Measures that could have been used:
- The executive could have used the Taft-Hartley Act to lawfully seize the steel plants. Congress
passed a law that you can cancel a strike by force, if the President believed the strike was
affecting national security.
- However, Truman really did not want the industry to win.
- Selective Service Act:

Korematsu v. United States, 323 U.S. 214 (1944)

 61

Majority Opinion (Delivered by Justice Hugo Black):

- It was not questioned whether or not Korematsu was a loyal or disloyal citizen. The Court
assumes that he is a loyal citizen.
- The Court felt that if they denied FDR of this law they would be imposing upon the Executive
their own politics and their own rules. They didn’t want to impose in the execution of a serious
war.

- The majority opinion ruled that the court should not address the entirety of the order under
which Korematsu was convicted, which included provisions requiring citizens to report to
assembly and relocation centers. The majority found it necessary only to rule on the validity of
the specific provision under which Korematsu was convicted: the provision requiring him to
leave the designated area.
- Because the order applied only to people who were Japanese or of Japanese descent, it was
subject to the “most rigid scrutiny.”
- The majority found that although the exclusion of citizens from their homes is generally
an impermissible use of government authority, there is an exception where there is
“grave [ ] imminent danger to the public safety” as long as there is a definition and close
relationship between the government’s actions and the prevention against espionage
and sabotage.
- The majority ruled that there was sufficient danger and a sufficient relationship between
the order and the prevention of the danger to justify requiring Korematsu to evacuate.
The majority said the order was valid.

Dissent:
- The dissenters disagreed. They put forth their position that the order should have been
considered as a whole, and the Court should have considered the other contemporaneous
orders, all of which, when considered together resulted in the imprisonment of U.S. citizens in
what were essentially concentration camps, based only on their race.
- Issue of severability.
 62

- Japanese-Americans were treated severely differently from German-Americans and Italian-

Americans, due to the fact that the U.S. had only formally declared war on Japan, not on
Germany and Italy.

Korematsu was convicted as a result of this case, but his conviction was overturned in 1942. The solicitor
general had withheld a key document which proved that there was no risk that any of these citizens
were dangerous. The solicitor general did not provide this key evidence to the Court. FDR’s order was a
misguided order.

Meyers v. State of Nebraska, 262 U.S. 390 (1923)

Terminology & Concepts:

Substantive Due Process – a right that is not explicitly stated in the Due Process but is implied and holds
as law.
- First instance of substantive due process: Dred Scott.

Facts of the Case:

- Nebraska state law forbids teaching any language other than English in a private, non-
denominational, parochial or public school to children below 8th grade.
- The state law violates the liberty guaranteed under the Fourteenth Amendment and exceeds
the power of the state.
- By banning learning other languages other than English, in a sense the government is depriving
citizens of their education.
-

Majority Opinion (delivered by Justice Reynolds):

Primary Holding: Due process does not allow a state to prohibit teaching children any language other
than
English.
- The Fourteenth Amendment guarantees the right of a teacher to teach German and the right of
parents to control the upbringing of their children as they see fit.
 63

- While the state has a legitimate interest in encouraging the growth of a homogenous population
that can engage in discussions of civic matters, the means that it has chosen to pursue this
objective is excessive.

Justification for broadening the curriculum of a child below the 8th grade:
- “The established doctrine is that this liberty may not be interfered with, under the guise of
protecting the public interest, by legislative action which is arbitrary or without reasonable
relation to some purpose within the competency of the State to effect,” Meyers, 262 U.S. 400.
- “The American people have always regarded education and acquisition of knowledge as matters
of supreme importance which should be diligently promoted,” Meyers, 262 U.S. 400.
- “Plaintiff in error taught this language in school as part of his occupation. His right thus to teach
and the right of parents to engage him so to instruct their children, we think, are within the
liberty of the Amendment.” Meyers, 262 U.S. 400.

The Rights found under Due Process Clause:

- State could not prevent individuals to pursue your right to livelihood and employment. (Lochner
era).
- Justification for the parents’ right of control of child’s education:
- “… it is the natural duty of the parent to give his children education suitable to their
station in life, and nearly all the States, including Nebraska, enforce this obligation by
compulsory laws.” Meyers, 262 U.S. 400.

During the time of strong nationalist sentiments:

- The purpose of the state law was to promote civic development by inhibiting education of
foreign languages and ideals before they could even learn the English language and American
ideals.
- State was also concerned about the rising foreign-born population in the U.S. and those peoples
strong attachment to their mother nationality. The state believed the public safety was at risk.

The Court essentially believed there is no harm nor emergency when a child learns another language.

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

 64

- First case to give corporations substantive due process rights.

Terminology & Concepts:
- Right to contract

Facts of the Case:

- Oregon state law (Compulsory Education Act) prohibited the attendance of any other schools
other than public school, with few exceptions.
- The right to contract (Lochner era).
- The fourteenth amendment is the first amendment to directly apply to the states, but when
we’re finding substantive due process, we have to consider whether or not the first 13
amendments apply in the due process clause.
- State constitutions were the main source of protections from government intrusions.
- Just because the first fundamental amendments correlate with fundamental liberties
under the due process clause doesn’t mean that they are a due process right (which
include right to abortion, right of parents to control children’s education).
- The Fourteenth amendment protects individuals; thus are corporations entitled to rights?
- The Court finds that even though it is a school (a corporation) because it is composed of
a collection of individuals, it must be entitled to rights.
- ‘Corporation’ – a legal entity composed of individuals who conduct enterprise.
- ‘Legal fiction’ – corporations hold the liability onto themselves, and the individual
him/herself is protected from the liability. The corporation itself is at risk but not the
people personally.

Troxel v. Granville, 530 U.S. 57 (2000)

Terminology & Concepts:

- Substantive component of Due process clause – Provides heightened protection against
government interference with certain fundamental rights and liberty interests.

Facts of the Case:

- Tommie Granville and Brad Troxel had two daughters. They’re relationship ended in 1991.
 65

- Until Brad Troxel committed suicide in 1993, the paternal grandparents had regularly seen their
granddaughters on weekends. After Brad’s suicide, Granville informed the Troxels that she
wished to reduced their visitation time to one visit per month.
- The Troxels filed suit for the right to visit their grandchildren, under § 26.10.160(3) of the
Revised Code of Washington, which permits “any person” to petition for visitation rights “at any
time” and authorizes state superior courts to grant such rights whenever visitation may serve a
child’s best interest.
- Granville did not oppose the petition outright but did oppose the amount of visitation time
sought by the Troxels.
- Subsequently, a Washington Superior Court ordered more visitation than Granville desired.
- On appeal, the Washington Court of Appeals reversed that decision, holding that non-parents
lacked standing to sue under the statute. In affirming, the Washington Supreme Court ruled that
the statute unconstitutionally interfered with parents’ right to rear their children.

Question at Issue:
Does the Washington statute, which allows any person to petition for a court-ordered right to see a
child over a custodial parent’s objection if such visitation is found to be in the child’s best interest,
unconstitutionally interfere with the fundamental right of parents to rear their children?

