This action might not be possible to undo. Are you sure you want to continue?
History of the Constitution
Declaration of Independence, Articles of Confederation, and the Federalist Papers: A. Declaration of Independence 1. Radical notion: authority to get rid of King and self-govern is “natural” and “godgiven” (rights are inherent, innate, and antecedent to government) a. Unalienable rights – cannot give up, cannot make foreign 2. Purpose of government (per John Hancock) is to protect the (these) citizens rights 3. Use of religious references invokes higher authority to justify reasons for revolt 4. Life, Liberty and the Pursuit of Happiness, taken from John Locke’s “Life Liberty and Property” 5. Can you understand Constitution w/o understanding Declaration of Independence? Should it be considered when interpreting Constitution? B. Articles of Confederation 1. Mutual defense treaty 2. No president or national court (i.e., no executive or judicial branch) a. Disputes resolved in state courts, may be biased to party from the state in which suit brought b. Needed executive branch to enforce the law 3. Regulated between states: trade, etc. (states were stronger than federal government) 4. Articles were ratified by states’ legislatures 5. Decided too decentralized and weak so decided to amend the Articles C. Constitution 1. Ratified over 3 years, state legislatures didn’t vote, sent to ratifying conventions made up of the people (Declaration: government gets power from consent of governed.) We the people, not we the states. 2. Technically unlawful (delegates sent to come up w/ suggestions for amending Articles to make it more workable, not creating a totally new government document) as it did not follow the provisions of the Articles of Confederation and b/c Ratified by people. Essentially engaged in another revolutionary act. 3. Legitimized b/c a. States are bound to the people, states get power from people, if we decide as the people to withhold some of that power from the states and create this new federal government, it’s w/in our prerogative b. Representatives there were there in the capacity as representing the people, not as government officials/legislators c. States gave up some power to federal government (as how Articles worked); people had given power to states, decided to take some back and give to federal government 4. Most people would argue that the adoption of the constitution was critical to the survival of the country: ability to tax to pay off war debts, regulate commerce (interstate rivalries – states were taxing each other) 5. Article One: Establishes the Legislative Branch a. Splits legislation into House and Senate: Senate more like the Articles of Confederation (each get two) Page 1 of 59
b. House Elected by People (# of reps chosen proportional to population), Senators Elected by legislature (by state, each gets 2) i. Madison defends this process as not just representative of the people, but representative of the states. Removed from people, passions would cool. c. §7 Divides the lawmaking powers of the house and senate; lawmaking (how to create laws); bicameralism (must pass House and Senate) and presentment (must be signed by executive) d. §8 Enumerated Powers (things Congress is allowed to do; will spend most of course here) e. § 9 Limits Powers of Congress (things Congress can’t do, despite enumerations of powers) f. § 10 Limits Powers of States (things states cannot do) 6. Article Two: Establishes Executive Branch a. Details President and VP; how elected and how long serve b. President does not make laws, just approves or vetoes them. c. Ensures the laws are faithfully executed. d. Commander and chief of military. e. Can make treaties, with approval of 2/3 Senate: so nation speaks with one voice. 7. Article Three: Establishes Judiciary a. Not nearly as much power as the other two branches b. Federal and SC c. See Marbury v. Madison 8. Article Four: Interstate dealings a. States and citizenship b. States recognizing legal actions of other states as legal in their own, ex. Marriage, drivers’ licenses. c. Access to records, K valid between states, ct ruling still valid (unless marriage – that depends on if goes against other state public policy) 9. Article Five: The Amendment Process a. 2/3 of both houses and ¾ of states must agree to amend the Constitution i. Because of concern over what groups of people might do if they get lots of power. ii. Requires consensus much like that which created the Constitution 10. Article Six: Supremacy of Constitution a. Aka: Supremacy clause b. Constitution and US laws/treaties are supreme law of land; all states bound (state laws that conflict are void) c. Grandfathering in treaties from Articles of Confederation (Constitution still recognizes them) 11. Article Seven: Ratification a. How Constitution comes into being b. Only mention of god in Constitution is in reference to the year 12. Amendments a. Note: class dedicated mostly to Amendments 9, 10, and 14 13. Bill of Rights a. Some people thought the Bill of Rights was going to be a problem, because it might be taken as a limited list of the rights of the people. Hence, Amendment #9 14. Declaration of Independence Page 2 of 59
a. Does the Constitution live up to the promises of the Declaration of Independence? DI safeguard liberty the way the bill of rights does? b. “All men created equal” c. Checks and balances bring certain equality d. Inalienable rights (life, liberty, pursuit of happiness) i. Exclusion of women, indigenous peoples and slaves ii. Article 1, § 2 a. 3/5 rule excludes indentured servants, slaves, indigenous b. For purposes of taxation, women considered free c. Reduces representation in the south so south wanted full representation (reduced the amount of direct taxes they had to pay, but then reduced representation) iii. Article 1, § 9: Slavery not prohibited (law won’t change for 20yrs) but can tax importation iv. Article 4, § 2: Slaves, indentured servants, criminals fleeing to another state can be returned to slave state v. Article 5: amendments to constitution a. Says can amend any part except cannot make amendments until 1808 for slave provisions 15. Is the constitution a pro-slavery document? a. Cognitive dissidence between extremely progressive document versus fact that slavery still existed b. Once of earlier drafts, Jefferson wanted to list encouragement of slave trade as one of crimes of King George (removed for political reasons) c. Deliberate inefficiency clearly built in (difficult to make laws); 1808 provisions suggest southerners were unsure how secure slavery would be d. All references to slavery were indirect
The Federalist Papers:
Factions: (addressed in Federalist Paper # 10) A. Not just informative essays about the reasoning behind the Constitution. B. Opinion pieces to persuade the people to ratify the Constitution. C. Particular group has an interest in a certain outcome. D. There will be groups that have unique interests. Cannot control this. The concept of the Federalist Papers was that with government being national, other interests will prevent factions from becoming dominant. E. Factions rooted in various and unequal distribution of property. 1. Are a natural part of human nature (selfish, look out for self interests; come in all sizes and combinations: economic, professional, idealistic, etc.) 2. Freedom/liberty automatically/inevitably results in creation of factions (passion and interests; liberty is to faction is what air is to fire) people will foster own abilities, have own interests (“sewn in the nature of man”) 3. Different categories: creditor/debtor, merchants/farmers, etc. 4. Unequal: class distinctions 5. Caused by “various and unequal distribution of property” 1. Does not mean disparity of wealth, can be different types of property (ships, land, etc.) Page 3 of 59
2. People are different – different skills, trades, businesses, etc.; essentially, special interests groups F. Can't prevent their formation so control their effects through competing factions, no one will take absolute control – cancel each other out. 1. Representatives help (less biased, broader view – but won’t always be enlightened) 2. Since can't just have representatives, setup government to allow ruling passion (majoritarian view) to give up interests to protect all citizen’s rights (act in interests of public as a whole) 3. Create separation of powers to lessen problem; 3 branches of government, each w/ own areas to regulate, that checks each other Checks and Balances: (addressed in Federalist Paper # 51) A. Want branches independent (separate powers, not dependent) B. Faction can't take over multiple branches b/c it takes more time and effort to take control 1. Separation of powers 2. Independence of branches 3. Easier to control factions in larger country than smaller one (harder to take control) 4. Staggered appointments, different groups 1. Senate (6yr terms, staggered every two years) 2. House of Rep (every 2 yrs) 3. Pres (every 4 yrs) 4. Judicial branches appointed (in most places) 5. Senate represented by state, House by population C. Horizontal Separation of powers between Congress, Executive and Judicial 1. Factions in one branch control each other, branches control other branches power. 2. Plays on the theory that individual self interest coupled with factional conflicts will keep politicians in check. D. Vertical separation of powers: Federal and State governments. 1. Compound Republic 2. States legislatures elect Senators. 3. Two distinct governments, not branches of the same. States retain sovereignty (dual sovereignty; both require sovereignty and authority from people) 4. Structural provisions of government a sort of Bill of Rights, designed to protect against tyranny. 5. Three ways that the federal government has exclusive domain over an area 1. Expressly granted to federal government in constitution 2. Expressly denied to states by Constitution 3. Something that "by its nature" the federal government has to handle 6. Did not address when state and federal governments cooperate (instead of competing w/ each other) 7. Taxation 1. States can tax the federal government if it is indirect, nondiscriminatory, and doesn’t unduly interfere with interstate commerce (requires federal consent) Page 4 of 59
2. Federal government can’t tax a state’s property that is used in performance of its basic governmental functions 3. See McCulloch v. Maryland (outline p. 7) 8. Some things (such as education) historically in the domain of the states 1. Note that 21st amendment, in repealing 18th amendment gave the states power to legislate their alcohol (almost specifically taking it away from the states) -- and State regulation of liquor is wider than constricted by commerce clause
PROCEDURAL LAW Establishing Judicial Review
Marbury v. Madison (p. 28) A. Jefferson elected. Madison Sec of State. J not deliver Marbury appointment approved by Adams before leaving office. Marbury seeks writ of mandamus. B. Job was rightfully Marbury’s (position served in terms, not at discretion of president, as opposed to a purely political appointment such as Secretary of State). Signing by Adams gave Marbury the right to the position as an individual and Jefferson had a duty to deliver the commission. C. Also, the laws do afford him a remedy 1. Government supposed to protect individual rights 2. Writ of mandamus is appropriate for the situation. D. However, SC says they do not have the jurisdiction to issue the writ 1. Case establishes judicial review (first time struck down state statute) 2. Political Act a. Not delivering position was political act, thus no judicial remedy b. There is a set of things that is inherently political, not about rights or policy. They are simply about self serving political interests. c. Not SC business to look at inner workings of the executive branch 3. Article III a. Congress cannot increase scope of SC jurisdiction (can subtract courts and jurisdiction) i. Can move from original to appellate jurisdiction, NOT from appellate to original ii. Act gave more judicial power than allowed by Constitution iii. Violates idea of co-equal branches of government b. Wrong jurisdiction i. Declared Judiciary Act of 1789 unconstitutional (excerpt of Act: footnote on pg. 26). Act grants SC jurisdiction to issue writ of mandamus to federal officials ii. SC says no, Constitution limits/restricts jurisdiction under Article 3. Act is beyond Art 3 b/c Congress cannot authorize original jurisdiction (as writs always are) – can only legislate appellate setup of courts iii. SC has original jurisdiction in cases effecting ambassadors, public ministers, and states which shall be party. All other Page 5 of 59
Constitutional restrictions must be adhered to (otherwise. must of necessity expound and interpret that rule. Alternate view 1. G. often pass legislation that they believe in unconstitutional. etc. what’s the point to following any written Constitutional limits. Constitution: supreme law of land. should be appellate for them to hear) iv. Congress can’t just go and add new powers for any branch of government and that is why is unconstitutional. not of men 6. Today pres. Congress supposed to uphold Constitution – if they can do what they want. Those who apply the rule to particular cases.cases are appellate jurisdiction. E. establishes ground rules. Not so much limiting the power of the court as limiting the power of the legislature to alter the Constitution. Most courts deal with jurisdiction first. the court still wouldn’t have jurisdiction. Encourages other branches not to pass unconstitutional legislation. and cong. 2.) – ours is a government of laws. Theoretically. thus overrides contradictory laws. Ruling allowed court to shoot at executive branch (in effect. no point in having (written) Constitution c. case cannot be taken to another court 4. the courts must decide on the operation of each. F. Judicial review keeps legislative branch in check (makes checks and balances official). If act was misread and Congress only meant to offer SC the ability to issue writs in appellate jurisdiction.” –Oliver Wendall Holmes (1920). Marbury could have sued in a lower court (case could have gone to SC again for appellate review) EXCEPT that b/c Act struck down.e. Uniformity of application of federal law one of the more important roles of the Supreme Court. If two laws conflict with each other. What about judicial supremacy……. Judicial review is not provided for in the Constitution – however. scold J) 7. And who would decide these issues other than SC? b. Federalists intended for judicial review to exist. Supremacy Clause: when can SC invalidate act of Congress a. “the buck stops here) 5. structure of Constitution assumes judicial review (who else would decide issues of supremacy clause than SC?) Thoughts on Judicial Review: “It is emphatically the province and duty of the judicial department to say what the law is.. Constitution should not be changeable by mere legislative will d. why did Marshall deal with it at the end? 1. Is judicial review necessary for our system of government? Would allowing the executive and the legislature fight it out radically transform our system of government? Does the Constitution actually say that a court can strike down a law as unconstitutional? Federalist 78 Page 6 of 59 . but wouldn’t have to have declared the Act unconstitutional. like state tariffs. (fit in outline someplace). does judicial review = judicial supremacy? (i. Enumeration view: only granting powers named in the Constitution. (SC cannot hear this case b/c original.
and must be regarded by the judges. they were just inviting the case to go back to the SC as judicial review had established that SC can rule on issues of constitutionality of laws. Martin appeals to SC. Note cases (p. Treaty d. Virginia: Same principles apply in criminal cases. US would not end if couldn’t declare and act of congress void but would end if couldn’t regarding state law H. not party to legislation b. SC finds for Martin and remands to VA court re re-rule per SC instructions 1. claims he owned the land and there was a treaty stating that Virginia couldn’t take the land and give it to Hunter. “In all the other Cases before mentioned…” 1. 51): 1. Can get to jurisdiction in several ways c. Constitution wins (Supremacy Clause) F. as well as the meaning of any particular act proceeding from the legislative body. declares certain points of the Judiciary Act is unconstitutional b/c it infringes on their state sovereignty – VA SC and state law is supreme) 2. not just civil law 2. Diversity case e. we’re not all living under same Constitution d. Ap Ct.) D. Foreign state subjects (Martin’s British) E. Issues: Can the SC override state courts on constitutional issues? Whose land is it? C. SC responds: 1. (Article VI) a. in fact. Constitution limits state sovereignty b. Art 3 (references Art 2). US Constitution is the Supreme law of the land. (Oddly. Martin gets his land back I. Federal question f. States took same oath to uphold the Constitution c.“Interpretation of the law is the proper and peculiar province of the courts. A constitution is. not a function of the court. B. G.” Martin v. Reverses. States can differ between themselves and have distinct laws (lack uniformity) (and states are still sovereign in certain areas) but otherwise. Article 3 says that jurisdiction is a function of the case. as a fundamental law. Cooper v. When laws conflict w/ Constitution. Aaron: SC segregated public schools unconstitutional. Board. Policy note/argument: Judges may be biased if one party if from the state and one is not. If there should happen to be an irreconcilable …. AK disagreed (failed to comply w/ desegregation order) a. AK says were not ordered to by Brown v. It therefore belongs to them to ascertain its meaning. They have jurisdiction – heart of the claim is lack of jurisdiction b. Cohens v. Hunter’s Lessee (p. Martin. Constitution can’t mean different things in different places e. 45) A. a British subject. saying something is unconstitutional applies to everyone Page 7 of 59 . Holmes (1920): Martin a more important case than Marbury. a. SC says idiots. Hunter claims the state of Virginia gave him the land. Trial Court finds for Martin. Virginia doesn’t issue ruling consistent with SC (says SC has no appellate jurisdiction.
and all means which are appropriate. Closure of first bank wrecked financial havoc (needed currency. Who determines what’s necessary and proper? 1. in first sessions of Congress. (enumeration argument) d. “federal judiciary is the supreme in the exposition of the law of the Constitution” McCulloch v. Also. 1. e. (original intent argument) 1. coin money. and tradition (fact is relied on) carries some weight g. U. clause in and of itself grants power to Congress rather than limiting it. Goes beyond Marbury (not just that SC can tell Congress laws unconstitutional – now. Many states – including Maryland – don’t like the idea so they tax the banks. 1.S creates second chartered national bank. was a lot of debate about bank formation at conception (already went over many of these issues). 1. they would know what they intended. which are Page 8 of 59 . SC reasserted power of judicial review B. as in other parts of Constitution. Clause located in section of Constitution that gives Congressional powers (Art. Maryland says this limits Congress’ abilities to those things which are absolutely necessary and can’t be regulated elsewhere. 2. Since they helped to create the Constitution. Sword and Purse tied together. refused to pay the tax. SC is ultimate authority determining constitutionality) d. Congress needs to create bank. regulate value. Issues that the court must decide: 1. Congress: clearly sanctioned by establishing the bank 2. (textual argument) c. so framers must not have intended it to be an absolute necessity. (really is necessary) f.c. Constitution not meant to restrict Congress from delegated duties b. Had been done before. Maryland sued 4. Madison? 2. TEST “Let the end be legitimate. let it be w/in the scope of the Constitution. They debated the Constitutionality of it at the time and decided it was in line with what they had drawn up in the Constitution. pay debts]. If the court doesn’t decide this specific issue. Maryland (p. So why didn’t this argument work in Marbury v. raising revenue. SC says Congress has the power to incorporate such a bank (Art 1. 2. collect taxes. And many of them were at the Constitutional Convention. money supply) 3. So. § 8) a. Marshall says necessary has many meanings and is no term “absolutely” modifying it. 55) A. McCulloch. not the one that limits it. bank cashier. “Necessary and proper” clause [“Congress shall have power…to make all laws which shall be necessary and proper. President: could have vetoed establishment of bank but did not 3. An additional enumeration. Court: now reviewing a. that the legislature is interpreting the Constitution instead of following it.opposed by many Jeffersonian Republicans as an unconstitutional extension of federal power. for carrying into execution the foregoing powers…”. §8). Bank is controversial .
