CONSTITUTIONAL PROVISIONS

Protects people from Protects gov.

Target Protects People from state action
from people
Isolates Gov. Power
gov. action

P& I CLAUSE EPC DP Clause DP Clause BILL OF DORMANT SUPREMACY COMMERCE TAXING &
[Article 4 CLAUSE [Amend [Amend. 5] RIGHTS COMMERCE CLAUSE CLAUSE SPENDING
Provision Section 2] [Amend 14, § 1] CLAUSE [Article 6, para. 2] Article 1, Section [Article I,
14, § 1] 8, Clause 3 Section 8]
 "The citizens of A state may Declares No one shall be Places limits on “This Constitution, and Gives Congress “Congress
each state shall not “deny to that states "deprived of State Power; the Laws of the United the power “to shall have the
functions as an States which shall be regulate
be entitled to all any person may not life, liberty or made in Pursuance power to lay
privileges and within its deny any property implied limit [not thereof; and all Treaties
commerce with and collect
immunities of jurisdiction person "life, without due a Constitutional made, or which shall be foreign nations, Taxes…and to
citizens in the the equal liberty or process of law." limit] created by made, under the and among the pay the debts
the Commerce Authority of the United several states,
several states."  protection of property, States, shall be the
and provide
Clause that limits and with the
Phraseology the laws” without due States’ ability to supreme Law of the Indian tribes”
for the
process of burden or Land; and the Judges in common
law." every State shall be defense and
discriminate bound thereby, any
against interstate general
Thing in the
commerce. Constitution or Laws of welfare of the
any State to the United
Contrary States.”
notwithstanding.”
Protects Equal Protects: Equal To promote free Establishes that the A grant of Congress is
fundamental protection procedural protection for and unrestricted federal constitution, and congressional able to place a
interstate federal law generally, requirement on
rights of for people due process people from take precedence over authority and a
individual from state (in civil and gov. action commerce and state laws, and even restriction on states that
citizens and action crim. Proc.), national unity. state constitutions. It the regulatory compliance
restrains state substantive  [This notion is prohibits states authority of the with specified
controversial, from interfering with conditions must
efforts to DP, the federal
States
constitutionality of take place
discriminate prohibition the concept is still government's exercise before the state
against out-of- against debated]. of its constitutional
will be
state citizens.  vague laws, powers, and from
Purpose assuming any functions considered to
& as the meet the
that are exclusively
vehicle for entrusted to the federal qualification
the inc. or government. requirement for
Bill of federal funds
Rights

Same for DP
CLAUSE in
5th amend. 

Applies to Federal courts Applies to state Must be

fundamental but also state action nexus
rights only for regarding between
incorporated interstate purpose of
rights commerce funding and
regulatory
Application
goal, but
otherwise,
judicial
scrutiny is
minimal

FOUNDATIONS AND TRADITIONS

Declaration of Independence
 All men are created equal
 All men have unalienable rights including life, liberty, and the pursuit of happiness
 Government by consent: government derives its authority from the consent of the governed

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INTERPRETATION
A. Elements of interpretation available to draw upon:
 Text
 Original understanding; framer’s intent
 Original values
 Traditions
 Prudentialism [consequences of court’s decisions]
 Precedent
 Inferences drawn from the structures of the Constitution
 Ethical arguments
 Public policy
B. Methods of interpretation:
 Originalism
 Non-Originalism/ purposivism (Marshall)

THE CONSTITUTION/ INTERPRETATION: HOW

The Constitution is not a democratic document since it negates in certain circumstances the power of the majority.”
The Constitution is intentionally anti-majority.
A) What does it mean to be loyal to it?
a. Federalist (Hamilton): supported the constitution and desired strong central government.
b. Antifederalist (Jefferson/Madison): against ratification and favored state power.
B) Constitution’s functions
a. Article 1 Congress:
i. § 2, cl. 5: House chooses its speaker and officers, and has the sole role of impeachment
ii. § 3, cl. 6: Senate tries all impeachments (2/3 members present)
iii. § 8: explicit congressional powers (necessary and proper clause, commerce clause)
b. Article 2 Legislative:
i. The executive power shall be vested in the President of the United States of America
c. Article 3 The Judiciary:
i. § 2: Exclusive powers: The judicial power shall extend to all cases, in Law and Equity.
C) Three factors that make interpretation challenging
a. Problems that the constitution does not expressly consider
b. Constitutions broad language
c. Are there governmental justifications that are sufficient to permit the government to interfere with the
fundamental right to discriminate
D) Originalism v. Nonoriginalism
a. Originalism: judges should confine themselves to norms that are stated or clearly implicit in the constitution
when deciding congressional questions.
i. Views the constitution as a political compromise that did not pretend to create a perfect society
ii. If the constitution is silent, then it is for the legislative to decide
iii. Claims originalism checked unelected judges
iv. Dred Scott v. Sandford (1857) (BAD)
v. Plessy v. Ferguson (1896) (BAD)
vi. DC v. Heller (2008)– could be considered good originalism
vii. CONS: extremely difficult to put yourself in the shoes of the framers
b. Nonoriginalism (purposivism or living constitution): contrary view that court should go beyond the four
corners of the constitution when enforcing norms
i. It is permissible for the courts to protect rights that are not explicitly stated in the constitution.
ii. Argues that historical materials are too incomplete to provide authoritative solutions
1. The framers did likely not intend that their intent would govern later version of the
Constitution
iii. Emphasizes that a democracy that does not change is destined to become a tool of the majority.
iv. Marbury v. Madison (1803)
v. Obergefell v. Hodges (2015)
vi. Brown v. Board (1954)
vii. Lawrence v. Texas (2003)
viii. Justice Brennan: amended constitution
1. Constitution is a community document

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 2. Acknowledges the ambiguity in the constitution as a way accommodate modern
circumstances
3. Living document
4. You can learn from history, but you are not bound to it
5. Thai: “he puts on a production of hamlet”
a. “Brennan: you can look at the unamended constitution to see the intent of
limiting the government.
b. Keep the government at bay
6. BRENNAN RELIES ON AMENDMENTS
a. He does not consider historical understanding of constitution
b. He talks about how amendments influence his decisions
7. CRITICISM: too non-specific, leaving room for too much of their own beliefs
ix.CONS:
1. Risk of judges substituting their own predilections and biases
c. Ranges of alternatives between originalism and Nonoriginalism
i. Strict originalist: court must follow literal text and specific intent of the drafters
ii. Moderate originalist: more concerned with the drafters’ general purpose than with the intentions in
very precise scene
iii. Justice Scalia: “original meaning” (Originalism 2.0) of constitutional provisions
1. Found in history and understanding of time
2. Believes the constitution’s meaning is fixed and unchanging with amendment
3. Wants to interpret document narrowly
4. Trusts the democratic process, leaves controversial issues that aren’t addressed in the
constitution up to the legislatures
5. THAI: originalism is better suited for a historian than a lawyer.
iv. Thai-ism: begin with the text, and then evaluate intent considering changes to society
1. Specific words are meant to be taken literally and general words are open for
interpretation
2. Supreme court justices are not historians, historical records are incomplete and hard to
uncover.
INTERPRETION: WHO
A) Hamilton  Federalist 78
a. How to appoint judges, how long the judges are on the bench, and judicial powers between different courts
b. Judiciary gets final review
c. Judiciary has no influence over money or war
d. Independence of the court is essential in a limited constitution
e. No legislative act contrary to the constitution can be valid
i. Judges ought to be governed by the constitution over statue
f. 78 is probably good evidence for judicial review since Hamilton and Madison were architects of the
Constitution
HISTORY: MARSHALL COURT (1801-1835)
- Characterized by an expansive interpretation of the constitution granting the judiciary more power, battering of state
powers, deference to Congress for state laws, and a broadening of the commerce power.
o Marbury v. Madison (1803) Judicial review
o McCulloch v. Maryland (1819) Necessary and proper clause
o Gibbons v. Ogden (1824) commerce clause
o Barron v. Mayor & City of Baltimore (1833)
 The bill of rights was a reconstruction of federal actions, not state and local conduct. This case has
never been overruled, that is why the Supreme court must use the due process to apply rhe bill of
rights.
A) Judicial Review
a. Marbury v. Madison: foundation for Judicial review in America (Marbury declares that the
Supreme Court has the power and duty of judicial review—declare (federal and executive actions and
statutes) laws void.)
i. We begin in 1801 when there was great tension between the Federalists and the Republicans.
ii. Marbury tried to use the Judiciary Act of 1789 (tried to expand the original jurisdiction of the court
and to authorize it to issue writs on mandamus (ordering a government officer to perform a duty))
to compel Madison to deliver the commission.
iii. Holding: Marbury did not get the writ from the court
iv. Court posed three questions to frame the analysis

