Key

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

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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

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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

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

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

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

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

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

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

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

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

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

first established in 1875 when Congress gave the federal courts general jurisdiction of federal questions 8. In Hans the Court held that it would be anomalous to allow states to be sued by their own citizens 3. The Court has allowed a. Florida 13 . Louisiana 1. 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.6. The current court disagrees whether the court in Hans got it right see Seminole Tribe of Florida v. Suits against state officers b. A citizen of Louisiana sued the state in federal court. Hans v. Permitted states to waive their 11th Amendment immunity and consent to suit c. alleging that LA had violated the Constitution s contract clause 2. However. The SC has devised three primary mechanisms for circumventing the 11th Amendment and allowing federal courts to ensure state compliance with federal law. Facts a. The scope of Congress s section 5 (of 14th Amendment) power is critically important to determining the extent of 11th Amendment immunity 4. 11 federal suits by someone of another state or country for money damages or equitable relief. Sanctioned litigation against the states pursuant to statutes adopted under the 14th Amendment th Amendment: Provides states with sovereign immunity which prohibits 9. Even though the actual amendment only says it s immune from suit by citizens of other states and foreign countries i. A citizen of a state could sue his own state in federal court on a federal question. 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. 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.

but we re now focusing on the vertical axis 2. The powers not delegated to the US by the Constitution. or to the people. such as by infringing separation of powers or interfering w/ individual liberties? 5. Evaluating an act of Congress always two questions a. If so. Ogden 3. State inspection laws. enumerated power and the state governments are ones of general. Congress may act only if there s express of implied authority to act in the Constitution 3. inherent power a. Evaluating constitutionalty of a state law 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. The whole notion of federalism is that we have two sets of government and the national government is a government of limited. Most of the issues of judicial review are questions of the horizontal axis. Does the legislation violate the Constitution? Federalism 1. nor prohibited by it to the States. are reserved to the States respectively. The police power allows state and local governments to adopt any law that is not prohibited by the Constitution 14 . 2. morals and general welfare of its citizens 2. 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. 127-53) 1. Stats may act unless the Constitution prohibits the action 4. does the law violate another Constitutional provision or doctrine. health laws. 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. Limits some of the Congressional powers under the commerce clause Police Power 1. Police power: refers to the state power to legislate to protect the health. safety.

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

153-72) 1. Congress my choose any means. and all other Powers vested by this Constitution in the Government of the United States. On taxing the bank a. This provision makes clear that Congress may choose any means. to carry out its lawful authority 12. Five justices argued that the 10th Amendment reserved to the states only powers they possessed before the Constitution was created b. The court articulated different visions of the 10th Amendment a. and among the several States. The Commerce Clause: [The Congress shall have Power] To regulate Commerce with foreign Nations.S. A state tax on the bank of the US was essentially a state tax on those in other states i. or in any Department or Officer thereof i. Four justices contended that the states retained all power not denied them i. Thornton (1995) pp.the foregoing Powers. 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. Section 8. Comstock (2010 Supplement. not prohibited by the Constitution. 145-153 1. Inc. includes the power to preserve it. not prohibited by the Constitution. to carry out its express authority 11. 3-14) 1. Doctrine of Implied Powers United States v. enumerate that power U. Term Limits. Once it s determined that something is under the power of Congress then Congress can do whatever it wants to regulate. v. and taxing could destroy it b. Marshall s ultimate conclusion is that Congress is not limited only to those acts specified in the Constitution. Both Comstock and McCulloch are about Congress s power to regulate things not specifically provided by the Constitution a. Clause 3 16 . and with the Indian tribes Article I. The power to create the bank. pp. The framework for government articulated in McCulloch continues to this day 14. These four justices decision would have done away with McCulloch The Commerce Power General Scope (pp. The Necessary and Proper Clause grants Congress power over things not specifically enumerated in the Constitution b.

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 . Restrictive interpretation of among the states iii. Instrumentalities: planes. Rejecting Gibbons and finding that the 10th Amendment reserves a zone of activities for the states i. Little federal legislation a. The instrumentalities of interstate commerce. 3.2. 5. or production c. manufacturing. Court controlled by conservative Justices deeply opposed to government economics regulations and in support of laissezfair economics ii. The emphasis is on the word affect 1. etc. The court says we must use the words substantial affect. Congress s most important power The broad categories of activity that Congress may regulate under its commerce power a. Court also morally conservative b. 6. 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. 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 use of the channels of interstate commerce i. 4. a. Narrow definition of commerce ii. c. automobiles. railroads. Court narrowly defined commerce so as to leave a zone of power to the states. trains. Anything that goes from one state to another is using the channel of interstate commerce b. The Court held that commerce was one stage of business. Activities that substantially affect or substantially related to interstate commerce i. even though the threat may come only from intrastate activities i. 3 doctrines all advance dual federalism and all limit the scope of Congress s authority under the CC: i. or persons or things in interstate commerce. 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. Commerce was not phases such as mining. Things that don t go from state to state but have an affect on interstate commerce ii. Use of state sovereignty as a constraint on congressional power From 1937 until 1995.

For the first century of our history. 172-174 1. Economic crisis of the depression made laissez-faire economics seem untenable c. the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. the SC adopted an expansive view of the scope of the commerce clause 2. Three decisions overruled the pre-1937 decisions and expansively defined the scope of Congress s commerce power i. beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890. 4. Then. and in part a reaction to the intense criticism of the earlier decisions that had sharply limited the scope of federal powers b. Issue: May a state regulate interstate commerce within its borders when Congress also chooses to regulate interstate commerce in the same area? 3. Filburn (1942) 7. Facts a. Jones & Laughlin Steel Corp (1937) ii. FDR won a landslide reelection victory in 1936 and put pressure on the Court d. 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. the federal law governs pursuant to Congress s constitutional grant of power to regulate interstate commerce. Ogden (1824) pp. 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. US v. Darby (1941) iii. 172-81) Gibbons v. Rule of Law: If a state and Congress both pass conflicting laws regulating interstate commerce. NY can t interfere with interstate commerce Gibbons going from NY to NJ was interstate commerce 5. Pre-1937 Commerce Clause (pp. 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. in response to rapid industrial development and an increasingly interdependent national economy. Congress ushered in a new era of federal regulation under the commerce power. Wickard v.a. Gibbons argues that he has a federal license and that ought to rule i. Here. thus the NY granted monopoly was preempted by federal law 18 . Ogden (NY) sues Gibbons (NJ) because he had the exclusive right granted by NY state to operate ferry boats in the NY waters b. Federal law authorizes Gibbons to operate a ferry in NY. Holding: a. NLRB v.

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

striking down the act 5. Coal is a national commodity b. than all the points along the way are interstate and can be regulated 3. The effect of the labor provisions of the act primarily falls upon production and not upon commerce. The Protective Principle: the essence of the principle is that intrastate commerce can be regulated when necessary to protect instrumentalities of interstate commerce 20 . A tax was imposed on all producers who failed to abide by the code b. 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. SC s reasoning a. Focus on the word direct d. Rule of Law: Congress may not regulate a purely local act under its Commerce Clause powers. but is really a part of the stream 2. Carter Coal Co. 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. This would have an affect on interstate commerce The Stream of Commerce pp. As an abstract matter. Since a stream is interstate. 174 1. 177 1. The Coal Conservation Act authorized coal producers and coal miners to establish a code setting maximum hours and minimum wages for coal miners a. 176 1. Issue: May Congress regulate the production of coal under its Commerce Clause powers? 2. The SC agreed. 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. This theory was used to distinguish between direct and indirect effects on interstate commerce (see Schecter Poultry) Shreveport Rates Case (1914) pp. (1936) pp.Carter v. While it may ultimately lead to commerce what s being regulated here is production and that s not commerce amongst the several states c. Each point along the way may seem like a local matter. 3. The court looks at it abstractly a. Wages and employment relate to production and not of trade trade is commerce b. How you could argue on the government s behalf a. Majority was saying that production is not commerce because production is a purely local activity i.

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

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

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

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

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

Wickard. The channels of interstate commerce Heart of Atlanta Motel b. 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 . Economic and commercial ii. or persons or things in. through repetition elsewhere. regulate three broad categories of activities: a. Aggregation can t aggregate where it s not economic 3. Up to pg. Court said it was unclear from case law whether it must affect or substantially affect interstate commerce ii. Lopez and Morrison narrowed the CC struck down federal statutes a. Morrison and Gonzales v. 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. 157 is a synthesis of the Court s prior rules and holdings in relation to the commerce clause 2. The instrumentalities of. Congress exceeded its power in this specific regulation 8. pass a law that prohibits the possession of a gun near a school? 3. Activities that substantially affect or substantially relate to interstate commerce i. Rule that emerges from Morrison and Lopez on the nature of the Commerce Clause: i. The possession of a gun in a local school zone is in no sense an economic activity that might. pursuant to its Commerce Clause powers. have a substantial effect on interstate commerce 6. Raich 1. 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. Case specifics a. Holding: unconstitutional because it was not substantially related to interstate commerce a. interstate commerce Congress s power to regulate railroads c. 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. under its Commerce Clause powers. Rule of Law: Congress may. SC declared unconstitutional a federal law prohibiting a person from having a firearm within 1. Wickard and Raich upheld federal statutes 2. Rehnquist (majority) chose substantially affect because the more restrictive interpretation of congressional power was preferable 4. Lopez (1995) pp. 154-167 1.000 feet of a school on the grounds that it exceeded the limits of the commerce power 7. Lopez.