Marshall dismisses the 10th Amendment argument that the duty should be delegated to the state because it has not been specifically delegated to the nation. When the Constitution doesn’t directly speak to something. Power to create entails the power to preserve. and say that prior to the Constitution they could tax the bank because prior to the Constitution no bank was allowed. “The only security against the abuse of this power. Bull p. In conflict between state and federal powers. just not the federal government (are sovereign but power is absolute – limited by federal government) 3. ends and means must have legitimate connection b. SC justified in departing f/ the text or interpreting it in certain ways when it reinforces representative government (structural argument) b. are constitutional. Can’t say that Maryland came first so its rights came first. federal wins 5. is contrary and hostile to the power to preserve. Ex. so they are being taxed without representation. we must never forget that it is a constitution we are expounding. Therefore. If MA allowed to tax something that’s federal in nature. SC gives deference to other branches of government (Congress enacted.” Could over tax and destroy the bank. which are not prohibited. Is this an ex post facto law? No. 1. Power is given by the people. states can try to block/repeal (through legislative avenues) 4. “In considering this question then. Also. “The power to tax is the power to destroy. other states don't have ability to control exercise of that power (allows each state to obstruct federal powers) f. the court should err on the side of representation.” ~Marshall. d.” ~Marshall. but consist w/ the letter and spirit of the Constitution. federal government gets to control it b/c we all have a say. document would be huge (traditional meaning argument) Calder v. A national interest. 69 A. Maryland isn’t loosing any rights. e. SC says states can NOT tax such a federally charted bank a. 2. States CAN tax generally (own state citizens). Supremacy Clause 1. The people of the nation did not elect the Maryland government. acting through the state and federal government 2. is found in the structure of the government itself”. c. president signed) h. Constitution grants powers AND sets up structure that constrains powers (so are not abused) 6. interpret Constitution expansively 2. when wielded by another hand. Were it not for the Constitution there would be no bank to tax. the power to destroy. w/ national control. The people of Maryland are imposing a tax on the entire country.plainly adapted to that end. If Constitution answered all questions. Page 9 of 59 . Of legitimate ends: to pay off national debts from war.
even I knew how to choose them. These rights constrain the legislature and supersede government laws E. THEN ratified by ¾ of sates 2. Some limits to what can be amend a. 3. Gives too much power to judges. Can’t deny a state its equal representation in the senate Page 10 of 59 . we don't know what they will do (are more likely to agree about what Constitution says b/c is written than we are about natural laws that are abstract) Constitutional Interpretation: Originalism – fixed meaning of the Constitution. constrains judges. write it the way the majority wants” ~ Justice Antonin Scalia A. 4. which is enforceable against the states even though they are not in the Constitution. C. Natural rights are a higher power that has to be answered to. Overrides court interpretation by changing Constitution. by God. not necessarily written) 1. Nothing to constrain judges’ discretion. An “unwritten Constitution” of natural law. Fears that people might disagree on the interpretation of natural law. Long and difficult process. Amend Constitution 1. preexist government. which I assuredly do not” ~ Judge Learned Hand “[If] the courts are free to write the Constitution anew. House and Senate must both support by 2/3 OR 2/3 of the states can call for Constitution Convention. in fact isn’t even a law) 3. Judges have power to strike down enactments b/c natural law is part of the Constitution. Declaration of Independence: “All men… are endowed with certain unalienable rights…” 4. If judges are given this kind of power.B. as there is no fixed standard. Power of legislature given by the people 2. 2. Fears Constitution will be usurped by natural law. 4. Make decisions based on moral judgments rather than constitutional ones. 5. Courts don’t have power to strike down such a law 3. they will. See pg. Highlights different forms of Constitutional interpretation. Justice Iredell – Does not support natural law. 1. Law that contradicts natural law is not law (courts have to strike down. difficult to implement. Justice Chase – legislature cannot exceed their authority beyond natural law (rights inherent to people. Is Natural Law included in interpretation of the Constitution? D. 685 Natural Law – moral order that pre-exists government Moral Arguments – representation reinforcement Tradition – common law and precedent Shared understanding – popular will of the people Controlling the Court: “For myself it would be most irksome to be ruled by a bevy of nine Platonic Guardians.
more of a personal choice. Military arrests him for libel. (McCullough) US v. Congress determines what kinds of cases courts can hear and establishes lower federal courts Ex parte McCardle (p. disturbing the peace. Court does not have power of judgment enforcement on its own E. During reconstruction. etc. While Congress always threaten to take away jurisdiction. Allows for influence on future court (not lots of control) 3. Popular Opinion 1. Being run by military (martial law after Civil War). (ex: Souter. with such exceptions granted by Congress. Prior to SC decision. they make sure there is some jurisdiction left) C. senate advises and consents. Impeached but not convicted. 4. Slavery and apportionment of taxes could not be amended until after 1808 B. Impeachment 1. Taking into account what the public wants. B. 2.b. Protests. Congress repeals Act (the new one). Popular opinion will check an over-zealous congress D. Limits to Congressional power to limit jurisdiction: if not within Art. so retained seat. 2. government has to produce M and bring charges against him. Note case: Ex parte Yerger also challenges reconstruction on habeas corpus (filed under original/older habeas corpus act so SC had jurisdiction over case) F. Probably does not have much direct effect. SC ruled that Congress cannot tell SC how to rule B. too) E. Southern states treated like conquered countries until readmitted to union. “Cases” and “Controversies” (listed in Art III) are further limits on court power Page 11 of 59 . etc. president can’t be sure that justices will vote the way they want to. III to begin with. they rarely do so (if/when they do. courts have appellate jurisdiction. Congress cannot grant it to the court. although threat of impeachment can influence decisions D. 3. Imperfect means of controlling the courts. SC now cannot rule because no longer has jurisdiction. overriding a presidential veto because they did not want the question of constitutionality of reconstruction before the court. 78) A. Judicial Appointments 1. McCardle writes for newspaper against reconstruction (challenging constitutionality of Reconstruction). Klein (p. C. Jurisdicitionalism 1. etc. Does Congress have the ability to limit the jurisdiction of the court? See Ex parte McCardle 2. Can change numbers of justices.) C. O’Connor. SC had subject matter jurisdiction to hear case under the statute D. Only one justice was impeached: Samuel Chase. President nominates. Judges hold their offices during good behavior 2. “The Supreme Court follows the election returns” 4. 3. 82) A. Not a very prominent or commonly used check. to challenge incarceration. Judge has never been removed. M petitions for a writ of habeas corpus (under Congress’ 1867 provision). Exceptions must be enumerated (Art 3 jurisdiction not enough – need law granting jurisdiction. Under Art 3.
Useful b/c: 1) judicial restraint. 3) promote individual autonomy/self-determination (person injured only gets to sue) 4. 1. larger issues). person actually w/ a stake in controversy should bring issue forward 2. Hinder desegregation process: This continued exemption encourages the schools to continue to be segregated (slowed desegregation process. Su esponte D. policy means there will be more discriminatory schools) 3. Further you go in the case.) Standing: TEST: to determine standing. absent a controversy. Can only rule on constitutionality of a law when a specific case has been brought before them. Separation of power principles (relate to policy) 2. SC cannot issue Advisory Opinions 1.Case or Controversy (limitations on court): A. third party cannot sue for someone else (close family might be OK). IRS refuses to revoke tax-exempt status of segregated private schools. Redressability (must be likely that the injury will be redressed by a favorable decision. parents of AfricanAmerican school children sue IRS for policies that hinder the desegregation efforts (wanted IRS to revoke tax-exempt status). have to show more and more standing (requires more evidence) b. so courts lack agenda control (legislative and executive branches can address whenever they want) 3. Court only resolves what it has to (not other. Constitutional limits (Art 3): two general types i. Causation (causal connection between injury and conduct complained of) c. Injury in fact (an invasion of a legally protected interest which is concrete and actual/imminent) b. Failure to enforce: IRS failed to enforce federal law stating that racially discriminatory schools are not eligible for federal tax exempt status 2. court cannot give opinion 2. minimal (not grand pronouncements about how the world should be). Art III standing and Prudential standing (reasons why courts may pass on the case) ii. Wright p. Court cannot advise other branches of government C. charge: 1. vindicate individual rights in the case B. Have to have a cause of action.” see Allen Allen v. Cannot waive standing b/c it’s part of establishing jurisdiction a. Standing Requirement 1. Stigma: P harmed directly by the mere fact of discriminatory schools – desegregation is not going to happen. Article 3 frames judicial power in terms of cases and controversies. positive result w/ direct effect on P) 3. Political Questions (outline p. 87 A. court must “ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. 2) resolve concrete disputes. that government is involved w/ segregated schools is an associated stigma that is itself an injury Page 12 of 59 . Elements a. Court cannot initiate issues – has to actually have a case.
2. P must be among the injured. Court Rules no Standing. but still has standing (like contractor case) B. Causation: Further. Both institutions are governmental so gives Constitution violation basis C. women cannot prove that these government agencies actually have an impact on these animals in the wild. 3. P can’t prove would have gotten into med school but for the program. anyone w/in the stigmatized group could bring suit C. does not mean anyone can sue. other institutions can discriminate w/o violating the Constitution (may be violating federal law. Redressability: carrying out their wishes may not fix the problem a.B. Constitutional rules ONLY apply to government institutions – unless pass a statute that says otherwise. 92) A. Lost opportunity to go (or at minimum. As for standing. would like to go again B. that their children were discriminated against (stigma is not a sufficient injury) a.) Friends of the Earth (supplement?) A. 3. No guarantee that AID and other organizations involved would have to follow the directives of the Secretary of the Interior. personal harms (will not have the opportunity to view and enjoy these endangered species in the future) 1. Court does recognize general and social harms of segregation. (Although according to Adler. ID’d specific projects receiving federal support that may not get money b/c of this change and ID’d specific species harmed by projects 2. nor did they allege. Injury: the women cannot prove injury in that they have no concrete plans to go and see these animals so they cannot prove that they have been personally harmed (like Bakke. even though congress intended all people to be able to sue. there was no detectable difference in water quality Page 13 of 59 . but states that these are not enough injury to hold standing. it is unlikely that this would be the case. Bakke (supplement?) A. Court Rules they have no standing because: 1. argued lost opportunity – at least diminished) a. P alleges decreased chance of getting in – certain spots set aside so he’s not even able to compete for those spots no matter what he did (he did apply and was denied admission) D. If court had held they were injured. Fish and Wildlife Services changes policies (section of Endangered Species Act no longer applies overseas). Have seen these species. There was no causation: not direct enough a link between IRS action and discriminatory policies of schools. Just b/c congress says anyone can sue. because: 1. Despite company violating law. is not enough. Need more than an ideological interest for standing (plane tickets could symbolize that there’s more at stake than simple mental harm) b. DW files suit that includes two people who allege direct. Defenders of Wildlife (p. but not the Constitution) UC v. cites Marbury (just b/c all injured f/ government not enforcing the law. There was no direct injury: the P’s furnished no proof. his opportunity was diminished) Lujan v. does not = standing) 2.
much like the stigma in Allen. Article III: satisfies all three criteria. does not have prudential standing a.e. Rhenquist have to recuse himself. isn’t enough for standing (when we share harm w/ many other citizens) because we are all tax payers. being a taxpayer and thinking that the government isn’t spending tax money properly (even if government violating the law). it essentially reduces the courts opinion to an advisory one. violates constitutional provision. If house passed law and senate has not passed yet b. I. just thinks they should not hear it (not prevented hearing for any Constitutional reasons) 2. abortion. Not particular enough. takes more time to get through system than to carry to term. There is a harm. there is a genuine Constitutional issue at stake. P no longer has stake ii. In both of the above cases. it’s over. No case or controversy b/c of passage of time (maybe law repealed) iii. must have actual harm. do expect that if company is complying then are safe and people can rely on that safety. Actual litigatable occurrence is too far off. Cohen: only case where did get standing. If not actual harm and thus no standing. because of time sensitive nature of claims. messier) B. Bar against speculative or remote claims/government policy v. if company violates permit violations. injury is in the future iii.” 1.) A. Rightness – case has been brought too soon. Exception: “capable of repetition yet evading review.) D. B.. will be other pregnant women in system (all w/ same time constraint) Page 14 of 59 . but it is not particular to the plaintiff. Must have actual case. Newdow (supplement p. The actual occurrence is too far in the past. i. Newdow’s daughter and mother (who has primary custody) don’t mind saying “under god” (custodial issue adds a wrinkle making the case less clear-cut. he’s not vested w/ right to appear in front of court on her behalf. (Officer in reserves elected to congress. ii. relationship w/ daughter – her saying it injures him C. As a general matter. Means the Court has power to hear case. Court cannot issue an advisory opinion.B. RSW and US v. Think of standing in terms of advisory opinions. He can’t vindicate daughter’s rights. (Stretching the court’s role too far. were specific individuals living in the area w/ specific claims. i. Worry about being prosecuted when you probably won't be iv. Mootness – case brought too late. thus. Not actual or imminent injury. Richardson A. asserting First Amendment violation means as a practical matter you are more likely to get standing E. Court still does not want to hear case b/c state law gives final decision 1. would otherwise evade review. assume people w/ best standing are pregnant women. Flast v. But those who brought claims had no specific harm. Friends file affidavits from people living near water. their subjective fear is reasonable C. don’t expect people to test the water themselves) EGUSD v. but doesn’t factually harm person who files suit. Ripeness and Mootness (think of R and M as “standing in time”) a. either Newdow would have split the court in half (thus deadlock and state ruling standing) or ruled against him (probably not have won outright) Taxpayer Standing: Schlesinger v. For actual case. Non-tangible harms can be real injuries (don’t expect people to be chemists and other industry experts.) C.
SC has to take case if they have jurisdiction (no choice) Certiorari o File brief w/ SC requesting that they hear the case o Not mandatory for SC to hear case – SC chooses to take by at least a vote of 4 (does not have to be a majority) Standing o If SC says there is no standing. in urban areas).. if act Constitutional or not. i. state passes law banning shotguns Independent of federal question and adequate: fully supports judgment (same outcome if case overturned or not) • Makes entire ruling dicta Even if involves a federal question Statue disappearing is the same outcome b/c state law does not change?? Has to be some basis in state Constitution/law Political Questions Like standing. in violation of state law. one vote” (violation of equal protection clause of the 14th Amendment) B.e. Carr (p. despite dramatic changes in many areas (esp. 112) A. another the opposite Court does better job answering question if there’s been more discussion around the issue o Federal statute struck down “Independent and adequate state grounds” o When SC looking at case o If judgment below has independent state grounds. certain matters not for court to decide) Vested legal right v.. Court should occasionally pass on a case o Some branches of government get to act in certain ways and are responsible for making sure Constitution not violated (either way. for true appellate jurisdiction. Tennessee was not reapportioned districts in over 50 years. political question Baker v. Recall Marbury.e.2. Separation of power. dropping charges against person to keep case f/ being heard SC Jurisdiction – when will SC take a case? On Appeal. enactments by congress b. If characterize case under one of the below 6 categories = a political question Page 15 of 59 . What constitutes a political question? Issues that deal w/: a. foreign relations. war (dates/relations). political questions are an issue of judiciability What makes a political question? see Baker C. case brought under violation of “one person. then there never was (wipes out contrary rulings of lower courts) o Some argue that is OK for Court to maintain control of own agenda – to pick and choose cases SC will almost always take a case when: o If there’s a circuit split Lack of resolution/uniformity – one circuit court rules one way. SC has no jurisdiction o I.