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 1. Did Marbury have the right to the commission? Yes
2. If the right had been violated, was there a remedy? Yes
3. Was a writ of mandamus from the Court appropriate? Was it within the courts power?
NO. The writ may have been the right remedy, but it was not within the courts power to
issue it.
v. While Marbury’s rights were violated and there was a remedy, the law conflicted with the
Constitution. Thus, Marbury got no relief.
vi. Takeaway: Marbury establishes that the judicial branch and the Supreme Court have the
sole responsibility to weigh the constitutionality of laws. A law that is repugnant to the
Constitution is void. It is the Court’s duty and power to make such declarations.
vii. Marbury sets the foundation for understanding the basic role of the Court going forward.
viii. This set the stage that if a statute conflicts with the Constitution, the statute is void.
ix. How does the Court decide whether the statute or the Constitution reigns supreme? Marshall
claims that any rule that is repugnant of the Constitution diminishes “the greatest improvement on
political institutions–a written Constitution.”
x. Who gets to decide whether a statute is repugnant of the Constitution? The Judicial branch–
found in Article III.
xi. “It is empathetically the province and duty of the judicial department to say what the law is.” -John
Marshall
xii. The question as to whether the Court had authority to review state laws remained.
b. In Brown v. Board of Education, the state disobeyed the Court’s order on the grounds that states are not
bound by federal judicial desegregation decrees and each Justice signed the opinion holding: Article VI
make the Constitution “the supreme law of the land.”
B) Thomas Jefferson  letter to Spencer Roane (1819)
a. Against judicial review
b. There is no single authority, and all branches should have equal power
i. The constitution does not expressly say who is to interpret the constitution
C) Andrew Jackson  veto message
a. Jackson did not think the constitutionality of a central bank should be decided by the supreme court
i. Precedent is a dangerous thing
b. The opinion of judges does not have more weight over congress than the opinion of congress over the judges
i. Everyone takes an oath to protect the constitution
ii. The president is independent on both the opinion of the judge and the opinion of congress over the
interpretation of the constitution
D) Political Question doctrine: Baker v. Carr (1962)
i. This is in the gerrymandering section 2.8.3
b. Sets out 6 factors in deciding whether a case was a political question or not. Also, another example of the
courts expanding their reach generally in a way that had not been done before.
c. Why courts avoid political question
i. Embarrassment of other branches
ii. Confrontations with other branches
iii. Going where they do not have expertise
d. Due to malapportionment, voters sued that their equal protection rights were violated.
e. Key Question: Could courts hear cases alleging malapportionment?
f. What is the legal right here?
g. Factors to consider when weighing out whether something is a political question
i. A textually demonstrable constitutional commitment of the issue to a coordinate branch;
ii. Lack of standards to decide case
iii. Impossibility to decide case without making an initial non-judicial policy determination
iv. Impossibility without showing disrespect for a coordinate branch
v. Unusual need to adhere to a political question already made
vi. Potential for embarrassment due to conflicting pronouncements from various branches
h. Takeaway: back to Marbury in the idea that the courts have the right to entertain certain issues and do
not have the right to entertain certain issues, including political questions.
HISTORY: THE TANEY COURT (1836-1864)
A) Brought power back to the states with the recognition of “compact federalism” (states have power over the federal
government), allowing the police power of the state to come to fruition and recognized the Jeffersonian “political
question doctrine”
B) While Taney embraced judicial review, he limited it in certain ways
a. He stated that the supreme court could not answer political questions
i. He did not clarify on what constituted at a political question

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 C) Attempted to limit the complete authority and broadness of the commerce power established under the commerce
power
D) He established that the overall power was with the states in compact federalism
E) Race discrimination and slavery before the 13th and 14th amendment
a. Prior to the civil war the Supreme Court never significantly limited slavery or raised questions about its
constitutionality.
b. Every discussion of the relationship between the federal and state governments was directly or indirectly
about the slavery question. It was the central dispute of the time and affected almost all other issues .
c. Dred Scott v. Sandford (1819)
i. Holding: since slaves are not considered citizens in the sense that the word is used on the
Constitution then blacks who are slaves or descendants of slaves, cannot bring suit in federal court.
ii. Intended to resolve the Missouri Compromise issue.
iii. Even though the court ruled that it lacked the jurisdiction to hear the case, it still went and declared
the Missouri Compromise unconstitutional and said that congress could not grant citizenship to
slabs or their defendants.
iv. Justice Taney took the opposite approach to interpreting the constitution than Justice Marshall did
when he declared that we cannot naturalize a race that the constitution was never intended for.
1. Taney took an originalist approach to interpretation.
v. This case shows that methods of interpretation can be used
vi. This decision helped to precipitate the civil war.
vii. This case is wholly dicta because the court did not have jurisdiction.
viii. The Taney court did although uphold that the Supreme Court has the final say over all courts
ix. This decision helped to precipitate the civil war.
HISTORY: RECONSTRUCTION (1865-1877)
13th amendment: banned slavery/ involuntary servitude
14th amendment: declared that all citizens born/naturalized in the United States were citizens of the US and the state they reside
in
o No state may deprive any person of life, liberty, or property without due process of law or deny any person of
equal protection of the law.
o § 5, congress shall have this power to enforce through legislation
15th amendment: voting right, no matter race, color, or previous condition of servitude.
 This is the period right after the civil war, meant to rebuild the nation under unity found in the new amendment.
 The reconstruction amendments
 The civil rights cases (1883): Supreme court greatly limited Congress’s ability to use its power under the reconstruction
amendments to regulate private conduct
o The civil rights act of 1875 that prohibited private racial discrimination by hotels, restaurants, transportation,
and other public transportation was ruled unconstitutional in an 8-1 decision because it was unconstitutional
for congress to regulate private conduct
o The court would not even use the 13th amendment, even though it concerns private conduct because it “only
applied to being or owning slaves”
o The Court claimed that the 14th amendment does not apply to private conduct, only governmental conduct
 13th amendment:
o The court held for nearly 80 years, the court continued to adhere to the holding of the civil rights cases that
congress could not regulate private conduct.
o However, in the last 5 decades, the court has overruled these earlier decisions and has accorded congress
broad power under the 13th amendment to prohibit private racial discrimination
 Jones v. Alfred H. Mayer Co.
 14th amendment: § of the 14th cannot be used to regulate private conduct
o United States v. Morrison: reaffirmed the civil rights cases and disavowed the contrary opinions
 Courts holding can be defended as being consistent with the long-standing principle that the
amendment applies only to government conduct.
 Application of the bills of rights to the states
o Barron v, Mayor & City Council of Baltimore: the supreme court held that the bill of rights was a restriction
of federal actions, not state and local conduct.
 The court said that if the framers intended the bill of rights to apply to the states, then they should
have included it in the constitution
 The privileges or Immunities Clause and the Slaughter-house cases
o Some may argue that the 14th amendment was intended to apply the bill of rights to the states
o Debate over the framers’ intent: when the 14th amendment was passed some members probably intended it to
include the bill of rights, some probably didn’t

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 o Slaughter-house cases (1873)
 The Court then said that the purpose of the 13th and 14th amendment were solely to protect former
slaves
 The court proceeded to interpret each provision very narrowly and solely to achieve the limited
goal.
 Destroyed the “privileges and immunities” clause using purposivism. Eliminated the clauses ability
to protect other minorities.
 Held that the 14th amendment was not meant to apply the bill of rights to the states. Claiming there
is nothing the constitution protecting any rights from state interference.
o Revival of the privileges or immunities clause: Saenz v. Roe (1999)
 First case to use the privileges and immunities clause to invalidate state law, the right of citizens to
travel freely is protected under the privileges and immunities clause.
 The court has denied every tother case since the slaughter-house cases from using the privileges
and immunities clause in the interpretation of rights (McDonald v. City of Chicago)

HISTORY: JIM CROW LAWS (1865-1868)

 Separate but equal
 Every southern state enacted these separation of races statues in nearly every aspect of life
 As reconstruction was ending, many states especially in the south enacted laws that discriminated against blacks.
Private violence against blacks increased dramatically. During this period following the Civil Rights Cases (1883), the
Supreme Court largely held that the 14th amendment only applies to government action, not private conduct.
 Plessy v. Ferguson (1896)
o Use of originalism constitutional interpretation
o Court held the 13th amendment was only to apply to slavery.
o Court held that the 14th amendment does not withhold from states the power or require the separation of
races.
o Harlan Dissent:
 Harlan was the only justice to dissent and claimed that the 14th amendment was meant to destroy
the caste system
 He claims that this judgement will be seen in time to be just as horrible as the Dred Scott v. Sanford
case, which it has lol.
o It was not until Brown v. Board of Education, that separate but equal doctrine was overruled in 1952-1953.

HISTORY: LOCHNER ERA (1897-1937)

Due Process
 8.2.1 Economic due process during the nineteenth century
o Using natural law to protect property is protected under the constitution. The court tried to create a laissez-
faire regulatory scheme so that people would not b burdened by unduly government regulations.
o Two questions concerning natural law
(1) Whether or not we can assume there is discernible natural law that
(2) How do we discern the specific values that are incorporated by such a approach?