Dissent: Stevens. O Connor. Ginsburg. Congress s argument in support of the law: a. Court overrule 60 years of precedent c. Thomas ii. The Court was split the same as in Lopez i. 159 11. Kennedy. Souter. not private actors. Without boundaries limiting the Commerce Clause to truly commercial activity. 3. Morrison (2000) 1. and then would not contribute to economic activity 10. Make it a crime to possess or sell a gun on or near a school iv. 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 s response to Congress s argument: a. Congress could hold hearings and make findings that a gun in school is bad for education 1. Congress could say any state that doesn t make it a crime to have guns in school would lose education appropriations iii. Thomas concurrence: a. As long as Congress has a rational basis for passing a law than the Court should not interfere b.9. If guns allowed in school then kids might not attend school. Breyer 27 . How could this statute be fixed to be constitutional? How could Congress reenact this statute? a. Dissent a. then would not graduate. Issue: May Congress regulate the discriminatory conduct of private actors under §5 of the Fourteenth Amendment 2. This was judicial activism 13. Congress may only regulate the discriminatory conduct of state officials. Could put in language that relates to interstate commerce i. The court said that Congress didn t even make the findings to back up its rationale for this statute U. would be satisfied by category #1 ii. Only other case (Lopez) in modern times where court says something is outside the commerce clause and that Congress has overstepped its authority a. Scalia. 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. Rule of Law: Under §5 of the Fourteenth Amendment. Yes. Wants to take out the substantial affect notion 12. v. Majority: Rehnquist. To give Congress this power would require us to conclude that the Constitution s enumeration of powers does not presuppose something not enumerated.S. Would this satisfy the majority? 1.

looked at cumulatively. Congress was regulating a non-economic activity that has traditionally been dealt with by state laws i. Facts a. How could this be fixed to be Constitutional? a. 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. 192-200 1. Rule of Law: Congress may regulate the use and production of home-grown marijuana as this activity. taken in the aggregate. 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. 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 . but for Congress. Said if upheld then Congress could regulate all violent crimes ii. Although Congress had made extensive findings that violence against women impacted the economy. no such exemption exists to the federal law 3.4. it has a substantial effect on interstate commerce 5. Rejected Congress s findings in support of the law i. Congress s argument a. Violence Against Women Act. a. Where assailant has traveled across the state line to commit the violence b. could rationally be seen as having a substantial economic effect on interstate commerce. Dissent here was basically the same as in Lopez a. whose institutional capacity for gathering evidence and taking testimony far exceeds the judiciary s 9. No aggregation except where its been economic or commercial b. Absence of commercial or economic relation ii. Raich (2005) pp. Court s reasoning a. which authorized victims of gendermotivated violence to sue their assailants 6. the Court held that the findings were too attenuated from commerce to support the legislation 8. 169 c. Although the state has created an exemption to its state marijuana laws for medical uses. Issue: May Congress regulate the use and production of homegrown marijuana? 2. Could say violence in the work place Gonzales v. The fact of such a substantial effect is not an issue for the courts. Violence against women has a substantial affect b. Congress may not use the Commerce Clause to completely obliterate the distinction between national and local authority pg.

It seems now like rational basis is the buzz word 29 . Nor did the Court revisit its holding in Morrison that in regulating noneconomic activities. if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity pg. Ps were CA residents using the marijuana for medicinal purposes th Circuit threw the federal statute out by looking to Lopez and Morrison 6. in that it is not produced for sale. Congress didn t change the test for the CC that it followed since Lopez b. safety. even if not a commercial activity. 9 ruling CSA was an invalid use of Congress commerce clause powers 7. substantial effect cannot be based on cumulative impact 9. How would you describe the substantial affects notion after reading this case? a. Controlled Substances Act (CSA) prohibits manufacture and use of marijuana b. The majority implied a market is a market. Facts a. How court distinguishes present case from Lopez a. because of the aggregate theory 8. whether illegal or not ii. Relies on Wickard i. States as laboratories b. In light of Lopez and Morrison a. Establishes that Congress can regulate purely intrastate activity that is not itself commercial. Dissent a. The states core police powers have always included authority to define criminal law and to protect the health. Majority s holding is irreconcilable with the court s decisions in Lopez and Morrison 11.4. 193 1. The court conceded that growing marijuana for personal use is not a commercial activity necessarily b. and welfare of their citizens c. It goes in the opposite direction of Lopez and Morrison and upholds Congress law 5. Legally homegrown marijuana can t be distinguished from illegally harvested marijuana in the criminal market place c. Says marijuana is an economic good but Lopez gun is not b. Larger regulatory scheme here than in Lopez 10. Ok to regulate. CA law allows cultivation and use of medical marijuana c. Court s reasoning a.

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

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

The Court upheld a tax on bookies even though the statute s primary purpose was to regulate the activity. b. Congress cannot tax in a way which would otherwise violate some constitutional prohibition (e. not the receiving state 2. Dissent: a. even if it looked like a regulation United States v.trying to punish someone because Congress doesn t have the nerve to punish them themselves c. The court concluded that such legislation was a pretext for regulating productive activity and argued that the only harm occurred in the producing state.3. 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. The question really is: can Congress use its tax power to regulate behavior that is beyond its powers under the commerce clause 3. not a separate source of Congressional power 3. (Child Labor Tax Case) (1922) pp. 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. Prior to 1937. The Court struck down a federal law regulating movement of goods in interstate commerce made in factories which used child labor a. Dagenhart. not to generate revenue a. Drexel Furniture Co. Prior to this case the doctrine was that Congress had great liberty to tax what it wanted. Facts a. 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. 227229 1. then successfully sued for a refund in the federal district court. This is pretext. More recently that restriction has been abandoned 2. The General Welfare Clause is a limitation on the power to tax and spend. cases held that Congress could not spend for ends it could not directly achieve. 3. the case that struck down regulation of child labor using the commerce power. 229-230 1. 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 . Congress reacted to Hammer v. a tax on newspapers alone) Bailey v. Kahriger (1953) pp. Drexel Furniture paid the tax. by enacting the Child Labor Tax Law.g. thus it s presumptively valid 2. The tax does raise revenue.

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

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

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

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.3. Economic justification: the economy is better off if state and local laws impeding interstate commerce are invalidated c. 4. 15 OF THE SUPPLEMENT LOOKS LIKE AN EXAM QUESTION ON THE DORMANT COMMERCE CLAUSE a. Historical argument: framers intended to prevent state laws that interfered with interstate commerce b. Political justification: states and their citizens should not be harmed by laws in other states where they lack political representation i. should invalidate state and local laws because they place an undue burden on interstate commerce It is not in the Constitution a. the burden falls on the regulated entity to obtain congressional legislation that will preempt the state regulation PG. but if it rules that a regulation is valid. It is not in the Constitution like the PIC b. so the Court s decision as to which party bears the burden is important b. Congressional action may not be easy. This is an exam question masquerading as a case 36 . 7. the burden falls on the state to obtain explicit congressional consent to regulate. Congressional action. But Congress may rebut that inference by authorizing the states to regulate in a manner that would otherwise be forbidden. 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. 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. 5. 9. Thus. Constitution gives Congress power to regulate commerce. 8. 6. so Congress can invalidate state laws that unduly burden interstate commerce i. 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. The CC is primarily a grant of power to Congress to regulate commerce. The DCC reflects an inference that as long as Congress is silent it will only allow states to regulate consistent with those two tests. If the court decides a state regulation violates the DCC. 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.

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. The Cooley test: distinction between subject matter that is national. no matter how protectionist or how much it interferes with interstate commerce. It is an indirect effect. 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. Court s reasoning a. 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. it is presumed valid i. even though it s a burden on out-ofstate pilots a. Problems with Cooley test a. b. Board of Wardens (1851) pp. 258-259 direct and indirect 5. in which event states laws are invalidated under the DCC. 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. If a state regulation is nondiscriminatory and has only incidental effects on interstate commerce. Good example of court applying various doctrines we ve looked at Development of the Doctrine (pp. and what is local. requiring diverse regulation Modern DCC Doctrine 1. Upheld a PA statute requiring vessels to use a local pilot.b. and subject matter that is local. the regulation is presumed to be invalid i. 253-60) Cooley v. states could regulate without restraint within areas covered by the Commerce power. If a state regulation openly discriminates against interstate commerce. 2. Modern DCC doctrine proceeds along two tracks: a. Whether the benefits of the state law outweigh its burdens on interstate commerce 37 . so long as the subject matter is deemed local b. Cooley held that states could not regulate matters needing a uniform national approach but could regulate local matters a. demanding local regulation. There is no clear distinction between what is national. Pg. in which event state laws are allowed 3. It allows state regulations. 256-258 1. says the court. Facial discrimination here 6.

Strict scrutiny is applied where the state seeks simply to protect the economic interests of its citizens at the expense of outsiders. 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. Whatever NJ s ultimate purpose. They are asking. Court held that the law violated the principle of nondiscrimination a. more or less. NJ s argument for preventing out-of-state garbage from coming in a.3. Facts a. 5. courts are essentially making Cooley s national versus local distinction. 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. Where. The Market Participant Exception Discrimination against Interstate Commerce (pp. it may not be accomplished by discriminating against articles of commerce coming form outside the 38 . the Court infers that the true purpose was protectionist Two exceptions where laws that otherwise would violate the DCC will be allowed: a. however. 6. 261-264 1. 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. New Jersey (1978) pp. 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. Strict scrutiny if facial discrimination a. 4. the state statute is deemed per se invalid Philadelphia v. Congressional approval b. 260-70) 1. 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. 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. 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. a. When the court detects such economic protectionism. By definition.