Majority Opinion (delivered by Justice O’Connor):

- Yes. In a 6-3 decision, the Court held that the Washington Statute violated the right of parents,
under the Due Process clause of the 14th Amendment.
- The Court since Meyer v. Nebraska and Pierce v. Society of Sisters has expanded the
rights under the Due Process Clause including the right to make decisions concerning
the care, custody, and control of their children.
- Justice O'Connor stated that “the liberty interest at issue in this case – the interest of parents in
the care, custody, and control of their children – is perhaps the oldest of the fundamental
liberty interests recognized by this Court,” Troxel v. Granville, 530 U.S. 57, at 65 (2000).
- Stare decisis: Under Meyer v. Nebraska, 262 U.S. 390, at 399 and 401 (1923), the Court held that
the “liberty” protected by the Due Process Clause includes the right of the parents to “establish
a home and bring up children” and “to control the education of their own.”
 66

- Under Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), the Court reaffirmed that the
“liberty of parents and guardians includes the right to direct the upbringing and education of
children under their control.”
- Furthermore, in Pierce, the Court explained that “the child is not the mere creature of
the State; those who nurture him and direct his destiny have the right, coupled with the
high duty, to recognize and prepare him for additional obligations” Pierce v. Society of
Sisters, 268 U.S. 510, 534-35 (1925).
- “The law’s concept of the family rests on a presumption that parents possess what a
child lacks in maturity, experience, and capacity for judgment required for making .life’s
difficult decisions,” 442 U.S., at 602.
- As long as a parent is adequately fit to care for his/her child, there is no reason for the
State to inject itself into the private realm of the family to further question the ability of
that parent to make the best decisions concerning the rearing of that parent’s children.
- The Washington statute is not only substantially broad and overreaching, it provides no
deference to the custodial parent(s) and their right to determine what is in the child’s best
interest, Troxel, 530 U.S. 57, at 67 (2000).
- Instead, the Washington statute places the best-interest determination solely in the
hands of the judge.
- In practical effect, a court in Washington state can disregard and overturn any decision
by a fit custodial parent concerning visitation whenever a third party affected by the
decision files a visitation petition, based solely on the judge’s determination of the
child’s best interests.

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

Facts of the Case:

- Lee Yick, a Chinese national, owned and operated a laundry business in San Francisco for 22
years since he arrived in California. Lee had attained a license from the board of fire wardens in
1884, and his laundry was inspected by the board and it found that the laundry had met all the
necessary requirements to operate.
- Laundries at the time were overwhelmingly owned and operated by the Chinese
(around 240 laundromats were owned by Chinese, and 80 by white individuals).
 67

- Those who were Chinese were denied of a permit and approval to operate. Over 99% of
chinese laundromats were rejected.
- However, San Francisco passed an ordinance that all laundries built of wood needed approval
and a permit from the board of fire warden.
- There is no question that the ordinance is facially neutral and that it only regulates the
laundromats. Facially neutral law: not discriminatory on the front.
- This facially neutral law had been applied discriminatorily.
- This was also around the time of the ratification of the Fourteenth Amendment.
- The Court ruled that Chinese citizens are allowed to take residency in the U.S. and can
become naturalized U.S. citizens.
- Wong Kim Ark case: allowed for the naturalization of U.S. citizenship by birthright.
- While the ordinance wasn’t explicitly discriminatory, it was discriminatory in effect.
- How does Yick Wo speak to the Jim Crow laws because the Jim Crow laws were also facially
neutral?
- Prior to the New Deal, the Court was basically maligned (especially before Oliver
Wendell Holmes came into the Court).
- At the time there was a counter culture that infected the Court’s jurisprudence.

Opinion:

Buchanan v. Warley, 245 U.S. 60 (1917).

Facts of the Case:
Buchanan: homeowner who had entered into contract with Warley.
Warley: African American purchaser (NAACP attorney).
The ordinance in Kentucky stated that citizens were not allowed to purchase homes in neighborhoods in
which the majority is white, but the vice versa was also true.
Warley, in his communication to Buchanan, states that he will only buy the home for his residency, but
he manufactured a case in controversy, in turn engaging in strategic litigation.
- He sends this letter to Buchanan to state that he intends to buy the property and live in it.
- Warley refused to pay Buchanan because the ordinance prohibited their contract, so Buchanan
sued to have the Court to strike down the ordinance.
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In strategic litigation, especially at this time, you want the person who is not being discriminated against
to be the plaintiff. Hence why Buchanan was the plaintiff.
- In strategic litigation, you want the most “sympathetic” person. Dictating the optics of the case.
- This was also seen in D.C. v. Heller.
Justice Oliver Wendell Holmes almost dissented stating that the Court shouldn’t even have jurisdiction
over the case because it was such a manufactured case in controversy.
Police power - the legislature’s ability to tell people what to do.

Plessy v. Ferguson, 163 U.S. 537 (1896)

- Effectively overruled, but the Court has not explicitly reversed the decision.
- “Separate but equal” – the idea of “separateness” doesn’t affect the equal protection clause.
- It’s not the “Separate protection clause” but the “equal protection clause.”
- We continue to segregate people to this day (i.e. more so based on gender and age).
- At the time, a majority of states still had segregation laws. They came up with the
conclusion is that as long as the facilities are equal, then it satisfies the equal protection
clause of the constitution.
-

Facts of the case:

- Homer Plessy (petitioner/plaintiff): a free man who was of mixed African-caucasian descent
agreed to participate in a test case to challenge the Separate Car Act (under Louisiana law). The
Separate Car Act required that railroads provide separate cars and other accommodations for
whites and African-Americans.
- The Comite des Citoyens (Committee of Citizens) – a group of New Orleans residents of different
ethnicities) – sought to repeal this law. They asked Plessy to sit in a whites-only car, so he
bought a 1st class ticket and boarded the whites-only car of the East Louisiana Railroad.
- Railroad company cooperated in the test case because it saw that the law imposed
unnecessary additional costs through the purchasing of more railroad cars. The
company was heavily in favor of repealing the law.
- The Committee of Citizens hired a private detective who was to detain Plessy on the
train so that he could be charged under the Separate Car Act.
- Plessy refused to leave the whites-only car.
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- Lawyers arguing for Plessy based his case on violations of the Thirteenth and Fourteenth
Amendments. Judge found that Louisiana could enforce the law and Plessy was convicted.

Majority Opinion (7-1):

Primary Holding: The court found nothing discriminatory about the Separate Car Act because separate
treatment doesn’t necessarily imply the inferiority of African Americans but merely a matter of state
policy.
- Justice Brown opined that blacks had misinterpreted the Louisiana law as connoting inferiority,
when the railway cars did not differ in any way or in quality.

The Great Dissent: Justice Harlan dissented stating that the decision was comparable to Dred Scott v.
Sandford. He argued that the constitution should be color-blind and that the U.S. does not condone class
systems. Thus, all citizens should have equal access to civil rights.
- Believed that it was comparable to a caste system (the idea that individuals are subject to
different treatment permanently. Caste implies “fixed”).