- Pre-Lochner cases
 Calder v. Bull (1798), Fletcher v. Peck (1810), Terrett v. Taylor (1815)
 Reflected the belief that natural law existed concerning property and the government cannot
infringe on natural rights and nor constitutional rights.
o Initial rejection of economic substantive due process
 The supreme court rejected the first attempts to use the due process clause to protect economic right
from government interference.
 Murray Lessee v. Hoboken, court denied a due process challenge to an attempt by the government
to collect delinquent taxes
 Slaughterhouse cases: rejected a substantive due process claim
o The Court’s suggestion of economic substantive due process
 In the 1870s, government regulation significantly increased as industrialization changed the nature
of the economy.
 Based on a Darwinism philosophy that society would thrive with the least amount of government.
 During the next two decades the supreme court, in a series of cases, rejected due process challenges
to government economic regulations.

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  Munn v, Illinois (1877), “the central question is whether the ‘private is affected with a public
interest.’’’
 Court declared it was for the Court to evaluate the reasonableness of the regulation.
 Railroad Commissions Cases (1886)
 Mulger v. Kansas (1887)
 All three cases were important for articulating that due process was a limit on the government’s
regulatory power, even though in each of these cases the Court ruled in favor of the government
 “But the court strongly indicated that state laws would be invalidated as violating the due process
unless they truly were an exercise of the state’s police power
 Allgeyer v. Louisiana: Court applied the principles and declared unconstitutional a state law that
prohibited payment on marine insurance policies. The court found that the Louisiana law interfered
with freedom of contract and that it thus violated the due process clause of the 14th amendment.
 Lochner v. New York: Fundamental right to contract
o Supreme court held New York rule that set a maximum number of hours that Bakers could work
o Holding: the supreme court held that laws regulating hours a baker could work due to health reason
(exercising their police powers) was too remote.
- Three major principles of the Lochner Era (these principles were followed until 1937)
(1) Freedom of contract is a basic liberty protected under the due process clause of the 14th amendment
(2) The government may only interfere with freedom of contract only to serve a valid police purpose (protect public
safety, public health, or public morals)
(3) It is the judiciaries job to scrutinize legislation interfering with freedom of contract to ensure that it served a
valid police purpose
o The three themes presented are classic position of substantive due process: the due process clause was not
used to ensure that the government followed proper procedure, but to ensure that the laws served an adequate
purpose
o Established reasonable review test to satisfy the due process
o Justice Holmes dissent: the constitution is not intended to embody a singular economic theory
o Justice Harlan dissent: that legislation was a reasonable way to protect the health of workers
 Cases following Lochner
o Protecting unionization
 Adair v. US (1903)/ Coppage v. Kansas (1915)
 Courts declared unconstitutional federal and state laws that prohibited employer from
requiring that employees not join a union
o Maximum hour laws
 Muller v. Oregon
 Upholds a maximum hour law for women.
o Consumer protection
 Weaver v. Palmer Bros (1926) / Jay Burns Backing Co. v. Bryan (1924)
 Pricing regulations invalidated
o Regulation on entering business
 New State Ice Co. v. Liebmann (1932)
 Laws that made it more difficult for businesses to enter a particular field are
unconstitutional
o Minimum wage laws
 Adkins v. Children’s Hospital (1923)
 Court declared unconstitutional many state minimum wage laws b/c they interfered with
freedom of contract
 Dual federalism: late 19th century conception that the due process clause is limited by the 10th amendment (all
powers not delegated to the United States by the constitution are left to the states)
o narrow interpretation of the court during the Lochner era
o states couldn’t regulate under Lochner because it violated freedom of contract

HISTORY: AFTER 1937

 Criticisms and ending of the Lochner Era
o The great depression created a mass appeal for economic regulation and FDR gave political pressure in the
form of “court packing” propositions. No economic regulation has been unconstitutional and under freedom
of contract since 1937.
o The doctrines under Lochner were undesirable, wrong to make freedom of contract a fundamental right
o Favored employers over employees and consumers

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 o The court was inconsistent
o Increased judicial activism
 Unelected judges were substituting their values for that of the legislature elected by the democratic
process.
o Nebbia v. New York (1934)
 “neither property rights nor contract rights are absolute; for government cannot exist if the citizen
may at will use his property to the detriment of his fellows, or exercise his freedom of contract to
work them harm.”
 Thus, the court is striking away one key term of Lochner, that freedom to contract is absolute.
Holding that freedom to contract is not absolute and the government may regulate that area.
 The court went further in stating that according to the due process clause, states are free to adopt
reasonably adopt whatever economic policy deemed to promote public welfare.
o West Coast Hotel v. Parrish (1937)
 Justice Owen Roberts switched sides and cast the fifth vote to uphold a state law that required a
minimum wage for women and overruled Adkins v. Children’s Hospital and Morehead v. Tipaldo.
 Court made it clear they were abandoning the ways of Lochner.
 Laws regulating business and employment practices will be upheld when challenged under the due
process clause so long as they are rationally related to serve a legitimate government purpose
o United States v. Carolene Products Co. (1938)
 Economic regulations are to be upheld if they are supported by a conceivable rational basis , even if
that was not the intent of the legislature. Courts would generally presume that laws are
constitutional.
 This would not extend to laws interfering with fundamental rights or discriminating against discrete
and insular minorities.
 Continued the reformation of Lochner.
o United States v. Darby (1941)
 Both state and federal government would be accorded very broad powers to regulate the economy.
o Williamson v. Lee Optical (1955)
 Courts may no longer use the due process clause to strike down state laws that regulate
business/industrial conditions just because they are unharmonious with a particular school of
thought. The judiciary should defer to the legislation to balance advantages and disadvantages of
regulation.
o Takeaways
 The court will no longer protect the freedom to contract as a governmental right free from
regulation
 Government can regulate to serve a legitimate purpose
 The judiciary should defer to the legislature choices—as long as the choices are deemed
reasonable.
 The federal constitution’s 14th amendment governs the actions of state and local governments

FEDERALISM
A) Necessary and proper clause (CONGRESSIONAL POWER)
- Marshall’s interpretation to the clause still continues to this day. Congress may choose any means not prohibited by the
constitution to carry out its express authority.
a. Federalism: the vertical relationship of the flow of power between the national and state governments
b. McCulloch v. Maryland: construed federal congressional powers broadly and limited the
authority of State governments to impede the federal government. (Necessary and proper clause Art. I
sec 8)
i. The federal government’s laws are supreme over the states. Congress may enact any law that is
necessary and proper in furtherance of an enumerated power.
c. Necessary and proper clause art. I sec 8: congress has the power to make laws which shall be necessary
and proper for carrying into the execution of foregoing powers, and all the other powers vested in the
constitution
i. Issue: whether Maryland should collect a tax from the Bank of the United States
ii. Issue lies at the dispute pitted by federalist who favored a creating a central bank over republicans
who opposed it.
iii. Questions
1. Does congress have the authority to create the bank? Yes, congress has broad
powers under article I. Congress is not limited to the acts specified in the Constitution;

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 Congress may choose any means, that are not prohibited by the Constitution, to carry out
its lawful authority.
2. Is the Maryland tax on the bank constitutional? NO, the Constitution controls the laws of
the states, not vice versa.
iv. Three key points
1. The power to create implies a power to preserve
2. A power to destroy, if wielded by a different hand, is hostile to, and incompatible
with these powers to create and preserve.
3. When a repugnancy exists, the supreme must control and must not yield to which is
not supreme.
v. National government is supreme over the states, and the states lack the authority to negate
federal actions
vi. This is another power grab by Justice Marshall, articulating a. broad version of federal powers,
increasing the power of the federal government at the expense of the states.
vii. This looking at the constitution more broadly than its specific enumerations.
viii. “In considering this question, then, we must never forget that this is a constitution we are
expounding.” -Justice Marshall
1. The constitution is distinct from and must be read and interpreted differently than a
statute.
ix. Any limits are found in The Necessary and Proper Clause.
x. The bank is constitutional because it was enacted in pursuant to congressional authority
found in the Necessary and Proper Clause.
xi. Marshall reaffirms Marbury: the judiciary can and will review the constitutionality of federal law.
xii. John Marshall recognized this case as an ideal opportunity to articulate a broad vision of federal
power.
xiii. “Congress is not limited only to those acts specified in the Constitution. Congress may choose
any means, not prohibited by the constitution to carry out its lawful authority.”
xiv. Marshall rejects the restrictive view that “necessary” means congress can only adopt laws that are
truly necessary and emphasizes that necessary means “useful or desirable”
xv. Rejected “compact federalism” (that the states have power over the federal government)

- Nat. Fed. of Ind. Bus. v. Sebelius (2012)

o the necessary and proper clause must be used in conjunction with another valid exercise of congressional
power under the constitution. (did not pass under commerce power, so can’t use the NPC, but did pass under
taxing power and can then use NPC).