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

Such laws would be presumed void. 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. 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. (1981) pp. Strict Scrutiny i. The Court weighed the asserted safety purpose against the degree of interference with interstate commerce b. The state failed to present persuasive evidence that 65-foot doubles are less safe than 55-foot singles c. 284-300) 1. Consolidated Freightways Corp. 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.measure. Madison (1951) pp. but did little to enhance safety Kassel v. 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. Sometimes courts will use strict scrutiny. 273-280 1. The Court declared unconstitutional an Iowa law banning 65-foot double trailers 3. Facially neutral 40 . When the discriminatory effect is combined with some evidence of a discriminatory purpose iii. imposes on interstate commerce. The Court declared unconstitutional a state law that limited train lengths to 14 passenger or 70 freight cars a. 284-286 1. Case is best understood as reflecting the Court s conclusion that the Arizona law put a substantial burden on commerce. and whether the relative weights of the state and national interests involved are such [as to make the law permissible] 4. The Court decided that the burdens on interstate transportation were greater than the safety benefit to the state from its law b. other times they will use a balancing test it s not always clear which will be used a. When the discriminatory effect is particularly severe ii. Discusses different approaches to dealing with cases where there is a neutral burden on interstate commerce 2. is this any different from strict scrutiny?) Dean Milk Co. v. Reasoning a.

Discriminatory because of its effect on the sale of Washington apples i.2. 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. 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. Facts a. 287-289 1. The Court said it was irrelevant that the law also discriminated against in-staters Hunt v. the statute has a leveling effect which insidiously operates to the advantage of local apple producers 6. Washington State Apple Advertising Commission (1977) pp. Facts a. Rule of Law: A facially neutral statute still violates the Commerce Clause if it discriminates against interstate commerce in practice. 5. 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. Washington had a system for grading apples that was different from and more stringent than the federal standard ii. 4. Issue: Is a statute unconstitutional if it places an excessive burden on interstate commerce? 3. a. The law prevented milk that was pasteurized in other states from being sold in the city. The Court concluded that the law was discriminatory against out-of-staters. 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. Court invalidated a. but it also precluded milk that was pasteurized in other parts of that state from being sold in the city. Issue: Whether the North Carolina statute violates the Commerce Clause even though it does not facially discriminate against interstate commerce. By prohibiting Washington growers from marketing apples under their State s grades.S. 2. Facially neutral in that all applies sold in state whether produced in state or out of state had to comply 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. 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 . The Court found discrimination based on the disparate impact of a law against out-of-staters 4.

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

Market participant exception (MPE) a. may choose to favor its own citizens (DCC doesn t apply) 3. the DCC does not apply 2. 1522) West Lynn Creamery. States as ³Market Participant´ Exception (pp. 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. the state. i. 300-08) 1. Rule of Law: A regulation violates the Commerce Clause if the combination of a tax and subsidy discriminates against interstate commerce.e. Rule of Law: Under its dormant Commerce Clause powers. even if each component would be constitutional if separated. such as with a state owned business. Inc. In other words. v. Jenkins (2010 Supplement.2. as a market participant. The Court here said the central purpose of the DCC is to prevent protectionist legislation Facts a. in the absence of congressional action. 4. 5. a buyer or seller of goods or services. the DCC does not apply i. the judiciary. 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. Healy (1994) pp. and not a regulator. 3. 2. In other words. 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. When the state acts as a market participant. 295-298 1. While it may not violate the DCC. may invalidate state and local laws that place an undue burden on interstate commerce. pp. might still violate PIC or EPC 43 . rather than as a market regulator. ship milk in interstate commerce on the grounds that those state laws unduly burden interstate commerce. New York law that prevented a company from constructing an additional depot for receiving milk b. Is an exception to the dormant market clause b. if the state is literally a participant in the market.

The Court struck down an Alaska law that required all who bought timber from the state to also process it in state. 308-17) 1. But. Wunnicke (1984) pp. 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. 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. 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. but could not impose regulations which discriminated in favor of its own citizens regarding conduct in a downstream market b. Where the government is involved in the market. v. Protection by the government 44 . If no economic discrimination nor discrimination with regard to constitutional rights. The Clause basically precludes a state from treating out-of-staters worse than instaters with respect to privileges and immunities 2. i. Thus. PIC: activities which are sufficiently basic to the livelihood of the nation primarily is to protect constitutional rights and economic activities a. Alaska could favor its own in selling the timber. 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. rules which favor in-state people seem to be immune from invalidation a. Laws that discriminate against out-of-staters can be challenged under the EPC of the 14th Amendment or the DCC as well 5. Inc. 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. 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. Rule: state businesses may favor in-state purchasers. 300305 1.South-Central Timber Development. 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. but they may not attach conditions to a sale that discriminate against interstate commerce a. Case a. This is a limit on the scope of the MPE 2.

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

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

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

which interferes with or is contrary to federal law. Reasons for separation of powers 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. Woman sues drug company for failure to issue warning b. however clearly within a State s acknowledged power. II: The executive power shall be vested in a President of the United States a. Encroachment: this is a power poaching instead of a power grab Executive Action 1. 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. Levine pp. (like it does for 48 . any state law. Judicial Power and National Legislative Power were horizontal. must yield Wyeth v. Horizontal focus is on which government can do it a. Unenumerated authority (broad power): Since Article II does not limit the president to powers herein granted. 22 (Supplement) 1. Some construe Presidential power broadly. Good example of the court pendulum swinging away from the presumption for preemption and against preemption 2. Protect the individual rights i. from which our pre-emption doctrine is derived. State Regulation was vertical 2. Facts a.7. others argue for a narrower definition i. Court says not preempted because no conflict between state and federal law PART III: SEPARATION OF POWERS SEPARATION OF POWERS Introduction (pp. Grandisement: concern once branch has pulled too much power towards itself a power grab 4. 333-34) 1. Under the Supremacy Clause. Makes it hard for government power to aggregate in one place and then be used against the people b. Executive Power Art. Provides checks and balances 3.

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

All four of these approaches have support in Youngstown and some support in other cases a. Broadest authority under this approach 10. Since Congress didn t authorize this action. 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.S. 3. but permits appointment and removal of inferior officers defined as such by their more limited executive functions by the President. No constitutional provision addresses the removal power Executive Action: Foreign Affairs (pp. 345-373 Morrison v. 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.b. 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. The foreign affairs power is divided between the President and Congress but in practice the President has exercise the dominant role 2. Four different approaches to the question of when President may act without express constitutional or statutory authority are identified in the case: a. 346-349. Rule of Law: The Constitution grants sole authority to the President to appoint and remove principal officers of the federal government. 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. Jackson viewed the steel seizure as falling in the last category and accordingly representing a weak exercise of Presidential power 9. Olson (1988) pp. There is no inherent presidential power may act only if there is express constitutional or statutory authority b. This approach sees it as Congress s responsibility to act to stop presidential infringements d. 351-354 1. This approach allows the courts to invalidate presidential actions that interfere with the other branches of government c. 355-83) 1. in foreign policy 50 . heads of departments. The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated i. This has been used to justify the idea that the President rightly speaks for the U.

359-363 1. In fact. Executive agreements with other countries have largely replaced treaties as the method of entering into agreements with other countries. 2. 363-364 The War Powers Resolution pp. This case is to be contrasted against the Steel Seizure case where the President s domestic actions during war were limited Dames & Moore v. 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. (1936) pp. Executive Agreements a. 365-366 1. 356-358 1. v. 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. 3. 3. With or without legislative sanction. Congress had authorized the action President Roosevelt had taken 4. 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. 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. 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. Issue: May the President settle the claims of United States citizens against a foreign government through an executive order? 2. they are binding international agreements U. 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.3.S. This interpretation rests largely on dicta in Justice Sutherland s opinion. Curtis-Wright Export Corp. Others claim that the measure was unconstitutional in abdicating to the President Congress power to declare war 51 . Showed that domestically the President s agreements with other countries are binding The Prize Cases (1983) pp. Regan (1981) pp.

President cannot veto only part of a bill Clinton 2. i. or the nature of his/her duties. the courts of law or heads of department. In Rasul v.Ex parte Quirin (1942) pp. 372 1. Hamdan v. Veto power a. Congress can vest the appointment of inferior officers in the President. 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. 383-97) 1. The Constitution empowers the President to appoint federal officers with the Senate s advice and consent. The Court denied the writ to enemy aliens captured outside U. (2) the nature of the sites where apprehension and then detention took place. Later. 52 .mines the status. Rumsfeld (2004) pp. Seeing these happen more b.S. 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. Johnson v. territory. 370 Rasul v. 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. Eisentrager (1950) pp. 373-377 1. Hamdi v. Appointing Power a. They can get replaced by more formal treatises Legislative Action and the Administrative State: General Themes (pp. Congress can create offices and define their qualifications but cannot appoint person to hold offices b. In light of Eisentrager. Rumsfeld (2006) pp. Executive agreements executive branch creating treatises with other countries without getting authorization from Congress a. jurisdiction and tenure. Bush (2004). Congress eliminated the statutory right to bring a writ of habeas corpus. Whether someone is an inferior officer may turn on whether he/she is subject to removal or supervision by a superior. 370 1. 370 2. Bush (2004) pp. 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. and (3) the practical obstacles inherent in resolving the prisoner s entitlement to the writ.

