Text: Red text = from class notes Black text = from case book Blue text = from additional supplements Purple text = from Quimbee supplement Green text = from Chemerinsky Italic text = quotes from the Constitution Yellow highlight = important Blue highlight = unsure of/needs more info Purple highlight = not tested Outline: Light green case name = main case in book (assigned), but primary case on syllabus Black case name = case in notes of book that was discussed in class

Table of Contents
CONSTITUTIONAL LAW OUTLINE ................................................................................................. 4 PART I: THE ROLE OF THE COURTS IN CONSTITUTIONAL INTERPRETATION ................ 4 JUDICIAL POWER ............................................................................................................................... 4 INTRODUCTION: THE CONSTITUTION OF THE UNITED STATES, PP. XXXV-XLIX............................................... 4 Interpreting the Constitution ............................................................................................................................ 4 Levels of Review ....................................................................................................................................................... 5 The Constitution ...................................................................................................................................................... 5 THE SUPREME COURT S AUTHORITY AND ROLE: THE POWER AND LIMITS OF JUDICIAL REVIEW ............ 5 Judicial Review ......................................................................................................................................................... 5 The Establishment of Judicial Review (pp. 1-21) ..................................................................................... 6 The Power to Review State Court Judgments (pp. 21-29) ................................................................... 7 The Adequate and Independent State Grounds Doctrine (pp. 29-) ................................................. 8 The Operation of Judicial Review (pp. 35-47) ........................................................................................... 9 Courter-Majoritarian Role (pp. 36) ................................................................................................................ 9 Limitations on Judicial Review: (pp. 49, 65-66, 98-118, 122-25) ..................................................... 9 The Proper Role of Federal Courts (pp. 65) ............................................................................................. 10 The Eleventh Amendment (pp. 122-125).................................................................................................. 12 PART II: ENFORCING THE CONSTITUTIONAL ALLOCATION AND LIMITATION OF NATIONAL POWER ......................................................................................................................... 14 NATIONAL LEGISLATIVE POWERS ............................................................................................. 14 THE VALUES AND ENFORCEMENT OF FEDERALISM LIMITS ON NATIONAL LEGISLATIVE POWER (PP. 127-53) .......................................................................................................................................................................... 14 Federalism............................................................................................................................................................... 14 10th Amendment ................................................................................................................................................... 14 Police Power ........................................................................................................................................................... 14 THE COMMERCE POWER ............................................................................................................................................. 16 General Scope (pp. 153-72) ............................................................................................................................. 16


Pre-1937 Commerce Clause (pp. 172-81)................................................................................................. 18 New Deal Expansions (pp. 181-91) ............................................................................................................. 22 What s the Law Today? (pp. 191-204) ....................................................................................................... 25 External Limits on the Commerce Power imposed by State Autonomy (pp. 204-26) ......... 30 OTHER NATIONAL POWERS: TAXING, SPENDING, TREATIES, WAR-RELATED, FOREIGN AFFAIRS AND CIVIL RIGHTS (PP. 226-51) ....................................................................................................................................... 31 Taxing Power ......................................................................................................................................................... 31 Spending Power .................................................................................................................................................... 32 Treaties, War-related, Foreign Affairs and Civil Rights ..................................................................... 34 HEALTHCARE CASES ..................................................................................................................................................... 34 FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE ....................... 35 THE DORMANT COMMERCE CLAUSE (DCC) .......................................................................................................... 35 Development of the Doctrine (pp. 253-60) .............................................................................................. 37 Discrimination against Interstate Commerce (pp. 260-70)............................................................. 38 Neutral Burdens on Interstate Commerce (pp. 270-83).................................................................... 39 Facially Neutral Regulations with Discriminatory Effects (pp. 284-300) ................................. 40 States as Market Participant Exception (pp. 300-08) .................................................................... 43 THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV (PP. 308-17) .................................................. 44 FEDERAL PREEMPTION AND CONSENT: CONGRESS HAS THE FINAL WORD (PP. 317-30) ........................ 46 PART III: SEPARATION OF POWERS .......................................................................................... 48 SEPARATION OF POWERS ............................................................................................................ 48 INTRODUCTION (PP. 333-34) ................................................................................................................................... 48 EXECUTIVE ACTION ...................................................................................................................................................... 48 Executive Action: Domestic Affairs (pp. 335-55) .................................................................................. 49 Executive Action: Foreign Affairs (pp. 355-83)...................................................................................... 50 LEGISLATIVE ACTION AND THE ADMINISTRATIVE STATE:................................................................................. 52 General Themes (pp. 383-97) ......................................................................................................................... 52 Specific Limitations (pp. 397-413) .............................................................................................................. 53 IMMUNITIES AND PRIVILEGES (PP. 413-24) ........................................................................................................ 54 PART IV: INDIVIDUAL RIGHTS LIMITATIONS ON GOVERNMENT POWER....................... 56 DUE PROCESS INTRODUCTION ................................................................................................................................... 56 PROCEDURAL DUE PROCESS (PP. 425-43) .............................................................................. 57 Property ................................................................................................................................................................... 57 Liberty ....................................................................................................................................................................... 58 Determining the Process That is Due ......................................................................................................... 58 SUBSTANTIVE DUE PROCESS ....................................................................................................... 58 SUBSTANTIVE DUE PROCESS ...................................................................................................................................... 58 THE INCORPORATION DOCTRINE (PP. 443-58) .................................................................................................. 59 THE RISE AND FALL OF ECONOMIC RIGHTS AS THE SUBSTANCE OF DUE PROCESS (PP. 458-70) ........ 64 THE MODERN REVIVAL: PRIVACY RIGHTS (PP. 470-549) ........................................................................... 66 Origins: Contraception (pp. 472-83): ......................................................................................................... 67 Abortion (pp. 483-516): .................................................................................................................................... 70 Family Relationships (pp. 516-23)............................................................................................................... 73 The Right to Die (pp. 523-35): ....................................................................................................................... 75 Consensual Sexual Choices (pp. 535-49) ................................................................................................... 76 Methodology........................................................................................................................................................... 78 THE MODERN REVIVAL: EXCESSIVE PUNITIVE DAMAGES ................................................................................. 79


ECONOMIC RIGHTS: THE TAKINGS AND CONTRACTS CLAUSES ......................................... 80 THE TAKINGS CLAUSE (PP. 551-92) ...................................................................................................................... 80 The Public Use Requirement (pp. 552-62) ............................................................................................... 81 Regulatory Takings: When Does Regulation Become a Taking? ................................................... 82 Conditional Regulatory Takings (pp.587-92)......................................................................................... 87 THE CONTRACTS CLAUSE (PP. 593-605) .............................................................................................................. 87 EQUAL PROTECTION OF THE LAWS........................................................................................... 88 INTRODUCTION AND LEVELS OF SCRUTINY (PP. 607-12)................................................................................. 89 Introduction ........................................................................................................................................................... 89 Levels of Scrutiny ................................................................................................................................................. 90 Over-inclusive/Under-inclusive ..................................................................................................................... 91 Classifications ........................................................................................................................................................ 92 MINIMAL SCRUTINY: THE DEFAULT LEVEL OF REVIEW..................................................................................... 93 Means: What is Not Rational? (pp. 612-19) ........................................................................................... 93 Ends: What Purposes are Not Legitimate? (pp. 620-29) ................................................................... 95 Same Sex Marriage? ........................................................................................................................................... 96 Enhanced Minimal Scrutiny: Means? Ends? Both? (pp. 629-40)................................................ 97 STRICT SCRUTINY AND SUSPECT CLASSIFICATIONS: RACE AND ETHNICITY ................................................. 99 Overview (pp. 640-42) ....................................................................................................................................... 99 Purposeful Discrimination Required (pp. 642-49) .............................................................................100 Official Racial Segregation (pp. pp. 649-58) .........................................................................................104 Affirmative Action .............................................................................................................................................106 STRICT SCRUTINY AND SUSPECT CLASSIFICATIONS: LAWFUL RESIDENT ALIENS (PP. 716-19)......... 114 INTERMEDIATE SCRUTINY: SEX AND ILLEGITIMACY (PP. 720-43) ............................................................. 114 Gender Discrimination ....................................................................................................................................115 FUNDAMENTAL RIGHTS: STRICT SCRUTINY REVISITED .................................................................................. 121 Introduction (pp. 743-49) ..............................................................................................................................122 Voting: Denial, Dilution, Gerrymandering (pp. 749-75) ..................................................................123 Access to Courts (pp. 775-80).......................................................................................................................127 Penalties on the Right of Interstate Migration (pp. 781-87).........................................................128 CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS ............................... 129 INTRODUCTION (PP. 1143-44) ............................................................................................................................. 129 CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS .............................................................. 129 Coverage: Public or Private Conduct? (pp. 1165-70) ........................................................................129 Content: Remedial or Substantive? (pp. 1170-91) .............................................................................130 THE RIGHT TO KEEP AND BEAR ARMS AND THE PROPER INTERPRETATION OF THE CONSTITUTION.............................................................................................................................. 135


pp. This likely best describes the current system of constitutional interpretation 1. No authoritative interpreter each branch would have equal authority to determine the meaning of the constitutional provisions.CONSTITUTIONAL LAW OUTLINE PART I: THE ROLE OF THE COURTS IN CONSTITUTIONAL INTERPRETATION JUDICIAL POWER Introduction: The Constitution of the United States.Martin v.McCulloch Interpreting the Constitution 1. and conflicts resolved through political power and compromise b. written constitution/textualist (two ends of the specrum) a. Each branch is authoritative in certain areas i.Marbury . xxxv-xlix The 3M cases the cannons of the power of the branches of government under the Constitution the three cases where the courts decide who has the power . The Constitution does not say who should interpret the document a. But since Marbury it has been held that the federal courts have this authority 2. Hunter . Often challenges to the president s conduct of foreign policy c. Three possible answers to the question of who should be the authoritative interpreter of the Constitution a. Judiciary has decided certain parts of the Constitution pose political questions a. Madison endorses this approach 4 . Philosopher-king rationale vs. The judiciary as the authoritative interpreter i. Critique of philosopher-kings that s what we elect the legislature for 3. Marbury v. Arguably.

10th Amendment States Rights 9. Discrimination is often given the greatest scrutiny 3. federal law. whereas judicial power over the executive branch is somewhat muted in its textual support Judicial Review 1. Federalists v. The Court has generally tried to exercise judicial review in a fashion that mediates rather than aggravates the tension between a judicially enforceable Constitution and representative democracy 5 . Should all rights get the same level of review i. but many of the state ratification conventions called for a bill of rights to be added to the Constitution 5. Federalists prevailed b. Article III the Judicial Branch 7. it had not authority to act 3. 13th Amendment abolished slavery b. Anti-Federalists really wanted a Bill of Rights which wasn t initially included. Anti-Federalists a. The new federal government was given only a few specifically enumerated (but very important) powers 2.. 15 The Supreme Court¶s Authority and Role: The Power and Limits of Judicial Review 1. 14th Amendment Equal Protection Clause overruled Dred Scott th Amendment protection of voting 10.e. Article II the Executive Branch 6. The minimal review is usually for economic. business type matters a. By contrast. Amendments 13-15 the Civil Rights Amendments a. or the relevant state constitution 4. property. all get minimal? The Constitution 1. When government regulates those the court typically adopts a minimal review posture 2. states were presumed to have power to act unless denied by the Constitution. Judicial review: the process by which courts decide whether actions of government officials (including legislation) comply with the Constitution a. Amendments 1-10 the Bill of Rights 8.Levels of Review 1. The presumption created was that unless the federal government could find authority for its acts in the Constitution. Power over the legislative branch is pretty textual.

b.fully appointed to that position by the President s act of signing his commission. is unconstitutional. Marbury brought action. further enforced by his confirmation in the Senate. It also showed it s ability to review executive acts whether Jefferson must allow for Marbury s appointment 5. Madison s refusal to finalize Marbury s appointment interferes with Marbury s legal title. 7-13) 1. Cited as authority for the judicial review power of courts 6 . The Act allows the Supreme Court to have original jurisdiction over actions for writs of mandamus. (3) It depends.The Establishment of Judicial Review (pp. Marbury appointed by President Adams. Rule of Law: The Supreme Court of the United States has the authority to review federal executive and federal legislative acts to determine whether they comply with the United States Constitution. Article III: establishes powers and jurisdiction of the judicial branch of the federal government. comprised of the Supreme Court of the United States and the lower courts created by Congress 3. 4. However. is that remedy specifically a writ of mandamus as outlined in Section a. Marbury is entitled to a remedy under federal law c. The Court held that although the Judiciary Act of 1789 authorized such jurisdiction. Although a writ of mandamus would have been appropriate. does Marbury have a remedy under United States law? (3) If Marbury is entitled to a remedy. this provision directly conflicts with Article III of the Constitution. The Act is unconstitutional because it seeks to expand the Supreme Court s original jurisdiction and therefore jurisdiction over Marbury s claim cannot be exercised. seeking a writ of mandamus to compel Jefferson s SOS Madison to compel him to finalize the appointment b. Facts a. Holding: the SC ruled against Marbury and held that it could not constitutionally hear the case as a matter of original jurisdiction. (2) Yes. (1) Yes Marbury does have a right to his commission as Justice of the Peace because he was law. Issue: (1) Does Marbury have the right to his judicial appointment? (2) If he does have a right and that right is violated. which greatly limits the cases in which the Supreme Court has original jurisdiction and provides it with appellate jurisdiction in all other cases. this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution a. When Jefferson assumed office he refused to finalize Marbury s appointment. 1-21) Marbury v. Section 13 of the Judiciary Act of 1789. Thus the Court showed that it had ability to review acts of Congress b. Madison (pp. 2. which authorized the United States Supreme Court to give such a remedy.

trust a. and in part based on a claim that it was not bound to comply with judicial desegregation decrees i. The Supremacy Clause b. 19-21) 1. Marbury could be interpreted (consistent with approach that each branch is authoritative in certain areas of constitutional interpretation) as assigning to the judiciary only the responsibility of interpreting Article III. 21-29) 1. Today the SC can hear state law cases as long as they implicate federal law 2. upholding Marbury The Power to Review State Court Judgments (pp. is whether s section of the Judiciary Act of 1789 is consistent with Article III of the Constitution. the federal law rules i. Under Sec. Chief Justice Marshall s reasons why the Court could declare federal laws unconstitutional a. Arkansas public schools. uniformity. Federal courts. A federal district court ordered the desegregation of the Little Rock.6. Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement b. 8. Uniformity without a regulatory body. The Court rejected this position. The specific issue in Marbury. All of Marbury could have been avoided if the Constitution said that the courts have judicial review 7. in part based on fears of violence. have the authority to review the constitutionality of state laws and the actions of state officials 3. federal law would be interpreted differently in each state i. Supremacy: when a state law conflicts with federal law. Rejected the idea that states. Supremacy. Rejected interposition 2. These are the only cases the SC can hear under this statute a. 25 of the Judiciary Act. Accordingly. It s inherent to the judicial role to decide the constitutionality of the laws that it applies Cooper v. having entered into a compact to form the Union. retain the right to assert their sovereignty to trump unwanted federal action a. as well as the SC. Aaron (1958) (pp. appellate review of state courts only for decisions on federal law where the state court has rejected federal law 1. Marbury could be read narrowly as holding only that the Court is the final arbiter of the meaning of Article III of the Constitution. The state disobeyed the order. Facts a. which defines judicial power. Shows that the real concern of Congress is supremacy and not uniformity 7 .

Court argued that the Constitution creates a SC and gives Congress discretion whether to create lower federal courts. ruled adversely to some federal right or claim. Upheld the constitutionality of section 25 of the Judiciary Act of 1789 which empowered the Supreme Court to review certain decisions of the highest state court which. state jealousies. granting state authority to have taken the land 3. Issue: Does the Supreme Court have appellate review authority over state courts? 4. Long (1983) pp. then the SC would be powerless to hear any cases. 7. unless it could review state court rulings The Adequate and Independent State Grounds Doctrine (pp. and state interests might sometimes obstruct or control the regular administration of justice if state courts weren t subject to the federal courts review 6. the Judiciary Act of 1789 provided for SC review of state court judgments Martin v. Hunter addressed this 2. thus Martin did not have a valid claim to the land c. 29-) Michigan v. generally speaking. except for the few fitting within its original jurisdiction. 30 1. US and England entered into treaty protecting the rights of British citizens who owned land in the US b. The one hole in judicial review after Marbury was power over the state judiciary . VA Court ruled in favor of Hunter. Hunter¶s Lessee (pp. Issues of uniformity and supremacy d. Two conflicting claims to certain land within VA i. Rejects VA s separate sovereigns argument b. 23-27) 1. The judicial power goes to ALL cases that have federal law in them c.Martin v. The Court rejected Virginia s position that its courts interpretations were not subject to federal review regarding federal law 5. Although the Constitution does not explicitly say that the SC may review state court decisions. Hunter VA had taken the land before the treaty came into effect. Support for the holding: a. But if Congress chose not to establish lower federal courts.2. the presumption will be that you acted on federal law unless you clearly state why you acted on state law 8 . Holding: if the opinion mentions both state and federal law. Facts a. State prejudices. Martin inherited land from a Brit ii.

Non-justiciable political questions 9 . of course. 49. mootness. If decided on both state and federal then it is eligible for SC review Bush v. AISG type of issue 2. For example. 65-66. 98-118. Gore (2000) pp. If not written in the Constitution. the principles of standing. Is a constitutional limit on federal judicial power Political Question Doctrine 1. Article III subject matter jurisdiction d. Congress can withhold jurisdiction from the courts (amount in controversy limits) c. Amendment. II to cases or controversies 2. 36) Calder v. appointment. 11th Amendment: prevents federal court relief against state governments a. grounded in nature and social compact theory 2. Justice Chase philosopher-king end of the spectrum a. Bull (1798) pp. The way Florida s court and legislature interpret state election laws is a state issue 3. External controls on judicial power a. One of the more controversial applications of AISG The Operation of Judicial Review (pp. 39 1. we. will not undertake to review the decision 2. and the political question doctrine 3. 12225) 1. Political Question Doctrine 4.Adequate and Independent State Ground Doctrine (AISG) 1. Self-imposed controls jurisdiction is limited by Art. impeachment b. Justice Iredel written constitution/textualist a. then sorry b. Issue: whether the state court could order a recount or whether the election laws passed by the legislature should govern a. What s the point of a written Constitution if you can just go off of it? Limitations on Judicial Review: (pp. Judicial interpretation of Article III has created crucial doctrines that restrict access to the federal courts a. ripeness. 32-34 1. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate. Doesn t have to be written down in the Constitution. 35-47) Courter-Majoritarian Role (pp. adequate and independent grounds.

A lack of judicially discoverable and manageable standards for resolving it i. The republican form of government and the electoral process ii. Instances where the federal court cannot shape effective equitable relief vi. But not in the case of Powell iv. A textually demonstrable commitment of the issue to a coordinate political department b. Holding: challenges to malapportionment are justiciable 3. Foreign affairs iii. Chief Justice Marshall contrasted political questions with instances where the individual rights were at stake. Lays out six criteria for whether there s a political question a. Gore 7. Self imposed restriction on the SC 4. Rule of Law: A challenge to malapportionment of state legislatures brought under the Equal Protection Clause is not a political question and is thus justiciable. Not in Bush v. because brought under the Equal Protection Clause 4. according to the Court. Jubelirer (voting case) the Court dismissed a challenge to partisan gerrymandering and a plurality said that such suits are inherently nonjusticiable political questions The Proper Role of Federal Courts (pp. The impeachment process 6. 99-105 1. Court: justiciable. In Vieth v. the latter. It is very difficult for a court to apply the Baker criteria to identify what cases are political questions a. Political questions: issues which the federal courts will not address because their subject matter is deemed to be not fit for judicial resolution a. Even though their may be a constitutional violation 3.2. 65) Baker v. So can really only be understood where it has been invoked: i. This case only decides a threshold question: is this case justiciable or is it a political question? a. The process for ratifying constitutional amendments v. the other four are more prudential 10 . Usually is non-justiciable a. Issue: Does an equal protection challenge to malapportionment of state legislatures qualify as a non-justiciable political question? 2. We first saw this doctrine in Marbury a. a. Usually the conservative members of the court argue in favor of the political question doctrine a. Congress s ability to regulate its internal processes 1. never could be political questions 5. Carr (1962) pp. The two above are the main two (thought to be driven by the Constitution.

citizen. the Court noted that the issue in Powell was not expulsion. under Art. he was excluded. The impossibility of a court s undertaking independent resolution without expressing lack of the respect due coordinate branches of government e. Issue: Can the SC decide this question or is it a nonjudiciable political question? a. Case specifics a. I § 2 cl. by a vote of two-thirds of its members. McCormack (1969) pp. residency) 2. Holding: Yes. §2 age. Rule of Law: A challenge to restrictions on congressional membership set by the United States House of Representatives is justiciable and not a political question. the house can only judge the three qualifications as set forth in Art. But the Court held that the House had discretion only to determine if a member met the qualifications stated in Art I. The potentiality of embarrassment from multifarious pronouncements by various departments on one question Powell v. An unusual need for unquestioning adherence to a political decision already made f. Holding: No. Defendants the House i. Court s policy argument for this being justiciable a. Stressed the importance of allowing people to select their legislators 8. though certainly not always as illustrated in Powell. 2 (age. Argued that the Constitution gives Congress the power to judge the qualifications of its members .c. The Constitution specifically provides that each house of Congress may. I § 5 which says that each house shall be the judge of the qualifications of its own members. Issue: Is a challenge to restrictions on Congressional membership set by the United States House of Representatives a non-justiciable political question? 5. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion d. It is for the court only to decide whether something is a political question 4. ii. the Court has held that congressional judgments pertaining to its internal governance should not be reviewed by the federal judiciary 11 . Often. citizenship and residence 7. However. Issue: Does the House. expel a member. not expelled b. 105 1. have the sole power to determine who is qualified to be a member? a. 6. the SC can decide the question because it is not a political question 3.

or upon a summary determination that an officer of the US was simply a bad guy. Horizontal textual commitment 5. Article I. Policy reasons for being non-justiciable a. Challenges to the impeachment process are nonjusticiable 3. Issue: Whether the scope of the Senate s constitutional authority to conduct impeachment proceedings is a non-justiciable political question incapable of resolution by the courts. The 11th Amendment basically says you can t bring a diversity case against the state in federal court 12 . If the Senate were to act in a manner seriously threatening the integrity of its results. Nixon argued that the whole Senate had to sit in on impeachment hearings. Sovereign immunity 2. Liberal justices argued this was a political question case (usually the Conservatives are the ones arguing in favor of the political question) The Eleventh Amendment (pp. Non-justiciable. not just a committee 4. 116-118 1. This was a political question that the court could not address a. Is a constitutional limit on federal judicial power 3. Souter s concurrence a. a. The court here declined to view as political questions the issues brought up in this case 2. Text based limit on judicial power 4. 11th Amendment: prevents federal court relief against state governments a. 122-125) 1. United States (1993) pp. Clause 6 of the Constitution gives sole power to the Senate to try all impeachments. Impeachment as only legislative check on the judiciary 7. say upon a coin-toss. The framers use of the word sole is significant in that it is a textually-demonstrable commitment of complete discretion to the Senate to conduct impeachment proceedings and to determine the rules by which those proceedings are conducted. convicting. Federal district judge had been convicted of making false statements to a grand jury b. 2. Recognized the potential need for judicial review b. 106-111 1. Gore (2000) pp. Basically says you can t bring a diversity case against the state in federal court 5.Nixon v. Section 3. Judicial review would be inconsistent with system of checks and balances i. Facts a. judicial interference might be appropriate Bush v. Court said the Senate has the sole authority to decide impeachment cases Constitution gives complete control over the impeachment process to Congress 6.

Suits against state officers b. The current court disagrees whether the court in Hans got it right see Seminole Tribe of Florida v. The scope of Congress s section 5 (of 14th Amendment) power is critically important to determining the extent of 11th Amendment immunity 4. Permitted states to waive their 11th Amendment immunity and consent to suit c.6. However. alleging that LA had violated the Constitution s contract clause 2. Hans v. A citizen of Louisiana sued the state in federal court. A citizen of a state could sue his own state in federal court on a federal question. first established in 1875 when Congress gave the federal courts general jurisdiction of federal questions 8. Sanctioned litigation against the states pursuant to statutes adopted under the 14th Amendment th Amendment: Provides states with sovereign immunity which prohibits 9. Florida 13 . Facts a. The Court concluded that the 11th Amendment was intended to confer upon the states sovereign immunity from suit in federal court by a citizen of the defendant state even when the claim is premised upon federal law or the Constitution a. The Court has allowed a. Should be read like: No state may be sued in federal court by any person or foreign government unless the state consents to the suit or Congress has clearly and unequivocally abrogated this immunity by exercise of its powers under section 5 of the 14th Amendment. For purposes of this amendment a state official is not a state unless the remedy sought against a state official would require the state to pay compensation for past actions 7. federal courts do have the authority to enjoin state officials from violating federal law. The SC has devised three primary mechanisms for circumventing the 11th Amendment and allowing federal courts to ensure state compliance with federal law. Even though the actual amendment only says it s immune from suit by citizens of other states and foreign countries i. 11 federal suits by someone of another state or country for money damages or equitable relief. In Hans the Court held that it would be anomalous to allow states to be sued by their own citizens 3. Louisiana 1.

morals and general welfare of its citizens 2. If so. Does Congress have authority under the Constitution to legislate? b. States have inherent power to govern unless doing something that s assigned to the federal government or is prohibited by the Constitution 10th Amendment 1. Evaluating constitutionalty of a state law a. enumerated power and the state governments are ones of general. Most of the issues of judicial review are questions of the horizontal axis. such as by infringing separation of powers or interfering w/ individual liberties? 5. State inspection laws. or to the people. are reserved to the States respectively. Police power: refers to the state power to legislate to protect the health. inherent power a. nor prohibited by it to the States. but we re now focusing on the vertical axis 2. does the law violate another Constitutional provision or doctrine. The powers not delegated to the US by the Constitution. 2. 127-53) 1. and laws for regulating transportation and the internal commerce of a state fall within the state police power and are not within the power granted to Congress Gibbons v. Stats may act unless the Constitution prohibits the action 4. The whole notion of federalism is that we have two sets of government and the national government is a government of limited. health laws. Congress may act only if there s express of implied authority to act in the Constitution 3. Limits some of the Congressional powers under the commerce clause Police Power 1. The police power allows state and local governments to adopt any law that is not prohibited by the Constitution 14 . Ogden 3. Evaluating an act of Congress always two questions a.PART II: ENFORCING THE CONSTITUTIONAL ALLOCATION AND LIMITATION OF NATIONAL POWER NATIONAL LEGISLATIVE POWERS The Values and Enforcement of Federalism Limits on National Legislative Power (pp. safety. Does the legislation violate the Constitution? Federalism 1.

Held that MD could not tax notes issued by the Bank of the US 4. concludes by granting Congress the power to make all Laws which shall be necessary and proper for carrying into Execution 15 . can states tax that bank? 6. 141-144 1.. federal laws are supreme and states may not make laws that interfere with the federal government s exercise of its constitutional powers. not the states b. The MD law required that any bank not chartered by the state pay either an annual tax on its notes b.. Facts a. Justice Marshall recognized this case as an ideal opportunity to articulate a broad vision of federal power. Issue: (1) Does Congress have implied constitutional power to create a bank? (2) If so. cl. and thus the people are sovereign. Holding: a. 3. Ends must be legitimate and within the scope of the Constitution b. (1) Yes. Congress has the power under the Constitution to incorporate a bank pursuant to the Necessary and Proper Clause (Art.a. 133-139. and all other powers vested by this Constitution in the government of the US. 18) i. may individual states tax a federally-created bank? 2. Necessary and Proper Clause a. Article I. much as he used Marbury to establish the power of judicial review a. Maryland (1819) pp. Issue: (1) can Congress charter a bank? (2) if so. or in any department or officer thereof ii. I § 8. It s a valid means to an end that s empowered to Congress by the Constitution 1. and to make such other laws as it deems necessary and proper to carry out this enumerated power. to make all law which shall be necessary and proper for carrying into execution the foregoing powers. §8. Congress shall have the power. Only state/local governments have police power (Congress only does in few exceptions like in District of Columbia) McCulloch v. Looks at what power does Congress have and what power do the states have 5. The bank refused to pay the tax and the state sued 8. Rule of Law: The Constitution specifically delegates to Congress the power to tax and spend for the general welfare. Marshall looks to the meaning of the Necessary and Proper Clause. Broadly construed Congress s powers and narrowly limited the authority of state governments to impede the federal government 9. The State of MD does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution 7. (2) No. Additionally. Argued it was the people who ratified the Constitution. The Court thus rejected the view that the Constitution should be regarded as a compact of the states and that the states retain ultimate sovereignty under the Constitution 10.