HISTORY: WWII ERA

Asian American exclusions
- Chinese exclusion act (1882): extended by Geary act (1893)
o First excluded Chinese people from emigrating to the US, then extended to require papers to show legality in
the US: papers must be vouched by two white adults
o United States v. Wong Kim Ark (1898): a rare success, established modern citizenship if you were born here
regardless of where your parents were born.
- 9.3.3.1 equal protection
- There is only one situation in which the court expressly upheld racial classifications burdening minorities: reaffirming
the constitutionality of the evacuation of Japanese Americans during World War one.
o The governments purported justification was national security.
- Hirabayashi v. United States (1943)
o Supreme court upheld a the constitutionality of a curfew only applicable to Japanese Americans
Korematsu v. United States (1944)
 Facts
o On May 9, 1942 under Civilian Restrictive Order No. 1, based on Executive Order 9066, Japanese-Americans were
ordered to move to relocation camps in light of the United States’ involvement in World War II. Civilian Exclusion
Order No. 34 specifically excluded Japanese Americans from remaining in San Leandro, California, a region
designated as a “Military Area.” Korematsu (defendant) was an American citizen of Japanese descent who was
convicted by the United States Government (plaintiff), in federal district court for violating Civilian Exclusion Order
No. 34. No questions were raised as to Korematsu’s loyalty to the United States. The Ninth Circuit Court of Appeals
affirmed the conviction, and the United States Supreme Court granted certiorari.
 Issue

9
 o Whether Civilian Exclusion Order No. 34, an Executive Order requiring Japanese Americans to relocate to
internment camps during World War II, was constitutional.
 Exclusion of Japanese Americans was deemed necessary for a few disloyal people.
o Military personal claimed it was impossible to figure out who the people were, so temporary exclusion of all
Japanese Americans was necessary.
- The Court cited: Hirabayashi v. United States (1943)
- The law was both overinclusive (children and elderly) and underinclusive (did not target German or Italian americans/ also axis
powers)
 BLACK MAJORITY
o Court upheld constitutionality of evacuation of Japanese Americans into concentration camps under exec.
Order 9066. The court purposely took a narrow approach. Although military necessity and national security
may justify placing legal restrictions on a single racial group, only asking whether it’s completely impossible
to implausible or crazy that there is no basis for believing that these measures are demaned at the time.
o Governments justification was national security (looming threat of espionage or sabotage), although no
evidence was required to evacuate a person.
o There was no evidence of espionage but the Solicitor General vouched for the exaggerated reports to
persuade the court to accept the order.
 Date from intelligence agencies was also incorrect about how many people were a threat.
o FRANKFURTER CONCURRENCE
 Civilian Exclusion Order No. 34 clearly makes it a crime for Korematsu to remain in the Military Area
during World War II. Both Congress and the executive act constitutionally in passing the Order based on
the powers given to the government under the Constitution to “wage war successfully.” The
constitutionality of the particular Civilian Exclusion Order should be judged within the context of the war
in which it is enacted. The power to enact exclusionary measures such are justified if the circumstances of
war necessitate it, as they are in this case.
 Korematsu argues that they do not have the power under the 5th amendment)
o MURPHY DISSENT
 Congress and the executive exercised unconstitutional authority, and the Civilian Exclusion Order itself is
motivated by racism. The military is justified in making these types of decisions, but power to do so is
limited by the judicial process which determines the reasonableness of its actions when they conflict with
other important liberty interests. The majority should have only looked to whether the exclusion of
Japanese Americans from their homes “reasonably related” to the United States’ interest in preventing
espionage and sabotage. Applying this standard, the exclusion of all Japanese people as a whole from their
homes on the West Coast is not reasonably related to preventing these dangers. To conclude that the
exclusionary provision is related to espionage and sabotage is to justify the Civilian Exclusion Order on
racist grounds and assert that Japanese Americans as a class are more likely to commit these crimes than
other racial groups. Even if some Japanese Americans are more likely to commit such acts, this is not a
sufficient reason to adopt a racist exclusionary measure which affects all Japanese Americans as a group.
o ROBERTS DISSENT
 The undisputed facts exhibit a clear violation of Korematsu’s constitutional rights. The total exclusion of
Japanese Americans from the West Coast for the duration of the war is a far more significant violation of
their rights than the curfew provision at issue in Hirabayashi. In the present case, Korematsu was
convicted because he refused to submit to imprisonment in an internment camp by the government despite
a lack of inquiry into his loyalty to the United States. Additional Executive Orders were issued that
severely restricted the travel of Japanese Americans, and thus Korematsu found himself in a predicament
where he was faced with violating the travel restrictions or being imprisoned because he unlawfully
remained in his home in violation of the Civilian Exclusion Order. The existence of two laws with which
equal compliance is impossible effectively deprives Korematsu of his due process rights under the
Constitution because it makes him a criminal regardless of what action he chooses. The Civilian Exclusion
Order should have been found unconstitutional.
o JACKSON DISSENT
 The authority of the military to enact provisions like the Civilian Exclusion Order is not unlimited.
Whenever the military decides to act in this way to protect its security interests in a war area, the need for
protection based on the situation on the ground is likely very grave. However, even in light of these
pressing circumstances, the military’s actions are constrained by the Constitution. The judiciary is ill-
equipped to evaluate the reasonableness of military decisions, however, it should not acquiesce to the
decisions of military superiors when these decisions are clearly unconstitutional. The Civilian Exclusion
Order in the present case is clearly unconstitutional.
- Ex parte endo: continued internment of Japanese americans was unwarranted, but evacuations and internment was not
unconstitutional.
o This was held on the same day as the holding of Korematsu

10
THE COMMERCE POWER (CONGRESSIONAL POWER)
A) Art. I sec. 8: gives congress the broad power to regulate commerce across the several states
B) Commerce Clause: provides the broad authority for a broad range of federal regulations
- Main focus of each court:
C) Taney court: distinguishing between what’s national and what’s local (both taney and lochner found limits under the
10th amendment)
D) Rehnquist Court: limited distinction between regulating economic and non-economic activity (see Morrison and
Lopez)
E) Roberts Court: activity that can be regulated versus inactivity

Pre-1937: 3.4.2
a. Gibbons v. Ogden (1824): commerce describes the commercial intercourse between nations, and
parts of nations, in all its branches and among several states included local activities which affect the states
generally or affect other states
i. Part of the Marshall Court
ii. Dormant commerce clause: state and local laws are unconstitutional if they place an undue
burden on interstae commerce
iii. Established the three doctrines of commerce power under article I sec. 8.
1. What is commerce?
a. It is intercourse
2. What is among the states? How far does commerce power extend?
a. Courts made it clear that congress could regulate intrastate commerce if it had
an impact on interstate commerce
3. Does state sovereignty limit congressional power?
a. No limits on congress’s power to regulate commerce other than what is in the
constitution.
b. Congress has complete authority to regulate commerce among the states
c. 10th amendment, state sovereignty does not trump federal law
d. The 10th amendment “the powers bit delegated to the United States by the
constitution, of certain rights, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”
iv. If a state and Congress both pass conflicting laws regulating interstate commerce, the federal law governs
pursuant to Congress’s constitutional grant of power to regulate interstate commerce.
1. This is established in Martin v. Hunter Lessee, which established the Supremacy clause
v. Congress is granted the power to regulate interstate commerce in Article I, Section 8 of the Constitution.
The word “commerce” includes traffic, intercourse, and navigation, as well as commodities associated
with interstate commerce. Congress may regulate all commercial activities occurring between states but
not activities occurring solely within one state’s borders. If a state and Congress both pass conflicting laws
regulating interstate commerce, the federal law governs pursuant to Congress’s constitutional grant of
power to regulate interstate commerce. 
vi. Rule: commerce includes all stages of business, commercial dealings
b. After Gibbons v. Ogden, the Court rarely dealt with challenges to federal regulation under the commerce clause.
c. Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890 ushered in a new era of federal economic
and regulatory legislation. They also began a new era of activist judicial review.
d. Established congress plenary power

COMMERCE CLAUSE 1887-1937

- Before 1937 the country was controlled by laissez-faire economics of the Lochner era.
o Many state laws were invalidated as interfering with freedom of contract, which the court found to be a
fundamental right under the due process clause of the 14th amendment
o During this time dual federalism was common: the view that federal and state governments were separate and
sovereign nations that had separate zones of activity.
A) 3.4.3: Courts narrowly defined commerce to leave a zone for the states, defined among the states as allowing congress
to regulate only when there was a substantial effect on interstate commerce, and the Court held that the 10th amendment
reserved a zone of activities that even within the scope of the commerce clause were unconstitutional if they entered
that zone.
a. Hammer v. Dagenhart (1918): most significant decision to use the 10th amendment to limit the scope of the
commerce clause.
i. Production of articles intended for interstate commerce is a matter of local regulation