3. Olson (1988) pp. An independent commission within the judicial branch 1. but permits appointment and removal of inferior officers defined as such by their more limited executive functions by the President. 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. 392-397 1. Grandisement argument 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. Specific Limitations (pp. The judicial branch was given too much power by Congress 3. heads of departments. the Court has held that although Congress cannot claim for itself power to remove an officer charged with executing the laws. Legislative veto a. 397-413) 4. Removal a. Not expressly in Constitution. Facts a. Rule of Law: The Constitution grants sole authority to the President to appoint and remove principal officers of the federal government. 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. ± Morrison v. More recently. Limiting the judge s ability to do their job 4. 383-392 1. Encroachment a. 2. US Sentencing Commission has been placed in the judicial branch i. or the judiciary. the Court has held that although Congress cannot claim for itself power to remove an officer charged with executing the laws.c. but is an inherent executive power b. 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. The Constitution allows at least some interbranch appointments. Holding: it is OK for Congress to delegate legislative power (sentencing guidelines) to the executive/judicial branch Morrison v. United States (1989) pp. Olson 3. So then why independent ? ii. 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 . More recently. Mistretta v.

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

Jones (1997). Nixon v. but not regarding claims arising out of events that preceded his tenure in office. Fitzgerald (1982). 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. 3. Issue: Does the Constitution protect the President from suits based on conduct occurring before he assumes the Presidency? 2. Nixon argued that it was for the executive to determine the scope of executive privilege a. Executive immunities immunity basically means immunity suit from legal action Is the President immune from liability for actions relating his Presidential duties? a. Fitzgerald b. b. Nixon v. Clinton v. 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. United States v. Paula Jones (1997) pp. 416-420 1. Accountability a. 421-423 1. Stands for the fact that the President can be sued as a defendant a. 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. But not regarding claims arising out of events which preceded his tenure in office Clinton 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. Rule of Law: The Constitution does not grant the President immunity from civil litigation involving actions committed before he entered office. 4. Issue: Whether communications of the President are entitled to a generalized absolute privilege from discovery in a court of law. and such communications are discoverable when demonstrably relevant in a criminal trial. The Court rejected this relied on Marbury 4. 2. Yes i. President can be sued as a defendant b. Court suggested that a claim based on national security or for Presidential papers in a civil case might be treated differently 5.2. 3. Executive Privileges and Immunities 55 . 5. President Nixon (1974) pp.

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

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

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

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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

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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

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Majority s response: each state established a constitution for itself. If the Bill of Rights applies only to the federal government. Facts a. First SC case to interpret the 14th Amendment 2. 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. 4. At the time Barron was almost certainly decided correctly a. the obvious concern is that state and local governments then are free to infringe even the most precious liberties 1. Because of a huge surplus of cattle in Texas. provided such limitations and restrictions on the power of its particular government 6. Privileges and immunities were already part of the Constitution in Article IV. 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. But the court said it only applies to the Federal Government because i.ii. 3. and in that constitution. Rule of Law: The Thirteenth Amendment solely prohibits slavery as experienced by Africans in the United States before the Civil War. which prevents a state from denying citizens of other states the privileges and immunities it accords its own citizens Slaughter-House Cases (1873) pp. It was thought that this provision applied the Bill of Rights to the states i. Issue: Whether the Louisiana statute creating a slaughterhouse monopoly violated the Thirteenth and Fourteenth Amendments to the United States Constitution. But today it is troubling that state and local governments were free to violate basic constitutional rights 7. 447-452 1. No specific direction that the Bill of Rights only applies to the Federal Government a. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee 61 . Bill of Rights doesn t apply to state or local government 14th Amendment 1. Aren t worried that states would mess with federal Bill of Rights 8. §2. Most states have their own bill of rights iii. Worry is that the Federal Government has the excessive power ii. This is very disputed b. Invalidated the argument that the provisions of the Bill of Rights are the basic privileges and immunities possessed by all citizens 5. the Louisiana legislature gave a monopoly in the slaughterhouse business to one company.

Many different opinions from the justices here 11. the SC used the PIC of the 14th Amendment to invalidate a state law 2. Court refused to redistribute power away from the states and toward the federal government c. all of the other restrictive interpretations of the 14th Amendment in the Slaughter-House Cases were subsequently overruled a. As it defined the privileges and immunities as things that had already existed prior to the adoption of the 14th Amendment 14. The opinion narrowly construed the Due Process. Slaughter-House and privileges or immunities of the 14th Amendment 13. Equal Protection. Except for the privileges or immunities clause. 454 1. and it has been ever since Saenz v. 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. 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 Court said that the purpose of the 13th and 14th Amendments was solely to protect former slaves a. Giving a very narrow reading 7. 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. 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. The butchers invoked many of the provisions of the recently adopted constitutional amendments 6. The privileges or immunities clause was rendered a nullity by the Slaughter-House Cases. Roe pp. To federalize all of the good life rights would be to federalize almost everything says the majority 8. and Privileges and Immunities Clauses of the 14th Amendment d. Slaughter-House Cases interpreted the PIC of the 14th Amendment in a manner to rob it of all meaning i. and the Court has much more liberally construed the 14th Amendment 12. Court s first interpretation of the Civil War Amendments. Essentially for the first time in American history.b. which applied against the states b. Importance of Slaughter-House a. Most of the decision has since been reversed. Slippery slope argument a. California made it difficult for newcomers to get social welfare benefits that long-term citizens of the state received court found this unconstitutional 62 .

2nd Amendment now being incorporated through the 14th Amendment via the Due Process Clause 63 . Whether the 2nd Amendment applies to the individual states 3. one of the Court s foremost opponents to protecting nontextual constitutional rights. 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. such a purpose would be unequivocally impermissible Dissent (only two) a. Even if it were. Incorporates some rights. The right to be treated equally if you decide to stay and live in that state California s argument a. Justice Black argues that the Fourteenth Amendment is a total incorporation of only the enumerated Bill of Rights. The right to come and go b. Rehnquist and Thomas b. not all rights c. 29 (Supplement) 1. CA has represented to the Court that the legislation was not enacted for any such reason c. 3. 6. Court revived the Privileges and Immunities Clause here somewhat in its holding The right to travel is three kinds of rights a. Black won the war 2. 4. Not limited to the Bill of Rights The right to bear arms pp. 8. Justice Frankfurter argues for selective incorporation a. 5. voted with the majority The Black-Frankfurter Arguments ± pg.3. a. This is the last incorporation issue 2. Empirical evidence shows the number is quite small not enough to justify a burden on those who had no such motive b. 457 1. The right to be treated well in another state c. Not limited to the enumerated rights b. Frankfurter won the battle. 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. 7.

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

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

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

one of the people in the couple would need to testify that they used contraceptives 4. General Holding: there is a privacy right in the Constitution and it protects married couples and their right to intimacy 7. Connecticut (1965) 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. This case is for rights. Facts a. 472-479 1. asserting that the Court does nto sit as a super-legislature to review legislation on social and economic matters 67 . 2. 6. 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. 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. Specific Holding: Yes. In order to prosecute the crime. Justice Douglas (majority) a. Established right to procreate as a basic liberty/fundamental right 4. Rather than regulating their manufacture or sale b. Facts a. 3. Refused to rely explicitly on substantive due process analysis. 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. Law making use of contraceptives illegal i. Issue: under constitutional law. But only certain crimes got this treatment. State had a statute that people who have been convicted of a crime three times would be sterilized i. The Connecticut statute conflicts with the exercise of this right and is therefore null and void 6. what McCulloch was for power 3. 2. Oklahoma (1942) 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. 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. Origins: Contraception (pp. white collar crimes did not 5. 470 1. 472-83): Griswold v.Skinner v.

This is asking us to do Lochner and we don t do Lochner anymore i. Third. joined by Rehnquist. Justice White s concurrence a. Used the 9th Amendment to support his position that the 14th Amendment DPC protected a fundamental right to marital privacy ii. and Ninth Amendments. Says his job is not to look at this law. Says to look at our societal traditions 12. Fourth. v. 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. formed by emanations from those guarantees that help give themlife and substance 8. Gerald D. The court here looks to tradition a. In finding a right of marital privacy. Feels this is a due process violation of the 14th Amendment 13. Justice Stewart s dissent a. Together. create a new constitutional right. Scalia. the First. the various guarantees within the Bill of Rights create penumbras or zones that establish a right to privacy. when the tradition is stated at the most specific level of abstraction 68 . said that the Court should recognize a liberty interest only if there is a tradition of providing protection. Instead. What s in the zone of privacy that is being created? a. There is no constitutional right to privacy Michael H. Justice Black s dissent a. Justice Harlan 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. (1989) pp. Dissent in general a. 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. irrespective of it happening through an adulterous affair 3. Use of contraceptives by married couples 10. Man was claiming his natural right to be father. Justice Goldberg s concurrence a. the right to privacy in marital relations 9. 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. Though the Constitution does not explicitly protect a general right to privacy.b. Relies on the 9th Amendment to say why it is covered i. Douglas argued that specific guarantees in the Bill of Rights have penumbras. 480 1.

It should be noted that the court has additionally not recognized a liberty interest for foster families Eisenstadt v. including visitation 10. 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. Rule of Law: Under the Equal Protection Clause of the Fourteenth Amendment. 482 1. 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. Brennan objected to this narrow definition of liberty a. Said that such specificity was necessary because general traditions provide such imprecise guidance. Father have a fundamental interest in their children and this is sufficient for a liberty interest 5. Baird (1972) pp. 2. by implication. 8. Established the right of unmarried people to possess contraception on the same basis as married couples and. It is the right of the individual. a state may not outlaw distribution of contraception to un. 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. 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. 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. 3. 483 69 .i.married persons. 7. Contraceptives were handed out to single people only which is what he was prosecuted for 6. they permit judges to dictate rather than discern society s views 4. Is an EPC case 5. The dispute between Brennan and Scalia was over how the Court should go about interpreting the meaning of liberty 6. Therefore the right of privacy is not for the married couple but for the individuals of the couple a. The SC held that a state could create an irrebuttable presumption that a married woman s husband is the father of her child. the right of unmarried couples to engage in potentially nonprocreative sexual intercourse 4. Facts a. The Court said that the biological father had no right to a hearing to determine paternity and could be denied all parental rights. married or single. 9.