Justice Brown delivered the opinion of the court:

1. In response to the Thirteenth Amendment: The Louisiana law doesn’t conflict with the 13th
Amendment, which abolished slavery and involuntary servitude, except as a punishment for
crime. “Slavery implies involuntary servitude – a state of bondage; the ownership of mankind as
a chattel, or at least the control of the labor and services of one man for the benefit of another,
and the absence of a legal right to the disposal of his own person, property and services,” Plessy,
163 U.S. 537.
2. In response to the Fourteenth Amendment: The object of the amendment was indubitably to
enforce the absolute equality of the two races before the law, but it did not intend to abolish
distinctions based upon color, or to enforce social equality.

Significance:
- After Plessy, it opened the floodgates for many more segregation laws, and thereby allowing for
the Jim Crow laws.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

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Facts of the Case:

The Board of Education in Topeka, Kansas enforced separate elementary schools for whites and African-
American students in communities with more than 15 thousand residents (based on a 1879 law).
NAACP in Topeka brought a class-action suit to challenge the policy of segregation (it recruited 13
Topeka parents to challenge the law on behalf of 20 children).
- Deliberate effort of strategic litigation.
- Topeka happened to provide equal facilities to both black students and white students. Because
in reality, blacks would have much worse educational facilities. The families wanted actually
equal facilities so that they could effectively challenge the “separate but equal” doctrine on its
face.
- “Judicial avoidance” – rather than overturn Plessy, they wanted to directly challenge
the “separate but equal” concept. If the plaintiffs were to show unequal facilities, the
Court could have just ordered an injunction ordering Topeka to make the facilities more
equal and better in quality.
In 1951, each of the families attempted to enroll the children in the schools closest to them, which were
white-only. The children were all denied admission and redirected to African-American schools even
though they were located at a much further distance.
- Brown v. Board made it to the Supreme Court because it challenged the separate but equal
doctrine on its face.
At first, it was going to be a 5-4 decision but eventually became a unanimous 9-0 vote. Earl Warren was
particularly known to hold views that the “separate but equal” doctrine was unconstitutional, before he
was appointed.
- President Eisenhower specifically wanted the overturning of separate but equal doctrine, and he
also appointed Supreme Court justices that were against Plessy.
- The original dissenting body in this case was concerned with judicial activism itself. They
believed that it was a question for Congress to resolve.
- They were also concerned with precedence (in overturning Plessy v. Ferguson). States had built
systems based upon Plessy.
- Warren states that “separate is inherently unequal.”
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- They found that separate but equal is not unconstitutional in every context, which is
why Plessy is not necessarily overturned. They believed that separate but equal is
inherently unequal in the public school system.
- Thurgood Marshall.
- One problem: By appealing to sociological principles and not legal principles, the argument was
weak and much less persuasive. It was based more on philosophy.
- The other problem is that the studies that the Court relied upon had many questionable
assumptions. Thus, the reliance on these studies have not aged well in the legal field.
- The Court stated that “all deliberate speed” – which was so ambiguous and it did not mandate
states to change their segregation laws.
-

Majority Opinion (delivered by Justice Warren):

Primary Holding: The equal protection clause prohibits states from segregating public school students on
the basis of race. This decision reversed the “separate but equal” doctrine from Plessy.

Bolling v. Sharpe, 347 U.S. 497.

Facts of the case:
D.C. is regulated by Congress and thus the Fourteenth amendment does not apply to it.
- A group of parents held a petition to allow for a junior high school in D.C. to open a racially-
integrated school. The children were turned away and their claim was initially dismissed by the
trial court.
- An originalist would argue that the EPC is only in the 14th amendment and not in the 5th
amendment.
- However the Bolling court argued that equal protection and due process are not mutually
exclusive. The principles of freedom would not allow D.C. to have racially segregated school
when other states have found that it would be impermissible for racial segregation in schools.
- “Reverse incorporation” – many of the Bill of Rights have been applied to the Fourteenth
Amendment, and thus reverse incorporation states that in the case of certain liberties, the laws
which apply to the States also apply to the federal government.

Majority Opinion:
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- Justice Warren noted that while the Equal protection clause in the 14th Amendment was cited
in Brown in order to declare segregation unconstitutional, the EPC didn’t apply in D.C., but the
5th Amendment does. And, while the Fifth Amendment lacks an equal protection clause,
Warren held that “the concepts of equal protection and due process, both stemming from our
American ideal of fairness, are not mutually exclusive.”
- While equal protection is a more explicit safeguard against discrimination, the Court
stated that “discrimination may be so unjustifiable as to be violative of due process.”
- In light of their decision in Brown that segregation in state public schools is prohibited
by the Constitution, it would be “unthinkable that the same Constitution would impose
a lesser duty on the Federal Government.”

Washington v. Davis, 426 U.S. 229 (1976).

Facts of the case:
Two African American officers (Harley and Sellers) filed suit against the Commissioner of D.C., the chief
of the Metropolitan Police Dept, alleging that the recruiting procedures of the police department were
racially discriminatory, specifically against black applicants. The series of practices included a written
personnel test (Test 21) which disproportionately excluded black applicants. The test itself was designed
to “test verbal ability, vocabulary, reading and comprehension.”
- The respondents claim that it had violated their Fifth Amendment right, specifically the Due
Process Clause.
The respondents used as evidence: (a) The number of black police officers, while substantial, is not
proportionate to the population mix of the city. (b) A higher percentage of blacks fail the Test than
whites. (C) The Test had not been validated to establish its reliability for measuring subsequent job
performance.
- This showing was deemed sufficient to shift the burden of proof to the defendants in the action
(the petitioners here), but the court concluded that respondents were not entitled to relief.
- The District Court argued that the test was not biased to favor white applicants.

Opinion of the Court (delivered by Justice White):

- White argued that the central purpose of the Equal Protection Clause of the Fourteenth
Amendment is the prevention of official conduct discriminating on the basis of race. While it is
also true that the Due Process Clause of the Fifth Amendment contains an equal protection
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component prohibiting the federal government from discriminating between individuals or

groups. Bolling v. Sharpe, 347 U. S. 497 (1954), the case at hand does not embrace the
proposition that a law or other official act is unconstitutional solely because it has a racially
disproportionate impact.
- Under Akins v. Texas, “A purpose to discriminate must be present which may be proven by
systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the
law to such an extent as to show intentional discrimination.”

Constitutional Discrimination vs. Title VII:

- Under Title VII, you don’t have to show that there is a discriminatory purpose.
- They wanted a constitutional challenge to the government, and they wanted the Title VII
standard to be used as a constitutional standard. However, the Court rejected this claim.

Griswold v. Connecticut, 381 U.S. 479 (1965).