Are certain decisions. Nixon: Impeachment of judges. Disrespect to coordinate branch 1. Difference between pure policy decisions of congress and judges 4. Trespass claim. cecessation of hostilities in war 3. What about Luther v.c. don't want courts making decision based on policy choice: want policy choices to be made by congress iv. §4. Coleman v. In our system. Agents say that they were government agents and thus have immunity. Borden a. we don’t do politics. b. Impossibility of non-policy decision 1. Maybe are cases that can't be heard w/o mucking in affairs of other branches. Why can’t court hear case about whether these people broke into the home under government authority but can here about the voting rights? i. No bright line. which does not give the courts a clear standard on which to judge. Miller: Court cannot decide how long amendment can remain open before ratified. textual commitment: congress given authority to try judges (therefore not a court power) ii. Justice Frankfurter dissents on the basis that this looks like a Guarantee Clause Argument in disguise. Many government acts taken into question vi.e. need to be upheld 2. a. Going after treasonous person. No other Constitutional questions to pull it into Federal Court ii. Concerned with federalism. Borden? a.’ Court needs to avoid political entanglements b. art. IV. That includes entanglements with the states. not courts) 2. c. Need for finality in prior political decision 1. fair amount of overlap between these) i. Difference between Textual Commitment and this: if courts are to resolve this issue. as dictated by Constitution 2. Therefore. Luther v. the clause itself is nonjusticiable. I. In this case. He is arrested and detained. would require too much work/effort/meddling by courts 2.. Nature of what courts do – not institutionally well suited for addressing/dealing w/ iii. the Equal Protection Clause is justiciable. Treason was charged on the basis of the fact that two opposing political factions were vying for control in RI. once made. 118 Page 16 of 59 . In Baker v. Lack of judicially manageable standard (lack tools to handle) 1. TEST (in decreasing order of importance. appeal was under the Guarantee Clause. D. Issue of consistency for courts – supposed to follow “rules” 3. Bandemer p. left to another branch b/c Congress initiates amendment process 3. Textual commitment to another coordinate government branch 1. Court won’t hear case because it is a political question. Someone else’s job. Ad hoc decision making (is ok for congress. Dispute in RI. w/o suggesting other branches cannot operate w/o court meddling/approving/supervising v.. Davis v. Potential for embarrassment/confusion C. Carr. Similar to previous 2. ‘We do law. iii.
Thus different termination procedures could be used for different treaties. Does not matter if is unconstitutional. (p. decision and remand Page 17 of 59 . issue is whether case is nonjudiciable (i. ii. SC still could not do anything b. If Senate wanted to “try” Nixon by tossing a coin. Justice White states that due to Baker v. Found it unseemly in terms of reviewing the Senate’s job. (argued that wd “try” in Constitution required proceedings to be in the nature of judicial trial) B.” G. Must get the court’s permission to hear the appeal. Gore brings suit • Trial court rejects Gore’s complaint. SC reversed stating that: i. C. 1. where as it takes 5 to make a decision. U. Although the Constitution outline ratification of a treaty it did not address the abrogation of a treaty. Carter (1979) a. 121) A. Sole power of Senate – therefore Senate’s job to determine the meaning of the word “try. or a lack of judicially discoverable and manageable standards for resolving it. Suit on Art. involves a political question—where there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department. But case was heard. Gore (in supplement) • Issue of recount. because the claim is purely political. interfering with another branch’s powers as specifically designated by the Constitution.e. Secretary of State certifies the results without the finish of the recounts. Court finds this is a political question: the word “try” is too opaque to be ruled on. all 4 counties extended time for recount (2 counties still did finish). US Dept. they didn’t “try” him. Goldwater v.” E. It only takes 4 votes to take a case. Plaintiffs loose on the merits – no violation of EP clause. iii. a.S.. So even though whole senate impeached him. “A controversy is nonjusticiable—i. not whole Senate. Federal Judge impeached. §3 saying the Senate did not “try” him b/c only committee viewed evidence. Thus the issue is one of political question Supreme Court Jurisdiction: -Certiorari. Rehnquist suggests impeachment is the only governmental check on the judiciary a. Gore sought recounts in 4 heavily Democratic counties. Ct. Such a decision is of course very different from determining that specific congressional action does not violate the Constitution. Issue: Can the president unilaterially terminate a treaty w/o approval of Congress? b. Political question? It is unclear.A. D. Carr the court can hear questions about districts and therefore it is justiciable. Court of Appeals found that president did have the authority to unilaterally terminate c. a court acknowledges the possibility that a constitutional provision may not be judicially enforceable. Justice O’Connor doesn’t believe that it is possible to determine and construct districts in a manner that is fair to everyone.” D. of Commerce v. Defendants are accused of gerrymandering – drawing district lines to ensure that their candidates will benefit. political question) F. C. Montana (1992): “[When] invoking the political question doctrine. B.e. Bush v. Nixon v. not standard appeals. FL Supreme Court reverses • US Supreme court intervenes twice o Vacate FL S.
E. Marshall defines “regulate” as to proscribe the rules and make regular (and enumerated several areas that should be left to the states – bottom of p. a number of Electors…” o FL S. required this Court to hear this case. Ogden p. Congress may regulate interstate commerce. F&L license Ogden to operate a ferry between NYC and Elizabethtown Point NJ. let alone to issue a stay that stopped Florida’s recount process in its tracks. or practical concern related to legal questions. movement of goods/svcs/money/etc. C. Marshall asserts navigation is understood to be part of commerce d. Miami-Dade recount that was not finished was going to be concluded o 4.Ct. Lack/variation of standards (in the various precincts) to determine the intent of the voter o 2. is necessary to regulate streams. 143 A. Scalia.” Powers of Congress: Commerce Clause Gibbons v. Court tries do define “commerce” a. Traffic. says G violated the NY statute. NY legislature grants sole rights to waterways in NY state to Fulton and Livingston. 145).• • • • • • o FL S. The congress shall have power…to regulate commerce w/ foreign nations and among several states… b. issues another decision with technically the same outcome o Goes back to the US Supreme Court and the Court reverses for a final time Questions to think about: o Did SCOFLA order violate Equal Protection Clause? o Did SCOFLA order violate Article II? o Was the case justiciable (did it present a political question)? o Should SCOTUS have taken the case? What was the basis for the equal protection claim? o Standard for determining the vote is what was the intent of the voter o 1. Gibbons operates a boat on same route (licensed via federal act). Thomas: o Article II: “Each State shall appoint. Ct. etc. Overvotes were counted in some counties and not in others o 3. So what remains beyond Congress’s reach? Page 18 of 59 . case would have been ruled a political question Justice Breyer’s argument: “no preeminent legal concern. Commerce clause: Congress granted the rights over commerce by Constitution. Granted injunction by state court. O sues. rewrote legislative statue by extending certification date o “Textualists” judges very concerned about FL S. intercourse between states. B. c. as they go through multiple states e. ignoring text of legislative statute Had Bush v. in such manner as the Legislature thereof may direct. Gore been prior to Baker. Further. No clear way to object to the application of incomplete standards o These 4 things in combination rise to the violation of equal protection o Note: 7 of 9 justices found there was an equal protection violation The equal protection claim is where the holding of the case comes from Rehnquist. Ct. Can Federal Act overrule state statute? Does Congress have the right to create this act which asserts jurisdiction over waters w/in NY? D.
or >16 and work certain hours. purpose. the labor and production is over and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control. Explicitly overturns Hammer and portions of Schechter (goods bought and sold are commerce) Wickard v. Act does not regulate the commerce between states. v. Dagenhart (Child Labor Case. Ames (1903) lottery case lottery/gambling bad so statute ok (state can allows bad things w/in their own borders.S. This is not the problem of the federal government. U. Acting upon an object before it becomes an object of international commerce also not allowed. Does it also include limiting commerce (see Hammer case)? b. Dissent: (Holmes) ultimately. you’re just regulating commerce (does not care about child labor). “The goods themselves are harmless [When] offered for shipment. Meddles in local matters (under Gibbons. and before transportation begins. Father of 14 and 16-year old factory wk. as long as you’re in the realm of commerce regulation (don't care about intent. 1. Congress can only regulate things between states – not w/in) • A. contest Act unconstitutional and got injunction. then congress has no power. • (significant split evolving into where line between manufacturing/production and commerce breaks down begins w/ NLRB v.a. Intrastate commerce. (1936) not interstate commerce (regulation of manufacture – what pay employees – is not commerce) • Carter v. Darby (1941) minimum wage requirement for interstate commerce upheld. Completely within a state ii. Knight (1895) SC strikes down statute regarding sugar manufacturing (manufacturing is not commerce) • Champion v.L. E.” D. Limits: i. Hammer v. 149) Page 19 of 59 . Filburn (p. 147) A.S. b.S. Carter Coal (1936) mining (manufacturing) is not interstate commerce. goes beyond commerce clause) c. 2. Does not affect other states iii. And is not necessary to interfere. etc) just care about effect of regulating commerce From Hammer to Wickard • U. Court ultimately finds statute unconstitutional a. p.C. (to what extent should SC second-guess legislature) E. Court rejects argument that allowing child labor unfairly prejudices non-child labor states by increasing their costs. Jones & Laughlin Steel (1937) upholds prohibition for firing employees who joined unions. Under commerce clause. Jones) • NLRB v. Schechter Poultry v. v. Congress enacts the Child Labor Act prohibiting interstate trade of products made in factories that employ children < 14.A. C. B. Regulation includes promoting commerce. Court says that labor in this huge company affected interstate commerce enough for it to apply (more expansive interpretation of clause) • U. state specific regulations that do not affect other states. but the employment practices.
When F produces more bushels. Not an economic activity Page 20 of 59 . undermines regulatory scheme d. v. Congress has right to regulate not only supply for wheat but also demand. Channels of interstate commerce b. stating they are not allowed to discriminate against clientele. Court says this has nothing to do with commerce (even though Lopez was gun courier and guns are objects of interstate commerce – metal from one state. United States: Loan Sharking made federal crime under same theory (aggregate of all loan sharks has larger impact together on national markets) Heart of Atlanta Motel v. trivial use b/c so small use/amount b. Argues no commerce b/c was sort of manufacture/production that never left his premises (not buying or selling wheat) C. why not prohibit sale of drugs f. If people don’t think they can eat or sleep in places when traveling. All illicit drug laws are based on commerce clause Post Wickard: Maryland v. Link too tenuous (not commercial/not economic)– exceeds scope of commerce clause b/c a. Court says act still applies. etc. Allowed to prohibit lottery tickets. given by friend (so no commerce). Activities having substantial relation to interstate commerce (“substantially affecting commerce) C. P. a. there’s more of a market (more chance that folks will sell) g. McClung: Challenges to Title II of the Civil Rights Act as it applies. he lowers his demand b/c he does not have to buy from other farmers (if all farmers only grew allotment. Filburn produces more bushels than his quota.S. U. does not overturn Wickard (Activity that’s subject to sanction here is an economic activity – whereas Wickard took himself out of the market) U. won’t travel. Government says letting her go will then have to let others go which ads up to large aggregate population. 186 A. 183. Not bought. Gun Free School Zones Act based on commerce clause. TEST: 3 main reasons for Congress to regulate commerce a. etc. Undermines government program if all milk producers grown own wheat c. Lopez p. If allow anyone to have it.S. Agricultural Adjustment Act sets quota for wheat production (to inflate wheat prices by regulating quotas). but uses them to feed cows. Compare to marijuana sales (for medical use) a. Federal government under commerce clause should not regulate consumption c. Filburn has dairy farm and grows wheat for his cows and family B. Wickard precedent says cannot use the drug e. Wirtz: Court upheld regulation of wages and hours of employees (any enterprise engaged in commerce is a commercial activity and Congress can control). 184. Instrumentalities/persons and things in interstate commerce c. D. Act is argued on substantial affect theory. Perez v.) B.A. all have to purchase) b. Wickard theory of effects. made in another. and Katzenbach v. control of drug too hard when let some people get off. Provision regulates motels and restaurants that use or accommodate interstate commerce (travelers or supplies). Any and all commerce not just interstate commerce. Schools too far from commerce b. Need to stimulate trade – personal growth reduces control D.
gives Federal Civil Remedy stating that gender violence affects interstate commerce. if voters don’t like idea. Presidential veto: elected by electoral congress (on state lines) b. Should the courts police the Constitutional boundaries of federalism B. Thus. Dislikes the aggregation principle: It’s clever. so Congress should have the right to restrict them anywhere. Enough structural safeguards to protect states D. is incompatible w/ idea of judicially enforceable line Concurrence (Kennedy): broader theory of commerce regulation. G. F. then the SC can’t take it. Rehenquist says: Gender motivated crimes of violence are not [economic] activity. Dissent (Stevens): Look at potential federal of interests affected. because women are less likely to travel to states where there are high levels of violence against women. be some activity that’s not an economic impact but court has never reached so far iii. Schools generally left to states.S. Members of Congress. Guns are articles of commerce and can be used to restrain commerce. Congress decides what relates to Congress. 155): Judicial review not necessary b/c are other structural safeguards a. Congress has power to legislate anything that has to do with national economy. Senate: used to be voted by state legislatures i. in theory. Enumerated Powers: F. Are the protections of liberty based in government structure or explicit guidelines? H. Thomas is about 3 opinions from selling himself back into slavery. always question of degree b/c no bright line) d. wheat and commerce) – but ultimately not important (go straight to activity – is economic or not. H. Breyer thinks there’s economic impact from DV but court does not care Federalism and Judicial Review: A. Concurrence (Thomas): Commerce applies in the most limited ways possible.E. C. Can be seen as function of how many steps (too many between guns and commerce vs. May. you can argue regulation of everything b/c everything affects economics) ii. Bill of Rights G. won’t reelect representatives Supreme Court does not have the right to hear state cases when the state court has ruled on an issue that is independent and sufficient to the state. B. why have enumerated powers) a. b/c multiple studies have shown that education has a huge impact on commerce. become part of the federal government b. Balance of roles between states and nation. Guns in schools can affect economic activity but is not an economic activity itself i. Electoral college not enough pressure on the president E. Cannot let argument take aggregate into account (otherwise. (If there are state Constitutional issues that are sufficient to rule on the case. Violence Against Women Act. 197 A. v. c. It’s Congress’ decision and voters have a way of dealing w/ screw-ups C. Should the Courts police the Constitutional Boundaries of Federalism? Page 21 of 59 . Morrison (Note Case) p. Also. not proportional segments of the population c.) U. once elected. but has no stopping point. Blackmun (p. Commerce Regulation should be VERY limited (if have broad interpretation. Rational basis test: Could a member of Congress who wasn’t smoking crack come to this conclusion? Yes. Powell disagrees a. Senators represent states. a. Dissent (Souter): We should be careful when overriding the legislature.
i.S. Court recognizes Congressional treaty power under the Necessary and Proper Clause. Butler (1936 – pre Wicker) (p. a. But are cases in which Congress could cross line. Court upholds Act. pursuant to another treaty. ii. Has to be some interest that can only be protected by international intervention (treaty rights cannot be used to restrict rights given by Constitution) D. C. such as cotton. If US just enacted protection of birds in US. Congress then enacts law to protect migratory birds with respect to the treaty. Art. some justices upheld under treaty powers would not agree under any other congressional powers (i.Treaty and War Powers Missouri v. Could Congress.. “But for the treaty and the statute there soon might be no birds for any powers to deal with” ii. 209. commerce clause) Taxing and Spending Powers: Referred to as the greatest powers (also controversial). crossing state lines is not enough (guns not from TX where case was) b. Pre-wicker case (before SC said Congress can use taxing and spending to regulate. with respect to the powers of the states. When an Act of Congress could not do so unaided. keep in perspective – this is 1920. Common pool resource is the birds iii. also. B. duties. a. signs treaty with Britain to protect migratory birds. Evidently. U. imposts and excises. Issue of whether this infringes on States’ 10th Amendment rights. no. Processing farm products was taxed to create a subsidy fund to pay farmers to grow/harvest crops. Is this tax on the process Constitutional under the taxing and spending clauses of the constitution? Page 22 of 59 .e. tax has to reasonably relate o Regulatory scope w/ in the scope of the commerce clause Bailey v. enact/adopt laws regarding gender motivated violence or gun control in schools a. §8. 203) A. Congress has power to do what is necessary and proper to implement a treaty. court strikes down much federal legislation that today would be OK. Canada will shoot them all. Limits on the treaty power: i. government say how much can grow) – 1937 the magic year – nothing struck down since B. v. C. Note: used slightly different language (Constitution took on international responsibilities – treaties – from previous government). resources are not inexhaustible (change in perspective – used to think would never run out) b. Drexel Furniture Spending power: Congress has power to lay and collect taxes. Act similar to one was struck down as beyond commerce clause few years earlier. Congress cannot infringe on the rights of the states regarding treaties. 1. Power to implement treaties is a matter of national interest related to power of the senate to make treaties. pay debts and provide for common defense and general welfare of US U.S. Holland (p. I. In this case.) A.