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

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

2. the State s interests are not strong enough to support a prohibition of abortion b. 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. Wade. women have the right to an abortion at any point of previability. (2) A confirmation of the state s power to restrict abortions after fetal viability. Court a. 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.i. 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. (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. In 2003." i. Issue: does a ban on intact D&X abortions on living fetuses threaten a woman s right to have an abortion. But other recording measures allowed Casey¶s adherence to Roe 1. Before viability. Adheres to Roe s essential holding which has three parts a. Congress passed the Partial Birth Abortion Act. But exceptions for medical emergencies and allowed judicial bypass d. Carhart pp. Holding: the Supreme Court held that the Partial Birth Abortion Act does not threaten a woman s right to abortion under Roe. b. 507 1. as defined in Roe? 4. Signed by President Bush. Spousal notification/agreement no i. As per Roe v. 508-515 1. Upholds the Partial Birth Abortion Act 5. Carhart (2007) pp. if the law contains exceptions for pregnancies which endanger a woman s life c. Why is this not found to be an undue burden (though it is in Stenberg?) 72 . (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. Constitutional protection of the woman s decision to terminate her pregnancy derives from the Due Process Clause Stenberg v. it bans all "partial-birth abortions 3.

510 7. Pure Lochner cases 1. to a limited extent b.pg. Ullman (that is within Griswold and is looked at in Moore v. Since the statute abridges important fundamental liberties protected by the 14th Amendment.i. They differed to Congress findings. It is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process. which found that this procedure is never really necessary to the life of the pregnant woman 6. City of East Cleveland when court says how we must understand the Court s function under the Due Process Clause) . has struck between that liberty and the demands of organized society. The Act provides that anyone who in or affecting interstate or foreign commerce. That tradition is a living thing Speaking about the Connecticut statute 3. Yes. Congress gains power to regulate the way abortions are performed through the Commerce Clause a. That balance is the balance struck by this country. or both But the woman being operated on cant be prosecuted pg. Ginsburg s dissent a. which belong to the citizens of all free governments for the purposes of securing which men enter into society 2. 516-23) Harlan excerpt from Poe v. Libertarian c. It has represented the balance which our Nation. built upon postulates of respect for the liberty of the individual. Pierce and Meyer i. There s no formula for due process a. knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined or imprisoned not more than 2 years. Where in the Constitution does this come from? 73 . 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. but rather [those] rights which [are] fundamental. 476 1. Notions of morality can t trump individual rights Lawrence Family Relationships (pp. Does the Constitution protect the right of parents to determine how to raise their children? a. A close scrutiny and stronger justification than that are required The right to determine how to raise your children 1. having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.

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

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.vent marriages between persons solely on the basis of racial classification violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 524-528 1. Director.5. Issue: Whether a Virginia statutory scheme adopted to pre. 523-35): 1. The Court recognized not a right to die but a constitutional right to refuse life-saving hydration and nutrition 3. 2. 3. State must have a very strong reason for withholding marriage a. 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. Rule of Law: A competent person has a constitutionally-protected right to refuse life-sustaining medical care under the Due Process Clause. 3. 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. Missouri Department of Health (1990) pp. Is the right to die a Constitutional right? a. Zablocki v. 522 1. Man argues for fundamental right to marry b. 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. No Cruzan v. He wins the court says it s fundamental subject to strict scrutiny 4. Facts a. The gay rights community is particularly attracted to this case a. 2. Redhail (1978) pp. Because of non-biological parents b. Interracial marriage 2. Woman persisted for 7 years on a feeding tube in a vegetative state with no hope of recovery 75 . Virginia (1967) pp. Rule of Law: The right to marry is a fundamental right. Also. 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. State law not allowing you to marry if you re behind on child-support payments a. 522 1. If rendered incompetent.

which the court says is very different b. 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. Rule of Law: The right to physician-assisted suicide is not a constitutionallyprotected liberty interest under the Due Process Clause of the Fourteenth Amendment. traditional and medical differences between the two. Here they don t want the plug pulled but a needle put in. Glucksberg (1997) pp. Court held that Washington s prohibition against assisted suicide didn t violate the DPC of the 14th Amendment 3. Quill pp. 2. Everything they look at speaks to them that doctors shouldn t kill their patients it is against medical ethics 5. 529-533 1. Court won t recognize a right of physician assisted suicide a.4. such that neither liberty nor justice would exist if they were sacrificed b. objectively. First. Facts a. 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. Second. Court says: our established method of substantive-due-process analysis has two primary features: a. She d kill herself but she s immobile so wants physician s help 4. we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are. we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest. The SC said no. 533 1. Court looks to tradition i. deeply rooted in this Nation s history and tradition (Moore) and implicit in the concept of ordered liberty. NY allowed the removing of life sustaining devices (Cruzan) but not assisted suicide (Glucksberg) and this was claimed to violate equal protection a. 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. Is sex a fundamental right? 76 . Our nation s history. 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. there are historical. 535-49) 1.

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

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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

Methodology
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

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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?

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the SC has watered down these two through various doctrines a. Regulatory takings 80 . When a taking is acknowledged. 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. If so. 551-92) 1. There s been more action on the Takings Clause (TC) then the Contracts Clause (CC) 4. but only requires just compensation The Takings Clause (pp. With respect to the CC and the TC.ECONOMIC RIGHTS: THE TAKINGS AND CONTRACTS CLAUSES 1. 2. 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. claiming it has merely regulated property. The TC applies to all types of property tangible or intangible and applies to executive and legislative actions that effect a taking 5. Regulatory taking = statutes or laws that would limit what you can do to your house or land (other than a nuisance abatement) a. Is it being taken for public use? i. Four basic features of the TC a. When that occurs. This is the least covered feature of the 4 6. Takings Clause: [found in Fifth Amendment] Requires that just compensation be paid to the owner of private property taken for public use. needed to condemn some property to do so 7. Applies to federal. the major constitutional issue presented is determining whether an acknowledged and fully compensated taking is for public use d. Is it being taken? c. The 5th Amendment does not prohibit government takings of property. Is it property? b. state and local 3. are you provided just compensation? i. The public use requirement ensures that government compulsion is used only to secure public benefits ii. Bulldozer taking = extended the runway at La Guardia. 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. Sometimes the government denies it has taken property. 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.

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

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

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

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. Schoene (1928) pp. The majority said there is no such opportunity here as not everyone is effected 7.benefits your property rights take a little of a hit but so do everyone else s 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. South Carolina Coastal Council (1992) pp. 568-76) 1. The Court found a modern version of the Kohler Act not to be a taking a. 568-575 1. PA s Subsistence Act required sufficient coal to be left in place to support the surface b. Prior to this case it was generally thought that the Takings Clause reached only a direct appropriation of property. v. 566-567 1. Balancing case that rivals Keystone Bituminous 2. 566 1. unless the economic activity prevented by the regulation is not part of the owner s initial title or property rights when acquiring the property. But why didn t the coal case come out the same way? a. 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. Lucas and Loretto Lucas v. 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. Owners of cedar trees were compensated for the cutting of the trees but were denied compensation for the taking of the trees 4. 2. Complete destruction of all economically beneficial use 84 . or the functional equivalent of a practical ouster of [the owner s] possession Keystone Bituminous Coal Assoc. 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. DeBenedictis (1987) pp. 3. The apple business was an important industry for the state creating a preponderate public interest 5. Facts a. Only a small piece of the pie is taken. Court said it was ok for VA to favor one bunch of property owners against another a.

Regulations that compel the property owner to suffer a physical invasion of his property 1. State made law saying all apartment building owners must allow for such installation. Penn Central comes in b. 575 1. Nuisance is typically looked at as something that a neighbor could protest and take legal action for The Balancing Approach (pp. State wanted an unspoiled sea shore 5. Harm to property owner. the width of a telecommunications cable running through an apartment 3. Balancing a. (1) Permanent physical occupation i. In general. Facts a. 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. Modest occupation. the court has required compensation b. Nuisance a.4. 577-86) 1. what s the public interest in doing so? Loretto v. (1982) pp. SC held that it was a taking a. Court says the government can take away all the value of the property if going to abate a public nuisance b. 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. Government s justification it serves the public interest 8. no matter how minute the intrusion and no matter how weighty the public purpose behind it. (2) Destruction of all economically viable use i. 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. 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. Permanent and physical occupation 2. In both categories the property owner carries the burden of proof 6. Teleprompter Manhattan CATV Corp. Exception 1. the government would give $1 each year for the inconvenience 4. A permanent physical occupation caused by the government is basically a per se taking 85 . Court notes the denominator problem 7.