Concepts:
- “Penumbra” – includes a group of rights derived, by implication, from other rights explicitly
protected in the Bill of Right.
- These rights have been identified through a process of “reasoning-by-interpolation,”
where specific principles are recognized from general ideas that are explicitly expressed
in other constitutional provisions.
Facts:
- Contesting the legality of the Connecticut Comstock Act of 1873 (making it illegal to use “any
drug, medicinal article, or instrument for the purpose of preventing conception”. Violators could
be “fined not less than fifty dollars or imprisoned not less than sixty days nor more than one
year or be both fined and imprisoned.”)
- By the 1950s, Massachusetts and Connecticut were the only two states that still had
such statutes, but they were almost never enforced.
- Several cases arose regarding the provision of anti-contraception law, during the 1940s after the
first Planned Parenthood clinic was opened in Hartford, CT in 1935. The Waterbury clinic sought
to legally challenge the constitutionality of the Comstock law, but these suits failed on technical
grounds.
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- In Tileston v. Ullman (1943), a doctor and mother challenged the law on the grounds
that a ban on contraception could, in certain sexual situations, threaten the lives and
well-being of patients. The U.S. Supreme Court dismissed the appeal on the grounds
that the plaintiff lacked standing to sue on behalf of his patients.
- Yale School of Medicine gynecologist C. Lee Buxton and his patients brought a second
challenge to the law in Poe v. Ullman (1961). The Supreme Court again dismissed the
appeal, on the grounds that the case was not ripe: the plaintiffs had not been charged or
threatened with prosecution, so there was no actual case in controversy for the Court to
resolve.
- Justice Harlan dissented, “The full scope of the liberty guaranteed by the Due
Process Clause cannot be found in or limited by the precise terms of the specific
guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series
of isolated points pricked out in terms of the taking of property; the freedom of
speech, press, and religion; the right to keep and bear arms in the United States;
the freedom from unreasonable searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints.”
- Planned Parenthood League of Connecticut (PPLC) decided to challenge the law again. Estelle
Griswold (Executive Director of the PPLC from 1954 to 1965) attempted to financially support
women who wanted contraceptives to bus to cities in New York and Rhode Island.
- Griswold and Dr. Buxton opened a birth control clinic in New Haven which in and of itself
directly challenged the state law. Griswold and Buxton were arrested, tried, found guilty, and
fined $100 each. The conviction was upheld by the Appellate Division of the Circuit Court, and
by the Connecticut Supreme Court.

Issue at hand:
Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability
to be counseled in the use of contraceptives?

Opinion of the Court (Delivered by Douglas):

- Justice Douglas held that the Connecticut law was unconstitutional and further recognized the
right to privacy; even though it’s not enumerated in the Bill of Rights, it is found in the
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“penumbras” and “emanations” of other constitutional protections, such as the self-

incrimination clause of the Fifth Amendment, or the freedom of association clause of the First
Amendment. The right to privacy is seen as a right to “protection from governmental intrusion.”
- Justice Douglas argued that there are implicit “zones of privacy” within the First, Third,
Fourth, Fifth, and Ninth Amendments.
- The Court found that the enforcement of banning contraceptives would be unseemly especially
for married couples.
- The Court found the right to privacy through the Fourteenth Amendment, through
selective incorporation.
- Justice Douglas: “penumbral emanations.” However, the Court stated that the penumbral
emanations did not derive from the Ninth Amendment.
- Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment in
support of the Court's ruling, reasoning that the right of privacy was retained by the people.
- Justice Byron White and Justice Harlan II also wrote concurring opinions in which they argued
that privacy is protected by the due process clause of the Fourteenth Amendment.

Roe v. Wade, 410 U.S. 113 (1973)

Texas state law prohibited women from seeking abortions and for physicians to carry out abortion
procedures, unless the abortion was recommended by a physician in order to save the woman’s life.
Norma McCorvey: falsely alleged that she was raped and became pregnant because of this.
- Gave birth and child was put up for adoption.

Opinion of the Court (delivered by Justice Blackmun):

Right to Privacy:
- The Court did not look to the Ninth Amendment as a source for the right to privacy, as the
District Court had ruled, but instead that the right to privacy was implicit within the Fourteenth
Amendment. This ‘right to privacy’ is broad enough to encompass women’s right to terminate
her pregnancy.
- Just because the Constitution doesn’t list a specific right, it doesn’t mean that rights not
listed are not provided.
- The Court found that the “penumbral emanations’ ” right to privacy is under the
Fourteenth Amendment through selective incorporation.
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- Extension of right to privacy to unmarried individuals: Under Eisenstadt v. Baird, the

Court found that the marital estate has the right to privacy because of the sanctity of
the bedroom (Griswold), but the Court found that an exclusive right to privacy under the
marital estate would be unfair due to the Equal Protection Clause of the Fourteenth
Amendment.
- Justice Robert Bork once stated that the Ninth Amendment is like an inkblot, meaning
that you can interpret it however you want. Concerns that it will give rise to excessive
judicial discretion.
- However, this right is not absolute and is thus open to regulation by states, given that the state
has a compelling interest in restricting the conditions upon which a women may abort her
pregnancy.
Fetus Considered as a “Person”:
- The Court refrained from determining whether or not a fetus would be considered a “person”
under the Constitution. Given the debate between those trained in disciplines such as theology,
medicine, philosophy, etc., the judiciary would not be in an appropriate position to speculate.

Trimester Framework:
- Roe gave women total autonomy over the pregnancy during the first trimester and defined
different levels of state interest for the second and third trimesters.
- 2nd Trimester: From the end of the first trimester until fetal viability (which is medically
recognized to be 28 weeks but may be 24 weeks in certain cases), the state’s interest in
protecting the health of the mother would become “compelling.”
- During this time, the state could regulate the abortion procedure if the regulation
reasonably related to the preservation and protection of maternal health.
- Third Trimester: At the point of viability, which the Court believed to be in the third trimester,
the state’s interest in “potential life” would become compelling, and the state could regulate
abortion to protect “potential life.”
- At that point, the state could even forbid abortion so long as it made an exception to
preserve the life or health of the mother.
The Court also added that the physician had the primary right to practice medicine freely absent a
compelling state interest (independent of women’s rights in general).
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- Planned Parenthood v. Casey abandoned the trimester framework and the right of the physician
to practice medicine freely without a compelling state interest (because the Court came to
believe that that right is not an absolute right).
Privacy, Intimacy and Marriage

Loving v. Virginia, 388 U.S. 1 (1967)

Facts of the case:
- In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white
man, were married in D.C. [Virginia was one of the 16 Southern states that banned marriage of
white and African American individuals.] Afterwards, the Lovings soon returned to Virginia
where the couple was charged with violating the Virginia state’s anti-miscegenation statute
(Racial Integrity Act of 1924), which banned interracial marriages. The police raided the Lovings’
home and found them in the same bed at night. During the raid, the police discovered the
couple’s marriage certificate in their bedroom (the document would become the basis for
criminal charges against the Lovings).
- The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend
the sentence if the Lovings would leave Virginia and not return for 25 years).
Question: Did Virginia's anti-miscegenation law violate the Equal Protection Clause of the Fourteenth
Amendment?

Primary Holding: A unanimous Court struck down state laws that banned interracial marriage, holding
that these anti-miscegenation statutes violated both the Due Process and the Equal Protection Clauses
of the Fourteenth Amendment.