B. how does the statute here apply? Is it to promote the general welfare? Madisonian view: Clause is reference to the other powers enumerated in subsequent clauses in the same section. Though likely to induce states to do this. Dole A.To hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. Federal government is taxing firms for unemployment benefits. States also have programs. “Nothing in this case suggests the exertion of power akin to undue influence. Hamiltonian view: Clause confers power separate and distinct from those later enumerated. Must not be used to coerce action left to state control. cannot use taxation power to regulate it. Self-regulation. In practice. 1. “The petitioner’s contention…confuses motive w/ coercion. Conditional spending: that subject to meeting a condition iii. Cardozo says no. So.” d. Because the companies are getting taxed anyway. “Patriotism of Congress and the Executive” 1. a. If Congress wants to encourage participation by granting or withholding money. b. but if they pay a comparable state tax. this is clearly related to the general welfare. Roberts likes the Hamiltonian view: anything for the general welfare is fine.” c. Limits and restraints would include those laws which are ludicrous. During the Great Depression. Davis (p. G. if we assume that such a concept can ever be applied with fitness to the relations between state and nation.. Congress shall have the power to lay and collect Taxes. c. Therefore. a. but is simply a reason to tax. so it makes states less hesitant. “noble” instincts of politicians. but not something that regulates. the federal government is essentially subsidizing the state programs. Companies must pay federal tax. not expanding. Basically an incentive for states to set up programs. they get a rebate from the federal tax program. Therefore taxation is no different then subsidization. Duties. 215) A. it’s OK South Dakota v. D. C. a. Cannot use taxation as to an unconstitutional end.. Threat of loss is different than offer of gain (offering money not coercive) 2. SC is not the only branch required to consider Constitutionality of acts Stewart Machine Co. Is a limiting clause. “National” purpose ii. Congress could not directly go out and regulate wheat production. it is not. According to Roberts. Stone Dissent: Congress is seeking to stabilize prices for agricultural products. Three Constitutional limits i. i. It is conditional spending. conscience 2. to pay the Debts and provide for the common Defense and General Welfare of the United States. Does not force states to start program. No taxpayer coercion. b. a. NOTE: this case helps interpret all that follow Page 23 of 59 . Imposts and Excises. E. it is not coercive. Challenge on issue of coercion. v. F. Coercion could be a problem but this isn’t coercion b.D. the general welfare provision does not apply to all actions.
states have to KNOW theyre doing it) c. Conditions cannot be coercive F. Cannot use enumerated powers to in infringe on states’ ability to exercise core state responsibilities (can set limits for employees in general. Not coercive. Blackmun says test is arbitrary and that the manner in which the interests of the state are protected from the reach of Congress is through the Commerce Clause. Unambiguous conditions. all employers must pay all employees at least X). as the law stands today. nature of sovereignty) Garcia v. Meets all of above tests except for relationship clause – depends on opinion d. integral or necessary” nature of government functions. Conditioning highway funds on 21yr old drinking age c. states don’t get a “pass” just b/c they’re a state E. has to be some relationship between purpose of the money and the condition d. not for police officers specifically – Garcia overturns this idea) D. This case overturns Cities.. D. are waiving sovereignty. Congress wants drinking age raised to 21. government can't condition receipt of money on unconstitutional conditions (usually comes up when money goes to an individual. Has to be for the “General Welfare” (legislature needs wide berth here – if passes both houses of congress and signed by president. it’s for the general welfare) b. court does not draw line here (regarding impermissible or permissible conditions on spending for regulatory affects) Implied Limits of Congressional Powers Should courts enforce “external” limits the same as “internal” limits? “Enumerated Powers”: referring to limits inherent in the grant of authority itself Are there external limits to federal powers (that come from elsewhere – such as Bill of Rights) More controversial: implied limitations (Constitution structure. But must be relationship between the restricted funds and regulated behavior. Limitations: a. not the state and there’s a question of first amendment rights) E.e. Congress is allowed to do this. a. upholding the application of FLSA to state employers. 234 A. Issue of coercion: language in Butler and Stuart Machine discussing why is (B) or is not (SM) coercion. C. B. Independent bars. SAMTA p. Page 24 of 59 . Relationship. C. any clear conditions (where states are obligating themselves to some condition. Accepts above test and applies it more rigidly than majority b. Can argue that giving money for building and maintaining roads/highways is too remote from drinking age G. Does not believe that the Cities test is workable and that some of these decisions should be left to congress. Background: Court had previously ruled in National League of Cities ruled that the nation could not impose the Lair Labor Standards Act on state employers.B. Blackmun’s majority opinion says: must look at the “traditional. Makes law stating that cannot get federal highway funds unless state drinking age is 21 (b/c encouraging drinking encourages drinking and driving so it relates). Upholds application of FLSA to state employers: law of general application (i. Dissent (O’Connor) a.
Access: states w/ sufficient capacity can ban importation or implement surcharges on other states/companies importing. New York v. Act created 3 incentives to increase disposal capacity a.b. State cannot erect rules that discriminate against specific states (CA can say only import apples w/ certain safely standards. Dole) D. $$ goes to program to give monetary incentives to states developing sites. Dormant commerce clause i. State faces the consequences for having to take title to the waste. iii. States can (b/c of authorization of this act) decide not to take radiation b. which is also applicable to private companies. states can bar companies from other states from using their radioactive disposal facilities. states w/ waste facilities can charge companies f/ other states for using their facilities. Federal Government can’t compel states to participate in a Federal Regulatory Program b. Take title: states w/o capacity have to take ownership and assume liability of waste generated in state. cannot say only CA apples can be sold in CA) iii. States interests are more properly protected by procedural interests. can't still be struck down if imposes too much of a burden on commerce E. Monetary: federal government gives states financial incentives to develop disposal capacity. Congress can regulate interstate commerce. b. Constitutional duty to protect against states barring interstate commerce c. 1. C. Monetary provision: Court approves a. f/ 1986-1992. because it deals with employment. c. Commandeering only occurs when that which is being regulated is something that states do as states. Access provision: Court Approves a. waste producers. 4. Congress allowed to erect barriers. not as employers. 237) A. but states cannot. Garcia is not commandeering. Also says. § 2) ii. etc. 2. Congress enacts Low-Level Radioactive Waste Policy Amendments Act of 1985 to encourage states to find own disposal sites or make agreements w/ other states to take from them B. Burden is on state to prove why something is more dangerous iv. United States (p. after 1992. Take Title Provision: Court does NOT approve a. If something is facially neutral and neutral in effect. Art. c. State government also liable for any damages caused by leaking waste ii. State officials must face political consequences of displeased constituents. Page 25 of 59 . One reason for giving Congress power to regulate commerce between states was b/c states were taxing each other (states cannot erect barriers to interstate commerce absent congressional authorization. states retain sovereign authority only in so far as the Constitution has not divested them of powers by delegating them to the national government. Unconstitutional b/c is commandeering: federal government is forcing state agents to act as Federal agents. Federal Government is directing state to do federal work. i. Congress authorizing states to burden interstate commerce (allowed by Constitution) coupled with conditional spending as an incentive for the states (allowed by Stewart Machine and SD v.
White: Dissents only to Take Title Provision. Congress could have directly regulated low-level radioactive waste. Page 26 of 59 . States existed before country did. Waste is part of interstate commerce (entire reason for regulatory scheme is interstate nature of disposal system) viii. O’Connor: Constitution simply does not give Congress the right to require the states to regulate. State Sovereignty is antecedent to Constitution. Congress can't tell state government to enact legislation vii. forces NY to take ownership and mandate state policies v. Can tell state they can't do something b. e. commandeering is unconstitutional b/c 1. State officials cannot consent to the enlargement of the powers beyond those enumerated in the Constitution. 10th Amendment recognizes this principle.1. States can't consent to this – it’s about the people F. the Fed. Waste is not generated by NY state – created by companies. i. etc. Constitution gives Congress authority to regulate matters directly and to pre-empt contrary state legislation. because the Constitution gives Congress the power to regulate individuals. federal government tells state government that they will come in to regulate something (say. Not the states. etc.) unless they (the state) regulate the people themselves (gives the states a choice) vi. In some instances. O’Connor: Does not matter that the state governors were a part of the creation of the act. H. Undermines accountability 1. federal government: a. Sovereignty impacted here (but not in fair wage labor act). To save money or face. iv. d. Took away the sovereignty of the state legislature and was designed to. Difference between regulating states as states versus regulating employers (public and private) x. environmental pollution. Federal Government does things that the framers never would have dreamed of. a. Commerce Clause). do have a choice on other sections. Accountability is important. state has to follow direction of Congress (not really a choice) 1. Sites framers intent based on the switch: Articles of Confederation Constitution. Does NOT overrule Garcia 1. State does not have a choice on this section of the act. This act only applies to states and the states are on the hook simply because they are states. c. b. but do under Constitution. Under the Articles. So their consent is immaterial. a. Congress wants to pass the buck – keep from being held accountable (makes states accountable instead) 3. i. These interests of government are not necessarily the interests of the governed. Government did not have the power to regulate individuals directly. Policy Reason: States held accountable to constituents and financially. Instead pushed it off to states. Can NOT tell state they MUST do something 2. Federal government getting states to do their dirty work for them. Both state and federal government independently get their power from the people – when federal government dictates to state directly. G. Either way. Sovereignty is curtailed when you regulate the state as a state ix. (Ex.
Government says no. NY requires policy making of state legislatures b.S. Courts) What role should Courts play in policing horizontal and vertical separations (textual and nontextual protections). Unsupported by recent 10th Amendment cases. B. Commandeering is an issue any time you’re telling states what to do (just dictating does not = commandeering. c. 248) A. Members of Congress can take credit for solving problem w/o making constituents pay higher federal taxes. Does not regulate states exclusively. they should let the political process take care of it. d. U. when Printz says its not. Preemption (such as in McCulloch where federal government takes over – preempt operation of state law. Federal government is allowed to tell wages Been looking at Vertical Separation of Power (Federal States) Horizontal Separation of Powers (Executive. Here. we have federal government requiring background check but the states are doing it – gets confusing for who is accountable G. like NY. prohibition) C.a. The DPPA doesn’t require the states to regulate. can’t make state officials do federal functions. Selling information about citizens isn’t an inherent right of the state. F. Issue of recourse – do people have way to address b. B. Fed. i. E. add to current duties) do background checks – make reasonable effort to discern whether buyer is a felon. Printz. it regulates states not as states but as owners of databases. If states don’t like the policy. ii. a. DPPA – states can’t sell drivers license info to marketing companies. Condon distinguishable from Printz a. Can't commandeer state legislatures Reno v. Does not see distinction between general regulation and “commandeering” valid. but is a red flag) I. C. etc. Congress. Why OK. so can’t tax or monopolize banking) Internal limits: enumeration of powers o Commerce clause Page 27 of 59 . State “consent” is not irrelevant Printz v. (p. Issue of preemption (not just affirmative v. Brady Bill: under commerce powers. administerial task (not enforcing policy) D. BUT if are private citizen being checked out. etc. requires current police officers (CLEO’s. Accountability issues w/ specific laws (more so than general laws) a. is government officials checking government records H.) c. Federal government imposes. Condon (p. Says courts arguments are too general and thus fail to convince b. D. government required background checks for gun buyers. Does not agree with distinction between state functions and private functions in terms of commandeering. 251) A. White also disagrees with the importance question put forth by O’Connor. Believes that this is an important enough issue to justify commandeering. have recourse d. i. 1. Have legislative recourse (member of congress. Is Reno v. just perform task. Is there a difference between requiring regulations like in New York and in this case? Printz does not have adopt policy.
agree to be sued in exchange for public transportation funds Distribution of National Powers: Importance of Separation of Powers – checks and balances. § 3). Truman issues executive order to keep producing steel despite. to what extent should judiciary police these boundaries) Presidential Powers Youngstown Sheet & Tube Co. 2. Power to execute the laws (Art. Less Tyrannical…. Forces steel mills to come to the table and negotiate.. o Spending clause o Treaty power o (Section 5 of 14th Amendment) External limits o Affirmative limitations (explicit examples: bill of rights) o Anti-commandeering Rule (not just looking at text but at the structure itself and nature of limitations this structure/history itself imposes) o Sovereign immunity States are immune to suit where they have not given it up (people cannot sue states. Congress has to give President such power. three branches can better delegate work load.e. Georgia Residual in the states • Sovereign not b/c of 11th Amendment but b/c of limits of federal government (inherent to sovereignty) • States never gave up immunity when Constitution signed (people never too that back) • States have to consent to give up o Are all kinds of federal programs (funding) that come w/ strings attached (have to give up sovereign immunity for purposes of that grant. B. Framers not big fans of Kind George. 336 p. didn’t want an elected monarchy. Justice Black for the Court says: Uh… no. C.o. but not total.?) A. Commander in Chief gives power necessary to arm armed forces (War Powers Clause allows him to get them their materials) B. there is SoP. Sawyer (p. Threat of steel mill strike. Nature of executive power (can make law in times of emergency) ii. Partly b/c Korean war effort needed uninterrupted steel production. Commander in Chief argument: Page 28 of 59 . v. i. can still be sued by federal government) (don’t see mentioned in first six articles) first appears in the Eleventh Amendment • Chisom v. a. A. Executive and legislative branch in conflict (and powers not wholly separate – divided/overlapping. Pres. can't do it w/o steel materials iii. Efficiency: one branch can easily get bogged down. (execute laws – NOT create/legislate) a. Truman cites three authorities for his actions: i.
Congress has power to raise and support (and thus supply) the military. Executive Powers: i. Can act in these situations when and only when 1. for war means. President has some policy making decisions (who to prosecute. There is no authority under residual executive powers. ii. This is not a strictly military action. Congress didn’t explicitly prohibit steel seizures. When acts in grey area (not expressly in or outside approval) absence of Congress but can rely on Constitutional powers independently granted: “zone of twilight” in which the president and congress’s powers cross i. Congress cannot prevent president from doing X iii. b. Congress has openly disapproved of similar actions and president does not have a clear right to take over steel mills in the name of the war powers. Too tenuous a connection.) But congress didn’t. if during a declared war. Jackson. If case was instead in category two. 5th Amendment says government can’t appropriate property without due process of law. Pres already had Taft Act (chose not to invoke) d. President acts with Congressional authority. But in certain circumstances. Douglas. This case falls into this category. concurring: Congress implicitly withheld authority a. but decided not to give president this specific power c. private company. BUT. etc. Congressional indifference may sometimes enable or invite independent presidential responsibility c. ii. Page 29 of 59 . Residual Executive Powers: i. Also says faithful execution of law does not apply: there is no law here. President has no law making authority at all. There is ambiguity. Presidential powers are at their lowest because he can rely only on his own Constitutional powers minus the Constitutional powers of Congress. authority is at a maximum b. Use of War Powers too far removed from military concerns: private citizens. (Provided that the court doesn’t stop it first. Congress’s interpretation of the Constitution should be relevant. This is not a monopoly.i.) but not all (what to prosecute). Congress had specifically refused to allow such an action a few years earlier in Taft-Hartley Act. c. Perhaps. iv. concurring: President could seize and then Congress could approve seizure. C. it might come out differently because of Congressional indifference. Here Congress has interpreted that the pres should not be allowed to intervene. the action might have been acceptable. Other branches of government have war powers. Executive does have sole power to do X 2. Commander and chief does not have the ability to take over private property in the U. President can’t execute a law the Congress didn’t pass. Frankfurter. etc.S. The branch of government that has power to pay compensation for seizure is the only one ale to authorize such seizure or make a seizure lawful. varying in authority: a. d. indicating that Congress did adopt legislation to address these concerns. Founding fathers were familiar w/ concept of emergencies – would have added necessity clause if thought was appropriate D. When acts contrary to Congressional approval i. things would be different. concurring: three types of presidential acts. ii. too (Congress declares war and appropriates money) b. E. ii. Further.