Comstock (2010 Supplement. 145-153 1. Clause 3 16 . Term Limits. pp. The Necessary and Proper Clause grants Congress power over things not specifically enumerated in the Constitution b. 153-72) 1. Doctrine of Implied Powers United States v. includes the power to preserve it. 3-14) 1. Five justices argued that the 10th Amendment reserved to the states only powers they possessed before the Constitution was created b. or in any Department or Officer thereof i. The framework for government articulated in McCulloch continues to this day 14. Thornton (1995) pp. Both Comstock and McCulloch are about Congress s power to regulate things not specifically provided by the Constitution a. Once it s determined that something is under the power of Congress then Congress can do whatever it wants to regulate. and with the Indian tribes Article I. Marshall s ultimate conclusion is that Congress is not limited only to those acts specified in the Constitution. Inc. not prohibited by the Constitution. and among the several States. On taxing the bank a. not prohibited by the Constitution. The Commerce Clause: [The Congress shall have Power] To regulate Commerce with foreign Nations. Congress my choose any means. to carry out its express authority 11. The court articulated different visions of the 10th Amendment a. These four justices decision would have done away with McCulloch The Commerce Power General Scope (pp. v. This is an essential aspect of limits on the ability of states to put a burden on commerce from other states: It is unfair to allow a state to regulate those who have no representation in the state 13. A state tax on the bank of the US was essentially a state tax on those in other states i. Section 8. and all other Powers vested by this Constitution in the Government of the United States. This provision makes clear that Congress may choose any means. to carry out its lawful authority 12. and taxing could destroy it b.the foregoing Powers. enumerate that power U. The power to create the bank.S. Four justices contended that the states retained all power not denied them i.

trains. The use of the channels of interstate commerce i. or production c. rather than just affect Most SC cases concerning the CC begin their analysis by considering Gibbons The Commerce Clause constitutes the principal domestic power of the federal government. not a single federal law was declared unconstitutional as exceeding the scope of Congress s commerce power upholding Gibbons and broadening the CC s scope 17 . even though the threat may come only from intrastate activities i. Little federal legislation a. The Court held that commerce was one stage of business. automobiles. 5. 3 doctrines all advance dual federalism and all limit the scope of Congress s authority under the CC: i. 3. or persons or things in interstate commerce. The instrumentalities of interstate commerce.2. c. 4. manufacturing. Commerce was not phases such as mining. The interpretation of the Commerce Clause has changed over time From the late 1837 until 1937 the Court adopted a much narrower construction of the commerce power and invalidated many federal laws as exceeding the scope of this authority. The court says we must use the words substantial affect. a. etc. Anything that goes from one state to another is using the channel of interstate commerce b. Court also morally conservative b. During this era a major aspect of the Court s approach included the requirement that there be a direct effect on interstate commerce came from interpretation of among the states d. Narrow definition of commerce ii. Restrictive interpretation of among the states iii. railroads. The emphasis is on the word affect 1. Instrumentalities: planes. Rejecting Gibbons and finding that the 10th Amendment reserves a zone of activities for the states i. 6. Court narrowly defined commerce so as to leave a zone of power to the states. Court controlled by conservative Justices deeply opposed to government economics regulations and in support of laissezfair economics ii. Use of state sovereignty as a constraint on congressional power From 1937 until 1995. Things that don t go from state to state but have an affect on interstate commerce ii. Activities that substantially affect or substantially related to interstate commerce i. Congress s most important power The broad categories of activity that Congress may regulate under its commerce power a.

But in the last decade the Court has sharply changed course and in several rulings has limited the scope of Congress s power under the CC and under §5 of the 14th Amendment 8. Gibbons argues that he has a federal license and that ought to rule i. the SC adopted an expansive view of the scope of the commerce clause 2. Rule of Law: If a state and Congress both pass conflicting laws regulating interstate commerce. Ogden (NY) sues Gibbons (NJ) because he had the exclusive right granted by NY state to operate ferry boats in the NY waters b. Congress ushered in a new era of federal regulation under the commerce power. Pre-1937 Commerce Clause (pp. thus the NY granted monopoly was preempted by federal law 18 . Economic crisis of the depression made laissez-faire economics seem untenable c. in response to rapid industrial development and an increasingly interdependent national economy. Jones & Laughlin Steel Corp (1937) ii. the federal law governs pursuant to Congress s constitutional grant of power to regulate interstate commerce. Darby (1941) iii. NLRB v. Then. NY can t interfere with interstate commerce Gibbons going from NY to NJ was interstate commerce 5. Filburn (1942) 7. 4. Federal law authorizes Gibbons to operate a ferry in NY. Wickard v. Three decisions overruled the pre-1937 decisions and expansively defined the scope of Congress s commerce power i. 172-174 1. Facts a. US v. The Court s expansive interpretation of congressional authority was in part based on a perceived need for a strong national government to deal with 20th century problems. the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.a. and in part a reaction to the intense criticism of the earlier decisions that had sharply limited the scope of federal powers b. For the first century of our history. beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890. The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. Here. Issue: May a state regulate interstate commerce within its borders when Congress also chooses to regulate interstate commerce in the same area? 3. Ogden (1824) pp. 172-81) Gibbons v. FDR won a landslide reelection victory in 1936 and put pressure on the Court d. Holding: a.

Court says commerce includes more than buying and selling navigation and transportation are essential to commerce and so commerce also involves transport as well as buying and selling 7. declaring that approach unsound. United States (1911). The court did not choose the broadest possible definition of among i. In Standard Oil Co. Court looks at the word among among the several States a. Issue: May Congress use its general powers under the Commerce Clause to regulate a purely local activity? 2. Of course. Regulate involved the power to prescribe the rule by which commerce could be governed c. it did include commerce which affected another state even though it did not involved crossing a state line i. which is carried on between man and man in a State. 3. Knight s reliance on the distinction between manufacturing and commerce. However. Chief Justice Marshall articulated a broad vision of the Commerce Clause a. Manufacturing is not commerce 4. much of this discussion was dicta because the facts of the case clearly involve interstate movement United States v. US government tried to use the Sherman Act to block the Sugar Refinery from acquiring four competing refineries 19 . Rule of Law: Congress may not use its general powers under the Commerce Clause to regulate a purely local activity. Among in dictionaries frequently is in the midst of which would be regulation of all commerce within the US. the Court continued to focus on the directness of the connection between the activity regulated by Congress and interstate commerce 5. Among the states did not include that commerce.C. Knight Co (1895) pp. Commerce extended beyond navigation to include commercial intercourse b. or between different parts of the same State. which is completely internal. Implicitly. the Court disavowed E. even intrastate the Court chose among which meant Congress could regulate intrastate commerce if it had an impact on interstate activity 8.C. The New York monopoly was an impermissible restriction on interstate commerce 6. Facts a.b. 174 1. and which does not extend to or effect other States. of New Jersey v. Determines among doesn t mean stop at the border b. Court held that the Sherman Antitrust Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing b. A thing which is among others is intermingled with them c. E. The word among means intermingled with.

Issue: May Congress regulate the production of coal under its Commerce Clause powers? 2. SC s reasoning a. The court looks at it abstractly a. Coal is a national commodity b. While it may ultimately lead to commerce what s being regulated here is production and that s not commerce amongst the several states c. A tax was imposed on all producers who failed to abide by the code b. 177 1. This theory was used to distinguish between direct and indirect effects on interstate commerce (see Schecter Poultry) Shreveport Rates Case (1914) pp. striking down the act 5. 174 1. The SC agreed. Majority was saying that production is not commerce because production is a purely local activity i. The effect of the labor provisions of the act primarily falls upon production and not upon commerce. (1936) pp. How you could argue on the government s behalf a. Since a stream is interstate. Invokes McCulloch whether the end sought to be attained by an act of Congress is legitimate is wholly a matter of constitutional power and not at all of legislative direction 6.Carter v. This would have an affect on interstate commerce The Stream of Commerce pp. Rule of Law: Congress may not regulate a purely local act under its Commerce Clause powers. production is not commerce and the effect of production on commerce is at most indirect and not direct and therefore Congress has no power to regulate it 7. The Coal Conservation Act authorized coal producers and coal miners to establish a code setting maximum hours and minimum wages for coal miners a. Focus on the word direct d. 3. than all the points along the way are interstate and can be regulated 3. Carter was a shareholder s suit to restrain the company from complying with the code because it was allegedly beyond Congress s power to authorize 4. As an abstract matter. Each point along the way may seem like a local matter. but is really a part of the stream 2. Wages and employment relate to production and not of trade trade is commerce b. 176 1. The Protective Principle: the essence of the principle is that intrastate commerce can be regulated when necessary to protect instrumentalities of interstate commerce 20 . Carter Coal Co.

This wide discretion allowed Congress to regulate traffic as it sees fit. Dagenhart (Child Labor Case) (1918) pp. Issue: Does the trafficking of lottery tickets across state lines constitute interstate commerce that Congress may prohibit under the Commerce Clause? 2. Congress. That is. 179 1. as here. When offered for shipment. The Court upheld an Interstate Commerce Commission order requiring the affected railroads to charge the same rate for interstate shipments as for intrastate shipments Champion v. Unconstitutional because it controlled production b. banning the interstate shipment of goods produced by child laborers. Congress under the Commerce Clause 6. Issue: May Congress regulate the interstate commerce of goods produced in factories with child labor? 2. but in Hammer the court voided the Act. Here. the labor of their production is over. This plenary power is distinct from the aggregate-impact theories later espoused in the Shreveport line of cases 8. and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power 21 . Example of this era s conservative Court s support of laws directed at what was perceived as sin 4. 4. CC does not give Congress authority to control the States in their exercises of the police power over local trade and manufacture c.2. through the Federal Lottery Act of 1895. 3. the power is complete in and of itself a. Important message of this case is that it doesn t have to be commercial to constitute interstate commerce Hammer v. The goods shipped are of themselves harmless. The SC held that trafficking lottery tickets constituted interstate commerce that could be regulated by the U. 7. the SC recognized that Congress power to regulate interstate traffic is plenary. Champion argued that pretextual use of the commerce power in order to achieve objectives that are moral or social a. 177 1. Court: a.S. even to the extent of prohibiting goods. within Constitutional limits. 3. prohibited the interstate sales of lottery tickets 5. Rule of Law: The trafficking of lottery tickets across state lines constitutes interstate commerce that may be prohibited entirely by Congress under the Commerce Clause of the Constitution. Ames (The Lottery Case) (1903) pp. and before transportation begins. it had little doubt that it was authorized by the CC to do so. When Congress enacted the Child Labor Act of 1916. Rule of Law: Congress may not use its Commerce Clause power to regulate child labor in the states as this is a purely local matter.

5. 181-91) 1. U. believing they went beyond some of the powers of the Commerce Clause 3. Or if the activity. This case is in contrast to the Shreveport Rate Cases New Deal Expansions (pp. As the New Deal progressed the SC confronted some of the acts of Congress. The Hammer and Knight cases are major roadblocks to the New Deal legislation that comes later 4. Hammer was overruled in 1941 in the case of US v. Both federal laws prohibited the shipment of a specified item goods made by child labor or lottery tickets in interstate commerce. 10th Amendment no longer a limit on congressional power instead a federal law would be upheld so long as it was within the scope of Congress power.S. Ended diference between commerce and other stages of business (mining. Court permitted ways that Congress could use the Commerce Clause to improve the economy for New Deal purposes 5. 181 1. Contrasted with the Child Labor Case a. Schechter Poultry Corp v. manufacturing. Filburn a. Issue: May Congress pass regulations relating to in-state poultry trade activities that only indirectly affect interstate commerce? 2. 6. whereas in the Lottery Case the Court upheld the federal law 6. Darby Lumber Co. looked at cumulatively across country. Declared a federal law unconstitutional based on an insufficient effect on interstate commerce 5. Rule of Law: Congress may not regulate activities occurring in a state that have only an indirect effect on interstate commerce. Darby. In both Congress was trying to stop intrastate activities: use of child labor and gambling in lotteries. The SC used substantive due process rationales to strike down many key provisions of the New Deal. and Wickard v. NLRB v. production) b. If CC covered all enterprises and transactions with an indirect effect upon interstate commerce then the Federal government would have complete control no control of state s for domestic affairs 4. New standard: Congress could regulate any activity if there was a substantial effect on interstate commerce a. and the CC was interpreted so broadly that seemingly any law would meet this requirement 22 . 3. had a substantial effect on commerce not just one person . No longer distinction between direct and indirect effects on interstate commerce Congress can regulate any activity with cumulative effect c. Provides language on national/local direct/indirect a. (1935) pp. US v.Wickard 2. Yet. Jones & Laughlin. in the Child Labor case the Court declared the federal law unconstitutional. The New Deal programs in the 1930s increased the controversy regarding the use of substantive due process to invalidate economic regulation a.

185-186 1. Rule of Law: Congress may regulate labor relations under its Commerce Clause power because labor relations have such a close and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions. In place of the bright line tests of which E. The dissent here was the majority in the Carter case Wickard v. The Court upheld the National Labor Relations Act of 1935 in a 5-4 decision. 182-184 1. Court: Although activities may be intrastate in character when separately considered. Issue: May Congress regulate labor relations under its Commerce Clause power to regulate interstate commerce? 2. The Court adopted Justice Cardozo s approach from his dissent in Carter Coal 4. Facts a. (1937) pp. Court says it doesn t matter if it is local. Aggregation or cumulative effect theory 4. Congress cannot be denied the power to exercise that control. The Court explained how steel business was part of the stream of commerce and labor relations within it had a direct effect on commerce 7. 3. if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions. Filburn (1943) pp. claimed federal law could not constitutionally be applied because the his wheat was for home consumption and not part of interstate commerce c. indirect or isn t even commerce if it exerts a substantial economic effect on interstate commerce that is OK 23 . Knight had sought to apply. Fillburn. which violated the Agricultural Adjustment Act of 1938 even though it was a minor amount and not grown for sale but for his cattle. Farmer grew wheat in excess. interstate or otherwise? 2. Court strikes down precedent that production is not interstate commerce 6. no so much of doctrine 8. Issue: May Congress regulate. Wickard Secretary of Agriculture 5. Rule of Law: Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce. farmer. the production of wheat designed wholly for individual consumption and not for sale in commerce. the Court suggested that it would proceed on a case by case basis to determine if the activity Congress was regulating had a close and substantial relationship to commerce a. The purpose of the act was the stabilize the price of wheat in the national market by controlling the amount of wheat produced b.NLRB v. Significant change in application of doctrine.C. 3. Jones & Laughlin Steel Corp. under the Commerce Clause. 5.

as here. his contribution. nor can consideration of its economic effects be foreclosed by calling them indirect 6. Court s rationale a. if part of national regulatory scheme. United States (1971) pp. Implies that Congress can have power over anything that when aggregated/cumulative will produce a harmful result on interstate commerce 7. Thus. Rule of Law: Congress may regulate the labor standards involved in the manufacture of goods for interstate commerce and may exclude from 24 . is far from trivial ii. Cumulative effect of all the homegrown/home-consumed Filburns would account for over 20% of wheat production c. Darby (1941) pp. Look at every aspect of local commerce and aggregate it aggregation theory i. 187 1. loan sharking is interstate c. House that Jack Built argument 4.. Perez was locally involved in loan sharking. 188-189 1. questions of federal power cannot be decided simply by finding the activity in question to be production.a. If you don t look at the one person. Issue: May Congress prohibit the shipment of goods in interstate commerce made by workers in unfair employment conditions and the employment of such workers in manufacturing goods for interstate commerce? 2. and govt can show that activities of all similarly situated. then all of their activity in the aggregate will have an effect on interstate commerce 3. Example of Congress using its broad CC power to enact federal criminal laws United States v. Organized crime is interstate b. Court used aggregate theory 2. taken together with that of many others similarly situated. anyone that loan sharks is interstate d. then the govt can regulate that individual even for what s produced on the farm and doesn t leave the farm Perez v. which is a pastime of organized crime a. Court concedes that it was grown for his own consumption and didn t have a direct effect on interstate commerce. but b. And. etc. Once an economic measure of the reach of the power granted to Congress by the CC is accepted. That Filburn s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where. you look at all the people in his class/trade. Even where particular actor or part of industry doesn t have direct effect on interstate commerce. The aggregation theory i.

Under the §5 of the 14th Amendment Congress could only regulate government conduct and not private behavior 3. 5. The act prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. 191-204) 1. Discrimination by hotels and motels impedes interstate travel a. Doesn t matter if it s a purely local motel 2. McClung (1964) pp. interstate commerce any goods produced under substandard labor conditions. Example of the CC being used for social and moral purposes Heat of Atlanta Motel Inc. 190 1. prohibits private employment discrimination based on race. Why not 14th Amendment? a.3. v. gender or religion. had been adopted under the commerce power to remedy moral wrongs Katzenbach v. many federal laws. 46% of the meat it purchased came from out of state b. Essentially the Hammer case except its Fair Labor Act instead of child labor overruling Hammer a. b. Court said it didn t matter that Congress s motive was in part moral. stretching back to the Lottery Case. 190 1. 1964 Civil Rights Act Congress enacted this legislation under its commerce clause power a. The modern Commerce Clause jurisprudence followed from Darby and Wickard and featured extensive deference to Congress 25 .S. Court upheld the Act rejecting the view that the 10th Amendment limits Congress s powers Court explained that Congress may control production by regulating shipments in interstate commerce Court spoke repeatedly of plenary power conferred on Congress by the CC Court said that basically if it is prohibiting the interstate shipment. 6. (1964) pp. Discrimination by restaurants cumulatively had an impact on interstate commerce Congress found that restaurants in areas that discriminated sold less goods Wickard What¶s the Law Today? (pp. U. 4. Interstate connections of the restaurant a. Court upheld application of the 1964 Act to a small family-owned restaurant 2. The Act in part. that s a per se violation of interstate commerce Unanimous decision Civil Rights Laws & the Commerce Power 1. 7. and forbids discrimination by places of public accommodation 2.

Lopez. Court said it was unclear from case law whether it must affect or substantially affect interstate commerce ii.000 feet of a school on the grounds that it exceeded the limits of the commerce power 7. Lopez and Morrison narrowed the CC struck down federal statutes a. Activities that substantially affect or substantially relate to interstate commerce i. or persons or things in. 157 is a synthesis of the Court s prior rules and holdings in relation to the commerce clause 2. through repetition elsewhere. regulate three broad categories of activities: a. Case specifics a. The channels of interstate commerce Heart of Atlanta Motel b. Lopez and the cases which followed it have opened a door to constitutional challenges that appeared to have been closed almost 60 years ago United States v. Rehnquist (majority) chose substantially affect because the more restrictive interpretation of congressional power was preferable 4. The instrumentalities of. Court here says simple possession of anything does not come within category #3 of the Commerce Clause the mere possession is not a commercial or economic activity 5. Lopez (1995) pp. Holding: unconstitutional because it was not substantially related to interstate commerce a. Raich 1. have a substantial effect on interstate commerce 6. Issue: May Congress. Lopez was the first time in nearly 60 years where the Court struck down a federal law as violating the Commerce Clause 26 . 154-167 1. Rule that emerges from Morrison and Lopez on the nature of the Commerce Clause: i. Morrison and Gonzales v. Aggregation can t aggregate where it s not economic 3. interstate commerce Congress s power to regulate railroads c. The possession of a gun in a local school zone is in no sense an economic activity that might. pass a law that prohibits the possession of a gun near a school? 3. SC declared unconstitutional a federal law prohibiting a person from having a firearm within 1. Up to pg. Rule of Law: Congress may. The majority is saying there s not a sensible or reasonable connection between the Commerce Clause and this law this law is in excess of the Commerce Clause a.Wickard. Wickard and Raich upheld federal statutes 2. Economic and commercial ii. under its Commerce Clause powers. Congress exceeded its power in this specific regulation 8. pursuant to its Commerce Clause powers.

Rule of Law: Under §5 of the Fourteenth Amendment. Wants to take out the substantial affect notion 12. Kennedy. The Court was split the same as in Lopez i. Breyer 27 . Only other case (Lopez) in modern times where court says something is outside the commerce clause and that Congress has overstepped its authority a. Ginsburg. Dissent: Stevens. Make it a crime to possess or sell a gun on or near a school iv. and that there never will be a distinction between what is truly national and what is truly local pg. we give the federal government a blank check to regulate anything under the guise of the Commerce Clause b. Dissent a. Scalia. This was judicial activism 13. not private actors.S. Without boundaries limiting the Commerce Clause to truly commercial activity. Congress may only regulate the discriminatory conduct of state officials. 3. To give Congress this power would require us to conclude that the Constitution s enumeration of powers does not presuppose something not enumerated. would be satisfied by category #1 ii.9. How could this statute be fixed to be constitutional? How could Congress reenact this statute? a. Yes. Thomas concurrence: a. O Connor. Issue: May Congress regulate the discriminatory conduct of private actors under §5 of the Fourteenth Amendment 2. Would this satisfy the majority? 1. Souter. If guns allowed in school then kids might not attend school. 159 11. If the house that Jack built argument works then we re giving a police power to the national government and saying anything affects everything b. Court overrule 60 years of precedent c. and then would not contribute to economic activity 10. Congress s argument in support of the law: a. Majority: Rehnquist. v. Thomas ii. Court s response to Congress s argument: a. Morrison (2000) 1. Congress could hold hearings and make findings that a gun in school is bad for education 1. The court said that Congress didn t even make the findings to back up its rationale for this statute U. then would not graduate. As long as Congress has a rational basis for passing a law than the Court should not interfere b. Could put in language that relates to interstate commerce i. Congress could say any state that doesn t make it a crime to have guns in school would lose education appropriations iii.

Gender-motivated violence costs the US economy billions a year and is a substantial constraint on freedom of travel by women throughout the country 7. looked at cumulatively. 169 c. Raich (2005) pp. no such exemption exists to the federal law 3. it has a substantial effect on interstate commerce 5. Dissent here was basically the same as in Lopez a. Violence against women has a substantial affect b. Although Congress had made extensive findings that violence against women impacted the economy. No aggregation except where its been economic or commercial b. How could this be fixed to be Constitutional? a. a. Rejected Congress s findings in support of the law i. whose institutional capacity for gathering evidence and taking testimony far exceeds the judiciary s 9. Congress s argument a. Absence of commercial or economic relation ii. Could say violence in the work place Gonzales v. Congress may not use the Commerce Clause to completely obliterate the distinction between national and local authority pg. Although the state has created an exemption to its state marijuana laws for medical uses. Court s reasoning a. Where assailant has traveled across the state line to commit the violence b. Holding: stands for the proposition that intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact Wickard 28 . Morrison goes significantly further than Lopez in limiting the scope of Congress s CC power by holding that Congress cannot regulate a noneconomic activity by finding that. Issue: May Congress regulate the use and production of homegrown marijuana? 2.4. Said if upheld then Congress could regulate all violent crimes ii. Facts a. 192-200 1. which authorized victims of gendermotivated violence to sue their assailants 6. Congress was regulating a non-economic activity that has traditionally been dealt with by state laws i. Rule of Law: Congress may regulate the use and production of home-grown marijuana as this activity. Violence Against Women Act. the Court held that the findings were too attenuated from commerce to support the legislation 8. The fact of such a substantial effect is not an issue for the courts. could rationally be seen as having a substantial economic effect on interstate commerce. taken in the aggregate. but for Congress.

safety. The states core police powers have always included authority to define criminal law and to protect the health. It goes in the opposite direction of Lopez and Morrison and upholds Congress law 5. whether illegal or not ii. CA law allows cultivation and use of medical marijuana c. even if not a commercial activity. Ok to regulate. in that it is not produced for sale. The court conceded that growing marijuana for personal use is not a commercial activity necessarily b. 9 ruling CSA was an invalid use of Congress commerce clause powers 7. Larger regulatory scheme here than in Lopez 10. Legally homegrown marijuana can t be distinguished from illegally harvested marijuana in the criminal market place c. How would you describe the substantial affects notion after reading this case? a. Nor did the Court revisit its holding in Morrison that in regulating noneconomic activities. Congress didn t change the test for the CC that it followed since Lopez b. Controlled Substances Act (CSA) prohibits manufacture and use of marijuana b. States as laboratories b. substantial effect cannot be based on cumulative impact 9. Dissent a. because of the aggregate theory 8. How court distinguishes present case from Lopez a. Ps were CA residents using the marijuana for medicinal purposes th Circuit threw the federal statute out by looking to Lopez and Morrison 6. Establishes that Congress can regulate purely intrastate activity that is not itself commercial. Court s reasoning a.4. It seems now like rational basis is the buzz word 29 . Says marijuana is an economic good but Lopez gun is not b. if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity pg. Facts a. The majority implied a market is a market. and welfare of their citizens c. Majority s holding is irreconcilable with the court s decisions in Lopez and Morrison 11. In light of Lopez and Morrison a. 193 1. Relies on Wickard i.

The Garcia view of procedural immunity is that Congress can use the commerce power to regulate the states in whatever manner it please. Substantive Immunity: areas the federal government can t poach and the state can regulate on their own 3. US (92). Congress gave three incentives/requirements for states to follow regulations on radioactive waste 4. 210 New York v. Issue: May Congress compel states to enact or administer a federal regulatory program? 2.External Limits on the Commerce Power imposed by State Autonomy (pp. Printz (97). Limits imposed by principles of state autonomy: a. 3. Viewed it as an imposition on the state s legislative authority b. NY v. The court saw this as Congress telling the states how to legislate a. Rule of Law: Congress may not compel states to enact or administer a federal regulatory program. and the citizens of that state would then blame the state legislature for that law if they didn t like it 30 . Overruled National League of Cities v. judicial commandeering and legislative commandeering so it seems like the SC of that era was anxious to create an area of immunity that Congress could not enter when exercising its commerce clause (???) Garcia v. Rule of Law: Congress s application of the Fair Labor Standards Act to the employment actions of a state municipal transit authority is a constitutional exercise of its Commerce Clause power. Facts a. Baker suggests pg. San Antonio Metropolitan Transit (1985) pp. Printz case and the two damages cases basically provide immunity from executive commandeering. Usery 5. 205-209 1. NY Case. Seminole Tribe (96). The majority rejected this way of carving out state substantive immunity 4. Lopez (95). 3. so long as the regulation is (1) a clear and unequivocal statement of congressional intent to regulate a state s sovereign functions and (2) not the product of a political process as dramatically defective as South Carolina v. even though required by Congress. Procedural Immunity: are there ways that the fed govt can t go about it are there process ways that the fed govt can t go about it? 4. Issue: May Congress apply the Fair Labor Standards Act to govern the employment actions of a state municipal transit authority? 2. Represents six decisions in seven years where the Court said Congress overstepped 2. Morrison (00) i. United States (1992) pp. 211-218 1. By requiring to pass a law which would then be viewed as a state law. Alden (99). 204-26) 1.

to pay the Debts and provide for the common Defence and general Welfare of the United States. As such Congress has broad power to tax 31 . Since it is the President whose job it is to enforce federal law 1. The Court struck down a provision of the Brady Bill which required local law enforcement officials to investigate prospective handgun purchasers. note here? a. Ct. but they can t say the states must enforce it 9. Federal government can t make states enforce particular law because it hides political accountability and encroaches upon state sovereignty 2. §8 of the Constitution. and Excises shall be uniform throughout the United States. Congress shall have Power to lay and collect Taxes. but all Duties. Speaks to the principle that Congress is limited in its ability to require state executive officials to administer a federal regulatory program 5. Foreign Affairs and Civil Rights (pp. Issue: May Congress compel state officials to participate in the administration of federal programs? 3. Congress is given power to tax to provide for the common defense and the general welfare. Federal govt can do it themselves b. Imposts and Excises. 6. United States (1997) pp. 22651) Article I. states that. Congress has taken that power from the President and placed it on local officials 8. Broad power of taxation for national purposes a. then you can tax that thing 2. 10th Amendment executive immunity Other National Powers: Taxing.5. Fed govt can bribe states to do it c. What other separation of power issues did the ct. 218-225 1. Makes clear that if Congress wants to do it themselves they can and can enforce it. Is a vertical separation of power. Spending. Congress cannot require the state to legislate in a particular way Printz v. General rule: if you can regulate something. War-related. Taxing Power 1. Treaties. but also is a horizontal detraction of power by Congress from the President i. Rule of Law: Congress may not compel state officials to participate in the administration of federal programs. in Printz applies same principal in New York a. Duties. But fed govt can t make states do it it hides political accountability and encroaches upon states sovereignty 7. Imposts. 10th Amendment legislative immunity (?) 6. 4.

Drexel Furniture paid the tax. thus it s presumptively valid 2. not the receiving state 2. 229-230 1. The Court upheld a tax on bookies even though the statute s primary purpose was to regulate the activity. The Court has held that Congress has broad power to spend funds to advance the general welfare so long as it does not violate another constitutional provision 32 . a tax on newspapers alone) Bailey v. (Child Labor Tax Case) (1922) pp.trying to punish someone because Congress doesn t have the nerve to punish them themselves c. Court shuts its eye to the true nature of this tax which is an attempt to regulate conduct in spite of lack of constitutional grant of powers of congress. not a separate source of Congressional power 3. 3. Dissent: a.g. not to generate revenue a. Congress cannot tax in a way which would otherwise violate some constitutional prohibition (e. The court concluded that such legislation was a pretext for regulating productive activity and argued that the only harm occurred in the producing state. which imposed on virtually ever employer of a child under 14 years of age (and on certain employers of children aged 14 to 16) a federal excise tax of 10 percent of the annual net profits of the employer. Drexel Furniture Co. Facts a. Kahriger (1953) pp. by enacting the Child Labor Tax Law. The tax does raise revenue. Prior to this case the doctrine was that Congress had great liberty to tax what it wanted. b. 227229 1. This is pretext. Prior to 1937. Dagenhart. then successfully sued for a refund in the federal district court. even if it looked like a regulation United States v. Congress was trying to tax the bookies out of existence since they didn t have a federal law to prosecute the books and local law enforcement wasn t prosecuting Spending Power 1. Congress reacted to Hammer v.3. The General Welfare Clause is a limitation on the power to tax and spend. The Court struck down a federal law regulating movement of goods in interstate commerce made in factories which used child labor a. cases held that Congress could not spend for ends it could not directly achieve. the case that struck down regulation of child labor using the commerce power. More recently that restriction has been abandoned 2. The question really is: can Congress use its tax power to regulate behavior that is beyond its powers under the commerce clause 3.