Opinion of the Court (delivered by Justice Warren):

- The Racial Integrity Act of 1924 was struck down for being facially discriminatory.
- The Virginia statute was passed during a period of extreme nativism – the policy of
protecting the interests of native-born against those of immigrants; a deep vein of
xenophobia and nativism – following the end of WWI.
- The Supreme Court of Appeals of VA relied on its 1965 decision in Naim v. Naim, stating that the
reasons supporting the validity of the laws as the State’s legitimate purposes in “preserving the
racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of
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citizens,” and “the obliteration of racial pride,” – Justice Warren states this case was a clear
endorsement of white supremacy.
- The VA Court of Appeals also stated that marriage has been traditionally subject to state
regulation w/o federal intervention and that the regulation of marriage should be left
within the exclusive control of the state under the Tenth Amendment.
- However, in response, Warren says that while the state court is indubitably
correct in asserting that marriage is a social relation subject to the State’s police
power, under Maynard v. Hill, 125 U. S. 190 (1888), the State does not have
absolute control to regulate marriage, under the commands of the Fourteenth
Amendment.
- The state argues that the EPC should be interpreted to impose equal punishments to
whites and blacks. Virginia argues that, because its miscegenation statutes equally
punish both the white and black participants in an interracial marriage, these statutes,
despite their reliance on racial classifications, do not constitute an invidious
discrimination based upon race.
- “Equal Application Theory” – if the Equal Protection Clause does not outlaw
miscegenation statutes because of their reliance on racial classifications, the question of
constitutionality would thus become whether there was any rational basis for a State to
treat interracial marriages differently from other marriages.
- However, the Court argues that the mere “equal application” of a statute containing racial
classifications is not sufficient to remove the classifications from the Fourteenth Amendment’s
proscription of all invidious racial discriminations. Thus, Virginia’s anti-miscegenation laws
should not be upheld because there is no rational purpose.
- The fact of equal application does not immunize the statute from the very heavy burden
of justification which the Fourteenth Amendment has traditionally required of state
statutes drawn according to race.
- In McLaughlin v. Florida, the Court demonstrated that the EPC requires consideration of
whether the classifications drawn by any statute constitute an arbitrary and invidious
discrimination. The purpose of the Fourteenth Amendment was to eliminate all official
state sources of invidious racial discrimination. Slaughter-House Cases.
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- Furthermore, Virginia statutes also deprive the Lovings of liberty without due process of law.
The freedom to marry has long been recognized as one of the vital personal rights essential to
the orderly pursuit of happiness by free persons.

Reynolds v. U.S., 98 U.S. 145 (1878).

Facts of the Case:
- George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, was charged with
bigamy under the federal Morrill Anti-Bigamy Act after marrying a woman while still married to
his previous wife. Reynolds argued that the law was unconstitutional. He reasoned that his
religion required him to marry multiple women and the law therefore violated his First
Amendment right to free exercise of religion.

Question: Is religious duty or belief a defense to a criminal charge?

Primary Holding:
- Under a unanimous decisions, the Court held that the federal anti-bigamy statute does not
violate the religious Free Exercise Clause of the First Amendment.
- The Court upheld Reynolds’s conviction and Congress’s power to prohibit polygamy. The Court
held that while Congress could not outlaw a belief in the correctness of polygamy, it could
outlaw the practice thereof. The majority reasoned that while marriage is a “sacred obligation,”
it is nevertheless “usually regulated by law” in “most civilized nations.” Finally, the Court held
that people cannot avoid a law due to their religion.

Opinion of the Court (delivered by Justice White):

Obergefell v. Hodges, 576 U.S. (2015).

Facts of the case:
- The petitioners, composed of 14 same-sex couples and two men whose same-sex partners were
deceased deceased, filed suits in Federal District Courts in their respective States. They claimed
that the respondent states, including Michigan, Kentucky, Ohio and Tennessee, violated the Due
Process Clause and the Equal Protection Clause under the Fourteenth Amendment by denying
them the right to marry or denying to recognize marriages legally performed in another State.
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- Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the six cases and
reversed, under the precedent of Baker v. Nelson, in which the Minnesota Supreme Court ruled
that prohibiting same-sex marriages was constitutional.
- Baker v. Nelson was mandatorally brought to the Supreme Court for appellate review.
However, the Court did not even want to rule on the case due to the political legislative
conflict. Even though the Court didn’t want to hear the case, they dismissed the case
which actually created a federal precedent.
- Baker brought up important constitutional questions. Baker served as the
guiding interpretation for the next forty years. This was not a conservative
court, but the Warren Court. This was seen as binding precedent, and nobody
else wanted to touch it.
- Under an originalist view, the Fourteenth Amendment was not constructed to include the right
to marriage, let alone for same-sex marriages to be legal.
- An originalist perspective/meaning derives from not the framers’ intentions, but what
they meant behind the legal text of the Fourteenth Amendment (1868).
- What was the meaning in 1789 and in 1868?
- Hodges - Direct of Health Department in Ohio
- Obergefell was married to John Arthur who was diagnosed with ALS and was dying. Obergefell
wanted to be included in the will of his partner. They were married in Maryland but the case in
controversy was in Ohio.
-

Question at hand:
(1) Does the Fourteenth Amendment forbid state bans on marriage between two people of the same
sex?
-
(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the
same sex that was legally licensed and performed in another state?
- This question was deemed moot.

Opinion of the Court:

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The majority held that state same-sex marriage bans are a violation of the Fourteenth Amendment’s
Due Process and Equal Protection Clauses.
- The Court declared that “The Constitution promises liberty to all within its reach” and that
liberty is defined to include certain specific rights which allow all persons to define and express
their identity.
- The institution of marriage has changed to meet the needs of our times and such deep structural
transformations purport to strengthen the marital institution, not weaken it.
- Justice Roberts writes that we may not always see/recognize the nature of injustice in
our own times. The generations that wrote and ratified the Bill of Rights and the
Fourteenth Amendment did not presume to know the extent of freedom in all of its
dimensions, and so they entrusted to future generations a charter protecting the right
of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord
between the Constitution’s central protections and a legal structure, a claim to liberty
must be addressed.

Precedents:
- Lawrence v. Texas – The Court struck down a sodomy law in Texas and by extension, invalidated
sodomy laws in thirteen other states, making same-sex sexual activity legal in every U.S. state
and territory.
- Justice Kennedy delivered the opinion.
- Overturned Bowers v. Hardwick (1986).
- U.S. v. Windsor, 570 U.S. 744 (2013) – Held that restricting the federal government’s
interpretation of “marriage” and “spouse” to apply only to opposite-sex couples, under Section
3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of
the Fifth Amendment.
- Hollingswoth v. Perry (2013) – overturned the passing of Prop 8 in California.
- Loving v. Virginia
- Zablocki v. Redhail, 434 U.S. 374 (1978) – Held that Section 245.10 of Wisconsin state law, which
required noncustodial parents who were Wisconsin residents attempting to marry inside or
outside of Wisconsin to seek a court order prior to receiving a marriage license, was
unconstitutional under the Fourteenth Amendment’s Equal Protection Clause.
- Griswold v. Connecticut
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- Eisenstadt v. Baird