Since there is an implicit approval. by attaching the property in U. So the nullification and transfer were explicitly allowed by Congress 2. President filling the void – until congress passes legislation telling him those are not his powers. Senate ratification of treaties. transferred. Regan p. Regan and air traffic controllers: ATC were federal employees. Because work stoppage could threaten national defense. Reed and Minton): Bases theory on the “existing emergency” of war time.S. past use of this power). ii. so Reagan could fire them. President: Ambassadors (receives/appoints). President should be given wide berth b. C. Hostages taken from U. 1. Just because Congress doesn’t explicitly prohibit a presidential action. others are not and historical use might very well be used H. if was a domestic company and domestic issue (Youngstown) then Congress needs more leeway i. there is some approval. Here. President nullified. Late 1970s in Iran. a. the president can rely on his powers. Congressional acquiescence. Regulate commerce. Treaties. assumption that they have not granted power in this case. U.F. it’s foreign policy – president negotiates w/ other leaders (not efficient to have Congress do so). Importance of “adverse possession” of Presidential powers (unbroken. Different from Youngstown in that Y says since congress has dealt with and approved it before. Congress can’t anticipate everything and in similar situations it has allowed similar actions. and suspended court cases under the Emergency economic powers act an Hostages Act B. 348 A.S. companies had to relinquish claims in federal court and use international tribunal/Iran courts a. a. Raise armies. Declare war. IEEPA – allows president to nullify attachments and order the transfer in any property in which a foreign country has an interest. Court upholds the action of the president under the following theories: a. although many governmental powers are clear. embassy. from US companies. Control purse Page 30 of 59 .. companies go to court for their $$. To negotiate their release. But does say that the case is most like the first category (Congressional Authorization) because congress implicitly approves of it through the passing of similar acts – the International Emergency Economic Powers Act and the Hostage Act. Hostage Act – gives president broad discretion when dealing with foreign sovereigns. i. Besides. Case Congress could not have anticipated situation in any detail. (Red Scare?) Only applicable to materials needed for war. freezes Iranian assets in U.S. Here. Congress: Senate confirmation of ambassador appointments. Assertion of power (power “grab”) was not hidden or sneaky (President warned Congress) G. but as a spectrum rather than three distinct categories. new government takes property. because it was not explicitly done. Commander in chief ii. 1. congress dealt with this before and so will assume implicit approval b/c have approved in the past. from prior history of Congress. Dissent (Vinson. Follows Justice Jackson’s Youngstown framework.S. Issue was what level of civil protecting were they afforded? Dames & Moore v. Otherwise president is powerless. doesn’t mean they haven’t approved it.
U. Emergency powers do not extend to situations where there is already a court system. What about the right of the people to seek remedy? People of NY. p. President could NOT. Federalist papers. 3. Congress has long given president wide berth. C-W sells arms to Bolivia in violation of Congressional resolution authorizing president to prohibit sale of arms (if he found such a prohibition would contribute to establishment of peace in region. 403 A. For the purpose of foreign affairs we must be a united government. Nazi saboteur. prohibited sale) C. citizens. As commander and chief are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or the laws of Congress. 11 and prevention of future acts of terrorism. Executive order generally addresses functions/operations of executive branch internally B. Basis for Order: 1. Quirin Declared war. the Resolution is limited to Sept. Court rules unconstitutional. Is efficient and practical for the President to have these duties. In times of war and great public danger the powers of the pres. DC. Pres. imposing a formidable barrier on international dealings.S. but don’t give approval for them §836 – talk about military tribunals. Curtiss-Wright Corp. So…. A Presidential proclamation that relates to international affairs is constitutional. say “no arm sales to Panama”. Undeclared war. Cannot have martial rule coinciding with an open court system. citizen (non-confederate soldier) tried for conspiracy in Indiana during the Civil War. 2. Page 31 of 59 . 10th Amendment. v. not necessarily let him act totally independent b. 4. citizens in the war on terrorism? Milligan: U.S. etc. on his own. Does Congress have the right to give the president powers traditionally given to the judiciary? Also.S. a. Commander and Chief Joint resolution §821 – talk about military tribunals. Could it be argued that this actually falls into Jackson’s third category? One of the points of separation of powers is the prevention of tyranny. No war time emergency like in WWII. There was a preestablished court system to try U. Art IV §2(2).S. But is not already established that Moussaoui is agent of foreign power… The Congressional order applied only to those involved in September 11. To force him to share sensitive and confidential information with Congress before he acts would waste time. Indiana) and Quirin (Nazi’s tried for sabotage) precedents? Should it apply to Moussaoui? Can the president proscribe military tribunals for non-U. but don’t give approval for them Are 2-4 a congressional acquiescence? Perhaps through implication.Military Commissions: Issues for tomorrow: Does the president have the authority to issue an Executive Order for the trying of non-citizen enemy combatants to be tried by military tribunal? Which of Jackson’s categories would this fall into? What do we make of the Milligan (Civil War.
Congress hasn’t authorized detention. Let him go or charge him g. can say they thought President would make better decision. Founding father’s general mistrust of military powers d. Allows president to make determination of what’s necessary. First to end war via treaty 3. Can’t detain/try citizen in military courts unless habeus corpus suspended c. don't have to let him go – just have some proceeding to determine who he is b. Scalia. is congress’ decision to suspend (not up to court) Page 32 of 59 . 3. Plurality. Ratify treaties ending war. President determines who harbors terrorists and who to go after 3.. invoke Detention Act). p. Prosecute in civil court or suspend habeus corpus b. Politically. 75 a.c. hang them. Criminal prosecution not necessary – just prove who he is. Commander and Chief 2. Power to declare war. p. (note: Youngstown says in theatre of war. No question about powers having ever been in realm of states (always federal issue) War Powers: Congress 1. but they could – have power to detain (i.e. Judiciary does not have power to dabble in war powers. Necessary and appropriate force authorized president. Clearly in jurisdiction b/c in US e. Habeus corpus: suspended only very select reasons (rebellion – internal war. or invasion – NOT for overseas activities). careful at home) 2. Court does not answer if President has this power on his own c. -should be harder to start a war than to end one (last time was WWII) 2. allows Congress to pass the buck (if decision goes poorly. President can use force to go after September 11 perpetrators b. Court willing to give executive/legislature looser leash in foreign affairs d. Congress creates processes b/c bulk of war powers is statutory) c. they could – but they did not h. September 18 resolution is more of a blank check (not actual declaration). don’t hold onto them b/c they’re “dangerous” f. Court assumes (but does not decide) president needs congressional authorization to detain Hamdi (many acts permissible under international law that can’t do w/o congressional permission) 4. 80 a. Draws on Civil War cases where civilians tried in military courts b. get more leeway. Souter. ultimately. p. 57 (O’Conner ) a. If congress wanted to do something about it. that didn’t vote for THAT particular action) Hamdi v. Appropriate Money President 1. Judiciary dictates process by which captured combatant is treated (Scalia and Thomas say no. can't hold him w/o it 5. Rumsfeld 1. Detention of enemy combatants authorized by Authorization of Use of Military Force a. Try for treason. by congress i.
Morrison v. political negotiations.. b/c Nixon fired Cox. both parties been subjected to them and don’t like) b. Senate has “sole power tot try impeachments” (some say this is one option and one option only – can’t censure president or give other punishment) Page 33 of 59 . Political pressure prompted an internal investigation and Attorney General Cox assigned special prosecutor to the case. can't get a “free pass” just b/c are executives 7. etc. Impeachment: organization of power a. 4. prefers bright line rules b. Cox subpoenaed tapes of White house conversations and the president challenged the subpoena in court. Political consequences pres suffered f/ firing Cox not enough (counter-argument: unlimited budget. 410 Is congress usurping power of commander in chief? Virtually every president has asserted that it’s unconstitutional o Can't require president to submit to congress o Iraq authorization specifically invokes war powers resolution o Probably not a justiciable question US v. Whole issue of US citizen not addressed – comes down to enemy combatant War Powers Resolution: p. discovered that burglars were connected to campaign to re-elect President and high-level White house officials were involved in a cover-up 2. aide. June 17. Don’t want to take attention f/ job (distracted by personal issues) ii. Pres. Alexander Butterfield. Nat’l HQ in the Watergate bldg in D.) iii. Nixon 1. 3 days later Nixon resigned 5.6. Judiciary can’t oppose any process. diplomatic/military secrets. need someone to investigate executive branch independently a. 3. Court says there is executive privilege (but are limits) a.e. otherwise. impeachment still being decided. Thomas a. The tapes made available w/ gaps showing Nixon obstructed justice by ordering Watergate matter not be investigated. over the next year. burglary of Dem.. Nixon says case is non-justiciable b/c Cox works for president a. no accountability. since then. Privilege is important i. SC ruled Nixon had to comply w/ subpoena. Each branch has independence of operating internal operations privately (need branches to respect the others) b. House has “sole power of impeachment” b. revealed secret taping system in the Oval office and that presidential conversations were routinely recorded. only one target) 8. Executive branch might not function well w/o executive privilege (think Marbury v. On the other hand. i. J might be able to intervene when they’re really fighting. Madison) iv. Keeping sensitive info f/ leaking (classified.C. discussions of national security. bombing. Congress and executive have war powers – judiciary has NO such powers (C and E can duke it out. 1972. Can’t just get involved in any dispute between the branches of government 6. military interests. J is supposed to stay out) 7. Olsen – independent council is Constitutional (Scalia was the lone dissenter – somewhat prophetic in tunnel-vision and other problems in using.
After Prigg case. b. or other high crimes and misdemeanors” (debate about what these are) e. You are not free to go around bludgeoning people with large sticks because it makes you happy. they would have plainly stated it. (Element of political question. Scott sues for assualt and false imprisonment. shall not affect the above. § 2 a. a. said he voluntarily returned to MO. Post (1845. bribery. D. Sanford gets ownership.) But the basic point is. matters deteriorate – fugitive slave laws get worse Dred Scott v. (which is a bunch of crap rhetoric to prevent the banning of slavery. None of these powers are justiciable SUBSTANTIVE LAW Equality. Pennsylvania (1840’s) 1. Says Constitution was explicit on this (slaves and indentured servants) 4. Man’s right to freedom is subject to and regulated by laws. p. PA (and other free states) adopted laws not allowing forceful return of person to return to slavery 3. Challenge to slavery under New Jersey Constitution. By 1840’s was growing resistance to fugitive slave laws (requiring return) 2. Won MO trial court. 427) A. Sanford argues Page 34 of 59 . (not on test b/c is state case) Issue: can slavery exist under Constitution B. if you submit to a form of government.no Amendments made prior to 1808. claims is no longer a slave b/c spent years in free states/territories B. lost to MO SC. I §2 – 3/5 person for purposes of Representatives in the House and taxation Art. a. Court says no man under a form of government can ever be truly free.) The Declaration of Independence has similar language but did not outlaw slavery. IV §2(3) – return runaway slaves to other states (Fugitive Slave Clause. 7-2 decision. I §9 – limits Congress’s ability to stop slave trade prior to 1808 Art. but we meant free under the government. State v. Judgment only “removal f/ office” and disqualification d. We said free. Court also says that if the NJC’s writers had meant to abolish slavery. Up until this case. p. Scott goes to fed ct C. For “treason.) Art. generally understood that slaves in residing in free states were free (unclear if Scott knew this during his time in free states) D. you do not have absolute freedom. Race and the Constitution Slavery: alluded to 3 times in the Constitution Express protections of slavery and slave trade were specifically time-limited Art. though the word slave is not used. C. Sanford (1857. Scott is a slave owned by a doctor who dies. SC (Story) holds that statute is unconstitutional pointing to Art 4. V -. NJC says all men are free and independent and have unalienable rights. 423) A. Prigg v.c.
b/c Scott is slave = property he cannot be a citizen and thus no diversity federal jurisdiction. Shouldn’t continue w/ ruling if already say lack jurisdiction. he relinquished freedom when returned to slave states. a. i. not just slaves ii. Congress passed several legislative acts/amendments (particularly protecting newly freed citizens) d. race was irrelevant to citizenship First example of judicial review since Marbury but not denying SC right to do something. Isn’t bring a salve into territory where slavery is prohibited violating the law of making that person a slave? h. Harris. Courts reacted by limiting the scope of these laws (slaughterhouse cases) making sure only applied to newly freed slaves i. Scott’s status is determined by Missouri. No jurisdiction. Justice Taney wrong as far as his assertions of founding fathers intent (never intended to include African Americans in “free men” statements). why not slaves? Has to do w/ idea of due process as something more d. Congress substantively infringed upon liberty of slave owners c. African American reps. just interpret law (went so far as to say how inherently inferior slaves were. Constitution expressly guaranteed right to own slaves for 20 yrs g. after Civil War. free b/c resided where Congressional act “MO Compromise” didn’t allow slavery (also in Ill. Concept of blacks as not citizens “fixed and universal. Ugly side of judicial review. US v. § 3: (federal) government can take a lion (certain type of property) f/ owner. is substantive right (law saying can't hold a slave would not be due process). Were some free. G. is necessary to create some countervailing government power b. Used assertion of race. Congress passes law through open process. but Congress’s. Congress doesn’t have power to deprive citizen-owner of their (slave) property rights f. relying on original intent problematic i.. Congressional act declaring the Louisiana Territory slave-free was void e. H. not Illinois. Due process not just procedural. Court does not have power to decide fairness of such laws (is up to legislature). were few Constitutional restraints on state government power (this was intentional). Not just that slaves aren’t citizens. at Constitution ratification convention. Court intended to put slavery issue to rest but had opposite effect: sped march to civil war Additional Notes: a. but the class of people who are black ii. Art 4.E. iii. Before Civil War.” though in some states there is evidence that free blacks ratified the Constitution. didn’t extend 14th Amd to private conduct of KKK lynch mob ii. became apparent that sometimes need to protect citizens f/ state power (thus need stronger federal government) c. F. SC invalidated public accommodation sections of 1875 Civil Rights Act Page 35 of 59 . Paradox of Constitutional law: to enforce limitations on government power. people know about it i. I. Illinois law does not apply b. state not allowing slavery) Court says: a. law. Citizen of Missouri. in some states. that keeping them in slavery was for their own good) MO compromise unconstitutional b/c slaves are property – can't take w/o due process a. Taking slave away when traveling into another state is not due process b. b/c Scott returned to Missouri. If Scott was free in IL and MN.
Constitution cannot create social equality D. what it actually says. §3 persons engaged in rebellion against the nation cannot take political office. §4 U. enforced separation by race does not apply one w/ a “badge of inferiority” (and if there is any such stigma. §2 revokes the 3/5ths person scheme for representatives. won’t take responsibility for debts incurred by the Confederacy. §5 Congress has power to enforce. (Reverses Dred Scott. it’s in everyone’s best interest to have people living together – equally c. Equal protection 15th Amendment: Can’t deny right to vote based on race. If any group should be excluded. SC found lack of opportunity unconstitutional and didn’t directly address the separate but equal doctrine Note cases: background for Brown v. b.438 C.) §1. Blacks and whites were prohibited from riding on opposite cars. and extend only to such laws as are enacted in good faith for the promotion of the public good. 434 Plessy v. Subsequent challenges to “separate but equal” facilities (esp. unless approved by a 2/3 vote of Congress. or former servitude (male suffrage) THESE AMENDMENTS ONLY APPLY TO STATE ACTION. blacks are citizens. bottom of pg. Paragraph of “Chinese” people (who are seen as so different a RACE that can’t even become citizens) can sit in white cars i. Reasonableness of statutes is beyond jurisdiction of court (is a matter of public policy for legislature) e. Why does the 14th Amendment prohibit segregation? Equal Protection Clause F. a. Criminal statute in LA requires RR companies to provide and African-Americans to ride in separate rail cars (does not require that the separate facilities actually be equal.Reconstruction Amendments: 13th Amendment: Abolished Slavery 14th Amendment: Grants Citizenship and the rights therein to all persons born in the United States and not subject to foreign powers. Dissent by Harlan (only dissenting judge): Constitution is colorblind. 437) A. But would whites really be stopped? Statute on its face is not proposing unequal treatment E. in schools). it’s only b/c African-American’s choose to construe it that way) a. “…every exercise of police power must be reasonable. exception: nurse attending children) B. US not supposed to have a caste system. see Cruikshank. due process. color. Can separate be equal? Not a white only rule. This law was intentionally created to exclude African Americans and perpetuate inferiority b. Board Page 36 of 59 . Ferguson (p. and not for the annoyance or oppression of a particular class…” p. Court says statute is Constitutional. should be them (unclear if that’s what Harlan really means) f. Government should not perpetuate hatred (ruling sanctions this) d. Difference between people not voluntarily mingling as opposed to the law prosecuting and jailing people who mix (state-enforced) G. Statute so ridiculous (unreasonable) that does not afford citizens rights (loophole) ii.S. Jim Crow laws continued to develop and were upheld in court H. equal protection – to ensure states would protect all people equally. How much should courts look at intent (practice) of statute vs. Constitution only deals w/ civil and political rights – can only bring equality to these areas.