This is the major one at play in this case 33 . Rule of Law: Congress may not use its taxing and spending powers to obtain an unconstitutional result. 237-241 1. Dole (1987) pp. the conditions are related to a federal interest in a particular national project or program. The Court upheld a federal statute that reduced the amount of federal highway funds distributed to states that allowed minors to purchase alcohol (Congress used the funds as incentive for states to raise drinking age). and the conditions do not violate any other constitutional provisions such as the Tenth Amendment. Issue: Is the tax imposed on farmers by the Agricultural Adjustment Act a constitutional exercise of Congress s taxing and spending power? 2. Congress has broad power to tax and spend for the general welfare as long as it does not violate other constitutional provisions 3.a. Facts a. The Court held that Congress could attach conditions to spending grants subject to the following requirements: a. the court was pretty lax on Congress using the spending power to achieve what needed to be achieved (see two cases on pg. such as invading the reserved rights of the states under the Tenth Amendment. 3. 232-235 1. 236 both seemed in jeopardy because of the Butler case but the court still upheld them) South Dakota v. We see the pretextual rule from McCulloch again here a. a. the conditions are unambiguous. Butler (1936) pp. Example of Congress doing indirectly through the spending power what they can t do directly through the commerce power 5. Congress had to state conditions clearly c. 234 With the exception of Butler. Concerned the constitutionality of the Agricultural Adjustment Act of 1933. Congress is not limited to spending only to achieve the specific powers granted in Article I of the Constitution United States v. The expenditures had to be for the general welfare b. It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted pg. Issue: May Congress withhold federal funds to states that do not comply with federally-imposed conditions? 2. which sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. Rule of Law: The receipt of federal funds may be conditional if the exercise of the spending power is for the general welfare. Conditions had to relate to the federal interest in the national program or project i. By restricting supply Congress sought to ensure a fair price and thus to encourage agricultural production 4.

Executive Agreements a. Case was about the power to regulate in aid of war-making 2. Plaintiffs here believe that making you purchase insurance. It is overinclusive and underinclusive i. If there is a conflict between a treaty and a federal statute. The condition cannot become compulsion or coercion 4. trumps and replaces competing local rules and regulations 2. and fining you if you don t. the one adopted last in time controls c. Objects because it views it as local Woods v. Cloyd W. The war power allowed a ton of regulations of local matters to help mobilize.d. Missouri think the treaty violates the 10th Amendment b. Reasoning 34 . which were beyond the constitutional power of Congress. Not sufficient relatedness between the highway program and the drinking age b. Treaties cannot violate the Constitution 3. Obama (online) ± upheld healthcare law 1. It seems unlikely the Court would adhere to this result today 2. 246-247 1. Dissent a. and these powers weren t really questioned Healthcare Cases Thomas More v. Suggested that the President and Senate could achieve ends through treaty. Can be made by the President if 2/3 of the Senators present concur b. Miller Co. (1948) pp. War-related. Expenditures could not violate any independent constitutional requirement e. Treaties a. 243-244 1. Not all teens are drunk drivers and not all drunk drivers are teens Treaties. Treaty powers and foreign affairs powers. Congressional approval is not required for executive agreements Missouri v. is not a proper exercise of the commerce clause 2. Holland (1920) pp. The Court upheld the constitutionality of a treaty between the US and England protecting migratory birds 4. The Court rejected the claim that state sovereignty and the 10th Amendment limit the scope of the treaty power 3. Facts a. Foreign Affairs and Civil Rights 1.

make any Thing but gold and silver Coin a Tender in Payment of Debts. The Dormant Commerce Clause (DCC) ii. In Wickard and Gonzales it was voluntary activity. Even though there is no preemption. whereas here it was involuntary placement in the stream of commerce FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE Limits on State and Local Governments 1. Court cites to Wickard and Gonzales. or Confederation. The crucial issue with regard to the DCC is whether the judiciary. §10: No State shall enter into any Treaty. emit Bills of Credit. Those were regulating non-commercial activities. Therefore. Kathleen Sebelius (online) ± healthcare law is unconstitutional 1. Under the CC Congress can always preempt state or local regulation of commerce. the Constitution explicitly identifies a few instances where states may not act. Alliance. even if not economic. Distinguished from Lopez and Morrison a. The Privileges and Immunities Clause (PIC) The Dormant Commerce Clause (DCC) 1. Congress can invalidate any state or local law that it deems to place an undue burden on interstate commerce. The SC has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause 3. Also. or grant any Title of Nobility 3. The economic decisions that the Act regulates as to how to pay for health care services have direct and substantial impact on the interstate health care market b.a. Article I. grant Letters of Marque and Reprisal. in the absence of 35 . Even in situations where Congress has not acted and its commerce power lies dormant 2. shows that Congress can take account of some local activity. if in the aggregate will have some substantial effect on interstate commerce c. Limited by the Constitution s protections of individual rights 2. Where Congress has not acted a. Court s reasoning a. state and local laws can be challenged under two principles: i. coin Money. whereas this is purely commercial Commonwealth of Virginia v. DCC: is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce a.

should invalidate state and local laws because they place an undue burden on interstate commerce It is not in the Constitution a. so the Court s decision as to which party bears the burden is important b. Constitution gives Congress power to regulate commerce. Economic justification: the economy is better off if state and local laws impeding interstate commerce are invalidated c. the burden falls on the regulated entity to obtain congressional legislation that will preempt the state regulation PG. so Congress can invalidate state laws that unduly burden interstate commerce i. 5. The DCC responds in part to concern that state legislatures will favor their instate constituents over out-of-staters The loser of a dormant commerce clause case has recourse to Congress a. But Congress may rebut that inference by authorizing the states to regulate in a manner that would otherwise be forbidden. Supporters of the DCC say this would be too much work for Congress to do The DCC does not apply when Congress authorizes state action which would otherwise be invalid under the strict scrutiny or Pike balancing tests. Congressional action. Thus. 9. In McCulloch SC invalidated MD s tax on the US Bank because it was a tax that would ultimately be borne by those in other states without representation in MD Arguments against the DCC: a. It simply refers to a body of constitutional jurisprudence which sets parameters for state regulation when Congress has not regulated an area within the Commerce power Justifications for the DCC: a. This is an exam question masquerading as a case 36 . Congressional action may not be easy. Historical argument: framers intended to prevent state laws that interfered with interstate commerce b. 4. 15 OF THE SUPPLEMENT LOOKS LIKE AN EXAM QUESTION ON THE DORMANT COMMERCE CLAUSE a. The CC is primarily a grant of power to Congress to regulate commerce. 8. 7. 6.3. but if it rules that a regulation is valid. the burden falls on the state to obtain explicit congressional consent to regulate. If the court decides a state regulation violates the DCC. The DCC reflects an inference that as long as Congress is silent it will only allow states to regulate consistent with those two tests. It is not in the Constitution like the PIC b. Political justification: states and their citizens should not be harmed by laws in other states where they lack political representation i. whenever the Court decides any dormant commerce clause case it is essentially deciding who the state or the regulated person will bear the burden of seeking congressional alteration of the Court s decision i.

It is an indirect effect.b. Good example of court applying various doctrines we ve looked at Development of the Doctrine (pp. It allows state regulations. says the court. 2. The Cooley test: distinction between subject matter that is national. b. it is presumed valid i. Board of Wardens (1851) pp. in which event states laws are invalidated under the DCC. states could regulate without restraint within areas covered by the Commerce power. Regulating pilots was a local matter because of differences among ports and also because a federal law adopted in 1789 expressly allowed states to regulate piloting 4. 258-259 direct and indirect 5. Upheld a PA statute requiring vessels to use a local pilot. The regulation is void only if the challenger can prove that the burden imposed on interstate commerce that outweighs the benefits of the law 2. Cooley took an intermediate course between those who argued that the Commerce Clause precluded any state action within its bounds and those who argued that absent congressional action. in which event state laws are allowed 3. and subject matter that is local. The regulation is valid only if the state can prove that it furthers a legitimate state interest that cannot be achieved by any less discriminatory means b. no matter how protectionist or how much it interferes with interstate commerce. Cooley held that states could not regulate matters needing a uniform national approach but could regulate local matters a. Whether the benefits of the state law outweigh its burdens on interstate commerce 37 . Pg. There is no clear distinction between what is national. demanding local regulation. Facial discrimination here 6. If a state regulation is nondiscriminatory and has only incidental effects on interstate commerce. 253-60) Cooley v. Court s reasoning a. 256-258 1. and what is local. the regulation is presumed to be invalid i. If a state regulation openly discriminates against interstate commerce. Modern DCC doctrine proceeds along two tracks: a. so long as the subject matter is deemed local b. even though it s a burden on out-ofstate pilots a. requiring diverse regulation Modern DCC Doctrine 1. Problems with Cooley test a.

By definition. 4. the Court infers that the true purpose was protectionist Two exceptions where laws that otherwise would violate the DCC will be allowed: a. 260-70) 1. a. Strict scrutiny if facial discrimination a. Congressional approval b. 261-264 1. Whatever NJ s ultimate purpose. They are presumed invalid and are upheld only if the state can prove that they serve a legitimate purpose that cannot be achieved in any less discriminatory way b. NJ s argument for preventing out-of-state garbage from coming in a. the state statute is deemed per se invalid Philadelphia v. Where. such a balancing test gives courts enormous discretion because it is attempting to weigh and compare two completely different things: burdens on interstate commerce and the benefits to a state or local government In applying the balancing test. New Jersey (1978) pp. a state cannot point to a legislative state purpose for the statute or cannot show the absence of a nondiscriminatory alternative way to achieve its purpose. Strict scrutiny is applied where the state seeks simply to protect the economic interests of its citizens at the expense of outsiders.3. NJ law that kept landfills in the state exclusively for NJ s use by preventing the importation of any wastes from out of state 3. Court held that the law violated the principle of nondiscrimination a. Law was designed to protect the state s environment and not its economy and that its substantial benefits outweigh its slight burden on interstate commerce 4. A barrier at the board to interstate garbage is an improper means under the DCC this is almost a per se violation of the DCC 2. Facts a. The Market Participant Exception Discrimination against Interstate Commerce (pp. however. 5. more or less. When the court detects such economic protectionism. 6. courts are essentially making Cooley s national versus local distinction. Does this state regulation so interfere with the national interest in maintaining a free flow of interstate commerce that the local benefits of the regulation are comparatively slight? Scalia argued that the courts should leave to Congress the essentially legislative judgments of weighing the governmental interests of a state against the needs of interstate commerce Usually states don t articulate a protectionist purpose on the face of a statute (facial discrimination) or in legislative history. They are asking. it may not be accomplished by discriminating against articles of commerce coming form outside the 38 .

The inquiry is very much fact dependent a. Rule of Law: In the absence of congressional legislation. The court balances the law s burdens on interstate commerce against its benefits. all objects of interstate trade merit CC protection Maine v. 270-83) 1. Taylor pp. v. the court expansively declared that. This is where it doesn t look like an effort to discriminate against interstate commerce non-facially discriminatory a. If the state statute does not discriminate against commerce on its face. adopted as a safety 39 . Bruch Church (1970) balancing test: Where the statute regulates even-handedly to effectuate a legitimate local public interest.state unless there is some reason. the judiciary may balance the relative burden on the interests and strike down the state law. apart from their origin. The court upheld the law because it concluded that there was no less discriminatory way to prevent these threats and protect Maine s fragile fisheries i. when a state law purports to place equal burdens on interstate and intrastate commerce. but the practical effect of the state s regulation places a greater burden on interstate economic interests. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits 3. 271-273 1. Here. it is measured against a more lenient balancing test 2. the court upheld Maine s absolute ban on the importation of bait fish a. 3. The test has been criticized for being unpredictable and arbitrary Southern Pacific Co. This is somewhat of an exception. Issue: Whether the Arizona law restricting the length of trains passing through its borders was an unconstitutional limitation on interstate commerce. 2. Arizona (1945) pp. to treat them differently 5. No satisfactory way to inspect shipments of live baitfish for parasites or commingled species that do not exist in Maine 2. and its effects on interstate commerce are only incidental. Here. 264 1. Maine s ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives Neutral Burdens on Interstate Commerce (pp. The law will be found unconstitutional if the court decides that the burdens from the law exceed its benefits a. The Court expressly articulated a balancing test when it said: Hence the matters for ultimate determination here are the nature and extent of the burden which the state regulation of interstate trains. Elaborated in the Pike v.

but did little to enhance safety Kassel v. 273-280 1. Madison (1951) pp. Discusses different approaches to dealing with cases where there is a neutral burden on interstate commerce 2. Consolidated Freightways Corp. The state failed to present persuasive evidence that 65-foot doubles are less safe than 55-foot singles c. and whether the relative weights of the state and national interests involved are such [as to make the law permissible] 4. (1981) pp. Such laws would be presumed void. When the discriminatory effect is particularly severe ii. is this any different from strict scrutiny?) Dean Milk Co. Case is best understood as reflecting the Court s conclusion that the Arizona law put a substantial burden on commerce. Reasoning a. Strict Scrutiny i. When the discriminatory effect is combined with some evidence of a discriminatory purpose iii. The Court decided that the burdens on interstate transportation were greater than the safety benefit to the state from its law b. 284-300) 1. 284-286 1. The Court declared unconstitutional an Iowa law banning 65-foot double trailers 3.measure. The law substantially burdens interstate commerce by forcing these trucks to avoid Iowa or to detach the trailers and ship them Facially Neutral Regulations with Discriminatory Effects (pp. The Court declared unconstitutional a state law that limited train lengths to 14 passenger or 70 freight cars a. Enforcement of the law in Arizona will result in impairment of efficient railroad operation because the railroads are subjected to regulation which is not uniform in its application 5. Sometimes courts will use strict scrutiny. and the burden would be on the state to prove that there was no less discriminatory alternative that would accomplish the state s legitimate objective b. Facially neutral 40 . v. imposes on interstate commerce. But discriminatory effects are so burdensome to commerce that they always grossly outweigh local benefits unless the benefits are only achievable with the discriminatory effect (apart from which party bears the burden of proof. The Court weighed the asserted safety purpose against the degree of interference with interstate commerce b. other times they will use a balancing test it s not always clear which will be used a.

Discriminatory because of its effect on the sale of Washington apples i. Washington had a system for grading apples that was different from and more stringent than the federal standard ii. The Court found discrimination based on the disparate impact of a law against out-of-staters 4. but it also precluded milk that was pasteurized in other parts of that state from being sold in the city.2. a. Washington State Apple Advertising Commission (1977) pp.S. Facially neutral in that all applies sold in state whether produced in state or out of state had to comply 5. By prohibiting Washington growers from marketing apples under their State s grades. Facts a. Speaks to the standard that: a law is likely to be found discriminatory if it imposes costs on out-of-staters that in-staters would not have to bear 41 . NC law required all closed containers of apples sold or shipped into the state bear a particular sticker reading: no grade other than the applicable U. NC s statute strips Washington apple industry from the competitive and economic advantages it has earned for itself through its expensive inspection and grading system iii. 287-289 1. Court invalidated a. Rule of Law: A state statute that discriminates against interstate commerce will be held invalid if there are other less-discriminatory means by which the state legislature can accomplish its objective. The Court said it was irrelevant that the law also discriminated against in-staters Hunt v. 5. The city erected an economic barrier protecting the major local industry against competition from without the State plainly discriminating against interstate commerce b. grade or standard b. the statute has a leveling effect which insidiously operates to the advantage of local apple producers 6. Rule of Law: A facially neutral statute still violates the Commerce Clause if it discriminates against interstate commerce in practice. Facts a. Issue: Is a statute unconstitutional if it places an excessive burden on interstate commerce? 3. 4. 3. The Court considered a city s ordinance that required that all milk sold in the city had to be pasteurized within five miles of the city. The Court concluded that the law was discriminatory against out-of-staters. Issue: Whether the North Carolina statute violates the Commerce Clause even though it does not facially discriminate against interstate commerce. The law prevented milk that was pasteurized in other states from being sold in the city. 2.

MD law prohibited a producer or refiner of petroleum products from operating a retail service station within the state b. other out-of-staters could own service stations in the state 7. place added costs upon them. Hunt disparate impact against out-of-staters was sufficient for finding a law discriminatory b. Court s reasoning a. it has a disparate impact on some interstate business. The absence of these factors fully distinguishes this case from those in which a State has been found to have discriminated against interstate commerce 6. Washington State Apple and Exxon Corp a. The Court found the state law was not discriminatory even though it greatly harmed out-of-state oil companies and favored local businesses 5. 291-294 1. but not if it only excludes one group of out-of-staters a. Issue: Whether. even with evidence of a protectionist purpose. 289-291 1. Only out-of-state petroleum producers and refiners were kept from operating in the state. Since virtually all petroleum products sold in MD were produced and refined out of state. Reconciling the two i. was insufficient for the Court to deem the law discriminatory c. The act creates no barriers against interstate independent dealers b. Issue: Whether the Maryland statute violates the Commerce Clause because it discriminates against interstate commerce. DuMond (1949) pp. 3. Facts a. in the absence of congressional action. Hood & Sons v. The cases turn not on differences about the rule but on the Court s appraisal of the particular facts and its assessment of whether there was discrimination H. Case speaks to the standard that: a law is likely to be discriminatory if its effect is to exclude virtually all out-of-staters from a particular state market. in practical effect. 2. Hunt v. They don t disagree as to the legal standard: All of the cases indicate that proof of discriminatory impact is sufficient for a facially neutral law to be deemed discriminatory ii. Does not prohibit the flow of interstate goods.P. Rule of Law: A facially neutral statute may be held valid even if. the Court may invalidate New York state laws that deny additional facilities to acquire and 42 .Exxon Corp v. or distinguish between in-state and out-of-state companies in the retail market c. Governor of Maryland (1978) pp. Exxon proof of discriminatory impact. the law meant that these out-of-state oil companies could not own service stations in MD greatly benefiting local businesses 4.

v. may invalidate state and local laws that place an undue burden on interstate commerce. Is an exception to the dormant market clause b. The Court here said the central purpose of the DCC is to prevent protectionist legislation Facts a. Healy (1994) pp. 300-08) 1. In other words. and not a regulator. When the state acts as a market participant. Jenkins (2010 Supplement. 3. Rule of Law: Under its dormant Commerce Clause powers. the DCC does not apply 2. as a market participant. might still violate PIC or EPC 43 . States as ³Market Participant´ Exception (pp. the judiciary. 4. even if each component would be constitutional if separated. 295-298 1. The effect of the law was to keep more milk for in-staters at the expense of those in Massachusets The Court declared the law unconstitutional as violating the DCC because there was not a permissible nonprotectionist purpose for it Family Winemakers of California v.e.2. 5. ship milk in interstate commerce on the grounds that those state laws unduly burden interstate commerce. the state. i. such as with a state owned business. rather than as a market regulator. pp. a buyer or seller of goods or services. Inc. New York law that prevented a company from constructing an additional depot for receiving milk b. may choose to favor its own citizens (DCC doesn t apply) 3. Market participant exception: provides that a state may favor its own citizens in dealing with government-owned business and in receiving benefits from government programs a. While it may not violate the DCC. Issue: Whether a pricing order that imposes a tax on all fluid milk sold to Massachusetts retailers and distributes the entire revenue from the tax to Massachusetts s dairy farmers unconstitutionally discriminates against interstate commerce. in the absence of congressional action. the DCC does not apply i. Market participant exception (MPE) a. 1522) West Lynn Creamery. 2. In other words. if the state is literally a participant in the market. Rule of Law: A regulation violates the Commerce Clause if the combination of a tax and subsidy discriminates against interstate commerce.

Alaska could favor its own in selling the timber. i. PIC: interpreted by the SC as limiting the ability of states to discriminate against out-of-staters with regard to constitutional rights or important economic activities a. Privileges and Immunities Clause (PIC): The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States Article IV a. Case a. Inc. Laws that discriminate against out-of-staters can be challenged under the EPC of the 14th Amendment or the DCC as well 5.South-Central Timber Development. Where the government is involved in the market. but they may not attach conditions to a sale that discriminate against interstate commerce a. The Court struck down an Alaska law that required all who bought timber from the state to also process it in state. This is a limit on the scope of the MPE 2. Rule: state businesses may favor in-state purchasers. Wunnicke (1984) pp. But. 308-17) 1. PIC: activities which are sufficiently basic to the livelihood of the nation primarily is to protect constitutional rights and economic activities a. 300305 1. If no economic discrimination nor discrimination with regard to constitutional rights. but could not impose regulations which discriminated in favor of its own citizens regarding conduct in a downstream market b. the state can only favor its own citizens in the market in which it participates 3. then there is not a violation of the PIC 4. Protection by the government 44 . The Clause basically precludes a state from treating out-of-staters worse than instaters with respect to privileges and immunities 2. The court here said that the way it was chosen will not be allowed by the DCC and will not fit within the MPE a. Almost all of the recent SC cases applying PIC have involved challenges to state and local laws that discriminate against out-ofstaters with regard to their ability to earn a livelihood 3. the Court drew a distinction between the ability of a state to prefer its own citizens in the initial disposition of goods when it is a market participant and a state s attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands 4. v. rules which favor in-state people seem to be immune from invalidation a. Big issue was whether the MPE applied since it doesn t then it s a traditional dormant commerce clause case The Privileges and Immunities Clause of Article IV (pp. Thus.

Enjoyment of life and liberty Right to acquire and possess property Right to pursue happiness and safety Right to earn a livelihood (majority of the cases under the PIC) i. Two basic questions when a challenge is brought under the PIC: a. Has the state discriminated against out-of-staters with regards to privileges and immunities that it accords its own citizens? i. The Market Participant Exception does not apply to the PIC e. The PIC resembles the DCC (both used to challenge state and local laws that discriminate against out-of-staters). It does not have a test parallel to the Pike balancing test c. or mandates that a preference be given to in-staters for employment f. A state may only discriminate against out-of-staters regarding a Privilege and Immunity if it has a substantial reason for the difference in treatment and if discrimination against nonresidents bears a substantial relationship to the state s objectives 7. The PIC only addresses discriminatory measures i. Violation of PIC if state excludes out-of-staters from practicing a trade or profession. 308) a. But in reality the suit would be brought under the 1st Amendment as applied to the states through the 14th Amendment 9. Right to police and fire protection when out of state g. PIC and EPC a. If a state were to prevent out-of-staters from engaging in religious worship. Right to engage in political speech and religious worship 6. Congressional approval does not excuse a law that violates the PIC 10. The PIC only applies to individual citizens. 5 important distinctions that mark the differences between the coverage. but there are some important differences: a. Is like a second-cousin to the DCC and EPC 8. Generally. d. not to corporations b. doctrines and test between the PIC and the DCC (bottom of pg. e. 45 . Right to medical care h. is there a sufficient justification for the discrimination? b. ii. c. a challenge certainly could be brought under the PIC. Example: i. there is no need to use the PIC to protect constitutionally guaranteed rights b. One big one is that corporations aren t considered to be citizens for purposes of the PIC but may bring commerce clause challenges 11. or charges a discriminatory license fee. Consider the meaning of privileges and immunities b. PIC only protects privileges and immunities d. If there is such discrimination.

The problem is that Congress s intent is frequently unclear 4. 317-30) 1. If you live in Camden. the Court has not found that any law meets this rigorous test United Building & Construction Trades Council v. Camden enacted law requiring at least 40% of all employees of contractors on city construction jobs must be Camden residents i. so it s still discriminatory c. Court s reasoning a. Preemption is not limited to the exercise of the commerce power 2. Mass an MPE case 1. PIC applies to local as well as state-wide discrimination b. Because of the supremacy clause. Similar to White v. Facts a. then you have to be a citizen of NJ. In all states the cities are creatures of the state and in this case the city was authorized by the state to do it b. Thus far. Rules from this case a. the latter is deemed preempted 3. City of Camden (1984) pp. The right to a common calling (ordinary occupation) is one of the most fundamental of those privileges protected by the PIC 5. but strong protection with regard to fundamental rights and important economic activities 12. The court remanded it to the lower court to determine whether there is a substantial reason for the state to discriminate against outsiders Federal Preemption and Consent: Congress has the final word (pp. A state may discriminate against out-of-staters with regard to PIC only if the discrimination is substantially related to a substantial state interest a. and this inevitably is an inquiry into congressional intent statutory interpretation a. Made a facial argument as to why the PIC doesn t apply i. PIC is not absolute. 309-314 1. Primarily a PIC case 2. if there is a conflict between federal law and state or local law. Redress the extreme economic depression of Camden b. Camden is a city not a state arguing the PIC only protects against state discrimination based on state citizenship 4. PIC protects the right to work in a private setting c.i. Express preemption 46 . This case is different from White because the basic issue is one of the PIC 3. The contrary decision in the White case was based on the CC/MPE and this doesn t trump the horizontal bar in the PIC 6. Courts must decide what is preempted. Camden s argument a.

Preemption may be either express or implied. Both the federal and state regulations required training of hazardous waste operators. preempted an Illinois law that protected the health and safety of workers who handled hazardous waste a. National Solid Wastes Management Association (1992) pp. either federal or state. Conflict preemption: occurs in one of two ways and is less sweeping 1. Reasoning: a. When compliance with both state and federal law is literally impossible 2. Good example of an exercise of what s preempted and what is not 2. and federal regulations promulgated pursuant to it. Ultimate conclusion here is preemption 3. Congress created a system where states could have their regulations approved by the federal Occupational Safety and Health Administration and then their regulations would replace federal law.a. Where Congress says the following types of state laws are preempted b. Then discusses the two types of implied preemption 47 . and fines for violations 4. In Gade the Court summarized the tests for preemption a. Implied preemption implied by a clear congressional intent to preempt state or local law a. This evidenced a desire by Congress that there be only one set. Question of statutory interpretation b. they are in charge 5. Court found the Illinois law preempted by state law i. because its easiest to control one legislature than 50 7. Even though they both were virtually the same 5. and is compelled whether Congress command is explicitly stated in the statute s language or implicitly contained in its structure and purpose i. In some way Congress tells states to get out. When a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress 6. Difficulty with preemption is in deciding whether a particular state or local law is preempted by a specific federal statute or regulation Gade v. b. 319325 1. of occupational safety and health standards 6. Who are the biggest pushers of preemption? Businesses. Has two sub-parts i. Issue: whether the federal Occupational Safety and Health Act of 1970. an exam. Holding: a. Field preemption: Congress wants to regulate the entire field they don t want hindrance or help from state or locals they are saying it s just their turf ii. refresher courses.

must yield Wyeth v. Court says not preempted because no conflict between state and federal law PART III: SEPARATION OF POWERS SEPARATION OF POWERS Introduction (pp. Encroachment: this is a power poaching instead of a power grab Executive Action 1. Makes it hard for government power to aggregate in one place and then be used against the people b. Unenumerated authority (broad power): Since Article II does not limit the president to powers herein granted. Some construe Presidential power broadly. any state law. Protect the individual rights i. Judicial Power and National Legislative Power were horizontal. from which our pre-emption doctrine is derived. Provides checks and balances 3. Executive Power Art. Levine pp. which interferes with or is contrary to federal law. (like it does for 48 . 22 (Supplement) 1. II: The executive power shall be vested in a President of the United States a. The debate turns to some extent on whether the vesting clause in Article II is seen as conferring powers or as simply conferring a title on the person who possesses the powers set forth elsewhere in Article II b. Facts a. Grandisement: concern once branch has pulled too much power towards itself a power grab 4. 333-34) 1. Reasons for separation of powers a. however clearly within a State s acknowledged power. Horizontal focus is on which government can do it a. State Regulation was vertical 2.7. Government argues that failure to warn was preempted because the FDA said it s a kosher label says the state can t come along with a state law that has a higher standard for the company 3. Woman sues drug company for failure to issue warning b. others argue for a narrower definition i. Under the Supremacy Clause. Good example of the court pendulum swinging away from the presumption for preemption and against preemption 2.