Four reasons why marriage is fundamental under the Constitution and applies with equal force to same-
sex couples:
1. The right to personal choice regarding marriage is inherent in the concept of individual
autonomy.
a. Similar to choices concerning contraception, family relationships, procreation, and
childrearing. Decisions concerning marriage are among the most intimate that an
individual can make.
2. The right to marry is fundamental because it supports a 2-person union unlike any other in its
importance to the committed individuals, e.g. Griswold v. Connecticut, and Lawrence v. Texas.
3. The right to marry safeguards children and families and thus draws meaning from related rights
of childrearing, procreation, and education. Pierce v. Society of Sisters, 268 U. S. 510 (1925);
Meyer, 262 U. S., at 399.
4. Marriage is essential for social order.
a. Marriage has also increasingly become a basis for a list of governmental rights, benefits,
and obligations, i.e. taxation; inheritance and property rights; rules of intestate
succession; spousal privilege in the law of evidence; hospital access; medical decision-
making authority;adoption rights; the rights and benefits of survivors; birth and death
certificates; professional ethics rules; campaign finance restrictions; workers’
compensation benefits; health insurance; and child custody, support, and visitation
rules.
b. Same-sex couples are being denied the aforementioned benefits.

“Liberty” under the Due Process Clause has extended to include a wide range of groups which have been
socially, politically and legally from certain civil liberties.
- Justice Kennedy opines that Loving did not ask about a “right to interracial marriage”; Turner v.
Safley did not ask about a “right of inmates to marry”; Zablocki did not ask about a “right of
fathers with unpaid child support duties to marry.” But rather, each case inquired about the
right to marry in its comprehensive sense, and further questioned if there was a sufficient
justification for excluding the relevant class from such a fundamental right, Obergefell v.
Hodges, 576 U.S. 18).
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- Today, we do not allow marriages that are not based on consent (like children), but even for
consenting adults like incest, polygamy.
- Overturned Baker v. Nelson, and Hollingsworth v. Perry

While the rights implicit in “liberty” and the rights secured by equal protection may rest upon different
precepts and are not always coextensive, they share a synergistic relationship and one concept may lead
to a stronger understanding of the other.

Should the Court have waited for further legislation?

- It can’t wait anymore. There has already been referenda, legislative debates, grassroots
campaigns, studies, papers, books, scholarly research that has publicly addressed this issue. The
societal discussion of same-sex marriage has existed for a lengthy period of time. While the
Court believes that the democratic processes and informed, rational debates should ultimately
allow individuals to come to a consensus regarding the issue of same-sex marriage, it is also
wholly antidemocratic to allow the right of individuals to be injured by the unlawful exercise of
governmental power.

In Alito’s dissent: he stated that understandably those who agree with same-sex marriage system will
cheer for the decision while those who do not will vehemently oppose the decision.

Thomas’s dissent: brings up the issue of human dignity and that the majority is losing the idea between
positive rights versus negative rights.
- Ultimately questioning the authority of the government to interfere in the business of marriage.
Undermining the purpose of marriage licenses. Thomas argues that it’s not for the judiciary to
decide whether or not they should legalize same-sex marriage but that responsibility should be
reserved for Congress. However, he makes the distinction from Roberts or Scalia, that
individuals do not need official government recognition to get married.
- Thomas insisted that “liberty has long been understood as individual freedom from
governmental action, not as a right to a particular governmental entitlement" such as a marriage
license.”
- Thomas took issue with the majority’s view that marriage advances the dignity of same-sex
couples.
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- In his view, government is not capable of bestowing dignity; rather, dignity is a natural
right that is innate within every person, a right that cannot be taken away even through
slavery and internment camps.

My arguments:
- A State cannot impose a governmental interest upon issues of marriage between opposite-sex
or same-sex couples, because as the both the majority and dissenters of the Court have argued,
marriage is an institution that has long exceeded the existence of this very country and remains
exclusive to the political interests of the government. That is why there exists a right to privacy,
if we interpret this right as a positive right to personal autonomy.
- The intimate domain between married partners is sacred and leaves no room for government
intrusion.

Schenck v. U.S. 249 U.S. 47 (1919)

Facts:
- During WWI, the federal government mandated military draft. The Socialist Party in
Philadelphia, in opposition to the draft, distributed 15,000 leaflets and declared that the 13th
Amendment had been violated because the draft was a form of involuntary servitude and thus
unconstitutional. (Schenck was the General Secretary of the Socialist Party and Elizabeth Baer
was a member).
- In 1917, however, Congress passed the Espionage Act to prohibit any undermining
behavior to the war effort.
- Schenck and Baer were convicted of violating the Espionage Act and they appealed that
the statute violated the First Amendment).
- There were violent revolutions occurring throughout the world that were overthrowing regimes.
Schenck and Baer were indicted with three counts:
1. The first alleged that the distribution of the leaflets were conspiratorial acts.
2. The second count alleges a conspiracy to commit an offence against the U.S.
3. The third count charges an unlawful use of the mails for the transmission of the leaflets.

Opinion of the Court (Delivered by Oliver Wendell Holmes Jr.) - unanimous ruling:
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- Holmes felt that courts owed greater deference to the government during wartime, even when
constitutional rights were at stake.
- Holmes argued that speech protected by the First Amendment may be prohibited when used in
circumstances and in a manner to create a “clear and present danger of substantive evils,” that
Congress has the authority to prevent. Holmes found that the widespread dissemination of the
leaflets was sufficiently likely to disrupt the conscription process.
- He argued that the “First Amendment does not allow people to shout “Fire!” in a
crowded theater,” which he saw as parallel to the leaflets.
- He says that “it is a question of proximity and degree.” He argues that rights are limited
given circumstances.
- Holmes recognized that if it was not wartime, the defendants would have been within their
constitutional rights, but “the character of every act depends upon the circumstances in which it
is done.”

- Reasoning: Schenck mailed his literature to inform draftees of their right to assert opposition to
the draft in addition to criticizing supporters of the draft. Arguably, the literature would not have
been sent unless it was intended to prevent draftees from joining the draft.
- In this case, Schenck’s speech intended to incite draftees to obstruct the draft and can
be viewed as a clear and present danger since the nation is at war. Congress has the
power to raise and maintain military forces. As a result, the prevention of the military
draft is one of the substantive evils Congress may prevent.

Eugene Debs:
- Presidential candidate representing the Socialist Party.
- Involved in the Pullman Strikes.
- Gave an anti-war speech that denounced American involvement in WWI.
- In his speech, he glorified “draft dodgers.”
- He was convicted under the Sedition Act of 1918.
- Debs was also disenfranchised after he was sent to prison.
- He was commuted by President Harding vs. a pardon which absolves you from your crime.
- A commutation - is that the convict has served a substantial amount of time in prison.
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Central Hudson Gas & Electric Corp. v. Public Service Commission , 447 U.S. 557 (1980)

Facts:
- During the middle of the 1973 oil crisis, the Public Service Commission of New York prohibited
electric companies from using any language that promoted the use of electricity from their
marketing, in an effort to encourage energy conservation to extend their fuel resources during
the crisis.
- The Commission's finding was that “the interconnected utility system in New York State
does not have sufficient fuel stocks or sources of supply to continue furnishing all
customer demands for the 1973-1974 winter." Id.
-
- Even after the crisis in 1976, the Public Service Commission continued to mandate its promotion
ban in the interest of continuing conservation, as a part of a broader national interest.
- A slight modification in this policy was that the Public Service Commission distinguished
marketing material that was promotional (aiming to encourage sale) from material that
was informational.
- One of the electric companies, Central Hudson Gas & Electric Corp., objected to the ban, stating
it was a violation of their First and Fourteenth Amendment rights.