11
 ii. Congress can regulate the commerce of goods among states but not how they are produced.
b. All three doctrines were an advancement of federalism.
i. Dual federalism: view that federal and state governments were separate and sovereign, and each
had separate zones of power. It was the judicial role to protect the zones and activities reserved by
the states. This helped reinforce the narrow meaning of commerce during the period.
ii. What is commerce?
1. Commerce was to be narrowly defined as one stage of business, separate and distinct
from earlier phases such as mining, manufacturing, and production.
2. United States v. E.C. Knight
a. Narrowly defined commerce to strike manufacturing from the definition.
Reserved regulation of manufacturing to the states. Commerce succeeds to
manufacture; it is not a part of it.
3. Carter v. Carter Coal Co. (1936)
a. Production removed from the definition of commerce; commerce is
distinguished from other stages of business
4. The courts emphasized the narrow definition was essential to protecting the states.
iii. What does “among the states” mean?
1. Court interpreted “among the states” as requiring a direct effect on interstate commerce.
2. The Court declared that enforcing the distinction between direct and indirect effects on
commerce “must be recognized as essential to the maintenance of our constitutional
system.
3. The courts were inconsistent in applying on the test.
iv. Does state sovereignty limit congressional power?
1. The Courts ruled that even if it was commerce and was among the states, Congress could
still not regulate if it was intruding into the zone of activities reserved to the states.
2. Hammer v. Dagenhart: the court declared it unconstitutional because it controlled
production
a. The court stated that if the state wanted to allow child labor that it was in their
police power
3. The court never consistently defined the zone of activities reserved to the states.
c. The three doctrines were not consistently applied throughout the period. This was likely due to the courts
particular brand of conservatism: economically conservative (striking down economic regulations); morally
conservative (upholding laws prohibiting lotteries and sexual behaviors).
d. The three doctrines advanced dual federalism during this period.
COMMERCE CLAUSE: 1937-1995: Shift during the new deal and after
B) During this period the courts overruled earlier decisions and expansively defined the scope over commerce power
C) During the period not one federal law was deemed unconstitutional as exceeding the scope of congress’ commerce
power.
D) Congress could now regulate all stages of business.
Test after 1937:
E) Rule: congress could regulate any activity (all phases of business) if there was a substantial effect on interstate
commerce.
F) The 10th amendment was no longer a limit on congressional power; the commerce clause was interpreted so
broadly that nearly any law would meet this requirement
G) Congress’ commerce power is plenary. Rational basis introduced to commerce clause regulation:
a. During 1937-1995 not one federal law was declared unconstitutional as exceeding the scope of Congress’s
commerce power.
b. Broader meaning of “commerce”
i. NLRB v. Jones & Laughlin Steel Corp. (1937), United States v. Darby (1941), and Wickard v.
Filburn (1942) defined the scope of congress commerce power for the period.
H) NLRB v. Jones & Laughlin Steel Corp. (1937)
a. Return to Marshall era of commerce definition
b. Fundamental principle of the commerce power is to regulate for production of interstate commerce, and
congress have the power to achieve this end.
I) United States v Darby (1941)
a. Rejected the view that production was left entirely up to the states
b. Overruled Hammer v. Dagenhart and rejected that the 10th amendment limits the commerce power
J) Wickard v. Filburn (1942)
a. Distinction between production and commerce, and between direct and indirect effects on interstate
commerce, were no longer followed.
K) Hodel v. Indiana (1981)

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 a. Commerce clause may be invalidated only if there is no rational basis for the congressional finding that eh
activity affects interstate commerce, or that there is no reasonable connection between the regulated means
and the asserted ends.
b. Under this test it is difficult to imagine anything congress could not regulate under the commerce clause if it
was not violating the constitution.
L) Heart of Atlanta Motel Inc. v. United States (1964)
a. Discrimination by hotels and motels impedes interstate commerce, “if it is interstate commerce that feels the
pinch, it does not matter how local the operation which applies the squeeze.”
M) Katzenbach v. McClung (1964)
a. Congress concluded that discrimination by restaurants influences interstate commerce.
b. Ollies BBQ
c. Short and happy guide: Section 5 civil rights enforcement power
i. Key question: whether congress is limited to providing remedies for violations of constitutional
rights as defined by the U.S. supreme court, or does congress have some independent interpretation
of powers?
ii. Prevailing view: Congress’s power is limited to remedies that are “proportionate and congruent” to
remedying or preventing state violations of Court-declared rights.
iii. Question: Does Congress have the power to do this—was it a proper exercise of section 5 of the
14th amendment, “to enforce, by appropriate legislation, the provision of this article.
iv. The court held that Congress may independently interpret the constitution and even,
overturn the U.S. supreme court—it was a remedial law within congressional power to protect
the guarantees of the 14th amendment. Second, congress could find the literacy test itself
denied in the equal protection.
v. Takeaway: congress can use its section 5 of the 14th amend. Enforcement power to independently
interpret the constitution. It does not give congress the power to determine the substance of the
constitution, but it does allow congress to “ratchet up” the protections provided therein due to its
interpretation
vi. The court made it clear that section 5 is limited to remedies “proportionate and congruent” to
remedying or preventing state violations of court-declared rights
N) Ollies BBQ: privates businesses affect commerce, and they cannot discriminate. Katzenbach v. McClung (1964)
MODERN COMMERCE CLAUSE: 1995-
Present
TEST:
 United States v Lopez (1995)
o First case where the court declared a
state law unconstitutional since 1936.
o They declared a gun free school zone
unconstitutional because it did not have
substantial effect on interstate
commerce.
o Established three types of
activity that congress may
regulate under the
commerce power
 (1) the use of the
channel of interstate
commerce
 Heart motel v. US: protecting channels of interstate commerce
 (2) the instrumentalities of interstate commerce
 Instrumentalities means persons and things
 (3) activities which have substantial effect on interstate commerce
 This is the modern test for interstate commerce
 United State v. Morrison (2000)
o Congress found that gender-motivated violence costs the American economy billions of dollars a year and is
a substantial constraint on freedom of travel by women throughout the country.

13
 o Congress cannot regulate noneconomic violent criminal conduct based solely on the conducts aggregate
effect on commerce.
 Narrows the substantial effect test greatly: a but-for causal chain is insufficient, congressional
regulation must be more direct than through an accumulation of non-economic effects.
o Reaffirmed the three part test in Lopez
 Gonzales v. Reich (2005)
o Congress may use its commerce power to prohibit the cultivation and possession of small amounts of
marijuana for medical purposes
o Emphasized that congress, pursuant of the necessary and proper clause has the authority to control intrastate
production of goods that are of a type that end up in interstate commerce
 New York v. United States (1992) anticommandeering doctrine
o Congress cannot force state legislature to enact state laws according to federal instructions. 10th amendment
bars congress from using their commerce power to require states to pass laws.
 This is not say that congress is powerless, they may set standards that state and local governments
must meet and thereby pre-empt state and local actions .
 Nat’l Fed. Of Indep. Bus. v. Sebelius (2012)
o Congress under the commerce clause may regulate economic activity that taken cumulatively has a
substantial effect on interstate commerce. They saw the individual mandate (for affordable care act) as
regulating inactivity, regulating those not engaged in commerce, thus exceeding the scope of congress’s
power.
o Dissent: everyone receives medical care, so everyone is engaged in activity
o Activity verses nonactivity is just dicta and does not pertain to the holding of the case.
 Intrastate commerce can be considered interstate if rationally related, also intrastate commerce in the aggregate can fall
under congress’s interstate commerce power.

“IT DEPENDS”
A. COMMERCE CLAUSE
Article 1, § 8 of Constitution gives Congress the power to:
 Regulate commerce/trade with foreign nations [“Foreign Commerce Clause”]
 Regulate among the several states [“Interstate Commerce Clause”]
 Regulate with Indian tribes. [“Indian Commerce Clause”]
Useful combined with Necessary and Proper Clause

TEST:
Careful scrutiny or intermediate scrutiny? – burdening interstate commerce and interest balancing
 It is not enough for a state to justify a law with an excessive burden on the flow of commerce by incanting a police
powers objective, such as public health or safety
 The costs and benefits, the gain and pain resulting from a statute are to be balanced
The rational basis test
 States may take any reasonable action to protect the public health, safety, welfare, or morals
 The presumption of constitutionality applies to all state laws, until the challenger proves facts that reveal a
constitutional problem in the absence of discrimination or substantial burdens on commerce, the states may regulate
interstate commerce. If a law neither burdens commerce nor discriminates against the out-of-state competitors with in-
state special interest groups, the courts do not second-guess legislative judgments about the advantage or usefulness of
a statute

ANALYSIS
(1) Is this law Constitutional? – is this a topic that Congress can regulate because it falls under commerce?
 ECONOMIC – Court skeptical of non-economic activity
Morrison – Congress can’t allow female victims of gender-motivated violent crimes to bring federal civil-court suits
because it’s essentially a non-economic activity
- Channels: anything reasonably related to highways, waterways, and air traffic (Congress can regulate even if activity
is completely intrastate)
- Instrumentalities: people, machines, and other things carrying out commerce (even if completely intrastate)
- Articles moving in interstate commerce