5. Jackson s Concurrence considered most significant opinion in the case a. Weakest here 49 . Argued for a broad Presidential power to exercise emergency powers 8. 335-55) Youngstown Sheet & Tube Co. (3) When he acts at odds with Congress 1. Question of executive power a. turned to Sec. President s powers are greatest here ii. Issue: Whether the President of the United States is acting within his constitutional executive powers when issuing a lawmaking order directing the Secretary of Commerce to take possession of and operate most of the nation s steel mills. (2) When he acts against congressional silence iii. Separated three circumstances: i. Question was does the President have the power to do this without explicit permission from Congress 3. 7 different opinions 6. such unenumerated authority would be inconsistent with a Constitution creating a government of limited authority 2. Dissent a. indeed. Typically president can do what he wants unless the Constitution or Congress has said to do otherwise 3. Justice Black wrote opinion (5 concurrences) not all members of majority shared same opinion a. v. of Commerce to implement this a. When does the Court limit it or when does it let Congress limit it? Executive Action: Domestic Affairs (pp. When can Congress limit it? c. What is the extent of it? b. Enumerated authority (limited): The other argument is that the president has no powers that are not enumerated in Article II and. 4. Seized them because employees were planning a strike during the middle of war 2.Congress) it is argued that the president has authority not specifically delineated in the Constitution c. President seized major steel mills in the US. (1) When the President acts with congressional support 1. Sawyer (Steel Seizure Case) (1952) pp. SC declared the seizure of the steel mills unconstitutional by a 6 to 3 margin a. 335-345 1. Rule of Law: The President of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution. Reasoned that Truman was engaged in lawmaking rather than law enforcing and accordingly had overstepped the bounds of his office 7.

b. Jackson viewed the steel seizure as falling in the last category and accordingly representing a weak exercise of Presidential power 9. heads of departments. All four of these approaches have support in Youngstown and some support in other cases a. There is no inherent presidential power may act only if there is express constitutional or statutory authority b. This approach allows the courts to invalidate presidential actions that interfere with the other branches of government c. in foreign policy 50 . Four different approaches to the question of when President may act without express constitutional or statutory authority are identified in the case: a. 351-354 1. The President s power to receive and dispatch ambassadors implicitly suggests a power to recognize foreign governments a. The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute of the Constitution i. or the judiciary. 2. Issue: Whether Morrison is a principal officer of the federal government such that her appointment and removal by an entity other than the President constitutes a violation of executive powers under the Constitution. 355-83) 1. Olson (1988) pp. The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated i. The foreign affairs power is divided between the President and Congress but in practice the President has exercise the dominant role 2. Since Congress didn t authorize this action. This approach sees it as Congress s responsibility to act to stop presidential infringements d. This has been used to justify the idea that the President rightly speaks for the U. Broadest authority under this approach 10. The president has inherent authority unless the president interferes with the functioning of another branch of the government or usurps the powers of another branch i. 3. Rule of Law: The Constitution grants sole authority to the President to appoint and remove principal officers of the federal government. No SC case definitively makes one of these approaches correct and the others wrong NOTES MISSING FROM 4/16 CLASS THIS WAS THE PILC FAIR pg. 345-373 Morrison v.S. 346-349. No constitutional provision addresses the removal power Executive Action: Foreign Affairs (pp. but permits appointment and removal of inferior officers defined as such by their more limited executive functions by the President.

3. v. Issue: Whether an otherwise unconstitutional delegation of legislative power to the executive may nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict. Executive agreements with other countries have largely replaced treaties as the method of entering into agreements with other countries. 2. Others claim that the measure was unconstitutional in abdicating to the President Congress power to declare war 51 .S. This case is to be contrasted against the Steel Seizure case where the President s domestic actions during war were limited Dames & Moore v. 356-358 1. In fact. Whether: An otherwise unconstitutional delegation of legislative power to the executive may nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict. Executive Agreements a. Issue: May the President settle the claims of United States citizens against a foreign government through an executive order? 2. Rule of Law: The President has authority to settle claims through executive orders where the settlement of claims is necessary for the resolution of a major policy dispute between the United States and another country and where Congress acquiesces to the President s action. This interpretation rests largely on dicta in Justice Sutherland s opinion. Curtis-Wright Export Corp. With or without legislative sanction.3. This case upheld the executive agreements resolving the Iran hostage situation which suspended American claims pending in American courts and required that they be presented to an Iran-United States Claims Tribunal a. Regan (1981) pp. Showed that domestically the President s agreements with other countries are binding The Prize Cases (1983) pp. (1936) pp. 3. The War Powers Resolution sought to regulate exercise of the President s power to commit troops to battle by limiting the President s ability to commit troops for more than 60 days without congressional authorization and by introducing some features designed to promote accountability a. Congress had authorized the action President Roosevelt had taken 4. This case stands for the idea that the President can exercise broad power in foreign affairs and is often relied upon by Presidents to support claims to sweeping executive power in foreign policy. 359-363 1. 365-366 1. 363-364 The War Powers Resolution pp. they are binding international agreements U.

and (3) the practical obstacles inherent in resolving the prisoner s entitlement to the writ. 372 1. Rule of Law: United States citizens held in the United States as enemy combatants must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.S. Rumsfeld (2004) pp. Appointing Power a. 370 2. i. Whether someone is an inferior officer may turn on whether he/she is subject to removal or supervision by a superior. The Constitution empowers the President to appoint federal officers with the Senate s advice and consent. Later. The Court denied the writ to enemy aliens captured outside U. Johnson v. 383-97) 1. Eisentrager (1950) pp. Bush (2004). 370 1. Executive agreements executive branch creating treatises with other countries without getting authorization from Congress a. In Rasul v. Seeing these happen more b. 370 Rasul v.Ex parte Quirin (1942) pp. Bush (2004) pp. jurisdiction and tenure. or the nature of his/her duties. Rumsfeld (2006) pp. who were tried and convicted by a military tribunal for offenses committed outside the United States and who were at all times imprisoned outside the United States. Hamdan v. Veto power a. 373-377 1. the courts of law or heads of department. (2) the nature of the sites where apprehension and then detention took place. Most significant legislative power the President possesses b. the Court held that statutory claims of habeas corpus jurisdiction extend to foreign nationals imprisoned by the United States at Guantanamo Bay. In light of Eisentrager. three factors are relevant in determining the scope of the Suspension Clause with respect to detainees: (1) the citizenship and status of the detainee and the adequacy of the process that deter. Congress can vest the appointment of inferior officers in the President. Congress eliminated the statutory right to bring a writ of habeas corpus. Congress can create offices and define their qualifications but cannot appoint person to hold offices b. territory. President cannot veto only part of a bill Clinton 2. 52 .mines the status. They can get replaced by more formal treatises Legislative Action and the Administrative State: General Themes (pp. Hamdi v.

The Constitution allows at least some interbranch appointments. the Court has held that although Congress cannot claim for itself power to remove an officer charged with executing the laws. it can restrict the President s power to remove that officer at least so long as the restriction does not compromise the President s ability to fulfill the constitutional duties of the office. US Sentencing Commission has been placed in the judicial branch i. ± Morrison v. but is an inherent executive power b. 3. Encroachment a. heads of departments. Rule of Law: The Constitution grants sole authority to the President to appoint and remove principal officers of the federal government. The judicial branch was given too much power by Congress 3. More recently. Olson 3. 383-392 1. 397-413) 4. 2. Judges couldn t agree on the sentences for most crimes so they set up this commission that created sentencing guidelines which federal judges would then have to follow 2. Grandisement argument a. Not expressly in Constitution. 392-397 1. Specific Limitations (pp. An independent commission within the judicial branch 1. More recently. Legislative veto a. it can restrict the President s power to remove that officer at least so long as the restriction does not compromise the President s ability to fulfill the constitutional duties of the office. United States (1989) pp. So then why independent ? ii. but permits appointment and removal of inferior officers defined as such by their more limited executive functions by the President. Removal a. the Court has held that although Congress cannot claim for itself power to remove an officer charged with executing the laws. The Court previously held unconstitutional the legislative veto feature which Congress has incorporated in numerous pieces of legislation which allows one or both houses to delegate power to the executive 53 .c. Issue: Whether Morrison is a principal officer of the federal government such that her appointment and removal by an entity other than the President constitutes a violation of executive powers under the Constitution. Limiting the judge s ability to do their job 4. Facts a. Olson (1988) pp. Holding: it is OK for Congress to delegate legislative power (sentencing guidelines) to the executive/judicial branch Morrison v. Mistretta v. or the judiciary.

and so long as the ability of a branch to discharge its functions is not compromised. Congress can overturn such a veto by a majority vote of both houses 4. Rule of Law: The Constitution does not permit the president to repeal or amend laws without the approval of both houses of Congress. City of New York 6. so long as no one branch aggrandizes its powers at the expense of another. Accordingly. Chadha 5. Immigration and Naturalization Service v. 399-406 1. The budget process has changed with the growth of government over 200 years Immunities and Privileges (pp. bribery and other high crimes and misdemeanors. The President cannot veto only part of a bill. At times the Court has used a formalistic approach which envisions the functions of the federal government as being strictly divided between the three institutions of the federal government. 3. President Clinton v. i. The President. Can be impeached but not removed 7. Says Majority didn t consider practical benefits for a line-item veto b. The court found it to be unconstitutional 2. Chadha (1983) pp. Issue: Whether the President s vetoing action under the Line Item Veto Act is a constitutional exercise of executive power 2. 413-24) 1. the Court has adopted a more functionalistic approach which allows adjustments so long as they do not involve a usurpation by one branch of the powers assigned to another. Legislative veto a. City of New York (1998) pp. which permits one house of Congress to unilaterally override an executive action. Immunities and privileges the final theme of separation of powers a. Separation of Powers a. Impeachment a. as well as the Vice President and other civil officers of the United States can be impeached and removed for treason. 407-413 1. Clinton v. Line-item Veto a. the court ruled the Line Item Veto Act unconstitutional in this case.branch while retaining some control over executive action INS v. Rule of Law: Legislation providing Congress with a veto over an action of the executive branch does not meet the constitutional requirements of presentment and bicameralism. is constitutional. Issue: Whether §244(c)(2) of the Immigration and Nationality Act. Dissent a. At other times. 3. Privilege is not to testify or reveal particular information or material 54 .

But not regarding claims arising out of events which preceded his tenure in office Clinton v. 3. 5. Fitzgerald (1982). 2. Executive Privileges and Immunities 55 . Jones (1997). Yes i. b. Nixon v. 3. Paula Jones (1997) pp. Issue: Whether communications of the President are entitled to a generalized absolute privilege from discovery in a court of law. 4. 421-423 1. but not regarding claims arising out of events that preceded his tenure in office. Clinton v. Rule of Law: The Constitution does not grant the President immunity from civil litigation involving actions committed before he entered office. Executive immunities immunity basically means immunity suit from legal action Is the President immune from liability for actions relating his Presidential duties? a. Jones The only immunity Presidents have from damage suits is the Fitzgerald immunity The President has absolute immunity from liability for actions relation to his Presidential duties. President can be sued as a defendant b. Fitzgerald b. Court suggested that a claim based on national security or for Presidential papers in a civil case might be treated differently 5. Nixon v. Issue: Does the Constitution protect the President from suits based on conduct occurring before he assumes the Presidency? 2. The Court here held that the President s generalized claim to the confidentiality of his papers will not prevail over the needs of the criminal justice system for evidence i. Stands for the fact that the President can be sued as a defendant a. and such communications are discoverable when demonstrably relevant in a criminal trial. 416-420 1. Accountability a. Nixon argued that it was for the executive to determine the scope of executive privilege a. The President can claim executive privilege with respect to conversations and papers but that claim will not necessarily prevail Nixon didn t prevail because of the needs of the criminal justice system President Clinton v. The Court rejected this relied on Marbury 4. President Nixon (1974) pp. United States v. Rule of Law: Presidential communications are not entitled to an absolute privilege in a court of law based on a generalized interest in confidentiality.2.

The President can claim executive privilege with respect to conversations and papers but that claim will not necessarily prevail Nixon PART IV: INDIVIDUAL RIGHTS LIMITATIONS ON GOVERNMENT POWER Due Process Introduction 1. Also substantive due process has come to cover rights beyond just life. Looks to whether there is a sufficient justification for the government s action b. then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose 6. 5th Amendment you interpret it as barring the federal government i. But if it is in an area where strict scrutiny is used such as for protecting fundamental rights. liberty and property 3. substantive due process is met so long as the law is rationally related to a legitimate government purpose ii. Due process as a restraint on all three powers of the federal government i. liberty or property b. Liberty has been more than just not going to jail b. or property 5. Substantive Due Process: asks whether the government has an adequate reason or taking away a person s life. Two due process clauses in the Constitution a. a. Procedural Due Process: the procedures that the government must follow before it deprives a person of life. Due process holds the government subservient to the law of the land protecting individual persons from the state. Substantive Due Process: protection of liberty and safeguard of due process of law have been interpreted in substantive ways a. Fair laws with valid objectives ii. liberty. Includes making sure the legislature passes a fair law 2. Due process of law is more than just the procedure 4. Substantive due process i.a. If a law is in an area where only rational basis review is applied. Can distinguish between procedural and substantive due process based on the remedy sought 56 . liberty or property a. Whether there is such a justification depends very much on the level of scrutiny used i. Government must give you due process if they want to take away your life.

Social welfare benefits are vital can t live or survive without them. If the P is seeking to have a government action declared unconstitutional as violating a constitutional right. Perry v. 3.a. 460 10. such as notice and a hearing. liberty. But when a person or a group is seeking to have a government action declared unconstitutional because of the lack of adequate safeguards. Types of liberties pg. b. Kelly i. Loudermill (1984) pp. The substance of the law can be questioned under due process a. The privilege approach the government benefits are privileges and not rights b. You get the benefits that the government has put out there for you i. the question remains what process is due 2. What are the interests protected by due process 3 approaches taken by the court over time a. Has there been a deprivation. Court said when there is a property interest. 2. Property interest/property right Procedural Due Process (pp. 425-43) Procedural Due Process can be broken down into three basic questions: 1. procedural due process is the issue 7. Of life. An infamous example of this is the Dred Scott case 11. Without due process of law? Property Cleveland Board of Education v. Sindermann pg. or property. then the government does not have to provide procedural or substantive due process 8. substantive due process is involved. 432-434 1. Once it is determined that the Due Process Clause applies. so when something threatens your existence than that is like liberty 1. So when government takes away liberty or property interest it must be subject to due process c. If no denial of life. liberty. 432 9. the Constitution and not the state law determines the procedures to be followed 57 . The approach represented by Goldberg v. or property.

Liberty Determining the Process That is Due
Matthews v. Eldridge (1976) pp. 438-441
1. Lays out a 3-factor balancing test a. Private interest b. Public interest (burden imposed on government) c. Risk of erroneous decisions this is the lynchpin factor i. Is the procedure it s asking for likely to prevent a mistake from being made and is the government s action likely to make a wrong decision? 2. Issue: Whether the Due Process Clause of the Fifth Amendment requires the recipient be afforded an opportunity for an evidentiary hearing prior to the termination of Social Security disability benefit payments. 3. Rule of Law: Procedural due process is satisfied by administrative proceedings, even those not as extensive as a full evidentiary hearing, for the termination of disability benefits under the Social Security Act.

Substantive Due Process
Equal Protection = why me? Due Process = is it fair? 1. Federal Constitutional rights are available only against the government (from federal to municipal) a. A lot of rights we have are not Constitutional rights such as employment rights Rational review test Strict scrutiny instead of the challenger having to prove the law is rationally related to a purpose, the government here must prove that the law is necessary for a government objective 1. Government must prove the law is substantially related to achieving government interests

Substantive Due Process
1. The core of substantive due process is the idea that some laws invade life, liberty, or property in such a fashion that they cannot be considered valid law


2. Substantive Due Process is the concept that there are certain rights so fundamental to our traditions of justice that, no matter what procedural guarantees government affords, government cannot abridge those rights a. The basis of substantive due process has generally been the liberty clause of the 14th Amendment (i.e., government would be violating a person s liberty despite the procedural guarantees afforded) i. Requires a broad reading of the word liberty in the Due Process Clause of the 5th and 14th Amendments 3. Substantive due process means two things: a. It means a definition of liberty that goes beyond not going to jail b. Due process of law looked like a fair hearing i. Court expanded both of these notions to have substantive connotations 4. Calder v. Bull (pg. 444) illustrates the polar positions on this issue 5. Is there a middle ground between what s explicitly protected by the Constitution and what is not? 6. Idea that substantive due process should be used to protect fundamental, unenumerated rights 7. What courts really mean by substantive due process is about what are deep traditions are they aren t really looking at public preferences but rather which states have laws and statutes, etc. a. See family rights cases, Moore v. City of East Cleveland and Griswold, etc.

The Incorporation Doctrine (pp. 443-58)
1. Bill of Rights = first 10 Amendments 2. Perhaps the most enduring monument of substantive due process is the incorporation doctrine, by which most of the substantive guarantees of the Bill of Rights have been incorporated into the Fourteenth Amendment s due process clause and thus made applicable to the states 3. The Incorporation Controversy addresses the issue of whether the 14th Amendment incorporates the protections of the Bill of Rights to make them applicable against the states a. Before the adoption of the 14th Amendment in 1868, the SC held in Barron v. Mayor of Baltimore (1833) that the protections found in the Bill of Rights were not applicable against the states. b. The 14th Amendment reopened the door for the argument that the Bill of Rights should also be applied against the states c. The SC first addressed this argument in the Slaughter-House Cases (1872). i. The majority s decision in Slaughter-House is still good law today. d. The PIC of the 14th Amendment remains essentially written out of the Constitution by Slaughter-House e. Saenz v. Roe revived the PIC of the 14th Amendment


4. The SC s use of selective incorporation 5. Five provisions of the Bill of Rights have never been incorporated and do not apply to state and local governments. Of importance: a. 2nd Amendment right to bear arms is not incorporated i. So the Court has upheld state and local gun laws b. The 5th Amendment right to a grand jury indictment in criminal cases is not incorporated i. Thus, states need not use grand juries and can choose alternatives such as preliminary hearings and prosecutorial informations c. 7th Amendment right to jury trial in civil cases is not incorporated i. States therefore can eliminate juries in some or even all civil suits without violating the Constitution d. Has never ruled whether the prohibition of excessive fines in the 8th Amendment is incorporated 6. Technically, the Bill of Rights still applies directly only to the federal government; Barren v. Mayor & City Council of Baltimore never has been expressly overruled. Therefore, whenever a case involves a state or local violation of a Bill of Rights provision, to be precise it involves that provision as applied to the states through the due process clause of the 14th Amendment

Barron v. Mayor & City Council of Baltimore (1833) pp. 445-446
1. Issue: Whether the Takings Clause of the Fifth Amendment operated as a restriction on the Baltimore City government. 2. Rule of Law: The Bill of Rights, specifically the Fifth Amendment s guarantee that government takings for public use require just compensation, are only restrictions on the federal government and not state or local governments. 3. Holding: the Bill of Rights was a restriction of federal actions, not state and local conduct 4. Facts a. Barron sued the city for taking his property without just compensation in violation of the 5th Amendment 5. Court s reasoning a. The Framers did not say the Bill of Rights applies to the states if they wanted this to be the case they would have made it clear b. Counter-argument: i. Some provisions of the Bill of Rights, such as the takings clause, do not limit themselves only to the federal government 1. 5th Amendment begins no person shall, and concludes, nor shall private property be taken for public use, without just compensation 2. The 1st Amendment, in contrast, begins, Congress shall make no law


Issue: Whether the Louisiana statute creating a slaughterhouse monopoly violated the Thirteenth and Fourteenth Amendments to the United States Constitution. the Louisiana legislature gave a monopoly in the slaughterhouse business to one company. It was thought that this provision applied the Bill of Rights to the states i. Aren t worried that states would mess with federal Bill of Rights 8.ii. 447-452 1. Privileges and immunities were already part of the Constitution in Article IV. Invalidated the argument that the provisions of the Bill of Rights are the basic privileges and immunities possessed by all citizens 5. Majority s response: each state established a constitution for itself. §2. 3. 4. Facts a. But the court said it only applies to the Federal Government because i. and the Fourteenth Amendment (which is largely geared towards the protections of emancipated slaves and African Americans) only protects rights guaranteed by the United States and not individual states. First SC case to interpret the 14th Amendment 2. and in that constitution. Bill of Rights doesn t apply to state or local government 14th Amendment 1. At the time Barron was almost certainly decided correctly a. Most states have their own bill of rights iii. 14th Amendment declares: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States a. Rule of Law: The Thirteenth Amendment solely prohibits slavery as experienced by Africans in the United States before the Civil War. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee 61 . This is very disputed b. which prevents a state from denying citizens of other states the privileges and immunities it accords its own citizens Slaughter-House Cases (1873) pp. the obvious concern is that state and local governments then are free to infringe even the most precious liberties 1. provided such limitations and restrictions on the power of its particular government 6. No specific direction that the Bill of Rights only applies to the Federal Government a. Because of a huge surplus of cattle in Texas. If the Bill of Rights applies only to the federal government. Worry is that the Federal Government has the excessive power ii. But today it is troubling that state and local governments were free to violate basic constitutional rights 7.

Importance of Slaughter-House a. The privileges or immunities clause was rendered a nullity by the Slaughter-House Cases. the SC used the PIC of the 14th Amendment to invalidate a state law 2. and the Court has much more liberally construed the 14th Amendment 12. 454 1. which applied against the states b. Giving a very narrow reading 7. Except for the privileges or immunities clause. As it defined the privileges and immunities as things that had already existed prior to the adoption of the 14th Amendment 14. Court refused to redistribute power away from the states and toward the federal government c. Roe pp. California made it difficult for newcomers to get social welfare benefits that long-term citizens of the state received court found this unconstitutional 62 . Several butchers brought suit challenging the grant of the monopoly argued that the state law impermissibly violated their right to practice their trade c. The butchers invoked many of the provisions of the recently adopted constitutional amendments 6.b. and it has been ever since Saenz v. all of the other restrictive interpretations of the 14th Amendment in the Slaughter-House Cases were subsequently overruled a. Court s first interpretation of the Civil War Amendments. Two separate questions: do you get fundamental rights from the 14th Amendment and do you get the Bill of Rights from the 14th Amendment? 9. and Privileges and Immunities Clauses of the 14th Amendment d. The dissent here found the right to work was fundamental right and one that must be found in one of the three clauses or all three of the clauses of the 14th Amendment 10. Essentially for the first time in American history. Equal Protection. To federalize all of the good life rights would be to federalize almost everything says the majority 8. The Court said that the purpose of the 13th and 14th Amendments was solely to protect former slaves a. Slaughter-House and privileges or immunities of the 14th Amendment 13. Slaughter-House Cases interpreted the PIC of the 14th Amendment in a manner to rob it of all meaning i. Slippery slope argument a. The SC s extremely narrow interpretation of the privileges or immunities clause of the 14th Amendment never has been expressly overruled and has precluded the use of that provision to apply the Bill of Rights b. Most of the decision has since been reversed. Many different opinions from the justices here 11. The opinion narrowly construed the Due Process.

Justified in restricting welfare benefits for new residents to avoid CA being a magnet for those moving to the state solely to collect its higher welfare benefits Majority s rejection of this argument a. 3. one of the Court s foremost opponents to protecting nontextual constitutional rights. Justice Frankfurter argues for selective incorporation a. 457 1.3. Frankfurter won the battle. 2nd Amendment now being incorporated through the 14th Amendment via the Due Process Clause 63 . CA has represented to the Court that the legislation was not enacted for any such reason c. The right to come and go b. not all rights c. such a purpose would be unequivocally impermissible Dissent (only two) a. 4. Justice Black argues that the Fourteenth Amendment is a total incorporation of only the enumerated Bill of Rights. voted with the majority The Black-Frankfurter Arguments ± pg. Whether the 2nd Amendment applies to the individual states 3. a. Black won the war 2. Court revived the Privileges and Immunities Clause here somewhat in its holding The right to travel is three kinds of rights a. 6. 8. Not limited to the enumerated rights b. 5. Not limited to the Bill of Rights The right to bear arms pp. Rehnquist and Thomas b. Each lamented the revival of the privileges or immunities clause as a basis for protecting rights Justice Thomas really likes the PIC here says it should have a broad application but says its not for the right to get social welfare benefits Scalia. Incorporates some rights. Empirical evidence shows the number is quite small not enough to justify a burden on those who had no such motive b. This is the last incorporation issue 2. The right to be treated well in another state c. 7. The right to be treated equally if you decide to stay and live in that state California s argument a. 29 (Supplement) 1. Even if it were.

459 1. 460-464 1. to pursue any livelihood or avocation. 3. NY passed law to limit the hours that baker could work 4. The liberty to contract 2. not necessarily through Constitution but through law of the land 1. Rule of Law: A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause. to live and work where he will. Allgeyer i. 3. 458-70) Allgeyer v. Courts as philosopher kings looking to natural law theory Locke. Issue: Whether a Louisiana law which effectively prohibited the contracting of Louisiana citizens with foreign corporations violated the Due Process Clause of the Fourteenth Amendment.The Rise and Fall of Economic Rights as the Substance of Due Process (pp. Louisiana (1897) pp. 460 b. 2. But these are also things that England s court protected. Issue: does the law s restrictions on working hours deprive the boss and baker of liberty? 5. Socrates. Limiting hours of work for bakers had no relationship to public health b. etc. and for that purpose to enter into all contracts which may be proper. Embraces the rights of the citizen to be free in the enjoyment of all his faculties. Liberty now embeds them in the Constitution Lochner v. New York (1905) pp. necessary and essential to his carrying out to a successful conclusion the proposes above mentioned pg. Facts a. Holding: Yes interfered with freedom of contract and didn t serve valid police power a. Court says this law is an unreasonable exercise of police power i. Defined liberty in a very broad way a. Says liberty is not absolute 64 . ii. to earn his livelihood by any lawful calling. The right to contract for your labor is protected as liberty under the Constitution c. Where did these notions come from? i. Rule of Law: The freedoms protected by the Due Process Clause of the Fourteenth Amendment include economic freedoms and prohibit a state from preventing its citizens from contracting with foreign insurance companies to insure property located within the state. to be free to use them in all lawful ways.

8. Court allowed maximum hour laws for women. which requires: 1. Liberty includes the right to contract for your livelihood iv. 9. because the government should be able to regulate to achieve many other goals. with respect to an individual s freedom.5 hours e. the Court used substantive due process to prevent legislatures from enacting laws that drew lines. Criticisms of the Lochner era a. If reasonable people could differ about this legislation. but not minimum wage laws 65 . The law has to serve proper ends b. Proper means to those ends ii. but is an illegal interference with the rights of individuals. It s a pretexual label on the grounds of health when it s really supposed to reduce the disparity in wealth between bosses and workers i. within any fair meaning of the term. Critics argue that the decisions during this era were wrong. than it is up to the legislature i. It can be restrained if the legislature acted with due process of law/acted with reasonable exercises of the police power iii. if it looked like health than the court would uphold it pg. i. This is one of the major arguments against Lochner Most people think Lochner was wrong The Lochner Era 1. that the Court considered arbitrary Is reminiscent of McCulloch a. Court says they must intervene and protect individual rights Fearing legislative invasion into all aspects of private life. consumers and the public generally b. Pursuit of proper ends 2. 7. Doesn t think limiting the hour of work for the baker will have an effect on the baker s health 1. a health law. If it was regulating money it looked like wealth and the court would strike it down. to make contracts regarding labor upon such terms as they may think best. 468 2. Liberty includes the right to earn your living d. both employers and employees. The act is not. The court says the NY law fails the means test i. or which they may agree upon with the other parties to such contracts pg. Focus here is on the means ii.6. It s subject to the reasonable exercise of the police power. Questions how you can argue that they can work 10 hours but not 10. including protecting workers. 462 Dissent a.

470-549) 1.c. Abandonment of the substantive due process principles of Lochner 3. Presume that any law that regulates business is constitutional i. The Court would curtail its scrutiny of economic rights and expand its scrutiny of more personal rights. Since 1937. Issue: Whether the rational basis test is the appropriate judicial review for congressional legislation of common commercial products. Many of the same reasons that were also changing things in regards to the CC a. Lochner had strong review of laws. Carolene Products (1938) 3. Court introduced new standard: a. the law is sustained 6. These are pure Lochner and Allgeyer substantive rights cases applied to family rights a. Big question: are the courts the best institutions to resolve issues of life. but not for bakers d. Rule of Law: Congressional legislation of common commercial products will be scrutinized under a rational basis test. This was a post-New Deal case a. here it is exceedingly minimal 7. they reversed ways b. not one law has been declared unconstitutional by the SC as violating economic substantive due process 4. The Modern Revival: ³Privacy´ Rights (pp. Unless the challenger can prove that the law has no rational basis. death and infinity or should it be up to the voting process and legislature? 66 . Protection of economic rights since 1937 has come under two specific constitutional provisions: the contracts clause of Article I. Abandonment of laissez-faire b. Need for more government regulations 2. It permitted maximum hour laws for coal minors and manufacturing workers. 4. §10 and the takings clause of the Fifth Amendment United States v. At first the court tried reining in the New Deal legislation then when Roosevelt threatened to put more justices on the court. Judicial activism Demise of the Lochner Era 1. The burden of showing otherwise is on the challenger of that law meaning the government doesn t have to rush in to defend it c. 5. Saying the family makes the decisions about how family life should be and not that of the state 2. But this deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities b. The Court would defer to the government and uphold laws so long as they were reasonable ii.