comprised of many intangible things Brown v. b. Sharpe (p.C. Court rules that this is not equal. 444) a. Holding: separate educational facilities are inherently unequal a. Inhibits freedom – restricts rights to move c.C. cannot not provide. Disregard Harlan’s statements and go to point of scientific impact on race F. Painter a. Consolidated 5-6 cases. D. Requires “All deliberate speed” (allowed to consider administrative/population issues. isn’t a state. Equal Protection does not mean you can never make distinctions among people. Separate education facilities are inherently unequal. Also. If state provides education. series of subsequent opinions that desegregated other facilities G.. Would be unthinkable if Constitution applied lesser obligations on fed than state government 4. If facilities provided for whites. 449) 1. Assuming McConnell’s interpretation of the 5th is correct. is a right which must be made available on equal terms”. The court dances around Plessy. clear hardship and couldn’t be justified as residential segregation C. 446 A. white school 5 blocks away.” b. Congress never stopped segregation in D. Same everything (one African-American student let into law school but has different seat. Focused on intent of 14th Amnd B. D. Topeka & Santa Fe Railway (Note pg. Brown would walk 21 blocks to go to a black school. C. SC relies on 5th Amnd equal protection. Board of Education of Topeka p. Social science findings ct relies on: social stigma has irreversible psychological impact e. MO pays to send qualified black candidates to law school in a different state. why doesn’t it get us to the right outcome in Bolling? a. The 14th Amendment doesn’t apply to D. doesn’t embrace the language about state never recognizing race. If have dining car for whites. “Such an opportunity. 441) a.C. etc. Page 37 of 59 . etc.. where the state has undertaken to provide it. d. All but one upheld segregation. b.) b. Inequality lies in not being able to go to school within own state. Sweatt v. recognizes increased importance of education f. Atchinson. still need to show discrimination harms one group over the other g. Holds federal government to the same standards applied to states (14th Amendment) 3. Does the 14th Amendment apply? 2. did not need to have for blacks – court struck down b. it’s not a state. Brown never says is getting rid of separate but equal across the board (just in schools?). Segregation denies people the freedom of association D. no black law school. table.) Bolling v. Court believes that the setup denied children of equal opportunities. it has to provide it equally. McCabe v. MO has all white law school. Gains (pg. some states stopped providing c. Earlier drafts of the 14th Amendment included banning of discrimination against race E.A. Prompted tactic of closing public facilities to prevent integration B. learning is a collaborative process – don’t get to mingle w/ others. suggests separate must be equal c.C. “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. In Washington.
“common sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are subject to those actions. Aaron – School district said after 6 months of turmoil. School District No. P sites disruption. B. Court upholds finding of Constitutional violation. Conditional Spending – §5 and the spending powers. Racial Classifications: Separate But Equal? Civil Rights Act of 1964 A. 453 1. County School Board A. One of first bussing cases. Congress explicitly agreeing w/ the Court B. Brown II gave discretion for district courts to delay. dist ct orders gerrymander area of Denver. Colo. etc. SC affirmed b/c Dist Ct has wide berth to ensure schools desegregated and it was a good broad equitable remedy (courts becoming more aggressive) C. like equality. Evolving standards argument: changing social standards as to what protecting liberty requires. to force integration (racial balance) B. Court suggests that separate but equal would be ok if separate could be equal. Charlotte-Mecklenburg Board of Education A. All deliberate speed to implement programs – massive resistance Cooper v. D. Federal government authorized (executive branch: attorney general) to sue States on behalf of people (helpful b/c was dangerous to sue local school districts and financially costly) C. ineffective (was community backlash) B. Argument that we must interpret the Constitution in light of its broader goals. Some issues (such as segregation) simply may be too important to not use judicial review. but also to be aggressive. Dole. School district has to prove this would work (burden on school board to prove) E. like here Keyes v. The court declined to apply it as a mandatory remedy though. where not officially designated segregated. affirmed order of system-wide relief. First case outside of the South. Did not actively desegregate. 3. evidence intentionally segregation B. Green v. Must be sufficient the “effectuate a transition.Cooper v. But (at least in the realm of education) separate cannot be equal. Arguments for Brown beyond the opinion: A. Should the ruling in Cooper been stated in 1955 instead of 1958. just allowed people to change schools in the district C. etc. C. stating that schools did not have to reflect the exactly make up of the community D. SC overturns lower court’s ruling for P Brown II p. 1. Dist Ct imposed redistricting lines of school dist. wants to delay integration process. Title VI prohibited programs receiving federal funds from segregation. 461 A.” Page 38 of 59 . p. Aaron A. Court struck down b/c board has to implement plan that realistically works now D. to end “experiment” of desegregation. § 5 of 14th Amend: Congress specifically has power to enforce amend violations D. Freedom of choice plan of desegregation.” Swann v. 2.
Jenkins II a. Constitutional issue is not the lack of “mixed” schools . De Juree – societal consequence c. Trying to get students from outside the district iii. Inter-district desegregation unconstitutional b. Like MI and MII together. just sections of district d. In Denver. Based on Miliken. and whether segregation is state-created or state-assisted or merely state perpetuated should be irrelevant to constitutional principle” D. period or can you in certain circumstances?) Equal Protection and the Rational Basis Test Equal Protection Clause adopted to protect freed slaves and African Americans in general f/ government abuse However. involves non-bussing remedies (teacher salary increases) b. scope of remedies must track the scope of the harm i. “Public Schools are creatures of the state. Different views of what Brown did and should mean impacts subsequent case law (is it that you can’t use race at all. Milliken II a. Majority says de juree segregation in Denver authorizes the court to imply remedies E. etc. Milliken I a. SC beginning to go the other way – strikes down inter-district relief when there’s no impact on area outside district c. Indirect means to achieve things that they would not be able to do directly d. did not cross district lines. if system itself is integrated d. the remedy can involve those areas. Rehnquist: objects to finding whole district tainted b/c a part of it is gerrymandered Limits on Brown A. ordered doubled taxes to stem financial issues and help desegregation b.) D. language not so specific – just prohibited states f/ providing anything beyond equal protection under the laws Page 39 of 59 . Relief can't be extended beyond district (can't order district to wk w/ neighboring suburbs not in district) i.a. there must be a problem in each district ii. Powell: de facto v. To have a multi-district remedy.it’s the use of race to segregate C. De Facto – mandated by law b. Court struck down (although in theory courts can order tax increase) E. can order different/additional relief so says can order tax increase. Limited court’s ability to remedy segregation. Jenkins I a. C. Integration does not mean every school is perfectly integrated. Dist court judge can order other things beyond redistricting lines and bussing (can create magnet schools. If it effects places outside the current district. Goes the other way again b. either way. de juree segregation a. Order explicitly designed to attract students f/ outside district (get them to migrate in) c. all-white or all-black school not necessarily segregated unconstitutionally. All about what courts can order (what kind of relief can they mandate) school districts to do B. Inter-district remedy goes beyond harm of intra-district harm ii. Court strikes down b/c does not matter what remedy you’re looking at. fund various programs to encourage diversity.
but trucks that already have ads on them can keep them B. Those successfully receiving treatment and no less safe than average person ii. Subsequent cases illustrate that this is not the case. are still users and generally unsafe b. 475) A. Supreme Court overrules and upholds the exclusion on the basis that some drug users do pose a safety risk a. 485) A. Cloverleaf Creamery Co. except with a written prescription from an opto or optho. Still some ability to treat different classes of people differently Kinds of scrutiny o Strict or intermediate Suspect class: when we have reason to believe government distinction is based on impermissible motive (i. race or sex) o The rational basis test is applied when there is no suspect class (race. said for safety reasons B. Minnesota v. SC acknowledges two groups: i. gender…): Means/Ends test Lowest form of review: “Legislative classifications are valid unless they bear no rational relationship to the state’s objectives” Legislatures allowed to divide problems into smaller segments to deal w/ them New York Transit Authority v. Those not successfully receiving treatment. Williamson v. Dissent: easy to distinguish between the two groups and thus no rational basis Note Cases Railway Express Agency v. Rule: Legislative Classifications are valid unless they bear no rational relationship to the State’s objectives. Beazer (p. New York (p. Lee Optical (p. Important that end and means both not effectuating discrimination against particular group D. a. District Court (affirmed by 2nd Cir) struck down b/c is over-inclusive (includes lots of people who do not pose a risk – here.e. B. The legislature may select one field in which to apply a remedy and neglect others as they did here. Rule that cannot place advertising on trucks because of safety reasons. doesn’t violate EPC just b/c classification is imperfect d. Court found that there was not even a pretense of safety because trucks that already have ads are no more safe than trucks that would put the ads on after the law passed and thus does not withstand the rational basis test. New York City Transit Authority refuses to hire methadone users. not driving train but also not allowed to be janitor) C. Essentially says that most anything can pass the rational basis test. 484) A. Blatant discrimination against certain companies. Footnote 39: “legislative classifications are valid unless they bear no rational relationship to the State’s objectives”. Not a protected class c. E. Court says that the EP clause goes no further than the invidious discrimination and that point has not been reached in the case.. 485) Page 40 of 59 . (p. Law states that only licenses optometrists or ophthalmologists can fit lens to a face or duplicate or replace lenses (in glasses).
kids at jr.) that’s the problem Page 41 of 59 . etc. Question NOT is it factually correct: it’s could a rational legislature come to this conclusion C. neighbors actually afraid of people in group home B. etc. U. Must be a goal of the legislature. SC says we are not going to make judgments as to the rightness of the legislature’s opinions. Court ruled that there may be a rational basis based on medical differences between mental retardation and mental illness. unless do something impermissible. Evans (p.A. etc. P’s evidence paperboard cartons actually less environmentally sound. legislature was wrong C. And you did not allege that they had done so for another reason and that their rational basis is a fraud. Doe Court rejects equal protection claim against Kentucky statutes that allowed involuntary commitment for mentally retarded with a lower standard than for the mentally ill. passed to prevent use of food stamps in communes (HIPPIE CASE) B.. Overbroad so that it is discontinuous with the reasons offered for the amendment i. a. mental retardation is not a mutable relationship and thus deserves protection C. You are just questioning the rationality of it. Colorado statute prohibited local governments from passing anti-discrimination measures B. Overturned 6-3 by SC. b. but is no rational reason for classification. where as the New York Transit reasoning did Note case Heller v. it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest. Department of Agriculture v. Irrational prejudice is not legitimate government purpose b. Its not our fault if they are dumb. Law mandates that paperboard milk cartons rather than plastic ones should be used because they are more sound for the environment (big paperboard industry in area) B. b. Court says this is bogus and obviously designed to discriminate. court won’t intervene ii. Court will assume goals articulated by legislature are really what they intended unless is a very clear/compelling reason to believe otherwise City of Cleburne v. It’s hostility to group (see in language. A city needs a legitimate reason before it may deny housing to the mentally retarded. Despite the fact that mental retardation is not a protected class.” Romer v. are not suspect class. Fear of neighbors not a legitimate basis. Reasoning didn’t pass laugh test.S. Home doesn't threaten legitimate interests of the city in a way that other permitted uses would not. not heightened level of review a. Can say trying to help one group (i. Moreno (p. For if the constitutional conception of ‘equal protection of the laws’ means anything. Alleged goal is public safety. Cleburne Living Center (p. Fed law passed prohibiting people who live with others not members of their families from getting food stamps. etc.e. optometrists) but not that don’t like opticians Imposes a broad and undifferentiated disability on a single group c. for example that mental retardation is from birth and mental illness often manifests later in life. Flood plain. so rational basis test used. not necessarily the goal. Court rules “the challenged classification clearly cannot be sustained by reference to this congressional purpose. b/c was an obvious desire to harm and unpopular group a. Woman sues b/c she can’t get food stamps b/c shares apt w/ other woman friend C. City wants to prevent group home in area. 493) A. Says. But area is zoned for a hospital. 492) A. unless is some evidence to justify. 488) A. Courts assume policy choices are contemplated by elected legislature. high will make fun of people at center.
502) “we cannot reject as unfounded” – puts burden on D not government! So not really using rigid scrutiny d. can still restrict on basis of ed. in absence of marital law. does not mean that they are going to help facilitate an invasion. Heightened Scrutiny and the problem of race: Strauder v. p.) not dealt with in the civil war. and Thomas issue an extremely homophobic dissent about how being gay is un-American and immoral. should be unless martial law declared (then might withstand scrutiny) a. No rational basis for this grouping simply b/c someone of Japanese decent. etc. If statute obviously racist/damaging. Formal war declared. these prejudices may operate to deny persons in certain classes the full protection others enjoy iii. Other issues of bias (gender. Murphy’s dissent: SC not in business of defending country. Argues west coast was a war front (but was no war on the California Coast) D. 501) A. Establishing Strict Scrutiny Korematsu v. white juries might be more inclined to convict and less inclined to believe certain defenses which all results in unequal protection C. clearly based on prejudice E. United States (1944. claims under equal protection clause. Strauder. is absolutely for SC.D. then internment camps B. age. “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. Prejudice well known to exist between classes and races. etc. plus women couldn’t vote. Test court uses on government: most “rigid scrutiny” a. and have black defendants. don’t ask Court to validate). 14th Amendment designed to protect rights of African-Americans a. is no good. age. Singling out AA’s by race. West Virginia (p. Rehnquist. thus know what was meant ii. Intent of the 14th Amendment (does it make a difference that this case was in 1880) i.…courts must subject them to the most right scrutiny. an American citizen of Japanese dissent arrested and criminally prosecuted for refusing to leave his home to go to his assigned camp C. etc. The dissent compares homosexuals to murders polygamists and those who abuse animals. Jackson dissent: looks beyond equal protection (military will do what are going to do. (quote p. This statute violates the Amendment by: i. B. Page 42 of 59 . But. Justices alive when Amends ratified. under guise of “pressing public necessity” (like compelling state interest) to protect against Japanese invasion 1. a. African-American convicted of murder.” c. civil court shouldn’t enforce order violating constitutional limitations. Birth of “strict scrutiny” in majority opinions but did not actually apply this test i. SC upholds K’s conviction b/c circumstances justify it in the situation i. is thus an impediment to securing equal justice ii. What determines “pressing public necessity?” Actual declared war? Terrorist attacks? Custody case involving remarriage to AA’s? ii. Scalia. Footnote in Carolene Products case that deals with this issue (see page 507) b. Executive order by Roosevelt (and Congress) removed individuals of Japanese decent (citizens and non) from homes on West Coast to relocation centers. AA’s have to be a pert of the jury pool. K. 499) A. West VA law limits jury service to white males. If excluded from opportunity to have a chance to be selected. Rational Basis test or just offering an end run around the ruling? b. couldn’t vote under 21.
when uses race. mother awarded custody 2. b/c in best interest of child b/c of pressures of being inter-racial child 3. Must look at purpose of law – has to be INTENT i. Here. Said test might not be all that good. What if was study showing deep psychological impact of child (not based on any external influence – totally impossible. Couple divorces. Also claim that test has nothing to do with being a police officer. Why is race different? c. Racial Classifications in Facially Neutral Statutes (punishment is equal for each race. Court says can't let hecklers limit first amendment rights of parents and child (b/c of other people’s views) d. is discriminatory b/c disparate impact test – higher percentage of AA than whites failed. 514) A. Person always has constitutional rights. Usually best interest of child always holds sway b. did not apply strict scrutiny a. clearly about suppressing competition o Footnote said a more stringent view should be used in other cases – such as racebased or minority protection cases o Democratic politics does not work when talking about minorities (irrational group loyalties breaks down normal functioning of factions) o Expect milk companies and other such interests to be able protect themselves w/in political process Strict Scrutiny requires (know the buzzwords!): o Ends: Pressing public policy AND compelling state interest (really important) o Means: Necessary and not merely rationally related AND narrowly tailored Palmore v. but still discriminates) Strict Scrutiny Assume legislature acting rationally. is harming AA disproportionately b. Police officer test. D. Is not the only factor to consider in looking c. Mother remarries to African-American so court awards father custody a. Court dismissed (upheld test as constitutional). against fundamental assumptions of system. P’s alleged test kept AA’s out. SC reverses. suddenly become suspect b/c not based on rational basis of costs Carolene Products FN 4 – most famous footnote o Upheld milk statute. allows mother to regain custody a. Davis (p. (parallel to Brown) ii.C.even w/ convenient excuse of military authority. How does the court know the purpose i. Claim violation of equal protection clause. Might change outcome Washington v. not that it was designed to do so ii. Also look at history and context Page 43 of 59 . Have to look at circumstances in their totality ii. Sidoti 1. SC permits inference of inheritable guilt. B. but just for pretend)? i. Are legitimate reasons for police officers to pass a literacy test d. Davis claims that test to enter police academy in Washington.