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

Section 10 which bars states from impairing contractual obligations a. dilapidated beachfront cottage and replace it with a larger residence in keeping with the neighborhood. 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. The Contracts Clause (pp. City of Tigard (1994) pp. 589-592 1. Contracts clause is not an absolute utterly unqualified restriction of the State s protective power 87 . I would hold that regulations prohibiting all productive uses of property are subject to Lucas per se rule.c. Contracts Clause of Article I. Rule of Law: A government regulation seeking to exact an individual s property from a proposed development constitutes a taking. California Coastal Commission (1987) pp. Blaisdell (1934) pp. 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. No State shall pass any law impairing the obligation of contracts 2.587-92) 1. requiring payment of just compensation unless the exaction is roughly proportional to the impact of the proposed development on the regulatory interest. 587-589 1. 594-597 1. The Court held that conditioning a building permit on a landowner s grant of a public easement across his land constituted a taking. 593-605) 1. In this area the court has scrutinized zoning more than others Nollan v. the temporary moratorium is lifted Conditional Regulatory Takings (pp. Applies only if a state or local law interferes with a contract Home Building & Loan Association v. 2. 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. Nollan contended the condition was a taking 2. Facts a. and when. Nollan wanted to demolish his small. 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.

nor shall any State deprive any person of life. or property. The state is impairing its own contract 2. v. nor deny to any 88 . states may constitutionally impose increased limitations on the freedom to contract if those limitations help address the emergency. New Jersey case? 2. Inc. 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. Energy Reserves Group. Court applied a two-tiered inquiry a. Kansas Power & Light Co. 598-601 1. Conflicts of interest here a. 2. without due process of law. 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. and subject to the jurisdiction thereof. Arguably there has been b. Allied Structural Steel Co. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Spannhaus (1978) pp. 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. 603-604) 1. v. 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. Court is of the opinion that the Minnesota statute as here applied does not violate the contracts clause United States Trust Co. 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. New Jersey (1977) 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. Whether state operated a substantial impairment of the contractual relationship i. v. How s it different from the Trust v. are citizens of the United States and of the State wherein they reside. (1983) pp. 3. 3. Rule of Law: In times of economic emergency or other exigent circumstances. 601-603 1. 3. liberty. Is there significant or legitimate public purpose i.

Same laws are facially discriminatory iii.person within its jurisdiction the equal protection of the laws. How is the government distinguishing amongst people? ii. 1 of the 14th Introduction and Levels of Scrutiny (pp. Others are facially neutral but have a disparate impact 1. All EP issues can be broken down into three questions: a. But here we re a little more concerned on the means 5. When law treats people differently but makes no purpose for the law doing so a. The legitimacy of ends can change with time a. We re once again in the land of means and ends like substantive due process i. Does the government meet the level of scrutiny? i. State has come to mean any local government as well 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. 607-12) Introduction 1. demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law b. Rational basis/minimum scrutiny legitimate purpose ii. 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. What is the appropriate level of scrutiny? c. Means is necessary the least restrictive alternative 4. are no longer viewed as permissible ends (women. What is the classification? i. Why me? is the constant question 2. Limits state and local government equally 89 . Strict scrutiny end must be compelling 2. Strict scrutiny close fit a. Intermediate scrutiny end has to be important 3. Amendment Sec. blacks) 6. Some ends viewed as valid in the mid-1900s. If facially neutral. Insufficient to prove a racial or gender classification 2. Focus on under-inclusive/over-inclusive 1. Is there a good fit between means and ends? 7. The Court evaluates both the law s ends and its means 1.

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

A law is upheld if it is substantially related to an important government purpose i. but must have a substantial relationship to the end being sought f. why aren t they included? 3. why am I part of the solution? 2. People here say. I cause a problem. 7. d. Classification must substantially advance an important government interest/purpose e. Those which regulate more than you need to in order to achieve the objective b.4. Under-inclusive a. Regulate less than you need to achieve the objective b. Government has burden of proof d. The means used need not be necessary. Middle Tier b. Government has burden of proof i. Over-inclusive a. Government purpose need not be compelling. Laws which impact negatively what has been identified as a fundamental interest protected by equal protection e. Classifications i. But when they under-regulate there s usually someone being picked on 91 . but so do they. 9. yes. 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. Gender ii. I m not part of the problem. Difficult for a government to win these cases Important distinction between rationally related v. necessary Intermediate Scrutiny: a. 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. Must show the classification is to serve a compelling government interest ii. but it must characterize objective as important government purpose c. These people would say. 5. 8. 6. Sometimes the courts seem to be more concerned with laws that overregulate a.

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

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. Opticians are the least educated of eye specialists 4. lobbied the legislature) 5. Oklahoma statute that prohibited opticians from duplicating or fitting lenses without a prescription from an optometrist or ophthalmologist b. Issue: Whether New York s regulation of advertising on business vehicles violates the Equal Protection Clause of the Constitution. 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. v. Lee Optical Co. Facts a. Justice Douglas concluded that even if the City s opinion that the classification reduced traffic hazards was incorrect. Talking about a made-up legislative purpose here 4. 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. 3. Justice Jackson s concurrence a. New York (1949) pp. 612-614 1. Opticians get minimal review 93 . 612-19) Railway Express Agency. On the EPC claim. Even on the minimal tear you must show a relationship between the means and the ends Williamson v. Inc. 2. The Court said that equal protection does not require the eradication of all evils of the same sort 5. They were likely trying to give the eye doctors another referral. 2.Minimal Scrutiny: The Default Level of Review Means: What is Not Rational? (pp. 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. (1955) pp. Facts a. The word may appears very often in the case b. more business (probably these eye doctors. Why did Oklahoma want to restrict opticians? a. it does not contain the kind of discrimination against which the EPC affords protection 6. more educated then the opticians. 614 1. 3. REA sold space on the exterior sides of trucks for advertising b.

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

620-621 1. 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. at least with respect to economic legislation. If this were a plain rational relationship case then you'd say that there's no rational relationship. The test is rationally related to a legitimate stated purpose i. 3. To alleviate hunger b.c. 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. 619 Ends: What Purposes are Not Legitimate? (pp. there is no reason to interfere with the outcomes produced by the tug-of-war of politics. 4. Gave a different purpose to what Congress implemented i. it seems to retard the goal rather than advance. The law undercuts vested interests that the law was supposed to uphold i. Moreno (1973) pp. The means and ends were not related b. So no rational basis 8. 620-29) United States Department of Agriculture v. The majority s very deferential version of minimal scrutiny assumes that. Said the purpose of the law was that some people would get windfalls an others wouldn t d. Court focuses on stated purpose of the act to alleviate hunger. 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. 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. But the court says it's not convinced that the stated goal is the actual goal. 6. Said this formula needs something c. 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 . To prevent hippy communes from receiving benefits (probably wasn t all of Congress) c. help the farmers 5. Dissent a. Intention of act a. The actual purpose version proposed by Justice Brennan assumes that the political process cannot be trusted always to be free of defects pg.

Principle from Romer = can t single out gays or lesbians for different treatment without a stronger reason 96 . the Court stated that Amendment 2 placed homosexuals in a class by themselves. The Constitution demands neutrality in the law and bans classes among citizens Plessy Same Sex Marriage? 1. Romer + Lawrence + Loving = right of same sex marriage? a. 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. Purports to be an animus case 5. executive. CO s objective: to protect personal and religious objections to homosexuality 7. can only get them through the people of the state i. Is this a heightened minimum review case or an animus heightened review case? 4. or judicial action at any level of state or local government designed to protect these individuals b. If you re seeking protections set out. you can t get them through your local legislature. we re asking for a legitimate objective a. or state legislature. 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. we re not asking for a compelling objective. Rejecting Colorado s argument that the amendment simply put homosexuals in the same position as all other persons. Facts a. Opposition to homosexuality is not as bad as that to race or religion 9. Majority is taking sides in a culture war b. 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. 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. 621-627 1. Not a case where sexual orientation is viewed as a suspect or semi-suspect classification ii. 2. Evans (1996) pp. Dissent (conservatives) a.Romer v. If we re at the bottom tie of review here. Fear of gays having too much political power c. depriving only them of protection against discrimination 6.

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

pg. Brennan. For these reasons and because such discrimination is unlikely to be soon rectified by a legislative means. how. 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. 634-639 1. alienage.10. Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. 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. however. equal protection requires only a rational means to serve legitimate end. these laws are subjected to strict scrutiny. or national origin. They say this is clearly heightened review b. Doe (1982) pp. Blackmun (concurrence in judgment in part and dissenting in part) a. Despite holding that mentally retarded individuals were not a quasi-suspect class. Violation of EPC 4. Facts a. 3. The general rule gives way. the courts have been very reluctant to scrutinize closely legislative choices as to whether. 2. Does the court treat this as a suspect classification? No 98 . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic process. Legislative classifications based on gender also call for a heightened standard of review. and to what extent those interests should be pursued. 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. 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. the Court struck down the challenged law because it did not pass the required rationality test 12. When social or economic legislation is at issue equal protection allows the states wide latitude. 630 Plyler v. when a statute classifies by race. 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. Marshall. TX legislation aimed to deny undocumented children from receiving free public education 5. In such cases. You could not look so closely at the means or the end if it s not heightened review 11.

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

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

4. Lightfoot (1960) pp. Lightfoot (1960). 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. The Court invalidated the ordinance because SF had no justification for its invidiously discriminatory application of a facially neutral law Gomillion v. 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. virtually all in wooden structures. a. Statistics alone here make out a prima facie case 4.4. SF prohibited operation of laundries in wooden buildings. A variation of the facially discriminatory classification is found here b. Court found the legislation to be solely concerned with segregating white and black voters a. Facts a. 643 1. while 80-odd laundries operated by Europeans were left unmolested. Facially neutral laws nevertheless violate the EPC if they are administered in a racially discriminatory manner 2. Tuskegee. In Gomillion v. 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. Facts a. Virginia (1967) a. but the party challenging the classification has the burden of proving its suspect application 3. 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. Is an example of neutral classifications motivated by discrimination that produce a discriminatory effect a. 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. About 99 percent of the black voters were allegedly eliminated from Tuskegee. a voting district violates the Fourteenth Amendment s Equal Protection Clause if the state s purpose in 101 . a state is constitutionally free to redraw its political boundaries in any manner it chooses. Hopkins (1886) pp. while not a single white voter was removed 3. 240 Chinese persons operating buildings were arrested. all but 10 of SF s 320 laundries were barred from further operations and Chinese persons operated 75% of city s laundries. 643 1. Is an example of a neutral classification applied in a discriminatory fashion. Alabama redrew its boundaries from a square to an uncouth twenty-eight sided figure. Loving v.