General Holding: there is a privacy right in the Constitution and it protects married couples and their right to intimacy 7. Issue: under constitutional law. This case is for rights. Law making use of contraceptives illegal i. Justice Douglas (majority) a. Issue: Whether a statute that allows for the forced sterilization of persons deemed to be habitual criminals violates the Equal Protection Clause of the Fourteenth Amendment. 472-83): Griswold v. Rule of Law: A state law requiring forced sterilization of criminals convicted of crimes of moral turpitude unconstitutionally infringes on the fundamental rights of marriage and procreation and thus violates the Equal Protection Clause of the Fourteenth Amendment. 472-479 1. But only certain crimes got this treatment. Oklahoma (1942) pp. Rule of Law: An implied right of privacy exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception. Specific Holding: Yes. State had a statute that people who have been convicted of a crime three times would be sterilized i. Facts a. 6. 3. Facts a. what McCulloch was for power 3. Origins: Contraception (pp. does the Constitution protect the right to marital privacy against state restrictions on a couple s ability to be counseled in the use of contraceptives? 5. 2. Refused to rely explicitly on substantive due process analysis. Rather than regulating their manufacture or sale b.Skinner v. white collar crimes did not 5. one of the people in the couple would need to testify that they used contraceptives 4. Issue: Whether a statute that allows for the forced sterilization of persons deemed to be habitual criminals violates the Equal Protection Clause of the Fourteenth Amendment. asserting that the Court does nto sit as a super-legislature to review legislation on social and economic matters 67 . 470 1. 2. The Connecticut statute conflicts with the exercise of this right and is therefore null and void 6. Established right to procreate as a basic liberty/fundamental right 4. In order to prosecute the crime. Connecticut (1965) pp. Rule of Law: A state law requiring forced sterilization of criminals convicted of crimes of moral turpitude unconstitutionally infringes on the fundamental rights of marriage and procreation and thus violates the Equal Protection Clause of the Fourteenth Amendment.

joined by Rehnquist. when the tradition is stated at the most specific level of abstraction 68 . There is no constitutional right to privacy Michael H. Justice Stewart s dissent a. In finding a right of marital privacy. the various guarantees within the Bill of Rights create penumbras or zones that establish a right to privacy. formed by emanations from those guarantees that help give themlife and substance 8. Man was claiming his natural right to be father. Fourth. Third. (1989) pp. Justice White s concurrence a. Some scholars viewed this decision as a return to the substantive due process analysis disavowed by the Court in the post-Lochner era 15. Scalia. the First. This is asking us to do Lochner and we don t do Lochner anymore i. Douglas argued that specific guarantees in the Bill of Rights have penumbras. irrespective of it happening through an adulterous affair 3. Used the 9th Amendment to support his position that the 14th Amendment DPC protected a fundamental right to marital privacy ii. 480 1. Though the Constitution does not explicitly protect a general right to privacy. said that the Court should recognize a liberty interest only if there is a tradition of providing protection. Goldberg looked to the traditions and [collective] conscience of our people to determine whether the principle was so rooted [there] as to be ranked as fundamental 11. Says his job is not to look at this law. Justice Black s dissent a. The court found that an adulterous father has no fundamental liberty interest in creating or maintaining a parental relationship with a child born into another s marriage 2. create a new constitutional right. Dissent in general a. Gerald D. and Ninth Amendments. his job is to look at the Constitution and see if there s anything in there that invalidates this law and he sees nothing 14. Use of contraceptives by married couples 10.b. Feels this is a due process violation of the 14th Amendment 13. the right to privacy in marital relations 9. Together. The court here looks to tradition a. Says to look at our societal traditions 12. v. Justice Goldberg s concurrence a. Justice Harlan s concurrence a. Relies on the 9th Amendment to say why it is covered i. What s in the zone of privacy that is being created? a. Instead.

to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child pg. they permit judges to dictate rather than discern society s views 4. Contraceptives were handed out to single people only which is what he was prosecuted for 6. The SC held that a state could create an irrebuttable presumption that a married woman s husband is the father of her child. Issue: Whether a state statute that permits the giving of contraceptives to married persons and not to unmarried persons violates the Equal Protection Clause of the Fourteenth Amendment. Facts a. Father have a fundamental interest in their children and this is sufficient for a liberty interest 5. Is an EPC case 5. 3. including visitation 10. 2. Issue: Whether a statute that prevents a possible biological father from establishing his paternity of a child after two years since the child s birth violates the Due Process Clause of the Fourteenth Amendment. by implication. 8. Baird (1972) pp. Therefore the right of privacy is not for the married couple but for the individuals of the couple a. The dispute between Brennan and Scalia was over how the Court should go about interpreting the meaning of liberty 6. It should be noted that the court has additionally not recognized a liberty interest for foster families Eisenstadt v. 7. Rule of Law: Under the Equal Protection Clause of the Fourteenth Amendment. the right of unmarried couples to engage in potentially nonprocreative sexual intercourse 4. Brennan objected to this narrow definition of liberty a. The Court said that the biological father had no right to a hearing to determine paternity and could be denied all parental rights. a state may not outlaw distribution of contraception to un. 9. married or single. It is the right of the individual.married persons. Said that such specificity was necessary because general traditions provide such imprecise guidance. 482 1.i. Rule of Law: The right of a potential natural father to assert parental rights over a child born into a woman s existing marriage with another man is not traditionally recognized in historical jurisprudence and is thus not a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. The Court refused to recognize any parental rights for a biological father even though he had lived with the mother and the child for almost a year and a half. 483 69 . Established the right of unmarried people to possess contraception on the same basis as married couples and.

Roe shouldn t recognize an enumerated right to abortion 1. Strict scrutiny if government invades that right 3. Abortion (pp. Stewart s concurring opinion a. Begins by looking at history shows that bans on abortions weren t always part of American history b.7. Wade (1973) pp. 483-487 1. The fetus is a person within the language and meaning of the 14th Amendment i. 2. 483-516): 1. Court s decision process a. Compelling interest standard turns court into super legislature b. Human life 6. And since abortions were far freer when the 14th Amendment was adopted. Not supposed to use substantive due process they did it in Lochner and the conventional wisdom is that was wrong i. The Court held that a woman s right to an abortion fell within the right to privacy (recognized in Griswold) protected by the 14th Amendment 4. Right of abortion a constitutional right within the realm of privacy for matters of pro-creating a. Should be played out in the legislature rather than the court 8. Just like Lochner shouldn t recognize an enumerated right to economic liberty. Court says Constitution does not define person 1. Texas s argument a. However. Why should this be decided by the judiciary and not the legislature? 70 . abortions may be regulated by a state after the first trimester of pregnancy and may be completely prohibited after the point of viability of a fetus unless necessary to preserve the health of the mother. Safety of patient ii. Looks to the state s interest i. Rehnquist s dissent a. Once we crossed from married to single in Eisenstadt this becomes an easy case 7. Takes the rights out of the marital context and makes them individual rights The 9th Amendment 1. Rule of Law: The constitutional right of privacy encompasses a woman s right to an abortion. the word person doesn t include unborn fetuses 5. Dissented in Griswold but joins majority here i. These cases show the Court s modern substantive due process jurisprudence Roe v. 9th Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Woman s choice b. rather than the legislature that does not reflect the minority interests 9. Takes liberty beyond the procreational choices and to human choices ii. 24-hour waiting period yes b. Parental consent yes 71 . Court hadn t really gotten into EPC cases between men and women at this time these cases came later Planned Parenthood v. the majority rejected the heightened strict scrutiny standard to state regulation of abortion 3. State can regulate up to the viability line so long as these regulations are not an undue burden i. and of the mystery of human life pg. Texas iii. 496 4. Let the decision stand in Roe ii. Protect the minority. Majority formally adopted an undue burden standard. 494 1. First portion liberty i. At the hear of liberty is the right to define one s own concept of existence. Casey (1992) pp. This passage later appears in Lawrence v. 493-507 1. of the universe. Structure of decision a. 2. Pre-viability = the woman has the right to an abortion without an undue burden from the state 5. To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court s legitimacy beyond any serious question pg. a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability b. An undue burden = a substantial obstacle ii. In so doing. while reaffirming the essential meaning of Roe a. Under this standard. Undue burden test a. Second portion stare decisis i.a. Rule of Law: A state abortion regulation places an undue burden on a woman s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. of meaning. Why wasn t this written more like a women s rights case? a. Don t want to imply a bias by the legislature who passed the law they re invalidating b. Applying under burden test to the statute court upheld 3 of the 4 challenged provisions a. Informed consent yes c.

Spousal notification/agreement no i. women have the right to an abortion at any point of previability. Constitutional protection of the woman s decision to terminate her pregnancy derives from the Due Process Clause Stenberg v. Wade. (2) A confirmation of the state s power to restrict abortions after fetal viability. the State s interests are not strong enough to support a prohibition of abortion b.i. 2. Carhart pp. Congress passed the Partial Birth Abortion Act. But exceptions for medical emergencies and allowed judicial bypass d. 508-515 1. (3) Principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child 2. Carhart (2007) pp. as defined in Roe? 4. Signed by President Bush. Before viability. Why is this not found to be an undue burden (though it is in Stenberg?) 72 . In 2003. 507 1. Upholds the Partial Birth Abortion Act 5. Court a. it bans all "partial-birth abortions 3. The Partial Birth Abortion Act would be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before a fetus attains viability. (1) A recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state i. Rule of Law: Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow and clear and the ban does not constitute an undue burden on a woman s right to an abortion. unless necessary to save the life of the pregnant woman Gonzales v. Applied the undue-burden standard in striking down a Nebraska law that made it a crime to perform an abortion by means of delivering a substantial portion of a living fetus into the birth canal. Adheres to Roe s essential holding which has three parts a. if the law contains exceptions for pregnancies which endanger a woman s life c. Holding: the Supreme Court held that the Partial Birth Abortion Act does not threaten a woman s right to abortion under Roe. But other recording measures allowed Casey¶s adherence to Roe 1. As per Roe v. Issue: does a ban on intact D&X abortions on living fetuses threaten a woman s right to have an abortion. b." i.

It has represented the balance which our Nation. built upon postulates of respect for the liberty of the individual. They differed to Congress findings. having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. 516-23) Harlan excerpt from Poe v. Libertarian c.i. It is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process. That tradition is a living thing Speaking about the Connecticut statute A close scrutiny and stronger justification than that are required The right to determine how to raise your children 1. Ginsburg s dissent a. Since the statute abridges important fundamental liberties protected by the 14th Amendment. There s no formula for due process a. City of East Cleveland when court says how we must understand the Court s function under the Due Process Clause) . Ullman (that is within Griswold and is looked at in Moore v. it will not do to urge in justification of that abridgement simply that the statute is rationally related to the effectuation of a proper state purpose. The Act provides that anyone who in or affecting interstate or foreign commerce. or both But the woman being operated on cant be prosecuted pg. but rather [those] rights which [are] fundamental. 510 7. which belong to the citizens of all free governments for the purposes of securing which men enter into society 2. Does the Constitution protect the right of parents to determine how to raise their children? a. which found that this procedure is never really necessary to the life of the pregnant woman 6. 476 1. Pure Lochner cases 1. Notions of morality can t trump individual rights Lawrence Family Relationships (pp. Where in the Constitution does this come from? 73 . Congress gains power to regulate the way abortions are performed through the Commerce Clause a. has struck between that liberty and the demands of organized society. to a limited extent b. That balance is the balance struck by this country. Pierce and Meyer i. Yes. knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined or imprisoned not more than 2 years.

even when doing so would be in a child s best interest. 520 1. Issue: Whether a Washington statute that permits any person to petition a superior court for visitation rights at any time. violates the Due Process Clause protections of a parent s right to rear his or her child. Substantive due process finding that liberty has a substantive definition and content to it and finding that due process has a substantive and not just procedural process to it 2. Grainville pp. The ruling is outside of the text using only tradition as a guide a. American civilization recognizes extended families co-habitating 7. City didn t want extended families in the neighborhood they associated that with less stable neighborhoods 4. and necessarily encompasses a broader definition of family than just members of the nuclear family. Court doesn t really have a clear line for determining how any of the family rights cases will be decided a. like nuclear families are protected by the Constitution 6. Instead of granting the parent the right to decide who the child lives with. a state court may not grant visitation rights to a person. Justice Powell is quite candid about the substance and says that the limit of substantive due process is tradition 5. State can t infringe on parents right to exclude children from seeing grandparents (as long as they are fit parents) 4. Rule of Law: The right of related family members to live together is fundamental and protected by the Due Process Clause. 517-519 1. Facts a. Invalidated zoning ordinance that restricted dwellings to single families (narrowly defined) 3. 2.i. Here Oregon put the thumb on the scale of the grandparents. Extended families. This is a perfect example of being in treacherous territory when going outside the text i. 2. Look at what is required by a system of ordered liberty Troxel v. City of East Cleveland (1977) pp. if those visitation rights are opposed by the child s parent because doing so interferes with the parent s fundamental liberty interest in rearing his or her child. Justice White s dissent a. Rule of Law: Under the Due Process Clause. the court could 74 . even though the mother is a fit parent a. When looking at rights looks at the text and then at tradition. and permits the court to grant such visitation if it is in the best interest of the child. 3. However usually parents have rights above non-marital parents and non-martial parents usually have heightened rights if they ve acted like the parents Moore v.

No Cruzan v. State must have a very strong reason for withholding marriage a. Man argues for fundamental right to marry b. Issue: Whether a statute that prevents certain residents from marrying without first obtaining a court order granting permission to marry violates the Equal Protection Clause of the Fourteenth Amendment.vent marriages between persons solely on the basis of racial classification violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Issue: Whether a Virginia statutory scheme adopted to pre. Also. State law not allowing you to marry if you re behind on child-support payments a. 524-528 1. and any legislative attempts by a state to limit that right are unconstitutional unless they are narrowly-tailored to the accomplishment of an important governmental purpose. 523-35): 1. Is the right to die a Constitutional right? a. 2. If rendered incompetent. Rule of Law: A competent person has a constitutionally-protected right to refuse life-sustaining medical care under the Due Process Clause. Missouri Department of Health (1990) pp. Rule of Law: The right to marry is a fundamental right. Woman persisted for 7 years on a feeding tube in a vegetative state with no hope of recovery 75 . 2. Because of non-biological parents b. 522 1. Zablocki v. 3. Court says by withholding marriage here it would just lead to more illegitimate children and having to pay child support for them The Right to Die (pp. Interracial marriage 2. Facts a. Redhail (1978) pp. 3. Director. Rule of Law: A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. if one of the gay parents Loving v. 522 1. a state may require clear and convincing evidence of that person s wishes to have life-sustaining medical care stopped before actually agreeing to terminate such care. He wins the court says it s fundamental subject to strict scrutiny 4. The gay rights community is particularly attracted to this case a. Virginia (1967) pp.5. The Court recognized not a right to die but a constitutional right to refuse life-saving hydration and nutrition 3.

Second. legal traditions and practices thus provide the crucial guideposts for responsible decision making that direct and restrain our exposition of the Due Process Clause Vacco v. Rule of Law: The right to physician-assisted suicide is not a constitutionallyprotected liberty interest under the Due Process Clause of the Fourteenth Amendment. which the court says is very different b. First. Court says: our established method of substantive-due-process analysis has two primary features: a. Facts a. deeply rooted in this Nation s history and tradition (Moore) and implicit in the concept of ordered liberty. She d kill herself but she s immobile so wants physician s help 4. The SC said no. Court looks to tradition i. NY allowed the removing of life sustaining devices (Cruzan) but not assisted suicide (Glucksberg) and this was claimed to violate equal protection a. 2. we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are. traditional and medical differences between the two. Stands for the proposition that when the state puts protections on the right to die the court will look at it in modest ways Washington v. Court won t recognize a right of physician assisted suicide a. Our nation s history. 535-49) 1. Court held that Washington s prohibition against assisted suicide didn t violate the DPC of the 14th Amendment 3. we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest. 529-533 1. Court concludes that the procedural hoop (clear and convincing evidence that the ill would want the life support removed) does not take away due process 5. objectively. there are historical. Is sex a fundamental right? 76 . Quill pp. Everything they look at speaks to them that doctors shouldn t kill their patients it is against medical ethics 5. Glucksberg (1997) pp.4. 533 1. such that neither liberty nor justice would exist if they were sacrificed b. Here they don t want the plug pulled but a needle put in. permitting the state to allow one but not the other What rights have been protected under liberty by the court? What methodology has the court used to address this? How has the court fashioned rules of law to determine whether the state can infringe rights in this are or not? Consensual Sexual Choices (pp.

2. Sex falls within the zone of privacy protected by the 14th Amendment

Bowers v. Hardwick (1986) pp. 535
1. The Court upheld a Georgia statute prohibiting private, consensual sodomy between both homosexual and heterosexual couples. a. The Bowers Court s reliance on historical traditions prohibiting homosexual activity

What happened between Hardwick and Lawrence?
1. Two things happened that strengthen the claim of privacy here a. Sweet mystery of life language in Casey about liberty i. Good language for Gay rights advocates b. Romer v. Evans case of Colorado referendum if group wants to pursue their rights by getting a city to pass a gay discrimination ordinance they d have to go to the state 2. Societal terrain had changed substantially a. Gay rights more recognized businesses, universities, some local governments

Lawrence v. Texas (2003) pp. 536-546
1. Rule of Law: The constitutional right to privacy protects a right to engage in private consensual homosexual activity including oral-genital or anal-genital contact. 2. Basically a do-over of Hardwick 3. Facts a. Sodomy law only applied to homosexuals 4. The Court struck down the statute as it does not further a legitimate state interest which can justify its intrusion into the personal and private life of the individual 5. In our tradition the state is not omnipresent in the home a. Liberty includes an autonomy of self 6. Very broad, capacious definition of liberty is given here a. Uses definition of liberty from Allgeyer i. To be free in the enjoyment of all his faculties 7. How the court dismantles/overrules Bowers v. Hardwick a. Said Hardwick got the history and tradition wrong i. The Bowers Court s reliance on historical traditions prohibiting homosexual activity was largely overstated b. The central holding of Bowers demeaned the lives of homosexual persons. Petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. Petitioners were entitled to respect for their private lives c. Ruling that homosexual sodomy is unconstitutional is in effect the same as ruling that homosexual rela- tionships are themselves unconstitutional. Such a determination would impinge upon the


fundamental right of homosexuals to en- gage in intimate personal and familial relationships. 8. The government must respect your private choices pg. 540 a. The Court said: Increasing legal and social acceptance of homosexual behavior and the right to privacy in consensual conduct between adults. The Court s recent decisions in cases such as Planned Parenthood v. Casey (1992) and Romer v. Evans (1996) further evidence such a trend. The right of privacy announced in these decisions and de- rived from the Bill of Rights encompasses the right of consenting adults to engage in homosexual activity. 9. The court looks to other states a. The Court noted that the reasoning and holding of Bowers had been rejected in other nations, and there was no showing that the US governmental interest was more legitimate or urgent b. Most states that currently had laws prohibiting homosexual conduct largely admitted a lack of prosecution of individuals for engaging in such conduct. 10. What level of scrutiny did the court use during this case? 11. A lot of the language is gay rights specific but it also applies to heterosexual couples a. Is it a gay rights case or a sexual privacy case? 12. What was the state s interest for having such a law? 13. Times change and the law must change to reflect the current beliefs a. Majority talks about the Living Constitution pg. 540 14. Justice O Connor s concurrence: a. TX law invalidates the law under the EPC i. Moral disapproval does not satisfy denying equal protection 15. Justice Scalia a. You haven t identified it as a fundamental right b. It s been de facto given intermediate scrutiny c. Pg. 544 gives a list of things now out the window because of this law

McDonald v. City of Chicago (2010 Supplement, pp. 30-38)
1. Court held that the right to bear arms is a sufficiently important liberty interest 2. Answer the objective question: is right to bear arms part of DPC? a. Yes it is 3. Justice Steven s dissent a. Talks about putting a substantive definition into liberty b. Talks about Cardozo s ordered liberty test c. Attacks the conservative approach to traditions i. Saying that you don t get restraints on the justices by looking to tradition


d. Due Process Clause safeguards the ability to independently define one s identity, individual s right to make certain unusually important decisions that will affect his own, or his family s destiny, and the right to be respect as a human being pg. 32 i. But where does this come from? 4. Justice Scalia (concurring) a. Says the Stevens approach does not limit the court in anyway b. Has real animus towards the reference to what other countries do c. Pg. 38 says history is not a perfect way but it s the best way we ve got and is certainly better than Stevens approach i. Say it s much less subjective ii. But why s the strict textualist/conservative relying on history? 5. Bottom line is 4 justices using Due Process saying the right to bear arms is deeply rooted in our traditions

The Modern Revival: Excessive Punitive Damages
BMW of North America, Inc. v. Gore, pp. 39 (Supplement)
1. Issue: Whether a state trial court s award of $2 million in punitive damages to a purchaser of a pre-delivery damaged car violates the Due Process Clause of the Fourteenth Amendment. 2. Rule of Law: A state s assessment of grossly excessive punitive damages against a defendant violates substantive due process. 3. Issue before the Supreme Court whether punitive damages that are grossly excessive violate Due Process 4. Majority gives a three part test to determine whether an award is grossly excessive a. Degree of reprehensibility i. State may not assess punitive damages for unlawful conduct that occurs outside its jurisdiction (?) b. Ratio i. If more than four times the amount of compensatory damages than it s pushing it c. Sanctions for comparable misconduct i. Allows the court to look to penalties in similar cases 5. Another example of substantive due process substance of jury s determination

Phillip Morris, USA v. Williams (2010 Supplement, pp. 39-50)
1. Justice Thomas (dissent): the Constitution does not constrain the size of punitive damages awards Note #2 on pg. 49-50 of Supplement Is he accurately describing the rules in the cases?


When a taking is acknowledged. The TC applies to all types of property tangible or intangible and applies to executive and legislative actions that effect a taking 5. 551-92) 1. The Fifth Amendment s guarantee against taking without just compensation was one of the earliest constitutional protections of economic rights incorporated into the 14th Amendment a. Four basic features of the TC a. state and local 3. A major difference between the substantive due process protection of economic liberties and the takings clause is that substantive due process was far more wide-ranging: it permitted courts to void statutes because the statutory objectives were thought to be illegitimate. claiming it has merely regulated property. the constitutional issue is to determine when a regulation of property is so extensive that it amounts to a de facto taking of property 8. Regulatory takings 80 . Is it being taken? c. Regulatory taking = statutes or laws that would limit what you can do to your house or land (other than a nuisance abatement) a. Takings Clause: [found in Fifth Amendment] Requires that just compensation be paid to the owner of private property taken for public use. are you provided just compensation? i. There s been more action on the Takings Clause (TC) then the Contracts Clause (CC) 4. When that occurs. Sometimes the government denies it has taken property. Applies to federal. but only requires just compensation The Takings Clause (pp. Issue: should the court complete the dilution of those rights so that when any economic claim comes before the court you have a one size fits all standard? 2. Is it being taken for public use? i. 2. needed to condemn some property to do so 7. This is the least covered feature of the 4 6.ECONOMIC RIGHTS: THE TAKINGS AND CONTRACTS CLAUSES 1. If so. the major constitutional issue presented is determining whether an acknowledged and fully compensated taking is for public use d. Is it property? b. The public use requirement ensures that government compulsion is used only to secure public benefits ii. Bulldozer taking = extended the runway at La Guardia. the SC has watered down these two through various doctrines a. With respect to the CC and the TC. The 5th Amendment does not prohibit government takings of property.

555-561 1. Main argument of the people who did not want their land taken even though they were being compensated at the fair market value a. Hawaii Housing Authority v. The test is a conceivable public purpose 7. Court should generally presume an impermissible private purpose when a. Rule of Law: A state may use the eminent domain process to take property that is heavily concentrated in the hands of a few private landowners and redistribute it among the general population of private individuals. Public Use Clause: [found in Fifth Amendment] Expressly authorizes eminent domain in matters that positively impact the general public. 3. Issue: Whether a state s exercise of its eminent domain authority to condemn private property and sell it to private developers for the purpose of creating new jobs and increasing tax revenues violated the public use requirement of the Fifth Amendment. 552-555 1. 2. Pg. Procedures employed are prone to abuse c. Rationally related to a legitimate government interest 5. 51-52 of the Supplement The Public Use Requirement (pp. Judicial actions of the state can also amount to a taking a. 552-62) 1. with just compensation. Rule of Law: A state s use of eminent domain to condemn property from private individuals and redistribute it to other private individuals consti81 . Justice O Connor s definition: a public use is anything within the police power (which basically means anything) i. 2. Public Use = used by the public a. Purported benefits are trivial or implausible 2. They also say that what s happening here is not for public use 6. City of New London (1984) pp. does not concern itself with the legitimacy of the state s regulatory objectives. it merely examines the means by which those objectives are sought to be attained 9. Looses out on what the property interest would be tomorrow b. The court used a minimal standard of review a. Either owned by the public or open to the public b. The court took a one-size fits all approach here Kelo v. by contrast. Midkiff (1984) pp.jurisprudence. title in real property from private lessors and transferring it to private lessees for the purpose of reducing the concentration of ownership of private property. Issue: Whether the public use requirement of the Takings Clause of the Fifth Amendment prohibits a state from taking. Transfers are so suspicious b. Land could be seized and distributed in order to cure land oligopoly (broad conception of public use ) 4. Extremely broad interpretation of what public use is and therefore a broad allowance for taking property c.

A tea party like case 5. Since they couldn t have categories against economic development. The opposite of a bulldozer taking 2. In the wake of Kelo virtually every state has considered changes to its limits on eminent domain b. they could be deemed takings requiring just compensation a. etc. Dissent O Connor (wrote majority in Hawaii Housing Authority) a. Many civil rights groups upset Regulatory Takings: When Does Regulation Become a Taking? 1. Facts a. To the extent that regulations diminish the value of property. they are going to defer to the city 7. Permitting minimal judicial scrutiny of zoning work would ultimately benefit more communities and people 10. Bills introduced in Congress to have some effect on the outcome of Kelo i. City approved development plan to revitalize city which had economic problems. development not open to use in the public. add a second floor. Regulatory takings: the government shows up with a law or statute that restricts what you can do to your house (mine underneath your house. Court said this plan unquestionably serves a public interest a. Were going to use eminent domain to get property from those unwilling to sell and would compensate them 4. The weak and powerless will be bulldozed by the developers 9. When legislature s purpose is legitimate and its means are not irrational. The court rejected rigid formulas and scrutiny 6. The purpose of giving more stringent review is to look out for the weak and vulnerable b. etc.tutes a public use under the Fifth Amendment if it is rationally related to a conceivable public purpose.) a. Why would the liberal justices grant this power to the developers? a. But can the Congress by statute change the Takings Clause? c. But the court has been reluctant to find regulatory takings 3. Court applies 3 categorical rules to assess whether a regulation is a de facto taking 82 . takings are not to be taken up by the federal courts are going to defer to the zoning boards that exist 8. Legislative reaction to Kelo a. The local zoning czars would know what s better for everybody then the people affected b. 3.

If you live in a residential area where everyone s house is equally limited in height. then all are the same and everyone 83 . There is no taking. but not strong enough 2. No reason for flood plain to be public 3. Dolan to expand store would have to give easement for flood plain and bike path 1. A taking has occurred when government regulations produce a permanent physical occupation of private property. 3. No reason for bike path Early Approaches (pp. no matter what the economic impact of the regulation. Classic weighing of the public benefit and the homeowner 5. Mahon (1992) pp. Reciprocity of advantage i. Question: is this is a taking of their property requiring the government to pay for it? 5. Rule of Law: A state regulatory act constitutes a taking requiring the payment of just compensation under the Fifth and Fourteenth Amendments if a serious diminution in the value of the property results from the alleged taking. Justice Brandeis a. Nolan no connection between providing public access to the beach and the development ban s goal of protecting sight lines ii. no matter how slight c. Justice Holmes a. A taking has occurred when government regulations (other than nuisance abatement) leave the owner with no economically viable use of his or her property 4. v. 2. Facts a. Proper exercise of the police power b. Nexus was found. 563-67) Pennsylvania Coal Co. 564 lays out a test for when the balance favors the property owner 6.a. Condition cases a. Kohler Act said you can t continue mining rights if it will result in damage to the housing above it 4. Nolan and Dolan the government requires something of you that would be a taking i. Issue: Whether a state regulatory act constitutes a taking under the Fifth and Fourteenth Amendments if a serious diminution in the value of the property results from the alleged taking. Outside of these three limited rules are balancing situations a. Pg. 563-565 1. if government regulation of property merely abates a common law nuisance b.