Level of evidence of intent can change dependant upon what sort of institution is discriminating C. Decision making process must be a fair fight. Court does not like the process by which it was done. Gerrymandering of political boundaries of city by race (case in notes) Village of Arlington Heights v. Court rules that generally for an Equal Protection claim you need both disparate impact and an indication of intent to create said impact B. SC disagrees D. Virginia p.” a. it’s just the political process and they lost. but it can’t structure the political process to place an undue burden on any racial group. they restructured the process. Stewart wouldn’t even go that far Washington v. not outcome. ever b/c puts decision making process in “new and remote” level of government (state. Blackmun (majority) goes other way in Crawford v. No legitimate reason found for this law. eliminating doesn’t violate rights. X reasons were all the reasons to bus other than for racial reasons B. 519-523 i. a. A. whites were not (all granted but one) ii. See cases in notes pgs. Precludes the school boards from bussing. a. When there is a disparate impact. Seattle School District No. in Crawford they just repealed law. 533. i. b. Washington passes a referendum prohibiting any school districts in the state from busing. Cites Korematsu’s “most rigid scrutiny” standard for racial issues.??????? A. Powell dissent: authority of school boards previously unchallenged on Federal level. In Washington. on its face. must show necessary to accomplishment some state objective. convictions reversed D. cannot change the process so as to place an undue burden on the other side to change it back. The state is free to structure its local schools however it wants. Ls convicted under VA statute that imposed criminal penalties on those that involve in interracial marriages (when one person is white). Court rejects idea that the state has a compelling interest to preserve “racial integrity” C. racially neutral b/c spouse of each race faces same criminal penalty. can repeal law if process followed. (Opinion by Blackmun) a. The initiative place “special burden on racial minorities” a. Hopkins (1886): 200+ people of Chinese ancestry who applied for laundry permits were denied permits. Defense: it’s a fair. no prior constitutional infringement which would mandate bussing. not local) C. distinguishes case based on process. Sometimes the best evidence of discrimination in these cases is the resulting disparity. Question from Adler: so why isn’t this then a political process case? Page 44 of 59 . E.) p. 535 A. Schools v. Concurrence: the line between purpose and impact is not as bright a line as court opinion would indicate. Swimming pools (closed so no-one gets to use pools. Yick Wo v. independent of the racial discrimination a. Board – decided the same day and viewed as indistinguishable. except for X reasons. both races are subject to its restrictions B. Majority opinion: lack of legitimate state interest. 1 (Its all about the process baby. one group can’t rig it so that the other group gets what it wants. Metropolitan Housing Development Co. see C. rational basis test b/c impacted everyone equally) Loving v. b. Stewart’s concurrence: “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act dependant upon the race of the actor.C. one must investigate the motivations and determine whether there is enough evidence to support that the impact was intended.
p. Kennedy says is too narrow) Policy is not narrowly tailored b/c don’t show connection between policy and discrimination o Only show are setting aside 30% of revenue for long list of minority groups Need to show discrimination of all groups Issue w/ rigid number set aside • Even if have 30% companies in city are minority. “The standard of review under the EP clause is not dependent on the race of those burdened or benefited by a particular classification” Uses Strict Scrutiny: narrowly tailored to a compelling government interest Intermediate scrutiny and rational basis (debatable if are two kinds of RB tests) O’Connor (writing for 7): Fact African Americans historically discriminated not the point – not a compelling interest b/c city didn’t act to enhance racial discrimination practiced by private groups Link low minority membership to lack of minority business owners AND show city contributed to situation then city might win Every justice seems to accept on some level that fixing racial discrimination of past government acts is OK Connect specific policy to specific injury (Scalia likes this take. which the court has found to be important in other cases – look at intent – rational basis.c. But doesn’t this discount motivation. Goal to remedy discrimination against minorities in hiring processes. have to show history of actual racial discrimination (that something else was not contributing to racial imbalance/disparity) o O’Connor says city should have taken alternative measures. 557. Croson Co. first Kennedy says Congress said these measures not effective here However.) goes against narrow tailoring o Plan not linked to identified discrimination – what else could have been done to enhance number of minority owned businesses that had nothing to do w/ race o Only tailored to outright racial balancing (a not compelling interest). R requires that 30% of construction contracts for city be given to companies owned by minorities. a.o. etc. Page 45 of 59 . Racial Restrictions that benefit Minorities Strict Scrutiny Still Applies City of Richmond v. p. Marshall argues intermediate should be applied here A. J. strict scrutiny. use of federal language (Eskimo. have to show are as competitive as others • Have to show are not using race any more than required • Any hard number may not hold up • 30% number is taken f/ federal highway program – totally inapplicable to Richmond o Also. here this is a city – not federal congress City has to talk about why there’s a racial imbalance and other remedies won’t work th 14 Amendment is all about controlling the states 5th Amendment lays out requirements for federal government – strict scrutiny applies to all race-based regs.A. etc.
Court does not see this as evidence of a compelling interest. A looses contract to Gonzales. SC reasons that three benchmarks should be applied to any equal protection analysis. not a hard rule. A sues because fed. pop. Can only be used to remedy current problems. p. B. government has policy in Dept. 119 (supplement) o Adopts Bakke – race can be a plus. Marshall dissent: applies intermediate scrutiny and therefore does not require narrow tailoring. a. not historical ones. case never survived strict scrutiny test U. Bollinger Croson was first time strict scrutiny applied to affirmative action case (five justices said applied. Ruling does not preclude state taking action to end discrimination currently present in a city or state and due to the state’s actions. Consistency: same standard regardless of race (based on prejudice vs. Argument that Richmond was a segregated city. 574 p. of Transportation setting aside contracts for minority owned businesses. Population is an issue: 50% of Richmond population is African-American. Ends: must have compelling interest in making said regulation.) iii.B. A. saying that race based distinctions. What percentage of minorities were eligible (have required skills/businesses) to apply for the subcontracts. Court disallows city’s policy. this is necessary to remedy the historical economic discrimination of the city. Case heard after Croson because 14th A applies to states and that is what C was decided under. Just because 50% minority in gen. C.o. v. D. Majority does not dispute this. Court compares 5th and 14th A’s. but only . should be under the strictest scrutiny standard. Congruence: 5th and 14th Amendment standards are congruent Grutter v. Pena p. Michigan says policy adopted not to make up for past discrimination. pop is not the proper standard. a.67% of contracts given to AA’s. i. Means: First should try racially neutral means. i. even when giving advantages to minorities. E. as opposed to previous cases where court was divided) Until Grutter. ii. O’Connor’s ends-means test: i. a. in practice it was a hard number that decided entrance Court finds that diversity in higher education is a compelling state interest p. is b/c diversity is in and of itself a compelling state interest Would have been easier for UM to argue they discriminated a lot in the past P’s claim is that while UM claimed to give individualized review to applications. ii. mitigation of prejudice. if that does not work. he requires a substantial relationship between the remedy and the problem. but they say historical disadvantage is not the same as current disadvantage. Sees equal protection clauses in this as the same principle. means must be narrowly tailored to the goal of the specific instance. Skepticism: any preference based on race must “receive the most searching examination” ii. a. part of holistic review of applicant’s file Page 46 of 59 . Adarand Constructors. Gen. F. doesn’t mean that 50% of contractors are minorities. 577: clear statement of what strict scrutiny requires C. Inc.
) B. Didn’t want to reach constitutional question. Under Bakke. F. which level of scrutiny do you apply? a. D. (Which was pretty much entirely based on race of applicant. above 100pts get in. C. below 75pts do not. outcome was compromise to get to majority holding Raises doctrinal issues o Is racial diversity in academic a compelling state interest? Ends v. E. means adopted Court found that diversity IS a compelling state interest (learnt f/ Koramatsu that can’t just go along w/ state saying they have a compelling interest in something. B and D make majority and strike down University policy. do numbers control? Gender Based Classifications Heightened scrutiny is applied to gender cases. so constitutional matter rather than statutory law (statutes prohibit discrimination in private educational institutions. Bollinger Michigan’s undergraduate admissions program Applicants rated based on point scale. Powell rules on constitutionality. then there’s the gray area in-between Points given to race were too great. of California v. based on way court divided – makes for diversity of views in how to handle such issues. Important that it is a state school – governmental institution. however. Because educational diversity is important b. controlling opinion. Set number of seats in medical school set aside for applicants who had been deemed by the university to be historically disadvantaged. 4 members of court held that it was in fact constitutional and that intermediate scrutiny (between strict scrutiny and rational basis). o Court not necessarily applying strict scrutiny Doctrinal wrinkles. but not strict scrutiny. did not allow for individualized consideration Majority thinks these two plans should have risen together and been upheld or struck down simultaneously (however. Or there are 4 votes for intermediate scrutiny. get new level of scrutiny: Intermediate Page 47 of 59 . 4 members of court held violation of Civil Rights Act… prohibits discrimination in institutions receiving federal funds. Prior discrimination is not a compelling interest. Did not reach constitutional issue. two justices liked one and not the other) Regents of Univ. a.) a. He does say. that in some cases. applying strict scrutiny. Bakke A. When race is a “plus” but not a separate category. courts found it here) o Is Michigan’s race-conscious admissions program narrowly tailored? What’s serious good-faith consideration of race-neutral alternatives Usually has to be a time limit – date when we know it’ll end Remedial (as opposed to combative) type of program Gratz v. i. Powell 5th vote. so does his strict scrutiny test fly? b. race is an appropriate criteria for admissions. a.
First time have stronger scrutiny. not gender (separate amendment had to be adopted to grant women suffrage) So why rational basis? b/c of gender discrimination o Why not test in Moreno.2 beer. United States v. women not discriminated against – is men B. Statistics on danger posed by drunken 18-20 year old males don’t justify the prohibitions. Law does not prevent drinking – just purchase E. Passes rational basis test – guys do dumb things (I’ll second that. Beer served to women but not men between 18-20yrs C. if happens to treat women differently then uphold law if it meets rational basis test o Is no Constitutional signal that we’re in a different space when it comes to race – do not have the same when it comes to women Purely numerically: women outnumber men. What if the separate institution was equal? Page 48 of 59 . Virginia p. economic. this women’s school was a mere “pale shadow” of the male school VMI E. i. What about women in combat. Standard of review: i. Means: substantial relationship H. However a. a. F. and social inferiority of women a. Stats look at only 2% of drunk drivers b. Challenged male-only policy of school and women’s parallel school state opened in response to initial litigation B. Prevents purchase of beer. G. Statute isn’t comprehensive. (cases where use rational basis to make sure legislators are not totally out of wack or crazy) o Usually very lenient – give legislators wide berth o So. 602) A. then strike down. Majority cites 10x difference between M/F drunk driving arrests D. Does not list physical differences or military classifications b. Prevention of drunk driving is an important state interest (why isn’t policy “substantially related”?) a. However. Court rejects this reasoning. Boren (p. a. court rules that such classifications cannot perpetuate legal. Court does not deny that preventing drunk driving is an important governmental interest. Reasoning being that it keeps the roads safer because men drive more than women. b. but not consumption. etc. etc. etc. but allows women 18 and up to buy 3. Ends: must be an important governmental interest ii. Requires a closer fit between stated policy and what the law actually does. questions the substantial relationship between the law and the desired result. Craig v. Rhenqist concurred – like Sweat/Painer case where separate law school was not equal. Physical differences between men and women endure C. College age males more likely to be binge drinkers and drivers b. teehee!) c. 14th Amendment adopted to deal w/ race issues (clearly to protect freed slaves). why not: when find law that treats women differently outright. a. – notions of frailty and chivalry D.2 beer. 611 A. OK law prevents men under the age of 21 from buying 3.
Incorporation Bill of Rights not intended to apply to states Barron v.) o Veterans cases are interesting – hard to tell which gender gets shafted Implied Fundamental Rights Rights that we have not given up to the government that courts are required to enforce. Between men and women to discriminate against women without “exceedingly persuasive justification” (which is higher than intermediate scrutiny). but since its not it fails b. Boren. harmful impacts of rape is on women B. Michael M. a. Also rejects states motivations saying that making assumptions based on stereotypes about women’s inclinations is faulty. Court says can’t use inherent dif. H. would be ok. Other institution is set up. was going to be deported b/c was not citizen (mother was not). K. would have been made a citizen and not deported SC upholds statute o Encourages fathers to have relationship w/ child o Child is asserting citizenship that’s not automatic o Paternity harder to prove Intermediate scrutiny: would say state has to show is no sex-neutral test to meet same goals. if you’re really interested in this issue. etc. Adler recommends reading the opinion and dissent in its entirety G. Baltimore o Responsibility of state government to uphold Constitution (state supposed to augment and check federal power) Page 49 of 59 . fathers) o Majority says the facts are rooted in biological differences (mother is present at birth. INS INS convicts of crime at 22yrs old. Statute was to prevent illegitimate pregnancies. J. Says if the other school was of equal caliber.F. father gets DNA test to prove son is citizen Is citizenship rule a permissible gender-based classification? Court decides that citizenship is a function of maternal (not paternal) citizenship If had had test 5 years earlier (before turned 18). a. Sonoma County A. Seems to preclude the possibility that separate but equal is highly unlikely in the case of gender L. not the case here Differences between different levels of scrutiny o Minority days opinion was decided based on outmoded generalizations of women (mothers v. not men Nguyen v. R applies intermediate scrutiny as in Craig v. Court upholds b/c risk of pregnancy is a substantial deterrent to women. Separate is not equal. v. VMI says no women I. Other institution that is set up is inherently inferior and its different teaching methods also make it not qualify. FYI.
Non discrimination clause – states can't treat own people better than other states people iii. clause above) a. Bill of Rights originally only applied to federal government C. sometimes used. o Case looks at to what extent Bill of Rights actually might apply to states What rights are incorporated? Palko v. words been too malleable Bill of Rights is handy. right of self defense iii. Connecticut Adamson v. Duncan v. not clearly in text but nonetheless merit protection. must be all or nothing – so far. substituting their own notions of decency. clear. although is good example of how justices have trouble explaining decisions (due process does not have best pedigree so often look for other ways to justify rulings) F. in practice. where are they? What should courts protect? B.. etc. Privileges OR Immunities Clause (in 14th Amendment) a. already created list/document Wants everything in B of R to be incorporated Otherwise. California o Due process o Dissent says if there’s going to be any incorporation. 9th Amendment a. I. OR Immun. Substantive Due Process: seen in Dredd Scott.e. Different f/ equal protection clause (which was focused on classification distinctions) D. First time adjudicated in Slaughter-House cases G. Have to treat all US citizens the same w/in your state b. “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US” ii. Implied Fundamental Rights: rights are not enumerated. “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” ii. Privileges AND Immunities (different f/ Priv. 14th Amendment i. Incorporation: debate of incorporation of Bill of Rights as against the states E. Louisiana o Selective incorporation o Most everything in B of R is incorporated. rest is just there b/c framers just wanted to include it… o Not included: 2nd 3rd Grand jury Guarantee of 5th 7th A. First time addressing some substantive limit to state police power b. I. court is. Privileges and immunities clause a. Ninth Amendment: All rights are not enumerated herein…. Article IV i. H. 4 “The citizens of each state shall be entitled to all privileges and Immunities of citizens in the several states” Page 50 of 59 . Art.