14
 - “Substantially affecting” commerce – if regulated activity could be framed as a channel or instrumentality of
interstate commerce, then no inquiry into the activity’s substantial effect is necessary
(2) Does the activity being regulated substantially affect commerce?
 SUBSTANTIAL EFFECT
Lopez – possession of guns near schools was not substantial enough
- Commercial activity: can be regulated as long as the instance is part of a general class of activities that,
collectively, substantially affect interstate commerce [Gonzales v. Raich (2005)]
- Noncommercial activity: can only be regulated if there is a very obvious connection between the activity and
interstate commerce [U.S. v. Lopez (1995), U.S. v. Morrison (2000), the SC deemed that there was too little
connection]
- Heightened scrutiny
- Traditional domain of the states: SC is less likely to uphold law if regulating an activity traditionally attributed to
the police powers of states
(3) If it’s a topic Congress can regulate, is the way that Congress can regulate it within the scope of their power?
[Congress can’t regulate a topic by telling the States that they have to pass a law about the topic]
 Congress may not use its Commerce power to compel someone who is not already active in the commercial market to
enter that market by purchasing a product
N.F.I.B. v. Sebelius – Congress can’t use its Commerce power to force individuals to buy health insurance even though
the collective decisions of many people not to buy insurance substantially affect the interstate market for health care
 Congress can regulate action not inaction
(4) Does the substance of the law violate any individual rights?

COURT: where Congress thinks that what it is doing falls within its commerce power, the Court rarely disagrees, especially
where activity being regulated is itself “commercial”
LIMITATION: TENTH Amendment occasionally limits Congress’ power to regulate the STATES – “powers not delegated
to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the People”

MODERN TENTH AMENDMENT

FEDERALISM over states

Does the state law conflict with the feds?
Exclusive fed. powers and 10 amendment = reserved powers not covered or given to fed. gov. go to states
Supremacy clause (fed. law is supreme so any direct or indirect conflicts with fed, fed. law trumps = PREEMPTION)
Dormant commerce clause

INDIVIDUAL RIGHTS
Does the gov. regulation infringe on an individual right?
5th and 14th amendment due process
14th amendment Equal protection
1st amendment free speech

POWER SOURCE
 Enumerated power identified  INVOKE necessary and proper clause which allows congress to use (1) any means
rationally related to the exercise of the enumerated power and (2) not specifically forbidden by the Constitution
 Clause is broadly construed to give Congress lots of authority to choose which means with which to carry out
enumerated power (see cases to justify if court ruled in favor of congress because their means were necessary and
proper)
LIMITATION
Amendment X – The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people

 Key question: whether it is a judicially enforceable limit on Congress’s powers; can federal laws be declared
unconstitutional as violating this constitutional provision?
 The 10th amendment is a key protection to states’ rights and protections
Period 10th amendment approach
Marshall (states shall have the remainder) NO limit on Federal power (Gibbons)
Lochner (dual federalism) - Trade v. manufacture (Dagenhart)

15
 - Direct v. indirect
1937-Reinquist (limited appearance of 10th No limit on federal powers (Jones, Darby)
during this period) - Broad 13th and 14th enforcement
powers for equal protection

Rehnquist (revival of 10th as a congressional Limits on art. 1 federal powers

limit) 1990s - Noneconomic activity (Lopez,
Morrison)
- Anticommandeering (New York,
Printz)
Roberts (continued congressional limit) Largely reaffirmed Lopez, Morrison, New
York, and Printz
- Spending conditions cannot be unduly
coercive (Sebelius)
- Anticommandeering applies to both
negative and positive commands to
state legislatures (NCAA)
Narrow enforcement power
 Printz v. United States (stevens dissent only)(1997)
o Back ground check on gunds
o Congress may not compel state officials to participate in the administration of federal programs. No historical
evidence that congress ever had the power to compel state executives into federal service. 10th amendment
and the structure of the Constitution are designed to preserve dual sovereignty, though the explicit language
of 10th amendment and article 1 doesn’t necessarily stop Congress from administering nation-wide programs
under the commerce power.
o Congress can’t force state official to achieve federal goals
o Steven’s dissent: The framers goal of empowering the federal government does not mean that the states must
surrender their sovereignty under the 10th amendment, the national government is simply authorized to act
for the benefit of the union as a whole. The New York decision does not control the present case. It dealt with
the issue as to whether state legislature could enlist federal policy, not state executive officials
 Murphy v. NCAA (2018)
o Congress may not issue direct orders to the state legislators.
o Court used the 10th amendment to invalidate a federal law on the ground that it was an impermissibly
coercion of state government. This is like Printz and New York where the court implemented anti-
commandeering doctrine barring congress from dictating what the state legislators do.
o The court concluded that the distinction between compelling a state to enact legislation and prohibiting a state
from enacting new laws is an empty one.
o Congress can use commerce clause powers to adopt a national law prohibiting sports gambling but they
cannot force state to enact laws to prohibit sports gambling.
- Ex Parte Young:
o Private actions may be brought in federal court against state officials, even though states have sovereign immunity.
(11th amendment)

MODERN TAXING AND SPENDING POWERS

 Art. 1 § 8 cl. 1: Congress shall have the power to lay and collect taxes, duties, imposts and excises…
 Madison view: congress was limited to taxing and spending to carry out the powers specifically granted in art. 1 of the
constitution.
 Hamilton view: congress can tax and spend for any purpose that it believed served the general welfare, so long that
congress did not violate any constitutional provisions.
o The court endorsed Hamilton’s view as the right one.
 There are things that congress can
 Nat’l Fed. Of Indep. Bus. v. Sebelius (2012)
o Modern test

16
 o the individual mandate contained in the act is valid use of congress’s spending
 there are things that congress can’t do because of the 10th amendment
o conditions imposed on federal laws are too coercive
o If congress is spending money by funding states, the court says there are conditions that congress must follow
 (1) conditions must relate to the purpose of the spending
 (2) conditions must be clearly stated for their actions compelled and what they mean
 (3) must not be unduly coercive and must be a genuine choice by the state (no cohesion)
o When does a fine become a penalty?
- they concluded that it was unconstitutional use of congress’ commerce power to regulate inactivity of commerce,
cannot make someone active in commerce
 United States v. Butler (1936)
o Congress may tax for the general welfare if it does not violate a constitutional provision

PRESIDENTAL POWERS: EXPRESSED AND IMPLIED

- Is there inherent presidential powers?
o Hamilton view: since Art. II does not specifically limit the powers of the president, it is argued that the
president has powers not specifically listed in the constitution.
o Madison view: the president does have powers that are not enumerated in Art. II of the constitution.
 Antifederalist
- Express powers under art. II
o Commander and chief
o Pardon power
o Treaty power/ executive agreement
o Appointment power
 Members of the cabinet, civil officers, judges, justices, with appeal of the senate
o Removal power
o Veto power
o Pocket veto
Youngstown Sheet & Tube Co. v. Sawyer (1952)
- Leading case addressing the scope of presidential powers concerning Truman’ executive order 10340, which directed
the secretary of commerce to take control of steel mills and keep them running for national security
- This framework controls analysis of the question “What inherent powers does the president possess?”
 Four different approaches
o No inherent presidential power (Black)
o Interstitial executive power (Douglas)
o Legislative accountability (Jackson, Frankfurter)
o Broad inherent authority (Vinson)
 Black Majority: no inherent presidential powers. President is confined to the powers expressly listed in art. II
 Douglas Concurring: president may only without statutory authority so long as he does not usurp or block the
powers of another branch
 Jackson concurring [modern framework]: (Thai gives this a thumbs up),
o When the president acts under authority of congress, his authority is at his maximum,
o (inherent powers) when the president acts in absence of congressional grant or authority of law he is in a
twilight zone. In which congress may have concurrent authority or in which its distribution is uncertain.
Under these circumstances it is hard to generate a general rule as to the constitutionality
o When the president takes measures incompatible with the expressed or implied will of Congress, this
power is at its lowest ebb because the president is disobeying federal law, such presidential powers will
only be allowed if the law enacted by congress is unconstitutional
 (examination of presidential powers usually begins with this test)
 Frankfurter concurring: if there is a systematic, unbroken, executive practice and congress is aware and does
not question, president can perform the practice unless it is barred by statute or constitutional practice
o See Trump v. Hawaii: presidents have consistently barred immigration of persons from countries that
present national security risks.
 Vinson dissenting
o Pres. Has inherent authority and may act unless unconstitutional
*the court ultimately protects individual rights; these cases re-state and reinforce due process rights for individuals being held by
the American government. The stands up for the individual against the excesses of the state, balancing liberty and history. The
court stands up for the constitution against the actions of the political branches.