566-567 1. Maybe the rust from the cedar trees is considered a nuisance The Categorical Approach (pp. as the coal company has several coal properties Miller v. Complete destruction of all economically beneficial use 84 . Only a small piece of the pie is taken. VA law required removal of all red cedar trees within two miles of an apple orchard whenever it was determined that the cedars hosted cedar rust fungus. But why didn t the coal case come out the same way? a. 2. The majority said there is no such opportunity here as not everyone is effected 7. 568-575 1. or the functional equivalent of a practical ouster of [the owner s] possession Keystone Bituminous Coal Assoc. Court said it was ok for VA to favor one bunch of property owners against another a.benefits your property rights take a little of a hit but so do everyone else s 1. DeBenedictis (1987) pp. unless the economic activity prevented by the regulation is not part of the owner s initial title or property rights when acquiring the property. a parasite that inflicted no damage whatever to the cedars but would ruin apple orchards located within two miles of cedars harboring the fungus 3. Rule of Law: A state regulation that completely deprives private property of all its economic value constitutes a taking under the Fifth and Fourteenth Amendments that requires the payment of just compensation to the property owner. Lucas and Loretto Lucas v. South Carolina Coastal Council (1992) pp. Schoene (1928) pp. The Court found a modern version of the Kohler Act not to be a taking a. Prior to this case it was generally thought that the Takings Clause reached only a direct appropriation of property. PA s Subsistence Act required sufficient coal to be left in place to support the surface b. Balancing case that rivals Keystone Bituminous 2. 566 1. v. The apple business was an important industry for the state creating a preponderate public interest 5. Owners of cedar trees were compensated for the cutting of the trees but were denied compensation for the taking of the trees 4. 568-76) 1. Facts a. 3. Issue: Whether the complete destruction of economic value of private property by a state regulation constitutes a taking of private property for a public use under the Fifth and Fourteenth Amendments and requires the payment of just compensation.

Permanent and physical occupation 2. Nuisance is typically looked at as something that a neighbor could protest and take legal action for The Balancing Approach (pp. The takings clause is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land ii. (2) Destruction of all economically viable use i. Modest occupation. 577-86) 1. Teleprompter Manhattan CATV Corp. Exception 1. In general. SC held that it was a taking a. the width of a telecommunications cable running through an apartment 3.4. the court has required compensation b. no matter how minute the intrusion and no matter how weighty the public purpose behind it. (1) Permanent physical occupation i. Nuisance a. Regulations that compel the property owner to suffer a physical invasion of his property 1. In both categories the property owner carries the burden of proof 6. Regulations that destroy all economically viable use of private property and that are not abatements of public or private nuisances are takings per se 1. Balancing a. 575 1. Court notes the denominator problem 7. what s the public interest in doing so? Loretto v. State made law saying all apartment building owners must allow for such installation. Court said there are two discrete categories of regulatory action as compensable (remedied with compensation) without case-specific inquiry into the public interest advanced in support of the restraint a. A permanent physical occupation caused by the government is basically a per se taking 85 . the government would give $1 each year for the inconvenience 4. (1982) pp. Court says the government can take away all the value of the property if going to abate a public nuisance b. Facts a. Harm to property owner. Government s justification it serves the public interest 8. The court thinks it may resist compensation if the owner s estate shows that the proscribed use interests were not part of his title to begin with c. Penn Central comes in b. State wanted an unspoiled sea shore 5.

Penn Central claimed that the Commission s refusal to permit development above Grand Central constituted a taking. Developers and owners of property went to court claiming it ws a regulatory taking 4. Moratorium on development around the basin of the lake while the question of development is being studied b.Penn Central Transportation Co. The dissenters say it was actually a 6 year moratorium and that thus they should be compensated a. 2. v. The temporary denial of all viable use of land for six years is a taking b. Dissent relies on Lucas 86 . Rule of Law: A temporary moratorium on development imposed for the purpose of developing a comprehensive land-use plan does not constitute a per se taking of property for public use requiring the payment of just compensation under the Fifth Amendment. then the public will pay for the taking Tahoe-Sierra Preservation Council v. Everyone in the city benefits from the landmark designation of a building 5. The majority said this was a temporary taking and thus the developers should not be compensated. 580-585 1. Issue: Whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. Facts a. Tahoe Regional Planning Agency (2002) pp. 3. Balancing approach 4. New York City (1978) pp. The Court ruled that the landmark regulations were not a taking a. Rule of Law: In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments. The court said you can t cut the property into different time zones 6. 577-579 1. Temporary so that the preservation committee could determine how to keep Tahoe beautiful 5. Issue: Whether the Landmarks Preservation Law as applied to Penn Central constitutes a taking for public use of the company s property that requires the payment of just compensation under the Fifth and Fourteenth Amendments. 3. courts should consider the economic impact of the regulation on the owner. In prior cases it has been established that when there is a taking for the public s benefits. the extent to which the regulation has interfered with the owner s reasonable investment-backed expectations and the character of the government action involved in the regulation. as it was just for a limited period of time a. 2.

2. and when. requiring payment of just compensation unless the exaction is roughly proportional to the impact of the proposed development on the regulatory interest. Rule of Law: A government regulation seeking to exact an individual s property from a proposed development constitutes a taking. Nollan contended the condition was a taking 2. dilapidated beachfront cottage and replace it with a larger residence in keeping with the neighborhood. 589-592 1. The Court held that conditioning a building permit on a landowner s grant of a public easement across his land constituted a taking. I would hold that regulations prohibiting all productive uses of property are subject to Lucas per se rule. Issue: Whether the city s conditions for granting a permit were so disconnected from a state interest as to constitute a taking of property requiring payment of just compensation under the Fifth and Fourteenth Amendments. Contracts clause is not an absolute utterly unqualified restriction of the State s protective power 87 . In this area the court has scrutinized zoning more than others Nollan v. The Contracts Clause (pp. The CA Coastal Commission wouldn t grant a permit unless he recorded an easement permitting the public to cross his beachfront so as to move more easily btwn public beach areas to the north and south of Nollan s property. Applies only if a state or local law interferes with a contract Home Building & Loan Association v. 594-597 1. 593-605) 1. The Court found that the government had not established a nexus between a legitimate governmental objective of nondevelopment and the means of exacting the easement Dolan v. Blaisdell (1934) pp. Nollan wanted to demolish his small. City of Tigard (1994) pp.587-92) 1.c. Contracts Clause of Article I. Section 10 which bars states from impairing contractual obligations a. They want Nollan to address something that is caused by what he wants to do 3. regardless of whether the property so burdened retains theoretical useful life and value if. Facts a. 587-589 1. No State shall pass any law impairing the obligation of contracts 2. the temporary moratorium is lifted Conditional Regulatory Takings (pp. California Coastal Commission (1987) pp.

Issue: Whether a state law that regulates the price of natural gas sold at wellhead in the intrastate market violates the Contract Clause of the United States Constitution.2. Rule of law: The impairment of a contract between a state and private bondholders may only be upheld if it is both reasonable and necessary to serve an important public purpose. 2. Conflicts of interest here a. Arguably there has been b. New Jersey case? 2. Rule of Law: A state may not pass legislation that retroactively and significantly affects the contractual obligation of an employer to provide a pension plan for its employees. Court is of the opinion that the Minnesota statute as here applied does not violate the contracts clause United States Trust Co. nor shall any State deprive any person of life. and subject to the jurisdiction thereof. (1983) pp. Whether state operated a substantial impairment of the contractual relationship i. 598-601 1. v. Allied Structural Steel Co. without due process of law. or property. 3. Kansas Power & Light Co. How s it different from the Trust v. Court applied a two-tiered inquiry a. v. And if so is an adjustment of responsibilities reasonable? EQUAL PROTECTION OF THE LAWS Equal Protection Clause: All persons born or naturalized in the United States. are citizens of the United States and of the State wherein they reside. New Jersey (1977) pp. Issue: Whether a state statute that repeals a previous contractual obligation with bondholders not to use toll funds to improve railroad transit violates the Contract Clause of the Constitution. 3. Issue: Whether the application of pension funding charges to a company under Minnesota s Private Pension Benefits Protect Act violates the Contract Clause of the United States Constitution. 3. states may constitutionally impose increased limitations on the freedom to contract if those limitations help address the emergency. nor deny to any 88 . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. v. Energy Reserves Group. Rule of Law: In times of economic emergency or other exigent circumstances. The state is impairing its own contract 2. Spannhaus (1978) pp. Inc. Is there significant or legitimate public purpose i. 603-604) 1. liberty. 601-603 1.

demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law b. 607-12) Introduction 1. But here we re a little more concerned on the means 5. Focus on under-inclusive/over-inclusive 1. How is the government distinguishing amongst people? ii. Does the government meet the level of scrutiny? i. When law treats people differently but makes no purpose for the law doing so a. blacks) 6. Insufficient to prove a racial or gender classification 2. are no longer viewed as permissible ends (women. Limits state and local government equally 89 . Others are facially neutral but have a disparate impact 1. What is the classification? i. If facially neutral. Some ends viewed as valid in the mid-1900s. We re once again in the land of means and ends like substantive due process i. Strict scrutiny end must be compelling 2. Means is necessary the least restrictive alternative 4. The fact that a law is underinclusive and/or overinclusive does not mean that it is sure to be invalidated just used to evaluate the fit between the government s ends and means 2. Strict scrutiny close fit a. Same laws are facially discriminatory iii. 1 of the 14th Introduction and Levels of Scrutiny (pp. Rational basis/minimum scrutiny legitimate purpose ii. Is there a good fit between means and ends? 7. All EP issues can be broken down into three questions: a. EPC of the 14th Amendment was designed to impose upon the states a duty to prohibit legislative classifications and administrative behavior that discriminated against particular groups in the distribution of certain fundamental rights 3. What is the appropriate level of scrutiny? c. The legitimacy of ends can change with time a. State has come to mean any local government as well a.person within its jurisdiction the equal protection of the laws. Amendment Sec. Why me? is the constant question 2. The Court evaluates both the law s ends and its means 1. Intermediate scrutiny end has to be important 3.

Burden i. It s under the 14th Amendment b. Designed to give protection to the outsider c. Top-tier everything is reversed from the rational basis review the law is assumed invalid b. Must show there s no rational basis with any legitimate government interest g. Sharp court had to bring the EPC into the 5th Amendment to limit federal government 9. Most cases will be addressed with this bottom tier f. Or fail to show that it s not but show that the justification does not rationally relate i. Can show its not legitimate which is hard to do ii. All EPC cases pose the same basic question: is the government s classification justified by a sufficient purpose? 2. Law is upheld if it is proved necessary to achieve a compelling government purpose i. Law is assumed valid and burden is on challenger (plaintiff) i. Default rule if not strict or intermediate scrutiny c. Also limits the federal law why is this a problem? a. Bowling v. Discrimination between newcomers and out-of-staters is also in equal protection a. Rational basis test b.8. Law is upheld if it is rationally related to a legitimate government purpose i. Classifications i. Government must show that is cannot achieve its objective through less discriminatory alternatives 90 . Strict Scrutiny: a. Seen it in the DCC and PIC b. d. Race or national origin ii. Sometimes alienage c. As long as there s rational relationship between classification and government goal that s enough to satisfy minimal scrutiny 3. So when looking for solutions to a problem you would want to canvas all three of them (some wouldn t apply for certain situations) Levels of Scrutiny 1. Govt s objective need not be compelling or important ii. The means chosen only need be a rational way to accomplish the end e. Classifications i. It s enormously deferential to the government h. Minimal scrutiny a.

5. Those which regulate more than you need to in order to achieve the objective b. Illegitimate children Some cases don t fit this three-tiered model The history of discrimination against the group is relevant to the Court in determining the level of scrutiny a. Classification must substantially advance an important government interest/purpose e. Laws which impact negatively what has been identified as a fundamental interest protected by equal protection e.4. I cause a problem. d. But when they under-regulate there s usually someone being picked on 91 . Difficult for a government to win these cases Important distinction between rationally related v. A law is upheld if it is substantially related to an important government purpose i. These people would say. 9. Regulate less than you need to achieve the objective b. As is the ability of the group to protect itself Part of the task is to look at the objectives of classification figure out whether the means of the classification have a good fit with the objectives Some special interest group can get a law passed making it easier for them and harder for their competitors once this happens under minimal standard of review there s not going to be relief from the court Over-inclusive/Under-inclusive 1. Classifications i. but it must characterize objective as important government purpose c. Sometimes the courts seem to be more concerned with laws that overregulate a. The means used need not be necessary. People here say. 8. why aren t they included? 3. Government purpose need not be compelling. I m not part of the problem. but so do they. 6. Gender ii. Over-inclusive a. Middle Tier b. but must have a substantial relationship to the end being sought f. necessary Intermediate Scrutiny: a. yes. Under-inclusive a. 7. why am I part of the solution? 2. Must show the classification is to serve a compelling government interest ii. Government has burden of proof d. Government has burden of proof i.

that the courts have a heightened role in protecting the democratic process from structural distortions c. (3) Those that classify on the basis of race.Means: is there a rational relationship between the means and the ends? 92 . Rooted in a union of concerns about democratic process. the historical reasons for equal protection. Voting rights ii. Three types of legislative classifications that might be suitable for heightened scrutiny a. It used to be that they d have to have the identity to be picked on 6. first articulated in McCulloch v. For instance mandatory retirement ages for police officers would not b. illegitimacy and certain other criteria i. but after looking at the classification it makes no sense (no relationship between the two) i. religion. What about economic minorities why do they not get such protection? a. But a law against women being police officers would probably get a closer look 2. Court is saying legislature has told the goal. gender. The opticians case b. Some get a closer look than others a. haven t been used to disadvantage people 5. or membership in any other discrete and insular minority the suspect class strand of equal protection jurisprudence prohibits government discrimination against groups of people based on race. Age discrimination is not protected by the EPC 3. Is identifiable an important characteristic? a. national origin. They don t have a stigma. Every now and then the court will apply minimum scrutiny in a way that knocks out classification see pg. alienage. Reflects the theme. (1) Those that are in facial conflict with specific rights guaranteed by the Constitution b. Don t have to give heightened review but just say no rational relationship Minimal Scrutiny: the default level of review . and the perception that such classifications are rarely germane to any legitimate government objective ii. Access to the judicial process iv. (2) Those that inhibit the democratic process the fundamental rights strand of equal protection jurisprudence prohibits discrimination with respect to certain fundamental rights i. Travel iii.Classifications 1. The Court often considers the ability of the group to protect itself through the political process 4. 629 a. Maryland.

612-19) Railway Express Agency. Facts a. They were likely trying to give the eye doctors another referral. Even on the minimal tear you must show a relationship between the means and the ends Williamson v. Issue: Whether New York s regulation of advertising on business vehicles violates the Equal Protection Clause of the Constitution. Rule of Law: A state law that is substantially under-inclusive does not necessarily violate the Equal Protection Clause because a state may conclude rationally to address a public problem in phases. The Court was not troubled by the fact that the City prohibited certain signs on vehicles but allowed others a. it does not contain the kind of discrimination against which the EPC affords protection 6. Why did Oklahoma want to restrict opticians? a. Oklahoma statute that prohibited opticians from duplicating or fitting lenses without a prescription from an optometrist or ophthalmologist b. 2. Government can address a problem one step at a time so it could start by just outlawing the advertisements on the REA trucks and other trucks that weren t advertising their own business b. Lee Optical Co. The Court said that equal protection does not require the eradication of all evils of the same sort 5. Inc. New York (1949) pp. 612-614 1. 614 1. more business (probably these eye doctors. v. Talking about a made-up legislative purpose here 4. Justice Douglas concluded that even if the City s opinion that the classification reduced traffic hazards was incorrect. 3. Justice Jackson s concurrence a. The word may appears very often in the case b. Opticians are the least educated of eye specialists 4. Facts a. Issue: Whether an Oklahoma state law prohibiting the fitting of lenses by an optician without prescriptive authority from a licensed optometrist or ophthalmologist in the state violates the Fourteenth Amendment. Opticians get minimal review 93 .Minimal Scrutiny: The Default Level of Review Means: What is Not Rational? (pp. more educated then the opticians. 2. (1955) pp. Rule of Law: A state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem. REA sold space on the exterior sides of trucks for advertising b. On the EPC claim. 3. lobbied the legislature) 5.

If no more than 10 years you couldn t double dip c. and that it might be thought that the particular legislative measure was a rational way to correct it. The language of the statute was clear Congress intended what it enacted 94 . Requires more of a determination of what the actual goals were b. The Court stated the law need not be in every respect logically consistent with its aim to be constitutional. This also became the current standard of judicial review for economic regulation New York City Transit Authority v. If you re still employed or have a connection with the Rail Road industry when the law was passed then you could 5. Isn t at the level of strict scrutiny c. Rational review with bite a little more teeth then the bottom review a. 616-619 1. Minimal review 2. 615 1. improvident. Said: the day is gone when the Court uses the DPC to strike down state laws regulatory of business and industrial conditions. and any means that would achieve this hypothesized goal b. It is enough that there is an evil at hand for correction. Congress actual purpose behind a law is irrelevant and the law must be upheld as not violating the Fifth Amendment if any state of facts may reasonably be conceived to justify its discrimination. Facts a. Rule of Law: Under rational basis review. Issue: Whether the Railroad Retirement Act s classification of some employees as eligible to receive windfall benefits while some were ineligible was arbitrary and not rationally related to a legitimate state purpose. The court upheld the law under minimal scrutiny. finding that the no drugs policy is supported by the legitimate inference that so long as a treatment program (or other drug us) continues. or out of harmony with a particular school of thought 6. Majority (Rehnquist) a. Court willing to accept any plausible reason as the goal of the law. Doesn t look for a rational relationship (not crazy) but a reasonable relationship 6. a degree of uncertainty persists United States Railroad Retirement Board v. 3. Beazer (1979) pp.a. Fritz (1980) pp. Upheld ban on methadone users from being hired 3. The question was those between the two could they double dip into both benefit plans i. because they may be unwise. Focuses on the ends the ends to what Congress was pursuing 4. If in the system more than 25 years than you could double-dip no matter what b. a. 2. The reasons were plausible b.

The test is rationally related to a legitimate stated purpose i. 4. By redefining households it does not help to further the goal. Said they won t require that Congress tell them what it s purpose was 7. Moreno (1973) pp. Court focuses on stated purpose of the act to alleviate hunger. it seems to retard the goal rather than advance. Issue: Whether a law which terminated food stamp benefits for a class of persons comprised of unrelated people living in the same households violated the Due Process Clause of the Fifth Amendment. Said this formula needs something c. But the court says it's not convinced that the stated goal is the actual goal. This case is cited for the fact that when the purpose seems to be to harm a certain group than it s viewed as an improper purpose 2. If this were a plain rational relationship case then you'd say that there's no rational relationship. 619 Ends: What Purposes are Not Legitimate? (pp. 6.c. Rule of Law: A state regulation that arbitrarily creates two classes of persons and deprives one class of government benefits violates the Equal Protection Clause and Due Process Clause of the Fifth Amendment because it is based on a mere legislative preference for one class that is not rationally related to a legitimate state purpose. The law undercuts vested interests that the law was supposed to uphold i. So no rational basis 8. The actual purpose version proposed by Justice Brennan assumes that the political process cannot be trusted always to be free of defects pg. It s tough to tell whether this is just an unreasonable relationship case (in which case it would be available in Fritz and other cases) or if it s a reasonable relationship for hostile purposes 95 . there is no reason to interfere with the outcomes produced by the tug-of-war of politics. help the farmers 5. 3. 620-29) United States Department of Agriculture v. Said the purpose of the law was that some people would get windfalls an others wouldn t d. Gave a different purpose to what Congress implemented i. Dissent a. at least with respect to economic legislation. To prevent hippy communes from receiving benefits (probably wasn t all of Congress) c. The means and ends were not related b. 620-621 1. The majority s very deferential version of minimal scrutiny assumes that. Intention of act a. To alleviate hunger b.

or state legislature. can only get them through the people of the state i. Fear of gays having too much political power c. Facts a. Dissent (conservatives) a. The Constitution demands neutrality in the law and bans classes among citizens Plessy Same Sex Marriage? 1. depriving only them of protection against discrimination 6. CO s objective: to protect personal and religious objections to homosexuality 7. Is this a heightened minimum review case or an animus heightened review case? 4. Evans (1996) pp. 621-627 1. executive. Issue: Whether Amendment 2 to the Colorado Constitution which prohibited state and local governments from enacting anti-discriminatory legislation to protect homosexual persons violated the Equal Protection Clause of the Fourteenth Amendment. Not a case where sexual orientation is viewed as a suspect or semi-suspect classification ii. Rule of Law: A state law that neither burdens a fundamental right nor targets a suspect class of persons will be upheld under the Equal Protection Clause of the Fourteenth Amendment if it bears a rational relation to a legitimate state purpose 3. we re asking for a legitimate objective a. The Colorado State constitutional amendment that the Court struck down here not only repealed local ordinances prohibiting discrimination against homosexual persons but also prohibited all future legislative.Romer v. we re not asking for a compelling objective. or judicial action at any level of state or local government designed to protect these individuals b. the Court stated that Amendment 2 placed homosexuals in a class by themselves. Principle from Romer = can t single out gays or lesbians for different treatment without a stronger reason 96 . you can t get them through your local legislature. Majority is taking sides in a culture war b. Romer + Lawrence + Loving = right of same sex marriage? a. If you re seeking protections set out. Purports to be an animus case 5. Opposition to homosexuality is not as bad as that to race or religion 9. 2. Court says this is pure equal protection because homosexuals aren t able to gain rights through local or state legislatures the way that other groups are in this situation they d have to lobby the citizenry/entire state 8. If we re at the bottom tie of review here. Rejecting Colorado s argument that the amendment simply put homosexuals in the same position as all other persons.

Cleburne City required permit for the mentally challenged but they didn t require this permit for other group living situations i. Incredibly under-inclusive law only group home that was required a permit 4. Right to marry person you love can t be taken away except for a compelling reason ³Enhanced´ Minimal Scrutiny: Means? Ends? Both? (pp. legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose a. 2. 630-633 1.i. Texas v. Loving = marriage is a fundamental right i. So. Facts a. Lawrence = can t infringe upon the intimate rights of people c. Court said no rational basis for the law even if some of these ends are legitimate 8. Cleburne Living Center (1985) pp. Can t have separate legislation b. then we might be doing harm by discouraging legislatures from being helpful 6. Court points out that if we d give higher scrutiny to laws that treat mentally retarded differently. and thus any legislative regulations affecting their rights are subject to rational basis review and not intermediate scrutiny. Issue: Whether a city s denial of a permit for a group home for mentally disabled persons violated the Equal Protection Clause of the Fourteenth Amendment. and whether the review of such a denial required intermediate scrutiny. Court says minimal scrutiny a. End that city claimed it was serving: a. To withstand equal protection review. 629-40) City of Cleburne. this is not just plain old rational relationship it s rational relationship with some animus going on i. A strong argument was made saying laws discriminating against mentally retarded require at least intermediate scrutiny like laws based on gender 5. Court: The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded a. The court wont let private prejudice rule public action 9. A little bit like a Romer or Moreno case 97 . 3. That flood waters in the area could pose a problem 7. Rule of Law: The mentally disabled are not a quasi-suspect class. Feared high school students across the street would harass the mentally challenged b.

TX legislation aimed to deny undocumented children from receiving free public education 5. 634-639 1. and to what extent those interests should be pursued. Marshall.10. Violation of EPC 4. When social or economic legislation is at issue equal protection allows the states wide latitude. Brennan. Despite holding that mentally retarded individuals were not a quasi-suspect class. Issue: Whether a state may constitutionally deny free public education to undocumented school-age children when that state provides such education to children who are citizens of the United States or legally admitted aliens. Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic process. the courts have been very reluctant to scrutinize closely legislative choices as to whether. They say this is clearly heightened review b. Rule of Law: A state legislative classification that denies public education to undocumented school-age children violates the Equal Protection Clause of the Constitution unless the classification furthers a substantial goal of the state. equal protection requires only a rational means to serve legitimate end. Legislative classifications based on gender also call for a heightened standard of review. the Court struck down the challenged law because it did not pass the required rationality test 12. For these reasons and because such discrimination is unlikely to be soon rectified by a legislative means. 3. 630 Plyler v. 2. Facts a. when a statute classifies by race. these laws are subjected to strict scrutiny. how. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy a view that those in the burdened class are not as worthy or deserving as others. The general rule gives way. You could not look so closely at the means or the end if it s not heightened review 11. Does the court treat this as a suspect classification? No 98 . Blackmun (concurrence in judgment in part and dissenting in part) a. pg. That factor generally provides no sensible ground for differential treatment But where individuals in the group affected by a law have distinguishing characteristics relevant to interests the state has the authority to implement. however. alienage. The general rule of equal protection is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. In such cases. or national origin. Doe (1982) pp.

In the past a lack of access to political power to correct the wrongs that discrimination has put on groups and therefore the law is steeping in 2. Education. But arguably a semi-suspect classification because they did not violate the law. the tie goes to the government 1. Ethnicity/national origin = where you come from c. 640-42) 1. Court s reasoning a. Clover Leaf Creamery state outlawed plastic containers for milk and required paper only Strict Scrutiny and Suspect Classifications: Race and Ethnicity Overview (pp. but functionally it looks like intermediate scrutiny b. Standard of review a. state interest and effectively shifted to TX the burden of proof on this issue. Race and ethnicity a. This was not intermediate scrutiny. Not a case for higher review b. rather than simply a legitimate. Note that the Court required the classification to be rationally related to a substantial. Substantial interest is a new formula ii. Looks to see if the interest of the state is a substantial interest i. TX s policy may be unwise but it s not in violation of EPC Idea that if it s questionable. When you have strict scrutiny the formula changes the law that classifies based on race or ethnicity has to meet a compelling interest standard a. while not a fundamental right. It is not strictly speaking intermediate scrutiny. Because the parents of the children do not get protection because undocumented how can you say someone violating the law can be treated as a suspect classification b. So here there is a semi suspect classification used to take away a semi-fundamental right 7.a. 639 8. which would have obliged TX to prove that its statutory classification was substantially related to an important state interest pg. Dissent a. only their parents violated 6. The two are not interchangeable 99 . Minnesota v. Why are they subject to strict scrutiny? i. Kinds of traits in history that go with race or ethnic status were traits used to harm people ii. Strict scrutiny required for any racial or ethnic qualifications 3. is still very important i. Race = who we are genetically appearance what you are b.

Alienage = what country you re a citizen of a. a black man. 3 positions about treating people differently based on race a. The court ruled that the facially discriminatory law violated equal protection 100 . Germans and others we were at war with who were living in the country weren t put into internment camps 2. It is to say that courts must subject them to the most rigid scrutiny. A West Virginia jury. The government can t use race or ethnicity to harm people unless it has a very good reason to do so ii. limited by law to adult white males. Internment camp b. Facts a. Government lied to SC to justify the threat of espionage c. Ironically.4. 3. U. Issue: Whether Civilian Exclusion Order No. U. 642 1. The government should never do it i. The government can take race into account to achieve affirmative action c. compelling interest test i. the Court concluded that the pressing public necessity of preventing espionage by those of Japanese ancestry justified deference to the military authorities judgment that wholesale exclusion was necessary Purposeful Discrimination Required (pp.S. intentional discrimination is revealed on the fact of the statute. Rule: if a classification directly employs the suspect criterion. an Executive Order requiring Japanese Americans to relocate to internment camps during World War II. Would be tough to justify affirmative action under this Korematsu v.S. That is not to say that all such restrictions are unconstitutional. and no further inquiry is necessary to determine that the classification is suspect 2. convicted Strauder. Couldn t implement something like affirmative action ii. If you are a citizen of US then you re not an alien 5. Court: All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. Facts a. Pressing public necessity may sometimes justify the existence of such restrictions. 642-49) Strauder v. 641 1. (1944) pp. Race can be used by the government to help historically disadvantaged people b. was constitutional. Rule of Law: State laws restricting the rights of persons based on race are subject to strict scrutiny and will only be upheld if they further a pressing public necessity. 4. 3. West Virginia (1879) pp. racial antagonism never can a. In between the above two: Korematsu v. of murder. 34.

Virginia (1967) a. a. Tuskegee. Facts a. Loving v. Is an example of neutral classifications motivated by discrimination that produce a discriminatory effect a. Facially neutral laws nevertheless violate the EPC if they are administered in a racially discriminatory manner 2. Is an example of a neutral classification applied in a discriminatory fashion. Lightfoot (1960) pp. 643 1. while not a single white voter was removed 3. In Gomillion v. The court ruled that the Virginia law banning interracial marriage serves no legitimate purpose and the law rests solely upon distinctions drawn according to race Yick Wo v. all but 10 of SF s 320 laundries were barred from further operations and Chinese persons operated 75% of city s laundries. 4. The law was being enforced racially even though not discriminatory on its face it was being applied with an evil eye and an uneven hand 5. However. a voting district violates the Fourteenth Amendment s Equal Protection Clause if the state s purpose in 101 . Alabama redrew its boundaries from a square to an uncouth twenty-eight sided figure. 240 Chinese persons operating buildings were arrested. while 80-odd laundries operated by Europeans were left unmolested. 643 1. Hopkins (1886) pp. Lightfoot (1960). Would lead to the fact that you can t discriminate based on race for voting registration purposes 5. the Court held that in the absence of an invidious purpose. A variation of the facially discriminatory classification is found here b. Facts a. A facially neutral classification that is adopted solely because of an invidiously discriminatory motive and that produces the intended effect is treated as a suspect classification 2. Court found the legislation to be solely concerned with segregating white and black voters a. The Court invalidated the ordinance because SF had no justification for its invidiously discriminatory application of a facially neutral law Gomillion v. but the party challenging the classification has the burden of proving its suspect application 3. A facially neutral classification (one that classifies on a non-suspect basis) that is actually applied on a suspect basis is treated as a suspect classification. virtually all in wooden structures.4. SF prohibited operation of laundries in wooden buildings. a state is constitutionally free to redraw its political boundaries in any manner it chooses. Statistics alone here make out a prima facie case 4. About 99 percent of the black voters were allegedly eliminated from Tuskegee.

drawing the voting district is to minimize invidiously the voting potential of racial or ethnic minorities. In Yick Woo and Gomillion disparate statistics are enough to make out a prima facie case. court says that except in those exceptional cases. Higher court said the disproportionate statistics are relevant but not enough i. 3. Disproportionate impact is not irrelevant. Statistics alone not enough must have purposeful discrimination a. Davis (1976) pp. 644 7. Lower court: statistics alone are enough to show purposeful race discrimination. Rule of Law: A state-sponsored racial classification violates the equal protection provisions in the Fifth Amendment s Due Process Clause only if it is shown to have both a disproportionate impact on a particular race and is motivated by invidious racial discrimination. but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Issue: Whether the test used by the Washington. 643-645 1. This case was about statistics and how they reflect on the government s purpose a. making out a case for equal protection violation b. Problem here: how do you should discrimination when it s not apparent on the fact? 4. 644 6. Standing alone. 2. A large amount of blacks were not passing a test to become a police officer four times as many blacks as whites failed and thus weren t hired b. D. To prove such a purpose. Govt s argument: they needed to higher officers with stong written and verbal communications skills 5. a plaintiff bears a high burden of proving that the disputed plan is conceived or operated as a purposeful device to further racial discrimination. Washington v. Court also said that the police dept was taking additional measurements to: racial composition was changing (more blacks) in the force and they had a hiring program to increase racial diversity 102 . police department to screen new employees violates the Fifth Amendment Due Process Clause. it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations pg. What make an equal protection violation is purposeful discrimination ii. The differentiating factor between de jure segregation and so-called de facto segregation is purpose or intent to segregate pg. statistics alone aren t enough to make a prima facie case iii.C. Facts a.