Govt s argument: they needed to higher officers with stong written and verbal communications skills 5. making out a case for equal protection violation b. Standing alone. Higher court said the disproportionate statistics are relevant but not enough i. but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Facts a. 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. 643-645 1. Problem here: how do you should discrimination when it s not apparent on the fact? 4. court says that except in those exceptional cases. The differentiating factor between de jure segregation and so-called de facto segregation is purpose or intent to segregate pg. Issue: Whether the test used by the Washington. statistics alone aren t enough to make a prima facie case iii. 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 .C. a plaintiff bears a high burden of proving that the disputed plan is conceived or operated as a purposeful device to further racial discrimination. police department to screen new employees violates the Fifth Amendment Due Process Clause.drawing the voting district is to minimize invidiously the voting potential of racial or ethnic minorities. D. To prove such a purpose. 644 6. Washington v. Disproportionate impact is not irrelevant. What make an equal protection violation is purposeful discrimination ii. 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. In Yick Woo and Gomillion disparate statistics are enough to make out a prima facie case. 2. Lower court: statistics alone are enough to show purposeful race discrimination. Davis (1976) pp. Statistics alone not enough must have purposeful discrimination a. This case was about statistics and how they reflect on the government s purpose a. 3. 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. 644 7.

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

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

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

Four of the justices argued that the school can t get money under Title 6 by doing this affirmative action a. No racial balancing here a. Bakke (1978) pp. Says quotas wouldn t be narrowly tailored 3. Court said affirmative action is not unconstitutional if properly applied. No trying to find a specified percentage of a particular ethnic group. 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. 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. The compelling interest here was the diverse student body 2. 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. Taking race into account by admissions is constitutional 5. Two holdings to this case: a. simply proving discriminatory effect or impact was not sufficient Affirmative Action First Views (pp. which the court says would be unconstitutional b. 658-665 1. 658-66) Regents of University of CA v. What argument is taken away? a. Presumptions like this and in other cases eroded the intentional discrimination requirement in school desegregation cases 4. 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 i.by intentional state action. Title 6 any institution that receives federal funds can t discriminate 106 . Can t remedy because no discrimination on their behalf 4. Lightened the burden of proving discriminatory intent a. 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 school system then has the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. Bakke wins b. To sustain that burden of proof.

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

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

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

What Powell said in Bakke is essentially what was said in Grutter 2. Many businesses are in support of affirmative action believing it s good for business ii. This is likely why O Connor ruled with the majority here 8. This case kept the door open for both government agencies to develop/revise programs like this. 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. however. Majority a. Extends to post-graduation life creating diversity in society d. Rehnquist says that they re running a quota system here 110 . Issue: Whether the use of race as a factor in student admissions is unlawful under the Equal Protection Clause of the Fourteenth Amendment. race-neutral alternatives to achieve the sought-after racial diversity. Strict scrutiny is the standard to use for both affirmative and negative race conscious actions by the government 7. The establishment is in support of affirmative action i. Are we moving towards that goal or further away with affirmative action? 2. Convinced admissions officers are acting holistically in each case no one factor is dominant i. Bollinger (2003) pp. 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. Thus the court accepted the university s argument b. Both classroom/campus diversity and improving the workforce making life after school more diverse ii. as long as they had some justification in proving discriminatory action in their community Ricci v. More diversity in education will lead to more diversity in the workforce and amongst leaders of our society 6. good faith consideration of workable. Diversity is important as an end in itself and as a means i. Why did the same court that upheld the program in Grutter invalidate a similar program in Gratz? Grutter v. Dissent a.d. 5. 55 of Supplement Race and Admission to Public Universities (pp. The ultimate goal is that race will no longer be relevant a. Diversity is critically important for law schools c. DeStefano pp. 679-708) 1. the school must demonstrate it previously made a serious. 680-693 1. 4. Strict scrutiny is the standard of review here 3.

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

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

rather than when it s to keep them apart c. although the use of narrowly-tailored. Majority a. Can use race conscious criteria when it s to keep races together.a. Can t assign children to a school based on their race 5. Allowing racial balancing as a compelling end in itself would effectively assure that race will always be relevant in American life 6. Said it s not affirmative action. Wants to defer to local government officials/school boards b. Board of Education a. 708-16) 1. 712 113 . 710-714 1. 708 Hunter v. Seattle School District (1982) pp. 4. 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. 709-710 Washington v. Racial balancing is not a compelling interest top of pg. Quota system d. 703 who is on the right side of Brown b. Erickson (1969) pp. Race consciousness can be used to achieve integration Race and the Political Process (pp. The battle in this case is how to apply Brown 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. When the political process is altered in a manner that does not explicitly use race but has a racially disparate impact. the governmental action plainly rests on distinctions based on race pg. race-conscious objectives to achieve general diversity in schools is permissible. it s individually based c. 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. b. the problem is essentially identical to other disparate impact cases pg. Rule of Law: Public schools may not assign students to schools solely on the basis of race for the purpose of achieving racial integration. Brown wasn t just about ending segregation but was about achieving integration d. Where did we see this before where a hurdle was put in front of civil rights legislation? Romer 2. Dissent a. Pg. 701 i.

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

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. Heightened scrutiny 2. Facts a. Gender a. It was this case where the argument over the level of scrutiny broke into the open a. argued for treating sex as a suspect classification. To support this conclusion. Richardson (1973) pp. State s reason for this: theory that the woman would likely be married 4. Rule of Law: All governmental classifications based on gender are subject to strict scrutiny review. There s 3 tiers that most acknowledge i. Military men could automatically claim wife as dependent b. Reed (1971) pp. Court fashioned a middle tier standard of scrutiny in the gender area Reed v. 721 1. Four justices led by Justice Brennan. 3. Are there more legit differences based on sex then there are based on race? iii. so the hearing could make the decision as to who is the better administrator 5. 720 1. The law said that if two people were equally entitled to administer a state. Sex discrimination was a battle of what level of scrutiny i. 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.4. Classifications on gender must be substantially related to achieve that directive Gender Discrimination 1. But military women had to prove that their husband was dependent 4. than a preference would got to the male this was challenged by a female 3. Justice Brennan relied on a long and unfortunate history of sex discrimination and the fact that sex. Strict at top ii. 2. Should it be like race suspect classification ii. there will already be a hearing anyway. like race and national 115 . Rational at bottom b. Are there situations where the differences are such that law can take account of them? 2. Rational basis review Frontiero v. thus triggering strict scrutiny. Intermediate at middle iii.

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. 2. Dissent: finds it s to be a close fit because they said men were 10X as likely to be arrested 10. Facts a. Widows surviving their husbands who had died would get an automatic tax exemption in FL (even if they were independently wealthy women) b. Oklahoma statute that prohibited the sale of 3.origin. This furthered women stereotypes Craig v. The court still upheld some gender lines a. 3.18% of women caught for DUI. Rule of Law: A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose. Said it s compensatory women are more needy ii.dividuals of the same age based solely on gender violates the Equal Protection Clause of the Fourteenth Amendment. Important women s rights issues being addressed in this case 4. So to say young male = drunk drivers is a gross overstatement 7. Boren (1976) pp. Also. 722 9. Issue: Whether a statute that denies the sale of alcohol to in.2% beer to males under the age of 21 and to females under age 18 5. These were largely struck down primarily on a rational basis level 3. 721 Arachic and overbroad generalizations concerning the financial position of servicewomen and working women could not justify use of a 116 . Cases where women s economic need was the critical aspect of the law were not upheld a. Why d it uphold this generalization despite the earlier cases? 1. can t hold 100% of men accountable for 2% of their population s actions 8. Important point: establishment of intermediate scrutiny with language on pg. and one that inevitably is in tension with the normative philosophy that underlies equal protection pg. . 720 Post-Frontiero 1. Proving broad sociological propositions by statistics is a dubios business. a gender classification must serve important governmental objectives and must be substantially related to achievement of those objectives 6. The Court applied a middle tier standard: to survive scrutiny. Court upheld it because widows have greater problems than widowers i. and 2% of men b. 721-724 1. is an immutable characteristic [that] frequently bears no relationship to ability to perform or contribute to society pg.

Key adjectives that the formula depends on a. 3. 725 1. Similarly. Facts a.gender line in determining eligibility for certain governmental entitlements. Although Mississippi asserted that its policy substantially served an important state goal of compensating for discrimination against women in public education. Facts a. Issue: Whether California s statutory rape law violates the Equal Protection Clause of the Fourteenth Amendment. 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. Superior Court of Sonoma County (1981) pp. 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. it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification Michael M.rolling in a statesponsored professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment. CA statutory rape law b. 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. The application of that to reject statistical differences btwn men and women 11. 2. Women s only nursing school b. State wanted to further push stereotype of women being nurses and men being doctors b. Hogan (1982) pp. Man brought suit 4. 3. So what would the Oklahoma legislature do once this was struck down? a. v. Men who commit consensual sex with a woman under 18. 725-728 1. but if two are married then it s fine 117 . compensatory purpose. 2. State said the purpose was to provide more jobs for women 5. Interest must be important and classification must bare a substantial or close relationship to achieving those interests Mississippi University for Women v. 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. the Court held that although the state recited a benign. Issue: Whether a state statute that excludes males from en. Court said the actual purpose was discriminatory a.