17
 - Clinton v. New York (1998): the law attempted to give presidents the ability to line-item veto.
o The constitution does not allow for the actions permitted and carried out through the line-item veto act.
The president was acting outside the executive sphere.
PRESIDENTAL POWERS: FOREIGN AND WAR
THE GOVERNMENT
ENUMERATED POWERS – In Article 1, Section 8:
Lay and collect Taxes – tax and spend for the general welfare
Provide for the defense of the country
Borrow Money on the credit of the U.S.
Regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; COMMERCE
CLAUSE
Regulate immigration and bankruptcy
Coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
Provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
Establish Post Offices
Control the issuance of patents and copyrights
Constitute Tribunals inferior to the supreme Court;
Define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
Declare War
Raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Provide and maintain a Navy; to Make Rules for the Government and Regulation of the land and naval Forces;
Provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Provide for organizing, arming, and disciplining, the Militia
Implied powers under NECESSARY AND PROPER CLAUSE
Make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Civil Rights Enforcement power UNDER § 5 OF 14TH AMENDMENT
OTHER SOURCES: Article II – defines powers and duties of president; Article III – confers the federal judicial power and
gives Congress power to control SC jurisdiction; Article IV, § 3 gives Congress power over U.S. territories and federal
property
Foreign affairs power – implied by nature of fed. union and impractibility of having each of the several states conduct
its own foreign policy

GOVERNMENTAL POWER STATE POWER

POWER Federal gov. is of limited, enumerated powers – State power is of “inherent” power that
three branches of gov. can only assert those allows them to hold general police power
powers specifically granted in the Constitution —the power to protect health, safety, or
general welfare of state residents
NO general police power that allows them to
regulate health, safety, or general welfare of the
citizenry
SOURCE Necessary and proper clause allows them to Inherent
make all laws that are necessary and proper for
carrying out its enumerated powers
LIMITATION May use any means rationally related to the Action by state gov. is valid under fed. law
objective being sought and that is not expressly unless it violates some specific limitation
forbidden by the Constitution – MUST fall imposed by Constitution
within one of the enumerated powers
3.6.1,
4.6.1, 4.6.3, 4.6.5, 2.8.4
- conflict arises when there is conflict between congress and the president over foreign policy
- executive agreements:
 Agreement between US and foreign country that is effective without requirement of senate approval when signed by
the president and the head of another government. Anything that can be done with a treaty can be done with an
executive agreement
o United States v. Pink (1942)
 Executive agreements and treaties have a similar dignity under the supremacy clause
o Unites States v. Belmont (1937)
 States cannot interfere with executive powers in making international agreements
o Dames and Moore v. Regan (1981)

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  Executive agreements are constitutional because federal statutes authorized such presidential
actions and because there was history of such action (Frankfurter in Youngstown)
 Treaty power
o Presidential power to make treaties provided that the senate affirms by 2/3 present. If a treaty and statute
conflict, the more recent controls
o Reid v. Covert (1957)
 Treaties are not free from restraint of the Constitution
o Missouri v. Holland (1920)
 Constitution expressly grants the federal ability to make treaties, so if they conflict with state law
then they cannot be protected by the 10th amendment
o Bond v. United States (2014)
 The court was asked to decide the issue of congress’s ability to enact laws to implement treaties
and they declined. And held that there was no indication that congress meant the prohibition if
chemical weapons to apply to such a domestic dispute that is traditionally handled under state
criminal law. Congress may not impede on the police power of the states.
 Power to regulate immigration
 War-making power
United States v. Curtiss-Wright Export Corp. (1936)
 Does the president have greater powers in the area of foreign policy compared with domestic affairs?
o The president has broad and inherent powers in the realm of foreign policy.
 Debate between domestic affairs and foreign affairs occurred in treaty making and war powers
War powers:
- Absence of case law concerning war powers
o Prize cases
- Challenges likely to be dismissed as political questions
o Areas that pose as political questions
 When war ends and begins
 Recognition of foreign governments
 Ratification and interpretation of treaties
 Challenges of the president’s war powers.
o Should foreign policy be a political question?
 The federal courts are poorly suited to determine the constitutionality of war and hostile halting
 Some argue that should change
o Most likely are those most likely to be deemed political question are those concerning the constitutionality of
the president’s use of the war powers
- It is unlikely that courts will become involved in answering the key question about the war powers.
- Uncertainty as what constitutes a declaration of war
- Uncertainty as to how congress may limit the president
o This issue arises most notably as to whether the war powers resolution is constitutional
2.8.4 Foreign Policy
- the supreme court frequently held that cases pertaining to issues related to the conduct of foreign affairs pose political questions.
Presidential powers and immigration
- Trump v. Hawaii (2018)
o The court upheld broad presidential powers in the area of immigration.
 The court held that this was up to rational basis review was the appropriate test
 That level of review considers whether the entry policy is plausibly related to the
governments stated objective to protect the country and improve vetting process.
 The policy will be upheld as long as it can be reasonably understood to result from a
justification independent of unconstitutional grounds
 Dissent wants strict scrutiny Korematsu because it does not apply to US citizens (dissent says it
should still fall under rational basis)
 The court said this was easier to decide than
- Clinton v. New York (1998): the law attempted to give presidents the ability to line item veto.
o The constitution does not allow for the actions permitted and carried out through the line item veto act.
 The president was acting outside the executive sphere.
Requirements for the rational basis test
- Statute or ordinance must have a legitimate state interest, there must be a rational connection between the
statute/ordinance’s means and goals
- Rational basis test is generally used when there is not an issue of fundamental rights or suspect classification are at
issue

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GERRYMANDERING
2.8.3, 10.8.3
- Often viewed as a nonjusticiable political question but is allowed in congress. The constitution delegates to congress the ability
to regulate the “times, places, and manner of holding elections” in art. I § 4.
 Partisan gerrymandering implicates 1st amendment freedom of speech/assembly and 14th amendment equal
protection
- Court in Veith v. Jubelierer said that the question of partisan gerrymandering was a political question and that there is no basis
for courts to decide when it offends the constitution
- Rucho v. Common Cause (2019)
 Gerrymandering presents political questions beyond the reach of federal courts. A standard for determining the severity
of gerrymandering must be clear, manageable, and poltically neutral. Combatting gerrymandering is for the legislature
 Judiciary only has the authority to review partisan gerrymandering when there is a racial question (14th amendment
violation) or misappropriation question (1 person-1 vote)
o Kagan dissent: gerrymandering deprives citizens of their fundamental right to participate equally in the
political process, should be an equal protection violation like justice Kennedy said would be in Veith.
- North Carolina v. Common Cause: courts lack the power to address partisan gerrymandering.

ELECTORAL COLLEGE
Art. I, Sec. 4
- The times, places and manner of holding elections for Senators and
- Representatives, shall be prescribed in each state by the legislature thereof;
- but the Congress may at any time by law make or alter such regulations,
- except as to the places of choosing Senators.
Art. II, Sec. 1
- Each state shall appoint, in such manner as the Legislature thereof may
- direct, a number of electors, equal to the whole number of Senators and
- Representatives to which the State may be entitled in the Congress ...
Art. I, Sec. 3
- The Senate of the United States shall be composed of two Senators from
- each state, chosen by the legislature thereof, for six years; and each
- Senator shall have one vote.
Amend. XVII
- The Senate of the United States shall be composed of two Senators from each
- state, elected by the people thereof, for six years ...

- One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast
continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.

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 - This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential
parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national
platforms, which explained to voters who stood for what.

- The 1796 contest between Adams and Jefferson had featured an even sharper division between northern states and
southern states. Thus, at the time the Twelfth Amendment tinkered with the Electoral College system rather than
tossing it, the system’s pro-slavery bias was hardly a secret. Indeed, in the floor debate over the amendment in late
1803, Massachusetts Congressman Samuel Thatcher complained that “The representation of slaves adds thirteen
members to this House in the present Congress, and eighteen Electors of President and Vice President at the next
election.” But Thatcher’s complaint went unredressed. Once again, the North caved to the South by refusing to insist on
direct national election.

- In light of this more complete (if less flattering) account of the electoral college in the late 18th and early 19th century,
Americans should ask themselves whether we want to maintain this odd—dare I say peculiar?—institution in the 21st
century.

Reasons to Keep the Electoral College

- The Founding Fathers thought it was the best way to choose the president.
- The U.S. Constitution should be amended only rarely.
- It safeguards against uninformed or uneducated voters.
- It prevents states with larger populations from having undue influence.
- It forces presidential candidates to campaign in all parts of the country.
- It lessens the likelihood of calls for recounts or demands for runoff elections.

Reasons to Abolish the Electoral College

- It is no longer relevant.
- The Constitution has been amended before; it can be done again.
- It gives too much attention and power to swing states.
- It allows the presidential election to be decided by a handful of states.
- It can ignore the will of the people.
- The candidate who wins the most votes does not necessarily win the election, as happened in 1876, 1888, 2000 and
2016 and possibly in 1824 and 1960.