Housing and Zoning a. but not inspite of the fact that it hurt women 103 . 3. Absent a pattern as stark as that in Gomillion or Yick Wo. 2. not the sole or even the dominant or primary factor. particularly if it reveals a series of official actions taken for invidious purposes. 3. Issue: Whether the Village s denial of a zoning reclassification permit for a racially-integrated multi-family dwelling violates the Equal Protection Clause of the Fourteenth Amendment. 645 1. Metropolitan Housing Development Corp (1977) pp. The decision making process itself hearings. 646 6. its adverse effects upon an identifiable group. The historical background of the decision is one evidentiary source. and MHDC brought suit in federal court alleging denial of the permit was racially discriminatory and violated the 14th Amendment and Fair Housing Act 4. You start with the numbers if no disparate impact than no discrimination b. MHDC planned to build a racially-integrated complex featuring nearly two hundred townhouse units marketed to law and moderate income tenants b. 2. a plaintiff must show that the decision-maker selected or reaffirmed a particular course of action at least in part because of. etc. The specific sequence of events leading up to the challenged decision also may shed some light on the decision makers purposes pg. but disparate impact was an important starting point Personnel Administrator v. Feeney (1979) pp. The court said the law was passed despite that it hurt women. 647 1. legislative history. standing alone. to establish discriminatory intent. impact alone is not determinative. Rule of Law: To prove that a state actor violates the Equal Protection Clause by enacting legislation with a discriminatory purpose. and the Court must look to other evidence. The village denied the permit request. Under Arlington a P need only show that discrimination was a motivating factor in the decision. Rule of Law: A state-sponsored racial classification will not be held to violate the Equal Protection Clause of the Fourteenth Amendment unless a plaintiff shows that the law is motivated by a discriminatory purpose and has a discriminatory impact. Facts a.Arlington Heights v. not merely in spite of. What do you have to show to prove the disparate impact here was intended? a. anything within the documents that refers to race or racial undertones 5. Issue: Whether a state veteran s preference law discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amendment. Then you look at the historical background of the case and specific sequence of events c. Impact was seldom sufficient.

Feeney illustrates the effect of the intentional discrimination requirement in the gender context Batson v. the education was basically equal in dollar amounts (even money spent on facilities for both black and white schools) a. 3. Stigma 2. At that point the prosecutor must show that there was some nonracial reason for it s discrimination in the jury selection b. The burden of proof shifts to the govt. the prosecutor 3. Kentucky (1986) pp. The court said at some point the trial court must interfere if it detects a pattern a. 649-58) 1. They not only harmed the D. Plessy = separate but equal 2. If completely equal but separate schools. Goal was to end separate but equal by showing that separate could never be equal i. Women applicants for civil service jobs alleged that the statute favored men because they historically had served in the military in far greater numbers than women. Discusses the process for determining if a jury selection is racially biased 2. 2. 648 1. 5. Issue: Whether the segregation of children in public schools solely on the basis of race. The Road to Brown a. Rule of Law: Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment. The Court upheld the Massachusetts Veterans Preferance Statute requiring all veterans who qualified for state civil service positions had to be considered for appointment ahead of qualifying non-veterans a. Board of Education (Brown I) (1954) pp. Giving black children a sense of inferiority Brown v. but also undermined public confidence in the criminal justice system 4. They chose to bring suit in Topeka. pp. 48 of Lexis Outline Official Racial Segregation (pp.4. then what s the problem? 1. Detailed explanation of how this method of picking a jury to discriminate is proven and prevented on pg. 651-652 1. deprives the children of the minority group of educational opportunities in violation of the Equal Protection Clause of the Fourteenth Amendment. even though the physical facilities and other tangible factors are equal. 9-0 decision 104 . Kansas because by all objective measurements. The Court held that race-based peremptory challenges violated the EPC.

The watershed school desegregation remedy case 4.almost like de facto. 655 1. didn t want their children to have to be bused away from their homes 7. but certainly not de jure 2. After 3 years the formerly all-black school was still all black and the formerly all-white school was about 85% white 2. from both races. Rule of Law: As part of a state-wide plan to desegregate schools. not quite. Court invalidated a freedom-of-choice plan said county must develop a unitary system following Brown a. County School Board (1968) pp. Where no statutory dual system of segregated schools has ever existed. approximately equal numbers of black and white students. 2. 3. Issue: Whether busing is included in the scope of the duties of school authorities under the Supreme Court s mandate in Brown v. Facts a.4. Court said when segregation in the past. Court assumes that today s segregation is still the result of yesterday s a. Board of Education to eliminate racially separate public schools established and maintained by state action. plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained 105 . Busing of pupils is a legitimate tool for school desegregation ii. Solution: busing 6. state boards of education are required to consider the use of racial quotas. If you haven t integrated than you haven t righted the wrong Swann v. rearrangement of school districts. 654 1. To remedy its prior deliberate racial segregation a school district with two schools. Said we re not interested in the process but interested in the results 3. that s different than the right to an integrated education Green v. Issue was many parents. The Court also suggested gerrymandering or clustering of attendance zones as one remedy for correcting past discriminations Keyes v. and little residential racial segregation adopted a freedomof-choice plan that permitted students to chose which school to attend b. Problem: many blacks on one side of residential area and whites on another 5. and busing as practical ways to facilitate desegregation. Off the book segregated actions could speak as loudly as those in the codes/laws . De facto segregation violated the EPC only when it was produced by intentionally invidious discrimination. Affirmative obligation to take affirmative action to remedy when segregation occurred in past i. 654 1. School District No. If it s only a right to be free from segregation. race-conscious remedies are permissible a. Charlotte-Mecklenburg Board of Education (1971) pp. 1 (1973) pp.

Even though some of these cases lightened the burden of proving discriminatory intent. They are not remedying their own wrongdoing the school did not do racial wrong in the past i. Presumptions like this and in other cases eroded the intentional discrimination requirement in school desegregation cases 4. Bakke wins b. simply proving discriminatory effect or impact was not sufficient Affirmative Action First Views (pp. The school system then has the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. No trying to find a specified percentage of a particular ethnic group. What argument is taken away? a. To sustain that burden of proof. Title 6 any institution that receives federal funds can t discriminate 106 . Whether they could use race as part of the selection i. Required that government-imposed racial classifications must be narrowly tailored to further compelling governmental interests a. 658-665 1. Says quotas wouldn t be narrowly tailored 3. Court said affirmative action is not unconstitutional if properly applied. Can t remedy because no discrimination on their behalf 4. Two holdings to this case: a. Bakke (1978) pp. Taking race into account by admissions is constitutional 5. 658-66) Regents of University of CA v. Four of the justices argued that the school can t get money under Title 6 by doing this affirmative action a. The geographic presumption of Keyes allowed a finding of systemwide discrimination from a finding of intentional discrimination in a small segment of a school district intentional state action. which the court says would be unconstitutional b. school officials must show either (1) that segregative intent was not among the factors that motivated their actions or (2) that its past segregative acts did not create or contribute to the current segregated condition of the core city schools 3. But proof of this deliberate wrongdoing as to any part of a school system creates a presumption that other segregated schooling within the system is not adventitious. The compelling interest here was the diverse student body 2. Lightened the burden of proving discriminatory intent a. No racial balancing here a.

could perpetuate the effects of past discrimination. how do we determine who is in the white majority? i. Klutznick (1980) pp. Jackson Board of Education (1986) pp. When times were tough financially they laid off senior white teachers and kept less senior minority teachers 2. They normally had a seniority system for dismissing. so how do you differentiate? 8. But Fullilove did not say 107 . This case really brings up the argument of who gets strict scrutiny applied to them which groups? a. 665 1. but those that harm white majorities shouldn t be subject to strict majority a. when applied to minority businesses. 666 1. Facts a. 666-679) 1. The Court held that a congressional program requiring that 10% of certain federal construction grants be awarded to minority contractors did not violate equal protection. Bakke laid down the general principals. Almost all groups have been discriminated against. General Principles (pp. Government can take account of race as a plus if it s a factor and not a primary consideration 9. Can t argue there will be different perspectives or it will be done better because of diversity Fullilove v. Can t use the academic diversity rational for these cases b. Bakke s impact a. Raised question as to how to judge racially based government action 3. but no one had said this about the work place. which is what the following cases dealt with Wygant v. Laws designed to harm racial minorities must be subject to strict scrutiny. The court held that the racially preferential layoffs violated equal protection but could not form a majority as to the reasons. some of whom may be first generation Americans or Jews who have been prejudiced against 7. but the following principles that applied them weren t education cases which created a problem because Bakke was based on an academic diversity theory a diverse student body gives better results.6. Taking steps to hire minority teachers b. because Congress was entitled to deference concerning its conclusion that the federal government s traditional procurement practices. Strict scrutiny was applied here 4. but were not doing that. Contractor cases a. The plurality opinion applied strict scrutiny and concluded that societal discrimination alone is not sufficient to justify a racial classification. Powell argued. The majority is made up of several sub-groups.

Significant statistical differences between the number of qualified minority contractors available an interested in performing a particular service and the number actually doing work. Croson Co. which necessitates strict scrutiny ii. The state and local governments were so not trusted with equal protection that the 14th Amendment needed to be written c. This is a 14th Amendment case.A. Fullilove didn t give strict scrutiny even though it was dealing with a suspect class b. a city may not enact a plan to provide a race-based set-aside to exclusively promote minority business enterprises. acting on the basis of race. Individual instances of discrimination supported by statistical proof. or c. Direct evidence that nonminority contractors had systematically excluded minority contractors b. Rule of Law: Without evidence of past particular race-based discrimination. Scalia a. Individual instances standing alone support individual remedies rather than an affirmative action plan 8. The court was very deferential to Congress. 666-673 1. Court said it was too rigid a use of race 7. state or city government.precisely what standard of review it was using to reach this conclusion and expressly disclaimed adoption of either the Powell or Brennan view in Bakke 2. (1989) pp. they also said it s a spending program. This case says strict scrutiny for both state and local government i. The plurality offered guidance regarding what steps state and local governments had to follow in formulating appropriate plans. Refused to join an opinion that he thought was too much of a compromise 108 . 2. What clash is raised between Bakke and Fullilove? City of Richmond v. Congress has a lot of authority to do things when spending money 5. Court did not say what standard of review. Issue: Whether a city may constitutionally use a set-aside plan requiring prime contractors to give thirty percent of their business to minoritycontrolled subcontractors. Direct application of 14th Amendment here 1. For the first time a majority of the Court applied a compelling state interest test to affirmative action cases 4. J. as this does not constitute narrowlytailored means geared towards accomplishing a compelling state purpose. just said a federal program would be valid and focused on Congress s spending rights 3. Which leads to the argument then what about federal? 6. So why is this looked at through the prism of strict scrutiny? i. 3. Findings necessary to underpin an affirmative action plan included: a. Strict Scrutiny a.

How does the plurality resolve the clash here? i. The regulatory standard for the minorities is socially and economically disadvantaged person i. Court s rational: equal protection is right of individual not to be treated differently. This case is confronted by Metro Broadcasting v. Court applies three general propositions to equal protection cases that deal with construction and the federal government a. To pass strict scrutiny. But then there is a further definition presuming that these people would be racial minorities c. It s a personal right 6. Agrees with strict scrutiny i. strict scrutiny of state and local racial classifications a. Federal government can engage in affirmative action for a remedial purpose ii. Federal government gives monetary incentive to select a minority business subcontractor b. without a strict scrutiny type of justification a. Congruency 4. can rely on strict scrutiny 5. Facts a. FCC. Skepticism b. Here. Justice Thomas a. at least for the plurality. Inc. Pena (1995) pp.9. Strikes down Metro and upholds Croson 3. Consistency c. the City must demonstrate that is used narrowly-tailored means to accomplish a compelling state interest Adarand Contractors. 674-678 1. as long as it identifies such discrimination with sufficient particularity so as not to run afoul of the 14th Amendment. from any level of government. FCC i. But sees harm in these affirmative action programs c. Racial paternalism as pernicious as any form of discrimination 109 . Metro Broadcasting v. Applies intermediate scrutiny b. strict scrutiny is the appropriate standard of review to judge the constitutionality of the City s actions in attempting to remedy past discrimination. v. Case is important because it puts down. Plurality says any person subject to any different racial discrimination. A state or local subdivision of government has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction. The case wants to avoid another Korematsu here 7. This is a race neutral standard informed by a presumption 2. Thomas first affirmative action case b. and it strikes down that holding a.

Strict scrutiny is the standard to use for both affirmative and negative race conscious actions by the government 7. Issue: Whether the use of race as a factor in student admissions is unlawful under the Equal Protection Clause of the Fourteenth Amendment. Many businesses are in support of affirmative action believing it s good for business ii.d. Majority a. race-neutral alternatives to achieve the sought-after racial diversity. Strict scrutiny is the standard of review here 3. The establishment is in support of affirmative action i. Both classroom/campus diversity and improving the workforce making life after school more diverse ii. DeStefano pp. Dissent a. 680-693 1. Extends to post-graduation life creating diversity in society d. however. as long as they had some justification in proving discriminatory action in their community Ricci v. The ultimate goal is that race will no longer be relevant a. Thus the court accepted the university s argument b. the school must demonstrate it previously made a serious. Diversity is critically important for law schools c. 55 of Supplement Race and Admission to Public Universities (pp. Diversity is important as an end in itself and as a means i. These programs stamp minorities with a bade of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences 8. 4. 679-708) 1. Bollinger (2003) pp. Convinced admissions officers are acting holistically in each case no one factor is dominant i. Rehnquist says that they re running a quota system here 110 . good faith consideration of workable. More diversity in education will lead to more diversity in the workforce and amongst leaders of our society 6. This is likely why O Connor ruled with the majority here 8. Rule of Law: Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth Amendment because supporting student body diversity is a compelling state interest. Why did the same court that upheld the program in Grutter invalidate a similar program in Gratz? Grutter v. What Powell said in Bakke is essentially what was said in Grutter 2. 5. This case kept the door open for both government agencies to develop/revise programs like this. Are we moving towards that goal or further away with affirmative action? 2.

Facts a. Issue: Whether racial preferences in undergraduate admissions violates the Equal Protection Clause of the Fourteenth Amendment. Justice O Connor switched sides here from Grutter 7. Lets be honest and transparent about the role of diversity in the admissions process of else schools will just camouflage the process to achieve improved diversity i. Majority a. 2. A plus is a plus whether given a number or not b. without additional individualized consideration. The admissions offices will do it anyway/covertly Johnson v. 3. 100 guarantees admission 4. Dissent a. CA law put people in cells with only those of their own race to avoid racial violence in prison i. Issue: Whether strict scrutiny is the appropriate standard of review for policies involving racial classifications in state prisons. 693-696 1. Thought one reason why many people defended affirmative action was to allow for legacy admits to continue elitism Gratz v. including those involving prison policies. 20 points are given to an applicant who is a minority maximum score for an applicant is 150. This program uses race too much it s too rigid 5. Rule of Law: All racial classifications made by the government. Doesn t want the advancement of African-Americans to be considered to be brought to that level by affirmative action c. 3. are subject to strict scrutiny by the courts. Michigan undergrad made race a decisive factor for virtually every minimally qualified underrepresented minority applicant 6. Bollinger (2003) pp. Facts a. Rule of Law: A university admissions policy that automatically gives preference to minority students on the basis of race. Must be an individual determination c.b. 697 1. Not narrowly tailored b. 2. Justice Thomas a. The law school s admissions policy is inherently elitist and not effective in remedying the past effects of discrimination on minorities b. Relied on Turner 111 . By distributing 20 points to an applicant based on his race. California (2005) pp. So many decisions are being made behind the admission s office closed doors 9. violates the Equal Protection Clause of the Fourteenth Amendment. Use of race by government in prisons 4.

698 b. Facts a. would it still come out the same way? 2. Turner governments may burden the constitutionally fundamental rights of prisoners when the burdens imposed are reasonably related to legitimate penological interests 5. Does it have to do with the nature of the positions? ii. But the court does rely on the instincts of those in the admissions offices why? i. If Grutter came back to the court today after the K-12 cases. Attempting to achieve diversity like Univ of Michigan iii. We apply strict scrutiny to all racial classifications it is possible that prison officials will breed further hostility among prisoners. etc. Difference between the lower school cases and Grantz. Balancing ii. The wardens of the prison were asking the court to trust them a. Schools were becoming segregated not by actions of the government. The court didn t say preventing a race riot is not a compelling interest they just said you can t do it this way i. Remedied it and it was now falling into de facto segregation c. Louisville i. Changed the balance ii. But they defined it as white and non-white 3. The court did not defer to the wardens b. School programs i. The court though isn t convinced it will prevent race riots thinks it could even trigger race riots 6. Perhaps its because the prisons are segregating while the admissions officers are working to promote diversity Seattle & Louisville School Board Cases (2007) pp. but by housing patterns. 698-709 1. Seattle i. Court invalidated the CA law a.ii. so school districts sought a solution d. reinforce racial and ethnic divisions pg. Background a. Alito replaced O Connor 1. City doesn t want any school to depart too much from the demographics of the district 1. Seattle 112 . Formerly segregated ii. Did not previously have de jure segregation b. Grutter type of cases i. The middle justice on this issue is now Kennedy who partly joins the majority and partly writes his own concurrence straddler b.

Erickson (1969) pp. 4. 712 113 . the governmental action plainly rests on distinctions based on race pg. Can use race conscious criteria when it s to keep races together. Rule of Law: Public schools may not assign students to schools solely on the basis of race for the purpose of achieving racial integration. Wants to defer to local government officials/school boards b. Brown wasn t just about ending segregation but was about achieving integration d. Seattle School District (1982) pp. 701 i. 710-714 1. Sees it as students being denied or admitted to public schools based solely on their race in order for the districts to achieve balance b. the problem is essentially identical to other disparate impact cases pg. although the use of narrowly-tailored. Pg. Said it s not affirmative action. Can t assign children to a school based on their race 5. When the political process is altered in a manner that does not explicitly use race but has a racially disparate impact. Majority a. Dissent a. 709-710 Washington v. Quota system d.a. 708-16) 1. Racial balancing is not a compelling interest top of pg. rather than when it s to keep them apart c. The battle in this case is how to apply Brown v. race-conscious objectives to achieve general diversity in schools is permissible. 708 Hunter v. Issue: Whether public school districts that have never operated legally segregated schools are permitted to assign students to particular schools solely on the basis of race in order to achieve racial integration. 703 who is on the right side of Brown b. it s individually based c. Board of Education a. Where did we see this before where a hurdle was put in front of civil rights legislation? Romer 2. Allowing racial balancing as a compelling end in itself would effectively assure that race will always be relevant in American life 6. Race consciousness can be used to achieve integration Race and the Political Process (pp. b. When the political process or the decision making mechanism used to address racially conscious legislation and only such legislation is singled out for peculiar and disadvantageous treatment.

Facts a. Is gender ever relevant or should we never allow gender? a. Higher levels of workforce are subject to less scrutiny/intermediate scrutiny i. It was articulated and invented with sex/gender discrimination 2. law enforcement. Perhaps frisks by the opposite sex i. 5. What is it about alienage? a. If it s working for government. then the court said citizenship is not a proper measure 3. 716-718 1. The court is saying there are two levels of scrutiny a. When federal government discriminates against aliens than it gets minimal review i. Is a classification which within itself has two or three different standards of review 3. Rules a. Its not immutable and not identifiable 4. For government jobs that carry out the political community lesser level of scrutiny i.Strict Scrutiny and Suspect Classifications: Lawful Resident Aliens (pp. rather than the typical rational basis 114 . Civil service employees 2. ethnicity. etc. gender or sex are subject to a higher form of review. Dougall (1973) pp. 716-19) 1. Third tier of alienage discrimination a.S. Alienage: someone not a citizen of the U. 2. Classifications based on race. 72043) 1. Teachers. 5. For government jobs of a ministerial level then strict scrutiny b. Certain kinds of discrimination against lawful aliens are subject to strict scrutiny b. But we d never allow someone to say they re more comfortable with a black or white person frisking them 3. local leaders. Because the federal government is in charge of immigration and nationality Intermediate Scrutiny: Sex and Illegitimacy (pp. For example the head of the school-board 4. The Court generally only scrutinizes discrimination against resident aliens but not discrimination against illegal aliens. The Court subjects discrimination against aliens by state or local government bodies to far more rigorous scrutiny than it applies to discrimination against aliens by the federal government Sugarman v.

The law said that if two people were equally entitled to administer a state. Military men could automatically claim wife as dependent b. so the hearing could make the decision as to who is the better administrator 5. 2. 720 1. It was this case where the argument over the level of scrutiny broke into the open a. Classifications on gender must be substantially related to achieve that directive Gender Discrimination 1. Should it be like race suspect classification ii. Are there more legit differences based on sex then there are based on race? iii. 3. To support this conclusion. Are there situations where the differences are such that law can take account of them? 2. Four justices led by Justice Brennan. Justice Brennan relied on a long and unfortunate history of sex discrimination and the fact that sex. Strict at top ii. The court said not reasonable here in a estate situation you ll always have a judicial proceeding if the brother and sister are going to dispute over who gets to administer. 721 1. there will already be a hearing anyway. State s reason for this: theory that the woman would likely be married 4. Rational at bottom b. Gender a. than a preference would got to the male this was challenged by a female 3. Court fashioned a middle tier standard of scrutiny in the gender area Reed v. But military women had to prove that their husband was dependent 4. Facts a. Rule of Law: All governmental classifications based on gender are subject to strict scrutiny review. like race and national 115 . Rational basis review Frontiero v. Intermediate at middle iii. Heightened scrutiny 2. Sex discrimination was a battle of what level of scrutiny i.4. Richardson (1973) pp. There s 3 tiers that most acknowledge i. Reed (1971) pp. thus triggering strict scrutiny. Issue: Whether a female armed services member may claim her spouse as a dependent for the purposes of obtaining increased quarters allowances and medical and dental benefits on an equal footing with male armed services members. Key issue: what standard of review a. argued for treating sex as a suspect classification.

721-724 1. Oklahoma statute that prohibited the sale of 3. Rule of Law: A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose. . Issue: Whether a statute that denies the sale of alcohol to in. and one that inevitably is in tension with the normative philosophy that underlies equal protection pg.origin. The Court applied a middle tier standard: to survive scrutiny. Proving broad sociological propositions by statistics is a dubios business. 721 Arachic and overbroad generalizations concerning the financial position of servicewomen and working women could not justify use of a 116 . 3. The court still upheld some gender lines a.dividuals of the same age based solely on gender violates the Equal Protection Clause of the Fourteenth Amendment. 2. 720 Post-Frontiero 1. Said it s compensatory women are more needy ii.2% beer to males under the age of 21 and to females under age 18 5. After Frontiero the court started to strike down sex classifications rooted in what the court described as archaic and overbroad generalizations about sex roles 2. Important women s rights issues being addressed in this case 4. 722 9.18% of women caught for DUI. Cases where women s economic need was the critical aspect of the law were not upheld a. Also. and 2% of men b. Widows surviving their husbands who had died would get an automatic tax exemption in FL (even if they were independently wealthy women) b. is an immutable characteristic [that] frequently bears no relationship to ability to perform or contribute to society pg. So to say young male = drunk drivers is a gross overstatement 7. These were largely struck down primarily on a rational basis level 3. Why d it uphold this generalization despite the earlier cases? 1. Facts a. This furthered women stereotypes Craig v. Important point: establishment of intermediate scrutiny with language on pg. Court upheld it because widows have greater problems than widowers i. Dissent: finds it s to be a close fit because they said men were 10X as likely to be arrested 10. Boren (1976) pp. can t hold 100% of men accountable for 2% of their population s actions 8. a gender classification must serve important governmental objectives and must be substantially related to achievement of those objectives 6.

Rule of Law: A state statutory rape law that discriminates against males does not violate the Equal Protection Clause because it deters males from engaging in sexual behavior that might lead to illegitimate pregnancies. State said the purpose was to provide more jobs for women 5. Hogan (1982) pp. Issue: Whether California s statutory rape law violates the Equal Protection Clause of the Fourteenth Amendment. Lower the drinking age for men to 18 or raise the drinking age for women to 21 so that both men and women are allowed to buy beer at the same age 12. Although Mississippi asserted that its policy substantially served an important state goal of compensating for discrimination against women in public education. compensatory purpose. Superior Court of Sonoma County (1981) pp. it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification Michael M. Similarly. So what would the Oklahoma legislature do once this was struck down? a. Man brought suit 4. 725 1. Court said the actual purpose was discriminatory a. Interest must be important and classification must bare a substantial or close relationship to achieving those interests Mississippi University for Women v. increasingly outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas were rejected as loose-fitting characterizations a. 2. Issue: Whether a state statute that excludes males from en. the Court held that although the state recited a benign. The application of that to reject statistical differences btwn men and women 11. Key adjectives that the formula depends on a. Men who commit consensual sex with a woman under 18. State wanted to further push stereotype of women being nurses and men being doctors b. 725-728 1. 2. CA statutory rape law b. but if two are married then it s fine 117 .rolling in a statesponsored professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment. v. Women s only nursing school b. 3. 3.gender line in determining eligibility for certain governmental entitlements. Rule of Law: A state statute that discriminates on the basis of gender may be unconstitutional if the statutory objective itself reflects archaic and stereotypical notions relating to gender. Facts a. Facts a.

Virginia (1996) pp. Men were kicked off jury by prosecutor because he thought men would be more sympathetic to men United States v. A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the sovereign must govern impartiality pg. Court believes this to be the purpose (Conservatives are in the majority) b. 2. Rule of Law: A congressional act that requires men and not women to register for a military draft does not violate the Fifth Amendment to the Constitution because women cannot statutorily participate in combat and thus are not similarly situated as men. If the court had said otherwise and struck down this CA law. Goldberg (1981) pp. What reasons persuaded the court that this was a valid sex discrimination? a. 728-730 1. 732-741 1. The administrative burdens are way overstated 4. If you want the crime to fit the purpose (deterring teenage pregnancy) then you d make it a crime to impregnate a woman Roskter v.B. Government has shown what it has to show that a gender neutral rule would be less effective for the military 7. harsh form of birth control a.4.E. Intermediate scrutiny with bite exceedingly persuasive justification 2. 731 1. Justice Marshall s dissent a. Intermediate scrutiny applied 8. Issue: Whether the Military Selective Service Act. Since no deterrent for the men (since they can t get pregnant). Alabama (1994) pp. Deference of the military and Congress 6. this law would be the deterrent for men 5. This is a policy argument. also said to put them both in jail for the crime i. based largely on biological arguments J. which requires the registration for the draft of males and not females. Challengers did not challenge women from combat duties 5. 3. violates the Fifth Amendment to the Constitution. VMI s argument as to why women were excluded: 118 . 728 6. The paramount interest in evenhanded enforcement of the law. Justice Stevens: the bigger deterrent should be STDs for both sexes. Dissent: this law was just aimed at trying to protect women s chastity a. Probably wouldn t have said put them both in jail b. what would the CA state legislature do? a. State s rational: state has an interest in preventing teenage pregnancies this would be a deterrent. v. State wanted paternity decided for child support purposes 2.

a. Hogan which affirmed intermediate scrutiny i. Majority says it is intermediate scrutiny for any governmental gender classification a. Rule of Law: All governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification 5. This standard requires the government to provide an exceedingly persuasive justification for policies that discriminate against women. Wants an explicit prohibition 2. and. 4. Court rejected this b. we have no proper basis for striking it down pg. If one woman can qualify and do it then excluding all women is not justified under intermediate scrutiny 7. Virginia has not shown an exceedingly persuasive justification for excluding all women from VMI s leadership training 8. Exceedingly persuasive justification is this the new test? a. Did the court articulate the typical standard or a new standard? 9. if so. Issue: Whether the VMI s policy of excluding women from admission denies women equal protection of the laws. i. Two of his major themes again show up in this quote 1. boot-camp like program 3. He says the new test is now exceedingly persuasive justification (EPJ) which is a different way of saying strict scrutiny 1. Enhances education to have a place where only men can go (much like how there s women only schools) i. What standard did the court apply? 10. widespread. This standard comes from Hogan where the court said gender lines are subject to intermediate scrutiny and the govt has a EPJ burden to meet that test ii. and unchallenged use that dates back to the beginning of the Republic. American traditions must be protected 119 . Is this intermediate scrutiny hyped up or a higher scrutiny? 6. Important and substantially related b. it is my view that when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open. More specifically. Admitting women would ruin the program weren t fit for the tough. 738 i. If it s not strict scrutiny as articulated it surely is by the way it s applied c. whether the creation of an alternative school for women is the proper remedy for this denial. Why d he say the court was using a strict scrutiny formula? i. Scalia a. Said the court was actually applying strict scrutiny even though the majority was saying it was an intermediate formula b.