Opinion of the Court (delivered by Justice Powell):

- Sets the precedent that allowed the protection of corporations’ economic speech.
- The Court held that the regulation violated the First and Fourteenth Amendment rights because
First Amendment applies to ordinary commercial speech if it concerns a lawful activity and is not
misleading, although the level of protection is lower than for other forms of speech.
- Furthermore, the regulation fails the four-step analysis for commercial speech because it is
broader than necessary to achieve the goal for which it is designed. It would prohibit speech
about products or services that would result in no increase in total energy usage and would be
unrelated to conserving energy.
- Four-Step Analysis:
a. For commercial speech to come within the First Amendment, it at least must concern
lawful activity and not be misleading.
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b. It also has to be determined whether the asserted governmental interest to restrict

commercial speech is substantial.
c. If a legitimate governmental interest is found, it must then be decided whether the
regulation directly advances the governmental interest asserted.
d. Then, it must be decided whether it is not more extensive than is necessary to serve
that interest.
- There must be a “reasonable fit” between the government's ends and the
means for achieving those ends.

Chicago, Burlington & Quincy Railroad Company v. Chicago, 166 U.S. 226 (1897)

Terms:
- Eminent domain: the power of the government to take private property and convert it into
public use. The Fifth Amendment provides that the government may only exercise this power if
they provide just compensation to the property owners.

Facts of the case:

- The City of Chicago wanted to expand Rockwell Street by connecting two disjoint sections of
between 18th and 19th Streets, over private property. This property was owned by various
individuals but also included a right-of-way owned by the Chicago, Burlington, and Quincy
Railroad Corporation. To accomplish this, the city petitioned in Cook County Circuit Court to
have the necessary land condemned. The land was condemned. The individuals were awarded
compensation, while the railroad was awarded only one dollar. The railroad appealed the
judgment, alleging that the condemnation deprived it of its property in violation of the Due
Process clause of the Fourteenth Amendment. The Supreme Court of Illinois affirmed the
judgment.
- Focus of the case was Due Process, so the railroad company had the opportunity to appeal the
decision and make their case. However, the railroad company continued to state that there was
no just compensation.
- The Court ruled that it did get “just” compensation. The Court was not going to decide
whether or not the compensation was “just” or “unjust.”
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- Justice Brewer argued in his dissent that the railroad company only received nominal
compensation, which is what the City of Chicago intended.
- The whole idea that the City of Chicago was bound by the Takings Clause of the 5th
Amendment was a novel idea.
- This was an example of “selective incorporation.” Applying the rights in the Bill of Rights
and applying it to the city of Chicago/to the State.

Opinion of the Court (7-1 decision) delivered by Justice Harlan:

Lochner v. New York, 198 U.S. 45 (1905)

Facts of the case:
- The 1895 Bakeshop Act stated that no employee can be required or permitted to work in a
biscuit, bread, or cake bakery or confectionery establishment more than 60 hours in a week or
more than 10 hours a day. And the number of hours worked in a week could not average out to
be more than ten hours per day.
- Joseph Lochner, who owned a bakery in Utica, claimed that the NY Legislature’s Bakeshop Act of
1895 was unconstitutional. In a pretrial motion, Lochner asked for dismissal on the grounds that
the grand jury had not properly stated the charges and that, even if the charges were true, what
he had done did not constitute a crime. After the judge dismissed both objections, Lochner
refused to plead and was found guilty.
- Lochner took his case to the Appellate Division, which upheld the law (3–2), and then to the
Court of Appeals, New York’s highest court, which also ruled for the state (4–3). He finally
appealed to the Supreme Court, which heard oral arguments on February 23, 1905.

Issue: Does the due process clause of the Fifth Amendment and Fourteenth Amendment protect liberty
of contract and private property against unwarranted government interference?

Opinion of the Court (delivered by Justice Peckham):

- The Supreme Court ignored the question of class legislation, holding instead that the Bakeshop
Act (particularly its hours provision) was an unconstitutional infringement of freedom of
contract (the freedom of employees to sell their labour to employers), which the court had
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recognized in Allgeyer v. Louisiana (1897) as part of the liberty protected by the due process
clause of the Fourteenth Amendment.
- Under the Due Process Clause of the Fourteenth amendment, the right to purchase or
sell labor is part of that protected liberty. The only way a state may counter this right is
to show they are exercising a valid police power with their regulation – regarding the
safety, health, morals and general welfare of the public.
- The Court rejected the labor law justification of the statute on police power grounds because
this was not a valid exercise of police power.
- First, that power is extended to the protection of “public welfare” and not the
readjustment of bargaining power between employees and employers. The effect of this
legislation was to regulate labor conditions and not to protect workers. The effect of
such statutes, not just the stated or proclaimed purpose, is determinative in whether
this statute is repugnant to the Constitution.
- Second, there is no valid health of safety rationale in this case. Bakers were not
endangered like miners were in the Holden v. Hardy case. Mining is a profession that
needed regulation, but this is not. The state could accomplish its goals with means that
did not interfere with the freedom to contract. Because the police power exercised here
is not strong, the Court suspected that there were legislative motives behind the
enactment of this law. New York was using its power to upset the free market.
- Justice Peckham argued that the curtailment of contractual freedom imposed by the act could
be sustained only if it served to protect public health or the health of workers at risk, which it
clearly did not do. “Clean and wholesome bread,” he asserted, “does not depend on whether
the baker works but ten hours a day or only sixty hours per week.” Citing Holden v. Hardy (1898)
—in which the court had upheld an hours law that applied to workers in dangerous occupations,
including mining.
- Police power of the State – the government has the right to govern health, safety, and
morals.
- The Court stated that when the police power is sufficient, then you can limit the right
to contract.
- I.e. If you have an unsafe working condition, the State may have sufficient police
power. For example, limiting the number of hours for miners, railroad workers,
child labor.
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- Peckham asked whether any proof existed to show that baking was a dangerous or unhealthful
trade, and he concluded that none did. Since the hours law failed to qualify as a health
measure, it couldn’t be maintained as a valid exercise of the police power, according to
Peckham.

In these cases regarding substantive due process, the majority of the Court find a severe constitutional
injury but need to back it with ideas derived from the Constitution. It’s an idea of morality.

What happens if people work less than 60 hours, then it creates the problem of idle hands.
- There would be less productivity, less wealth. By limiting the number of hours worked, you
would be impoverishing people.

Is the legitimacy of the ruling severely impacted when we consider FDR’s decision to pack the court and
expand the powers of the federal government?