So. Majority rule effectively makes priv.S. (very narrow protection) G. I. Butchers sued D. are only some that are for US citizens (such as ability to petition DC. seeking an injunction. Louisiana gave a certain slaughterhouse a monopoly on the slaughterhouse business in New Orleans. a right guaranteed by the privileges and immunities clause of the fourteenth amendment. citizens (like voting). What rights are incorporated? (see Palko v. which protects P&I of U. does not protect anything aside from interstate travel. Substantive Due Process Slaughter-House Cases p. citizens differs from the content of Art. Citizenship in one state entitles you to the rights of each state when in it. should protect stuff but right now. 4’s P&I clause. P claimed that they were prevented from practicing their trade unless they worked at the monopolist corporation and paid its fees. Severly limits 14th A’s P&I clause. it would have said so. Too big a leap to assume it was intended to change the nature of privileges granted through the state P. L. J. and immune. The Butchers' Benevolent Association (P) challenged this statute. If the clause was supposed to protect citizens of states. The amendment must be interpreted in the light of its intent. citizens and state citizens. Conn. They claimed that this abridged their right to own and use property. Contrary to the original understanding of those who wrote the 14th A. In determining privileges and immunities. Court Rules that clause only guarantees those federal rights that were protected at the time of the amendment’s adoption. The court held that since the 14th A draws distinctions between U.i. clause a dead letter law b. not of the US. In this case. Doctrine of incorporation (some things that fed. the contents of its privileges and immunities clause.S. ii.) – different f/ those individually granted by states (court is not to protect state granted rights) F.S. states can’t do either) a. Involuntary servitude meant slavery (personal servitude) and did not cover this situation. Dissent: a. K. H. M. Page 51 of 59 . can’t do. Therefore the federal P&I were not replicate of basic property rights protected by Art. N. “No State shall make or enforce any law which shall abridge the privilege i. which protects the rights of the citizen of one state while visiting another state. Court says one pervading purpose of 14th A was to protect newly freed slaves (even though language was more general) E.) i. etc. First time 14th Amend adjudicated B. Baltimore) b. 14th Am. See Slaughter House Cases J. travel international waters. (see Barron v. but the P&I of U. Butchers Claim is that §1 of the 14th amendment extended the Privileges and Immunities clause to the state. The Bill of Rights was not intended to apply to the states. Amendment overrules Dred Scott O. Non-discrimination by state of residency b. 4. etc. Those essential to order liberty K. 693 A. only the federal government. Louisiana gave monopoly to one slaughter house for everyone else to come to C.
Field’s Dissent: The amendment guarantees basic freedoms for all United States citizens. Affects bakers’ ability to hire someone for more than 60 hours. E. etc. 713 A. The Clause should not be interpreted to cover state restraints on trade. i. Court said intent of legislature may not have had public health in best interest – might have been against immigrant workers. Generally seen as an abominable opinion – totally wrong (few current defenders). New York p. Bradley’s Dissent: The right to choose one's employment. problem is not that court is overturning law. It is onerous. subject only to uniform regulations equally applicable to all. D. the 14th Amendment Privileges and Immunities Clause is essentially dead Economic Liberty: Substantive Due Process and Economic Liberty What if due process means more? Not just about how to set up procedures in convicting people (but is about the substance of rule the state can punish you for in the first place) Not a claim about process but a claim about substance US v. Carolene Products (most famous footnote). discrete judgment not found (differ to legislative findings) Lochner v.it is clear that among these must be the right to pursue a lawful employment in a lawful manner. Substantively: actual interpretation of the Constitutionality of the law. arbitrary. so it is overturned. is a trade restriction that materially interferes with its prosecution. Because of this case. C. To force a butcher to only deal with one company. unreasonable. New York passed a law prohibiting anyone who works in a bakery from working more than 60 hours a week. A distinct privilege of citizens of the United States is equality of the right to the lawful pursuits of life throughout the whole country. i. S. Supposed to look at actual impact of laws ii. T. Case lasts through 1930’s B. However. Law was based on public health b. is the most basic of rights and should be protected by the clause. not the federal government. and unjust. is process (reason) for why court is doing so – actual law they’re citing d. Although the majority of people in NY thinks is OK. Lochner is a baker. was it wrong institutionally or substantively? i. Court rules that there is a right to contract and the law infringes upon it. without other restraint than such as equally affects all persons. court thinks fundamental liberty (to K) threatened by this law c. Affects employees rights to work more than 60 hours. and force him to pay a toll. ii. Max hour law limits right to contract because it limits terms of contract. Doctrine: Page 52 of 59 . R.Q. To permit a state to interfere with such a basic privilege is to ignore the true purpose of the fourteenth amendment. Rights protected by the privileges and immunities clause are those that belong to the citizens of all free governments . Bakers work hours. court is legislating ii. however. a. Institutionally: separation of powers. suppression of competition (milk products). Those privileges are left to the citizens of the states and thus left to state governments for protection. challenge to limiting hours based on right to K a.
Connecticut p. Court struck down both b/c cannot interfere w/ liberties (no reasonable relation to state purpose). Fundamentally like Lochner. Court says: then you should regulate safety. F. Although the state has police powers to regulate for the general health and welfare of the state b. i. No private schools allowed (anti-Catholic). Regulation as a form of redistribution. i. Children’s Hospital and upheld minimum wage law for women C. Nebbia v. Page 53 of 59 . 811 A. NY makes argument that they are regulating safety. Government raises price of milk during a milk shortage (contrary to economic principles) B. Undue union influence. 727 A. Court implies that NY might actually be motivated by labor concerns. not hours b. New York p. specifically German. State cannot infringe upon economic liberties without a “fair and reasonable” motivation. dealing w/ rights to families a. one case made illegal to teach modern foreign language – designed to prevent teaching German (immigrants) C. Liberty under due process protected these rights Modern Substantive Due Process: Right to Privacy Griswold v. There is not a substantial relationship between the law and the result c.. Not Lochner. Parrish (switch of nine case – essentially overturns Lochner) p. Milk is “affected with the public interest” b/c is an essential part of diet West Coast Hotel v. not balancing them with management. Court upholds. Way of preventing nonunionized bakeries from competing with union shops. D. Etc. Court says… dumb Pierce v. Law does not allow USE of contraceptives. Same rationale as Lochner a. Explicitly reversed minimum wage law Adkins v. and are being exploited. Nebraska A. B. 9th Amendment b. Right of privacy is (if not enumerated in due process clause) then falls under penumbra (shadow) of other enumerated rights: a. a. “Switch in time saves 9” B. 725 A. No teaching foreign languages in middle schools. Court’s reasoning is that women are weak. Society of Sisters A.a.e. I. What happened to the right to K? Was this really to prevent women from underbidding men? Meyer v. no bargaining power. even by married couples and to prevent diseases B. says there is a legitimate public welfare element a. requiring public school attendance – keeping kids out of Catholic schools B. It violates the due process clause. is not substantive due process but is protection of enumerated right C.
823 Is abortion a fundamental right? o YES. V. Three ideas of where rights come from H. has to be compelling state interest and narrowly tailored Compelling state interests in mother’s health Risks associated w/ procedure Also. State statute prohibits the use of contraceptives. Goldberg agrees w/ 9th A. just deals w/ rational basis and how this law fails that test – looks at disease prevention or illicit relationships (that law does not protect citizens. White ignores all this. Issue is if is right in and of itself M. marriage part of tradition and collective conscious. Fundamental liberty takes out of rational basis test and makes test strict scrutiny P. even by married couples. Harlan: only looks at 14th Am K. S. autonomy. Right to Privacy a. Harlan’s discussion should flag readers that is strict scrutiny (same as fundamental liberty) O. court has legitimate role in protecting F. enforcing right to privacy as state regulation through due process clause of 14th Am L.) G. Roe v.D. Criticized b/c contradicts West Coast Hotel (ID non-enumerated liberties not subject to rational basis) Q. Wade p. such as 9th Am o Privacy If is a private act. U. Ambiguity about where test is N. Goldberg: 9th Am J. Regulation was unnecessarily broad for goal of preventing extramarital affairs. Harlan: Must look at history and collective conscience to maintain judicial self restraint. No limits on sales i. due process should protect.? Can state justify limitations? o Thus. agree on substantive due process. Douglas: Penumbras I. Lot of discussion of marriage b. Struck down based on the penumbra of the bill of rights including a right to privacy. R. etc. Compare to eyeglass case (Optical) ii. suggests due process E. Law restricting sales subject to strict scrutiny (limits access) unlike optical (where does not impact fundamental liberty) iii. Disagree on where substance comes from. T. Preventing use rather than sale is impractical: would have to go into the marital home. compelling interest in potential life (named at the point of viability) Look to Constitution and say “person” does not include the unborn Basis for abortion right Page 54 of 59 . But what about unmarried couples? c. b/c encompassed by right of privacy o Privacy is a fundamental right o Majority says is found in 14th Am Can be found elsewhere. why is it more so than other transactions we don’t regulate o Or is it about bodily integrity. etc. Harlan says forget penumbra.
Planned Parenthood (p.) Court applies strict scrutiny in examining whether the state has a compelling interest. o Trimester framework (survives 20 years) Medical judgment of physician Regulate for maternal health Regulate/proscribe (w/ life & health exception) o Issue as time goes on and technology gets better so that Babies can be born more and more premature And abortions can be done later and later w/ lower risk to woman Dissent says is legislative decision (not judicial) and is not fundamental right Is Roe really an equal protection case? o Only impacts women o What’s result under intermediate scrutiny? Gives states more leeway to regulate Equal protection: o No longer an issue of fundamental right. 850 p. states may regulate abortion for the health of the mother Subsequent to viability (3rd trimester) courts can regulate to protect the rights of the fetus. Spouse notification: degree impacts autonomy Page 55 of 59 . (If it said conceived. (strict scrutiny is race based only in equal protection. and court determines fetuses are not persons.) A. not criminalizing abortion would be unconstitutional under equal protection. State has legitimate interest in protecting both woman and fetus from outset of pregnancy C. is about are men and women treated the same (so strict scrutiny does not have to apply) o Is intermediate scrutiny Maher v. “undue burden” analysis b. State Interest: Discourage illicit sexual conduct Texas doesn’t ever bother to argue this one Protect health of the mother No more risk than in pregnancy Protect prenatal health No rights for fetuses (see B. McRae o Controversial decisions Two issues: Is abortion a fundamental right? Can the state justify limitations? Fundamental Right: Fetus is not mentioned in the Constitution. based on 14th Amendment (see pg. Roe. not conceived. Casey v. but is not the same B. 14th Amendment says born or naturalized.) Court rules: States can’t regulate abortion during the first trimester After the first trimester. 824). Say are upholding essential holding of Roe. not fundamental rights – like privacy.a.) Woman’s right is in the penumbras of the right to privacy. and Harris v.o. New test: getting rid of trimesters a.
J. but not Roe because of this framework. Also extends maternal health interest of state throughout. Is the rule workable? b. Upholds that abortion is an absolute right until the point of viability. challenge Nebraska partial-birth abortion procedure B. gives undue burden analysis a. Implied fundamental rights E. has to be exception for health and life of mother G. Undue Burden: does the court apply the test that it articulates? N. 14th Amend (substantive due process) is where we start but can make an argument for rational basis and strict scrutiny and be “right” either way H. O’Conner: split decision – always the good default for splinter/swing vote a. M. as it is no longer medically correct. unless is safer) F. Case stands for fact that abortion has its own special test – own category G. If using rational basis or something more. Says sticking w/ past rulings F. Court finds two problems with statute a. Lochner can restrict how much people wk Page 56 of 59 . strict scrutiny) J. etc. K. Sufficiently vague as to cover not only DNX (partial birth abortion) but also DNE b. 871) A. a. Others say accounts for other (fetal) interests I. statutes requiring such things as spousal notification. Could impact other procedures (ban other. Casey takes a step back f/ this. Abortion not in terms of fundamental rights c. Carhart (p. Stare Decisis: when can a rule be overturned? a. Court affirms the “central” holding of Roe. Stenberg v. Then state can regulate. what’s the state interest in the procedure (since law did not determine any time period in which can be administered) E.D. Based on Stare Decisis it was OK to overturn Lochner. I. Are the facts still applicable d. O’Connor’s opinion is essentially a road map on how to make a constitutional partial-birth abortion statute. 24 hour waiting period. Evolution of legal principles – “a doctrinal anachronism abandoned by society” O. Some say is step away from fundamental right to abortion H. parental notification. Is there reliance upon the rule? c. Congressional Application of the Equal Protection Clause Substantive due process What constitutes a “fundamental liberty”. what are they and how do we know o Griswald fundamental right to privacy v. Worth noting: Kennedy and O’Connor disagree on what Casey means and how to apply it. Dissent says that Congress should decide. less controversial and more common abortion procedures) D. Issues of institutional competence. OH has similar statute get around ruling. No health exception C. but not the trimester plan. Pre and post viability: even post viability. UNDUE BURDEN test (not compelling interest w/ narrow tailoring. Differs f/ Roe b. L. Majority argues that a health exception should be made by doctor. Penn. Liberty interest is terminating pregnancy (not terminating in a particular way.
fundamental understanding Must rise to Constitutional violation (not just something people upset about) Right to die cases o Cruzan v. Statue was. such that neither liberty nor justice would exist if they were sacrificed Bowers v. Does the right to privacy extend to homosexual sodomy? B. Director. o Right to privacy encompass family/intimate but not economic (business) relationships o Has to be rooted in tradition. is say moral disapproval cannot pass rational basis. the provisions of this article Page 57 of 59 . too. Hardwick A. on its face. Also. including food and water State has compelling interest in making sure person wants treatment withheld o Washington v. Missouri Dept. neutral. etc. “no legitimate interest” = rational basis C. SC upholds statute. has to be equally applied) Lawrence v. suicide not fundamental liberty Rational basis test – not fundamental liberty State has several interests in not assisting suicide (equal protection issues for allowing some people and not others.e. Court overturns Bowers but does not say is fundamental right B. SC need Constitutional amendment to change past rulings Section 5 of 14th Amendment Congress shall have power to enforce. of Health Right to refuse medical treatment.) that would make dying a fundamental right Due process clause specially protects those fundamental rights and liberties which are objectively ‘deeply rooted in this nation’s history and tradition’ and implicit in the concept of ordered liberty.. Argues decision makes gay marriage a foregone conclusion (O’Conner disagrees) b. Board) Roe v. Texas A. must justify under rational basis test) No fundamental right to die or commit suicide O’Conner says might be position where do have fundamental right (i. ???? (not yet) Bowers (by Lawrence) Court looks to: o Precident unworkable o Reliance interests o Doctrine undermined or superceeded by president o Change in fact B/C of stare decisis. is not how historical development Stare Decisis Lochner (overturned by West Coast Hotel) Plessy (by Brown v. but was not being applied neutrally (unequally enforced) C. someone in severe pain. by appropriate legislation. says are all sorts of laws we think are silly that are ultimately moral legislation. Scalia: a. (like Railway Express case – majority pass law they’re OK w/. Glucksberg Prohibition on suicide.
Katzenback case (court gave leeway. would make amendments (and Constitution) and malleable as legislation f. compelling state interest) compelling state interest. Flores (p. so congress can create law to protect) City of Boerne v. SC strikes down statute b/c a. Madison – total full circle! d. pressing public policy Means Rationally related substantially related OR rationally related substantially related necessary and narrowly tailored Page 58 of 59 . Court says congruence/proportional – Congress can build on court rulings. court is more permissive about race) OK Right Too Broad Tests Due Process Clause Economic Measures => rational relation Fundamental/Individual Rights => strict scrutiny Equal Protection Clause Gender => heightened scrutiny Race => strict scrutiny Note where immutable characteristic always causes a group to always be the structural minority the test will always be strict scrutiny as a protection against the tyrannical thrust Test Rational Basis Rational Basis w/ teeth (Between RB & IS) Intermediate Scrutiny (gender) Strict Scrutiny (race or national origin) Ends legitimate government purpose legitimate government purpose OR important government interest important government interest (for gender. not change g. Congress has limited powers – can’t expand w/o amendment e. Congress has the power to recognize and protect Constitutional Rights (congress can enact prophylactic measures. Cited Marbury v. Congress can't go back and overrule judicial ruling when regards fundamental rights b/c can't redefine fundamental rights b/c would change Constitution b. small area of fundamental right that should not be infringed upon so create “protective bubble” around it that includes range of cases not a part of fundamental rights. Congress does not have the power to redefine the rights granted by the 14th Amend c. Congress changes law to make it acceptable for Some Native Americans to use peyote within religious ceremonies under equal protection (1st and 14th Amendment rationale) B. 226) A. Congress has the power to adopt measures that are “congruent and proportional. Otherwise. As long as the remedy isn’t over broad.” h.
VMI (no girls in our tree house). voided statute Railway Agency (no car adds but on professor. OK Standard of Review rational basis review rational basis w/ teeth intermediate scrutiny strict scrutiny Page 59 of 59 . voided Nguyen (illegitimate kid and citzenshiph/promote family).Cases Romer (CO legislature forbid all local discrimination laws). voided US v. OK Korematsu (Japanese internment). Boren (girls buy beer early). OK City of Cleaborn (home for retarded). Vans). OK ** wartime City of Richmond (race contractor award quota). voided. voided Bakke (UC Davis racial admission quotas). voided Moreno (Hippies). voided Craig v. disproportionate Michigan Law (soft number award to race apps). voided Michigan Undergrad (20pts for race). voided statute NY Transit (methadone) OK Lee Optical (limit fill lens prescriptions).
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.