Citizenship of child is different depending on mother or father s citizenship a. The court says it is not an EPC violation 7. Men travel more out of the country (especially in war) and they may conceive of children while abroad Illegitimate Children 1. Did some bad things and is deportable if he s not a citizen of the U. statutes that discriminated on the basis of illegitimate birth were subjected to minimal scrutiny and were upheld 2. 5. Moms are closer to the kids at birth and in formative years 6. Is this decision the death nail of single sex education? a. Scalia would say it is public education will not be allowed to be single sex and that private ones that receive federal funding also would not under this opinion Nguyen v. governmental gender classifications that require more stringent proof of citizen parents paternity than maternity are constitutional based on the inherent biological differences between men and women. The court gave great deference to the academics in Grutter so some of the critics of this case ask why the VMI educators didn t get this same deference 12. 8. Why is Nguyen challenging the determination that he s not an American Citizen? a. Thought there were too many stereotypes and not enough DNA testing i. Says gender shouldn t get anything but rational basis scrutiny i. Court s most recent statement on gender discrimination 2. 4. Dissent (O Connor and Ginsburg the two women on the court) a. Rule of Law: When a child born overseas and out of wedlock to unmarried parents consisting of a United States citizen and non-citizen seeks United States citizenship. Today. Women aren t a discreet minority they have plenty of access to the legislature 11. statutes that classify on the basis of illegitimate birth are subjected to intermediate scrutiny 120 . The majority says it is not b. 3.S. Immigration and Naturalization Service (2001) pp. Prior to 1968. Congress rationally chose to impose these requirements on unmarried men and not unmarried women due to the significant biological differences existing between men and women and the resulting differences between mothers and fathers respective relationships to potential citizens at birth. 741 1. Issue: Whether a statutory scheme that imposes different requirements for a child s acquisition of United States citizenship depending upon whether the citizen parent is the mother or the father violates the Equal Protection Clause. The court uses intermediate scrutiny here a.d. If your mom is a citizen then you are i.

even though not technically rights. The Constitution doesn t protect the right to vote b. Access to the courts d. You don t have a constitutional right to vote it turns out i. Accordingly. Is this a proper function of the EPC or is the EPC just supposed to guard against more pernicious discrimination 7. In all of these cases. thus intermediate scrutiny Fundamental Rights: Strict Scrutiny Revisited 1. The Court has not regarded the poor as a discrete and insular minority. 121 . Doesn t mean the government has to give it to you ii. Easier to think of it as fundamental interests rather than rights a. just using the EPC. Voting c. Affording heightened scrutiny to laws that distinguish on the basis of wealth would call into question a wide range of social programs.a. Turns out that voting is a fundamental interest but education is not a. For such laws to be valid the state must prove that the classification is substantially related to an important governmental objective pg. Illegitimacy is a quasi-suspect classification. The rights of newcomers 8. the court has required strict scrutiny a. are so important to be provided (?) 5. Education b. 743 b. Court says voting is so important that it s a fundamental interest i. Equal protection for the poor a. But if they give the right to anyone then the laws drawn about who gets the right to vote and who doesn t is subject to strict scrutiny 2. Substantive equal protection conveys the idea that the court is using the EPC substantively to decide what interests. At least substantive due process clause gave us the word liberty but there s nothing like this in the EPC 6. laws differentiating on the basis of wealth are not subject to heightened scrutiny. Voting under strict scrutiny but determinations about education spending are not subject to anything even remotely close to strict scrutiny 4. Four areas we look at to see whether those classifications receive stricter scrutiny in these areas we look to see if the interests are fundamental a. Court has a lot of discretion to say what s a fundamental interest and what isn t 3.

Welfare rights cases 8.Introduction (pp. The Court feared that accepting appellee s fundamental rights argument would require the Court to find an infinite number of fundamental rights based on the same rationale i. The Supreme Court rejected both conclusions a. food and clothing would have to be recognized as fundamental constitutional rights. Rodriguez (1973) pp. Two EPC issues on the table here: a. Why shouldn t wealth be viewed as a suspect classification? 7. it might be that those who do not have adequate food and clothing are the least effective at utilizing their free speech and voting rights. 743-49) San Antonio Independent School District v. Is wealth a suspect classification when govt makes wealth difference between whether or not you get something i. Whether education is a fundamental interest so that who gets some or who gets more may be based on wealth or some other criteria 2. Property taxes go to schools b. 746 movement for courts to rule that poverty did deprive you of rights should be treated as a suspect classification like race a. 6. Issue: Whether a system of financing public education based on property taxes that results in significant disparities in funding among school districts violates the Fourteenth Amendment rights of children attending schools in less-affluent districts. and therefore could only be implemented in the most relative sense b. and thus a state regulation impacting the right to education should be analyzed under rational basis review to determine if it bears a rational relationship to a legitimate state purpose 5. Wealthier neighborhoods get more money to their schools so these schools are better of than those in less affluent neighborhoods 3. Facts a. Court says where something as fundamental as welfare assistance they did not say it s a fundamental interest requiring strict scrutiny 122 . The lower court had subjected the funding system to strict scrutiny. For example. Idea of making education a fundamental right strongest arguments for this a. 744749 1. finding that wealth was a suspect classification and that education was a fundamental right. Pg. Rule of Law: Education is not recognized as a fundamental right under the Fourteenth Amendment to the Constitution. The court noted that equality of education could not be precisely determined. Therefore. 4. Education is linked directly with being a good citizen 9. Argument here is that wealth like race is a suspect classification b.

a. pg. 746 b. Court is saying they don t want to do substantive EPC 10. Court says we need to figure out if a right to education is implicitly or explicitly guaranteed by the Constitution if so then they ll protect it but they don t want to make it up on their own, it must be in the Constitution 11. Court we must ask if the distinction (in property taxes) is rationally related to a legitimate state purpose a. The court says it is rationally related

Voting: Denial, Dilution, Gerrymandering (pp. 749-75)
1. Denial someone denied the opportunity to vote 2. Dilution the impact of the vote has been diluted or disregarded perhaps by gerrymandering or perhaps by political or racial gerrymandering a. The weight of your vote and your impact as a constituent is different if you re in a district that s 1/10th the size of another district b. These districts may be perfectly square, not necessarily gerrymandered c. Prison based gerrymandering 3. Gerrymandering a. Independent redistricting commission takes the politicians out of the picture less likely to have political gerrymandering 4. The Constitution originally left to the states the power to determine who could vote a. States originally limited it to free, white male property owners i. The only way this changed was by repeatedly amending the constitution (5 Amendments have to do with this) 1. The most well known is the 15th Amendment a. Also 19th, 24th, 26th 5. By 1960s the Court said the right to vote was constitutionally fundamental 6. Voting, though not guaranteed by the Constitution, has been held as the most fundamental interest a. Strict scrutiny applied 7. School board elections a. Can t be excluded by not being a property owner in the district or not having kids in that school district 8. Once the court hands down a decision, then other litigants with similar concern will come to the court about the same issue, so there was a mass of voting rights cases that came up 9. Special purpose election a. Something so specialized about this government unit and the effect it has on certain peoples that it s ok to limit the vote to those who own property there 10. In using the EPC the court is making judgments as to which government units can be limited to particular people or to all 11. Disenfranchising felons is like disenfranchising minorities because a large portion of felons are minorities 123

12. Citizenship in voting a. If everyone is required to be a citizen to vote then should they all be required proof of citizenship in order to vote? b. You prove citizenship with passport or birth certificate

Harper v. Virginia State Board of Elections (1966) pp. 750
1. Facts a. VA had a poll tax b. Which was outlawed by the Court in 1964 why was it still happening? i. The anti-poll tax amendment only dealt with federal elections 2. The Court invalidated a state-sponsored poll tax, finding the provision invidiously discriminated against certain low-income voters unable to pay the tax. 3. Issue: Whether Virginia s requirement of a poll tax on every resident of the state over the age of twenty-one violated the Equal Protection Clause of the Fourteenth Amendment. 4. Rule of Law: Poll taxes in all elections are unconstitutional as a denial of equal protection of the laws 5. Court a. While the right to vote in state elections is not expressly mentioned in the Constitution, such a right may be inferred from the First Amendment right of expression and thus should not be limited by a tax or fee. b. Right to vote is part of the 1st Amendment s penumbra c. Just as a state cannot constitutionally deny the right to a vote to a person based on his or her race, a state also cannot impose a fee on a person that has the effect of disqualifying a person from voting. 6. Close and strict scrutiny for the right to vote 7. Dissent a. Thought a poll tax was okay i. Doesn t facially discriminate b. If you don t care enough to pony up $1.50 to vote then maybe you shouldn t be able to have that right

Kramer v. Union Free School District (1969) pp. 751
1. Issue: Whether a state law requiring property ownership as a prerequisite for voting in a school district election violated the Equal Protection Clause of the Fourteenth Amendment. 2. Rule of Law: A state statute that denies the right to vote in school district elections to residents who do not own real property within the school district violates the Equal Protection Clause of the Fourteenth Amendment unless the exclusion of these residents is necessary to further compelling state interests. 3. Why are age, citizenship and residency proper restrictions to voting? a. Why can t kids vote they are the closest ones to the school s issues


b. Residency what about people in the town next door affected by the kids education?

Crawford v. Marion County Election Board (2008) pp. 754-758
1. Issue: Whether an Indiana statute requiring photo identification for all voters unduly burdens the right to vote for Indiana citizens. 2. Rule of Law: A state statute requiring photo identification as a prerequisite for voting is not unconstitutional. 3. Facts a. Could get the ID for free at the DMV b. Safety valve was to vote provisionally 4. Justice Stevens, Roberts, Kennedy uphold the voter ID statute a. Balancing approach state s justifications for the burden imposed by its rule vs. the asserted injury to the right to vote b. State s interest i. Voters confidence in democracy ii. Voter fraud iii. Administrative purposes because the of dead people on the voter lists c. They argue it s a facial challenge saying the law may be improper, but for the most part is ok because 99% of the people have IDs 5. Scalia, Thomas and Alito s concurrence a. We shouldn t even be giving it the balancing review that the majority gives it b. Should just say it s a law that s not invidious on its face i. Election law should be viewed no differently unless there is a clear prevention from the ballot box c. They wanted a more minimal approach 6. Dissent a. Want a more significant review b. Burdens outweigh the benefits c. There is zero evidence that in person voter fraud exists d. They see this as a modern poll tax

Reynolds v. Sims (1964) pp. 759-761
1. Issue: Whether Alabama s failure to reapportion itself every ten years and the resulting inequalities of legislative representation among counties throughout the state violate the Equal Protection Clause of the Fourteenth Amendment. 2. Rule of Law: The Equal Protection Clause requires the seats in a bicameral state legislature to be apportioned on a population basis that equally weights one vote for every one person residing in a state legislative district. 3. Typical malapportion issue

Bush v. Gore (2000) pp. 762-764
1. Using different standards to count the votes in each county 125

767 1. Issue: Does the issue of political gerrymandering constitute a nonjusticiable political question incapable of adjudication by the courts? 2. The holding in Davis v. 770-773 1. Can t create a district if the primary purpose was to create a racial district 3. rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race. and therefore. Jubelirer (2004) pp. though race-neutral on its face. In Baker v. The literal counting of the votes was not uniform across Florida Davis v. Carr (1962). Why would republicans want to create a lot of majority-minority districts? The DOJ at this time was under republican control a. 3. 766 Vieth v. the issue at bar represents a nonjusticiable political question. Reno (1993) pp. Bandemer (1986) should be affirmed and political gerrymandering should be ruled a justiciable issue. Shaw v. At issue in the present case is the second test: focusing on whether there is a lack of judicially discoverable and manageable standards for resolving the issue. In order to succeed on the EPC claim the Ps were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group 2. Examining eighteen years of jurisprudence on political gerrymandering reveals a lack of judicial standards for clearly resolving the issue. 772 4. Holding (Scalia): Yes. Court concludes that a Plaintiff challenging a reapportionment statute under equal protection may state a claim by alleging that the legislation. and that the separation lacks sufficient justification pg. 765-767 1. Issue over whether this was a justiciable question 3. The majority said this is like apartheid 126 . Wanted to concentrate the Democrats making the other districts less competitive 2. 4. the Court laid out six independent tests in descending order of importance and certainty. Rule of law: The issue of political gerrymandering represents a nonjusticiable political question incapable of adjudication by the courts. Bandemer (1986) pp. Justice Souter s Dissent a. Such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process pg. for determining whether an issue is a nonjusticiable political question. Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter s or a group of voters influence on the political process as a whole.2. An equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively.

Rule of Law: The Due Process Clause of the Fourteenth Amendment prohibits a state from denying. Districts are being drawn simply because of the way they look. not because of how they may vote 5. M. 777-780 1. S. (1996) pp.L. Court was concerned with something more ephemeral that you were being put into an electoral district because of your race 7. Connecticut (1971) pp. 775-80) 1. Court invalidated a state law denying persons convicted of a crime full appellate review unless they were able to pay for a transcript of the trial proceedings should be overruled. If access is based on wealth then strict scrutiny must be applied Boddie v. but when property or other things are at stake then EPC will be less important Griffin v. Facts a.L. Interests are less sharply revealed because you won t go to jail in civil cases b. EPC will be vigilant when liberty is at stake. Civil litigation a. fine. 777 1. The analytical structure is that there is no independent right to every aspect of the judicial process 2. The races of the Congressmen won t represent that of the constituents (but this wasn t primary issue) b. a. solely on the basis of inability to pay. The Ps are white what s their claims a. Like the Griffin case. This is similar to Rodriguez (education case) a. but you need money for the transcript b. 775 1. Woman didn t have money for this and therefore the court would take her children away from her 127 . less populated states only have trial courts and supreme courts nothing in the middle 3. Illinois (1956) pp.a.J. if you want appeal.B. 2. At a certain point states weren t required to have appeals courts a. Even now some of the smaller. Griffin was being denied a fundamental aspect of criminal justice system because he could not afford to pay for another trial 3. Protecting incumbents is a valid state interest Access to Courts (pp. v. access to its courts to indigent individuals who seek in good faith judicial dissolution of their marriages. Griffin recognized the right to appeal in criminal cases without foreclosure from a state fee structure. The proponents of this said that is creates more black legislatures 6.

Fundamental rights of parental relationship 3. Court said this would be in violation of the EPC and procedural and substantive due process a. PIC. then you have to treat them the same as anyone else in your state Saenz v. 3 rights to travel a. a state may not condition appeals from trial court decrees terminating parental rights on the affected parent s ability to pay record preparation fees. Unless you can prove that someone who shows up and says here I am. Court said taking away children is almost worse or worse then going to jail i. securing the right to equal treatment in all states when visiting. Very similar to Boddie v. 3. The right to be treated equally if you decide to stay 128 . Rule of Law: Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 4 Sec. 2. 781-87) 1. CC. and securing the rights of new citizens to be treated the same as long-term citizens living within the state. Penalties on the Right of Interstate Migration (pp. Substantive due process because of taking the children away b. The Court struck down as against the right to travel a CA statute that denied new residents the same level of welfare benefits available to those who had been CA citizens for more than 12 months 4. PIC Art. CT 4. Roe (1999) pp. Previously it had been a wanderer wandering throughout the different parts of the Constitution i. and as part of the structure of the federal government (structure federal government with many states gives you right to travel) 5. Rule of Law: The Privileges and Immunities Clause protects the right to travel by allowing citizens to move freely between states. Issue: Whether the California statute limiting the availability of welfare benefits to families residing in the state for less than twelve months was an unconstitutional violation of the Privileges and Immunities Clause. It s a civil case but the consequence here would be just as bad as in a criminal case ii. 2 c. Cites some CA cases b. EPC. She had due process she was never deprived of it b. Dissent a. The right to be treated well when you are temporarily/visiting that state i. Rebranding of the right to travel a. Due process doesn t require an appeal 5.2. The right to come and go i. 783-787 1. I m here forever is lying.

Court said requiring English literacy as a voting requirement wasn t outlawed by EP 3. leased the coffee shop to a company that discriminated based on race ii. Where the private entity is performing a public function i. Issue: Whether Congress acted constitutionally in passing the Civil Rights Act to prohibit discrimination by individuals 129 . Citizenship clauses ii. 2. Where the government has encouraged or coerced the private action. Court said when private party discriminates and the government is the landlord. Where a company owned town people would be arrested for trespassing when handing out leaflets in the town ii. 1166-1168 1. If legislation has the effect of discrimination. If the private person is somehow in cahoots with the government (such as local sheriffs tipping off people on civil rights movement members actions) it can be reached under the 14th Amendment Civil Rights Cases (1883) pp. How can Congress change what the Court intends the Constitution to mean? 4. then it s like government action c. 14th Amendment has provisions that guarantee people are citizens of the state and the US CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS Introduction (pp. Where there is an inter relationship between private and the government such that the private s actions could be taken as that of the government i. 1169-1170 deal with situations where Congress has tried to reach private individuals who engage in various forms of civil rights deprivation a. Public parking lot that wanted a coffee shop inside. not just the purpose of discrimination. 1143-44) 1. 1165-70) 1. The Court said this is an example of the company acting like the government (running the town) and denying a constitutional right b. Outside of the 13th Amendment support: pg. then Congress can outlaw or restrict that practice Congressional Power to Enforce Constitutional Rights Coverage: Public or Private Conduct? (pp. Times when people who aren t the government are still subject to Constitutional limitations according to the Court a.i.

Why didn t Congress use the CC? i. 14th and 15th Amendments use the language of state but the 13th Amendment has no state action requirement b. Didn t have the mindset that what happened in a local hotel or restaurant had to do with interstate commerce iii. Court first talked about the 14th Amendment no state shall deprive anyone of equal protection i. Very important case 2. Interstate commerce didn t really exist at this time ii. Mayer (1968) pp. And this is private action. The Court says Congress power is to remedy clear violations and to head off likely violations (prophylactics) but it cannot declare new substantive/constitutional rights 130 . Court said it is therefore not a violation of the EPC may be bad or in violation of local law but not in violation of the EPC which only protects against the government b. What s wrong with telling public accommodators who they can admit? a. not private individuals. 1168 1. private action is not state action ii. Rule of Law: Under the Equal Protection Clause of the Fourteenth Amendment. renting of property and this is justified by the 13th Amendment a. 3. Court says that if Congress said a railroad that went from one state to another couldn t discriminate on race than that may be protected under the CC c. But the court said it must be equivalent to slavery Jones v. Federal Civil Rights Act of 1875 a. Very narrow interpretation of EPC 4. At this time the 13th Amendment was the one place where you could attack private discrimination i.2. Alfred H. but where it s simply an innkeeper who doesn t want to serve based on race. Congress may only prohibit discrimination by state actors. This says that the stingy interpretation of the 13th Amendment under the Civil Rights Cases has been expanded Content: Remedial or Substantive? (pp. Why could you get private discrimination banned under the 13th Amendment but not under the 14th Amendment? a. selling. than that s not the government 6. This case did for the EPC what Slaughter House did for PIC (namely nothing) a. Deals with housing private transactions 3. If the state or local laws affirmatively authorize the discrimination than maybe that might be a finding of state action. The Court said it includes buying. 1170-91) 1. Because 13th Amendment doesn t include any state action limitation i. Laws challenging racial discrimination in public accommodations 5.

Court upheld the displacement of the requirement on both grounds 6. is that enforcement or Congress implementing a new meaning? 5. Rule of Law: Congress may pass legislation to enforce the Equal Protection Clause of the Fourteenth Amendment even when the legislation conflicts with state law. Congress is not declaring it unconstitutional. the Court held that the Religious Freedom Restoration Act extended beyond Congress power because it revised the constitutional norm rather than simply providing a remedy for an existing norm. You can t impose this on us b. Substantive approach: Congress says approaches have potential to be abusive such that they can be in violation Katzenbach v. Congress is saying it s in violation of federal law 4. Which would be a contradiction as to the Court s interpretation a. Remedial approach: Congress uses its power to remedy existing violations 3. 2. Held that Congress could not expand the substantive sweep of the Civil Rights Amendments. Court says as long as we can perceive a basis for Congress to do this then Congress gets the nod a. Morgan (1966) pp. Marbury v. Saying they are outlawing something constitutional itself because it believes it can lead to a violation b. Madison ii. Congress a. Congress could perceive that the literacy requirement is a direct violation of the EPC 1. Giving up power of review under Marbury City of Boerne v. The court reasserted that Marbury empowered the Court to define the substantive scope of the Constitution 2. even though the court has said it is not. Enforcing the EPC means remedying the declared violations of the EPC 3. 1175-1179 1. 1173 a. Justice Harlan s dissent pg. Extremely deferential to Congress 7. Issue: May Congress enact a law under §5 of the 14th Amendment that limits state power to inhibit the free exercise of religion? 131 . If Congress perceives that the requirement is itself a violation. In Boerne. New York s argument: a. 1172-1174 1. 1st rationale: b.2. Flores (1997) pp. Court says this is proper enforcement of legislation by Congress a. 2nd rationale: as long as Congress could perceive a basis it could go ahead and do so i.

Thus. The link between wrong and remedy is about proportionality 4. If it s beyond remedial than Congress is declaring substantive rights b. Same with wrongs and remedies i. There was no evidence of wrongs here so that was pretty weak d. Court: a. The Court says Congress power is: a. unchangeable by ordinary means. when upholding a constitutional right. and. alterable when the legislature shall please to alter it. Intentional discrimination requires strict scrutiny 9. Clear effort to overrule a SC decision goes against Marbury a. Overrules the Smith case 7. no longer would the Constitution be superior paramount law. like other acts. To head off likely violations prohylactics c. Argument that it could: Congress said this is like a prophylactic rule i. If Congress could define its own powers by altering the 14th Amendment s meaning. state and local government e. which has an effect of overruling or displacing a SC decision? 8. But for remedies it would go more from strong remedies to weak/focused remedies b. Some rights are strong going down to weaker rights (just a way of looking at this not very important Professor just made it up) a. Rule of Law: Section 5 of the Fourteenth Amendment provides Congress with remedial powers only and. Here the right is kind of weak c. The remedy was a very strong remedy applied to every federal. Madison . Difference between remedial and substantive 10. Issue: could Congress go against what court said on religious freedom a. 1177 132 . To remedy clear violations b. Congress may only enforce legislation that utilizes means proportional to achieving that legislative purpose.3. The right to be free from non-purposeful negative affects from religion are weak i. Congress can do remedial but not substantive 11. But can t declare new substantive/constitutional rights 12. Congruence and proportionality test (C&P) 5. The right and wrong factors are congruent f. Religious freedom = strict judicial scrutiny 6. Can Congress pass a statute. Don t have strong rights ii. the court comes to the conclusion that the sweeping measures of this is crossing a line illegitimate substantive redefinition of rights 14. It would be on a level with ordinary legislative acts. It s remedial ii. Marbury v. Court draws line between remedial and substantive i.

1182-1185 1. we d have to run this formula (right. Bottom of pg. remedy) line up in such a way that majority concludes it does not pass the test of C&P e. Battle over where the wrong lever was was it strong or weak? i. but may be problems if only regulating the states b. Florida Board of Regents (2000) pp. Say Congress passes a law against incinerators private or public is this a violation? a. 1180 1. The remedy was very strong because it required states to spend money i. wrong. Cleburne is the closest case to this ii. Linkage between 11th Amendment and 14th Amendment 3. The right here is a weak. no matter what the context. In the Smokestack case. it is not viewed as being a problem unless you re asking for monetary damages 4. Commerce Power c. This is a Boerne case 2. A lot of deference to Congress here 133 . Right to be free from employment disability not that strong i. If there s a provision for monetary damages against the state. Yes says Garcia d. Flores type situation Board of Trustees of the University of Alabama v. Garcia even if including the state in the bouquet of this regulation that s ok they can t get off from regulations just because they are states e. Garcia you can regulate state governments. Based on the real world c. not strong right Hypothetical on pg. The levers (right. Can states be subject to general regulation under the commerce clause? i. 1181 Professor¶s Hypothetical 1. Court says they view this as the bottom tier it s a minimal equal protection problem a. If you re acting just against the states then you re in the Boerne v. Court a. Age discrimination case 2.Kimel v. Laws that treat people whoa re disabled aren t as strictly viewed b. 1182 a. wrong. remedy) 5. Garrett (2001) pp. Based on the statute d.

including state government. Issue: the Court was confronted with the question of whether Title II of the Americans with Disabilities Act was a valid use of §5 of the 14th Amendment to abrogate state sovereign immunity 2. Congress argument a. Kennedy who wrote the majority opinion in Boerne b. Has C&P been changed or are the rights and wrongs stronger and the remedy more targeted? 4. No b. 11861189 1. Lack of family leave will encourage sex discrimination in government employment 5. Majority (Rehnquist) a. Here you have a requirement nobody would say is constitutionally required 6. The Court upheld Congress law 3. The majority has narrowed the statute has made it C&P 4. Lane (2004) pp. Is it unconstitutional for government not to allow for family leave? a.Nevada Department of Human Resources v. Conclusion that this meets C&P 8. Feels that this has become a new substantive right Tennessee v. Dissent a. The majority would say the right here is a stronger right it s not about the mentally disabled 134 . The remedy is proportional to the wrong and to the right 1. child or parent b. FMLA required employers. Says they are requiring something that the Constitution doesn t require to protect against something that the Constitution does require 7. to grant up to 12 weeks unpaid leave annually to permit an employee to care for a serious health condition in an employee s spouse. 1189 1. Facts a. Hibbs (2003) pp. The remedy is a targeted remedy that will head-off violations c. The remedy is proportional to the wrong and to the right i. Congress thought there d be discrimination women most likely to case for these relatives and thus employers would be less likely to hire women i. Where the remedy is concerned the court says this is about whether Congress can require people with disabilities access to the courts 3. Recent case where the court shifts directions 2. The dissent says that this case is only about access to the courts. but the majority opinion has lowered the remedy lever a. Linkage between sex discrimination and family leave b.

Heller (2008) pp. Court should have done the balancing would have come to the conclusion that even if individual right and not just militia right. The preamble led a lot of people to think it was just a militia right a. First time Court said this 7. Standard of review isn t strict scrutiny must be some kind of intermediate scrutiny b. Court said now that we ve recognized a strong. Breyer s Dissent a. Right to possess a gun at home for self defense 2. 2nd Amendment protected a strong but limited right the court now recognizing that right a. 3. even if just in home for self defense b. 1193-1213 1. Hibbs and Lane a. it s still outbalanced by the harms and risks 135 . The wrong is strong 5. Says Scalia got the history wrong how it s interpreted/viewed 8. Hunters could if kept disassembled 4. Means individual right to bear arms. the Second Amendment to the United States Constitution creates an individual right to keep and bear arms apart from any military purpose. This is in response to those who argue the 2nd Amendment is only supposed to apply to the right to militia 5.guns in the home violate the Second Amendment to the United States Constitution? 2. Rule of Law: Subject to certain safety limitations.a. Issue: Does a law prohibiting the possession of usable hand. Issues and facts a. The law at issue was that DC made it almost impossible to possess a handgun at home i. Stevens Dissent a. Scalia says to look at the operative part of the 2nd Amendment provision a. Designed to keep federal government from states people in case they needed to fight against a tyrannical federal government District of Columbia v. inherent right of self-defense they find this law that restricts this right is unconstitutional a. Didn t say the right to self-defense was fundamental 6. Looks like the Court is allowing more flexibility in maneuvering these levers then was the case in Boerne THE RIGHT TO KEEP AND BEAR ARMS AND THE PROPER INTERPRETATION OF THE CONSTITUTION 2nd Amendment 1.

The right to bear arms as part of the 14th Amendment 2. 99 of Supplement McDonald a. recognize that the Bill of Rights falls under the PIC. Justice Thomas PIC a.Post-Script to Heller 1. We should change course. including the 2nd Amendment this is what was intended by the framers of the 14th Amendment 3. Pg. Right to bear arms against state and local government 136 .

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