The Court gives itself and to other classes of individuals discretion and leniency because

Dissent by Harlan:

Dissent by Holmes:
- States may regulate life in many ways which might seem injudicious or tyrannical and which may
interfere with the liberty to contract (Sunday laws and usury laws are examples). Liberty of a
citizen to do as he likes so long as he does not interfere with the liberty of others to do the
same, has been interfered with by school laws, the Post Office, every state or city which takes
his money in taxes for purposes thought desirable which he may or may not like. The states
have interfered with the liberty to contract with the prohibition of sales of stock on margins for
future delivery and the eight-hour law for miners.
- Holmes argued that the majority opinion was based on “an economic theory which a large part
of the country does not entertain.” The state’s right to interfere with liberty of contract was well
established in history, he argued, pointing to such examples as laws against usury or Sunday
work. Furthermore, a constitution is not supposed to embody a particular economic theory, be
it paternalism or laissez-faire. The whole idea of liberty, he continued, is perverted whenever it
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is “held to prevent the natural outcome of a dominant opinion,” except when everyone could
agree that a particular statute infringed upon fundamental principles, which was not the case
here. He concluded that a reasonable person would find the hours provisions to be legitimately
related to health and that therefore the law should be upheld.
- Holmes argues that there is no right to contract in the constitution, but what instead is
occurring is that the laissez-faire is imposing laissez-faire policies. The idea that you
should not excessively regulate the economy.
- Whether or not there should be extensive regulation of the economy, and four
of the five judges believed that the rise of the economic regulations would lead
to severe impoverishment.
- The Court was having an ideological class over economic systems. It captures
the fundamental debate regarding economic systems in the country at the time,
and it expresses the penumbral emanations idea found in Griswold.
- Holmes, who was traditionally seen as a liberal, believed that the majority was
imposing its own economic preferences in judicial decisions.
- Until the Great Depression, FDR begins implementing a lot of regulations. Roosevelt
knew that the Supreme Court found many of his New Deal programs unconstitutional,
but he continued to keep passing legislation because he believed that there was
sufficient political will. A conflict was created between the Supreme Court and the
president, and he argued that the Supreme Court was unjustified because they were not
democratically elected. Hence, his decision to pack the court with justices who were
favorable to his New Deal legislations.

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)

Facts of the case:
- Elsie Parrish, a chambermaid working at the Cascadian Hotel in Washington (owned by the West
Coast Hotel Company), along with her husband, sued the hotel for the difference between what
she was paid, and the $14.50 per week of 48 hours established as a minimum wage by the
Industrial Welfare Committee and Supervisor of Women in Industry, pursuant to Washington
state law.
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- The trial court, using Adkins as precedent, ruled for the defendant (West Coast Hotel Co.). The
Washington Supreme Court, taking the case on a direct appeal, reversed the trial court and
found in favor of Parrish. The hotel then appealed to the Supreme Court, arguing that the
Washington state law violated the due process clause under the Fourteenth Amendment.

Majority Opinion:
- Essentially overturned the ruling in Lochner.
- “The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the
deprivation of liberty without due process of law. In prohibiting that deprivation, the
Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its
phases has its history and connotation.”
- The Court is attempting to limit the expansive view on the right to contract, under
Lochner.
- The guarantee of liberty does not mean that it is immune to legislative supervision or from
government’s exercise of police power to provide restrictive safeguards, that serve the public
interest and welfare.
- The Court ruled in Chicago, Burlington & Quincy Railroad Co. v. Chicago, that the legislature has
necessarily a wide field of discretion in the relationship between an employer and employee,
when creating protection for health and safety and creating peace and good order, in order to
ensure suitable conditions of work and freedom from oppression.
- The State has a necessary interest in regulation work-related contracts, if it means that
it can protect the health and safety of workers.
- Applying this principle to women: In Muller v. Oregon (1908), the constitutional authority of the
State to limit the working hours of women was deemed constitutional. The Court held that a
“woman’s physical structure and the performance of maternal functions place her at a
disadvantage in the struggle for subsistence,” and that her physical well-being “becomes an
object of public interest and care in order to preserve the strength and vigor of the race.” The
Court recognized the need to protect women against oppression despite her possession of
contractual rights.
- “The exploitation of a class of workers who are in an unequal position with respect to
bargaining power, and are thus relatively defenceless against the denial of a living wage,
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is not only detrimental to their health and wellbeing, but casts a direct burden for their
support upon the community.”
- The Court overruled that Adkins v. Children's Hospital and affirmed the judgment of the
Supreme Court of Washington.

Dissent (by Justice Sutherland):

- Arguing that the majority did not rely upon precedence, by overturning Adkins v. Children’s
Hospital.
- The right to contract has been settled by law and is no longer open to question. Thus,
contracts regarding employment of labor should also not be debated.
- Uses a textualist/originalist approach?
- Sutherland speculates that those who support the minimum wage statute believe that there will
be more benefits in favor of underpaid labor while those who oppose the minimum wage
believe that the minimum will become the maximum, thereby bringing down the earnings of
more efficient workers toward the level of less efficient employees.
- In quoting Justice Harlan in Adair v. U.S., Sutherland argues that there is an implied equality of
right between the employer and employee in making a contract, thus the government is not
legally justified to intervene. However, in most cases, the employer often has more bargaining
power over his/her employees, thus creating a disproportionate balance of the “right to
contract.”
- The Court previously ruled in Adkins, that there was no such thing as absolute freedom of
contract and that it was subject to a variety of regulations, i.e.: (1) statutes fixing rates and
charges to be exacted by businesses impressed with a public interest; (2) statutes relating to
contracts for the performance of public work; (3) statutes prescribing the character, methods,
and time for payment of wage; (4) statutes fixing hours of labor.

Terry v. Ohio, 392 U.S. 1 (1968)

Facts of the case: Three men were observed by a police officers who was “casing” a job.
- This case was the origin of the term “stop and frisk.”
- The police officer claimed that he had “reasonable suspicion” that the men were engaging or
going to engage in a crime.
- However, there was no probable cause that they were acting in a crime.
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- Officer McFadden however after searching Terry found a gun in his pocket.
- “Stop and Frisk”: entails a show of authority – Identifying oneself as an officer.
- In addition, a show of force – physically stopping someone.
- Directly after Terry, frisk included the search for weapons and drug.
- Issue at hand: Fourth Amendment – prohibits “unreasonable search and seizure.” Was this an
unreasonable search and seizure?
- The defense challenged the reasonable suspicion argument.
- Was there an unconstitutional acquisition of evidence?

Opinion of the Court (delivered by Justice Warren):

- The Court opined that the officer had “reasonable suspicion” that the individuals may be armed
and dangerous and that they would be engaging in a crime.
- “Reasonable suspicion” according to an experienced officer.
- The Court has deviated upon privacy rights regarding rights retained in your home versus a
public space. The Court has allowed the expansion of police enforcement’s authority beyond
the public space, to i.e. your car.
- The idea of “inadmissible evidence” was a judicial creation. Discoverage of illegal searches and
seizure.
- Even if the evidence is an illegal contraband and not a weapon as intended, that evidence is
admissible.
- Finding of the weapon turns the “reasonable suspicion” to a “probable cause” to arrest Terry.
-