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

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

Is this decision the death nail of single sex education? a.d. 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. Men travel more out of the country (especially in war) and they may conceive of children while abroad Illegitimate Children 1. 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 says it is not an EPC violation 7. Court s most recent statement on gender discrimination 2. 4. Thought there were too many stereotypes and not enough DNA testing i. If your mom is a citizen then you are i. Women aren t a discreet minority they have plenty of access to the legislature 11. 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. Why is Nguyen challenging the determination that he s not an American Citizen? a. 8. statutes that classify on the basis of illegitimate birth are subjected to intermediate scrutiny 120 . Today. Citizenship of child is different depending on mother or father s citizenship a. Moms are closer to the kids at birth and in formative years 6. 741 1. 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. 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. 5. 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. The majority says it is not b. The court uses intermediate scrutiny here a. 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. Says gender shouldn t get anything but rational basis scrutiny i.S. Immigration and Naturalization Service (2001) pp. Prior to 1968. 3.

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

food and clothing would have to be recognized as fundamental constitutional rights.Introduction (pp. 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. The court noted that equality of education could not be precisely determined. The lower court had subjected the funding system to strict scrutiny. 746 movement for courts to rule that poverty did deprive you of rights should be treated as a suspect classification like race a. Therefore. Argument here is that wealth like race is a suspect classification b. Two EPC issues on the table here: a. Pg. 6. Is wealth a suspect classification when govt makes wealth difference between whether or not you get something i. Rodriguez (1973) pp. finding that wealth was a suspect classification and that education was a fundamental right. 743-49) San Antonio Independent School District v. Facts a. Wealthier neighborhoods get more money to their schools so these schools are better of than those in less affluent neighborhoods 3. Idea of making education a fundamental right strongest arguments for this a. 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. and therefore could only be implemented in the most relative sense b. Court says where something as fundamental as welfare assistance they did not say it s a fundamental interest requiring strict scrutiny 122 . Education is linked directly with being a good citizen 9. 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. 4. Why shouldn t wealth be viewed as a suspect classification? 7. 744749 1. For example. 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. 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. Welfare rights cases 8. Rule of Law: Education is not recognized as a fundamental right under the Fourteenth Amendment to the Constitution.

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

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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

though race-neutral on its face. Jubelirer (2004) pp.2. 765-767 1. 766 Vieth v. Bandemer (1986) should be affirmed and political gerrymandering should be ruled a justiciable issue. Why would republicans want to create a lot of majority-minority districts? The DOJ at this time was under republican control a. for determining whether an issue is a nonjusticiable political question. Examining eighteen years of jurisprudence on political gerrymandering reveals a lack of judicial standards for clearly resolving the issue. Issue over whether this was a justiciable question 3. Reno (1993) pp. 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. Can t create a district if the primary purpose was to create a racial district 3. 772 4. rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race. Court concludes that a Plaintiff challenging a reapportionment statute under equal protection may state a claim by alleging that the legislation. and therefore. The literal counting of the votes was not uniform across Florida Davis v. and that the separation lacks sufficient justification pg. 770-773 1. 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. 3. Rule of law: The issue of political gerrymandering represents a nonjusticiable political question incapable of adjudication by the courts. Issue: Does the issue of political gerrymandering constitute a nonjusticiable political question incapable of adjudication by the courts? 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. Bandemer (1986) pp. The majority said this is like apartheid 126 . Shaw v. Holding (Scalia): Yes. The holding in Davis v. the Court laid out six independent tests in descending order of importance and certainty. Justice Souter s Dissent a. Carr (1962). In Baker v. 4. Wanted to concentrate the Democrats making the other districts less competitive 2. 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. the issue at bar represents a nonjusticiable political question. 767 1.

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

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

then Congress can outlaw or restrict that practice Congressional Power to Enforce Constitutional Rights Coverage: Public or Private Conduct? (pp. not just the purpose of discrimination. Issue: Whether Congress acted constitutionally in passing the Civil Rights Act to prohibit discrimination by individuals 129 . Where the private entity is performing a public function i. 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. 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. 1165-70) 1. 14th Amendment has provisions that guarantee people are citizens of the state and the US CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS Introduction (pp. Public parking lot that wanted a coffee shop inside. 2. 1143-44) 1. Citizenship clauses ii. Outside of the 13th Amendment support: pg. Where the government has encouraged or coerced the private action. 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. 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. If legislation has the effect of discrimination. then it s like government action c. Times when people who aren t the government are still subject to Constitutional limitations according to the Court a. 1169-1170 deal with situations where Congress has tried to reach private individuals who engage in various forms of civil rights deprivation a.i. The Court said this is an example of the company acting like the government (running the town) and denying a constitutional right b. 1166-1168 1.

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

Madison ii.2. 1st rationale: b. 1173 a. Held that Congress could not expand the substantive sweep of the Civil Rights Amendments. Enforcing the EPC means remedying the declared violations of the EPC 3. 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. The court reasserted that Marbury empowered the Court to define the substantive scope of the Constitution 2. is that enforcement or Congress implementing a new meaning? 5. Saying they are outlawing something constitutional itself because it believes it can lead to a violation b. 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 . Court says this is proper enforcement of legislation by Congress a. Flores (1997) pp. Congress is saying it s in violation of federal law 4. In Boerne. Substantive approach: Congress says approaches have potential to be abusive such that they can be in violation Katzenbach v. Marbury v. 1172-1174 1. If Congress perceives that the requirement is itself a violation. 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. 1175-1179 1. Which would be a contradiction as to the Court s interpretation a. 2nd rationale: as long as Congress could perceive a basis it could go ahead and do so i. Court upheld the displacement of the requirement on both grounds 6. even though the court has said it is not. Justice Harlan s dissent pg. Congress a. Congress could perceive that the literacy requirement is a direct violation of the EPC 1. Morgan (1966) pp. Congress is not declaring it unconstitutional. 2. Court says as long as we can perceive a basis for Congress to do this then Congress gets the nod a. New York s argument: a. Giving up power of review under Marbury City of Boerne v. You can t impose this on us b. Remedial approach: Congress uses its power to remedy existing violations 3.

Don t have strong rights ii. and. If it s beyond remedial than Congress is declaring substantive rights b. Same with wrongs and remedies i. The Court says Congress power is: a. like other acts. There was no evidence of wrongs here so that was pretty weak d. Court: a. If Congress could define its own powers by altering the 14th Amendment s meaning. 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.pg. Religious freedom = strict judicial scrutiny 6. Issue: could Congress go against what court said on religious freedom a. Congress may only enforce legislation that utilizes means proportional to achieving that legislative purpose. But can t declare new substantive/constitutional rights 12. The link between wrong and remedy is about proportionality 13. Overrules the Smith case 7. Clear effort to overrule a SC decision goes against Marbury a. Court draws line between remedial and substantive i. when upholding a constitutional right. Madison . no longer would the Constitution be superior paramount law. The right to be free from non-purposeful negative affects from religion are weak i. 1177 132 . Intentional discrimination requires strict scrutiny 9. Can Congress pass a statute. It s remedial ii. Congress can do remedial but not substantive 11. Difference between remedial and substantive 10. Here the right is kind of weak c. state and local government e. To remedy clear violations b. which has an effect of overruling or displacing a SC decision? 8. Argument that it could: Congress said this is like a prophylactic rule i. Marbury v. But for remedies it would go more from strong remedies to weak/focused remedies b. Congruence and proportionality test (C&P) 5. 4.3. The remedy was a very strong remedy applied to every federal. It would be on a level with ordinary legislative acts. unchangeable by ordinary means. the court comes to the conclusion that the sweeping measures of this is crossing a line illegitimate substantive redefinition of rights 14. The right and wrong factors are congruent f. Rule of Law: Section 5 of the Fourteenth Amendment provides Congress with remedial powers only and. alterable when the legislature shall please to alter it. Thus. To head off likely violations prohylactics c.

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

Feels that this has become a new substantive right Tennessee v. Facts a. The majority has narrowed the statute has made it C&P 4. 11861189 1. Here you have a requirement nobody would say is constitutionally required 6. Lack of family leave will encourage sex discrimination in government employment 5.Nevada Department of Human Resources v. Conclusion that this meets C&P 8. FMLA required employers. Where the remedy is concerned the court says this is about whether Congress can require people with disabilities access to the courts 3. 1189 1. No b. The Court upheld Congress law 3. child or parent b. Majority (Rehnquist) a. Lane (2004) pp. The remedy is proportional to the wrong and to the right i. Hibbs (2003) pp. The remedy is a targeted remedy that will head-off violations c. Congress argument a. 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. including state government. Dissent a. Says they are requiring something that the Constitution doesn t require to protect against something that the Constitution does require 7. Has C&P been changed or are the rights and wrongs stronger and the remedy more targeted? 4. Is it unconstitutional for government not to allow for family leave? a. Kennedy who wrote the majority opinion in Boerne b. Recent case where the court shifts directions 2. Linkage between sex discrimination and family leave b. 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. The dissent says that this case is only about access to the courts. but the majority opinion has lowered the remedy lever a. 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. The remedy is proportional to the wrong and to the right 1. The majority would say the right here is a stronger right it s not about the mentally disabled 134 .

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

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

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