- Why a National Popular Vote for President Is Needed

- Under the current system, close vote totals in a handful of narrowly divided states repeatedly create
- controversy, uncertainty, recounts, hair-splitting legal disputes, and a loss of confidence in elections.
- Under the current system, five of our 46 Presidents have come into office without winning the most
- popular votes nationwide. In the last six presidential elections, there have been two second-place
- Presidents (2000 and 2016) and two “near-miss” elections when this almost happened (2004 and 2020).
- In the “near miss” election of 2004, if 59,393 voters in Ohio had changed their minds, President Bush
- would have lost, despite leading nationally by over 3 million votes.
- In 2020, if 21,461 voters had changed their minds, Joe Biden would have been defeated, despite
- leading by over 7 million votes nationally. Each of these 21,461 voters (5,229 in Arizona, 5,890 in
- Georgia, and 10,342 in Wisconsin) was 329 times more important than the 7 million voters elsewhere.
- Presidential candidates only pay attention to the concerns of voters in closely divided battleground
- states. A dozen battleground states received virtually all (94% or more) general-election campaign
- events in the last three elections. The politically irrelevant spectator states included almost all of the
- small states, rural states, agricultural states, Southern states, Western states, and Northeastern states.
How National Popular Vote Works
- The shortcomings of the current system stem from state “winner-take-all” laws that award all of a
- state’s electoral votes to the candidate receiving the most popular votes in each separate state. Winnertake-all is not in
the U.S. Constitution and was never mentioned at the 1787 Constitutional Convention.
- The U.S. Constitution (Article II) gives the states exclusive control over the choice of method of
- awarding their electoral votes— thereby giving the states a built-in way to reform the system.
- “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
- The National Popular Vote law will take effect when enacted by states with a majority of the electoral
- votes (270 of 538). Then, the presidential candidate receiving the most popular votes in all 50 states and
- DC will get all the electoral votes from all of the enacting states. That is, the candidate receiving the
- most popular votes nationwide will be guaranteed enough electoral votes to become President.
- Under the National Popular Vote law, no voter will have their vote cancelled out at the state-level
- because their choice differed from majority sentiment in their state. Instead, every voter’s vote will be

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 - added directly into the national count for the candidate of their choice. This will ensure that every voter,
- in every state, will be politically relevant in every presidential election—regardless of where they live.
- The National Popular Vote law is a constitutionally conservative, state-based approach that retains
- the power of the states to control how the President is elected and retains the Electoral College.

EQUAL PROTECTION

- economic liberty is subject to the rational basis test

Does not apply to private entities
- usually the commerce clause is applied to invalidate private entity discrimination
o the case where the bakery would not make a cake for a gay wedding
- History does not dictate the XIV amend
o History should be the guiding principle but not the only principle
Test for a subject class
- history of discrimination?
- Immutable characteristic?
o Race, gender, national origin, and marital status of one’s parents
(strict/intermediate scrutiny)
- Political (process) powerlessness
Shorts and happy guide: equal protection
 Whether the government’s classification of individuals under the law is justified by a sufficient purpose.
 Equal protection analysis:
o What is the classification?
 Facially
 Facially neutral
 Must have discriminatory purpose AND effect
o What is the appropriate level of scrutiny?
o Does the government action survive the level of scrutiny?
 Strict scrutiny and race cases
-a law must be proven to be necessary to achieve a compelling government purpose. The government has the burden of proof to
show that it cannot achieve its goal through any less discriminatory alternative.
o Facial classifications on race
o Plessy v. Ferguson (1896)
o Brown v. Board (1954)
 Overruled Plessy “separate but equal”
 How did the court decide that?
 The court relied heavily on social science showing literature that segregation causes black
children to feel inferior and interferes with their learning.
 Question: what does the 14th amendment protect?
o Loving v. Virginia (1967): invalidated Virginia’s law banning interracial marriage.

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 o We have consistently denied the constitutionality of measures that restrict the rights of citizens on account of
race.
o In circumstances without facial discrimination, what makes a statute unconstitutional?
 The court has held there must be proof of a discriminatory purpose on top of discriminatory impact
in order for such laws to be subjected to heightened scrutiny.
o What equality does the constitution “care about: process/laws or outcome/results?
o The benign use of racial criteria: affirmative action
 Reviews racial classifications benefitting minorities. Strict scrutiny is used to review all
government affirmative action plans
 What usually passes the strict scrutiny test:
 Remedying past discrimination
 Enhancing diversity
 Providing role models for students
 Enhancing services provided to minority communities
o BUT do not forget the requirements for narrow tailoring and no alternative
means
 Question: the fit between the government interest and the means chosen to accomplish those ends.
 Regents of the University of California v. Bakke (1978):
 Core question: what reason would justify a governmental program to aid students based
on race?
 Does the constitution forbid state laws that remedy past discrimination?
 Race based programs are subject to strict scrutiny. Race can be a factor in deciding
admission, but it can’t be the only factor.
 There is a question of language. The terms that are being used reflect underlying attitudes
toward these programs.
 Quotas on seats for racial minorities are impermissible
 Grutter v. Bollinger (2003):
 The law school used race as a factor to achieve a critical mass of students.
 Court accepted increased diversity as a compelling government interest that passed strict
scrutiny.
 The law school could use race as a plus factor, but not the factor.
 Gatz v. Bollinger (2003): the school gave certain minority races an extra 20 point bump in their
admissions score.
 The court ruled this was unconstitutional
 Why do we read Grutter and Gatz?
 The two cases provide the answer for what justifies the use of race in university
admissions
 This discussion opens a wider door into the basic question of how long and under what
circumstances the constitution permits such programs
 Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007)
 The court rejected that achieving racial diversity in elementary and high schools is a
compelling interest. Public Schools may not assign students to schools solely on the basis
of race for the purpose of achieving racial integration.
 Fisher v. University of Texas (2016): the court used prior case law (grutter and gatz) holding that
the university may employ a race-conscious admissions process to get the benefits that flow from a
diverse student body.
 The court applied strict scrutiny and found that the Texas plan was constitutional.
o Why do we read these cases?
 Help up confront a central question about the ongoing meaning of Brown and the constitutional
promise of equality. But there is still a battle of the meaning of the equal protection clause and
Brown
o Overview:
 The race of the parties involved do not matter
 Broad goal of educational diversity is acceptable, but not favored
 Race may be a factor but may not be the factor

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Carolene Products explanation of why laws against certain groups tend to be more suspect: if there’s been a history of
discrimination against the class, if the class’s characteristics are immutable, and if the class is relatively powerless in the
political process (can’t fight the laws because they lack the political power). This established the three part to test for suspect
classes required for intermediate and strict scrutiny.
Chem 9.1-9.3
- With the analysis of equal protection, we will question whether the government’s classification of individuals under the
law is justified by a sufficient purpose. When looking at the government’s discrimination, different levels of scrutiny
will be employed.
o Strict scrutiny
 Discrimination based on race or national origin
 Law is only upheld if it is proved necessary to achieve a compelling government purpose.
 Government has the burden of proof
 Virtually always fails the challenged law
 State classifications based on alienage is subject to strict scrutiny.
o Intermediate scrutiny
 Discrimination based on gender and non-marital children
 Substantially related to an important government purpose
 Goven. Still has burden of proof
o Rational basis review
 Everything else that is challenged under the equal protection clause
 Law will be upheld as long as it is rationally related to the legitimate government purpose
 Challenger has the burden of proof
- Equal protection analysis
o What is the classification
 Requires some discriminatory purpose behind the law
 Facial classifications: are found in the very text of the law
 Facially neutral: when the classification is now clear in the law but there is discriminatory impact
or discriminatory effects of its administration
o What is the appropriate level of scrutiny?
o Does the government action meet the level of scrutiny?
 rule of law that is applied to the particular government action being challenged as denying equal
protection
 in evaluating of the relationship of the means of the particular law to the end, the supreme court
must focus on the degree that the law is being under/over inclusive
- Cases involving an equal protection issue always involve a dispute over one or more of these questions.
- There is an argument that there is not really actually three tiers as much as there is three ranges .
The protection of fundamental rights under equal protection
- Government infringement on fundamental rights is subject to strict scrutiny, but if it is not a fundamental right then
government infringements are only subject to rational basis review
Discrimination against an individual is sufficient for a claim
- Olech allowed equal protection claims to anyone who claims to have been subject to arbitrary government treatment.

9.2 The Rational Basis Test

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• a law meets rational basis review if it is rationally related to a legitimate government purpose
underlying issues
• it is very rare for the supreme court to find that a law fails the rational basis test
• the court allows the more democratic branches to make decisions unless the issue involves an area needing heightened judicial
scrutiny
• some unfair laws are allowed to stand because it is very easy to find a legitimate purpose for almost any law
• there is a question as to whether the courts have been consistent in applying the strict scrutiny test
• that there is not a single test but varies from deference to strict rigor
◦ but it could be argued that it is consistent in the fact that the courts are deciding whether a law is legitimate or not
- Burden of proof: the plaintiff
requirement for legitimate purpose
• what is a legitimate purpose
• how is it to be decided whether there is such a purpose present?
◦ must there be actual purpose
◦ can it just be conceivable
• gov is said to have purpose if it is advancing police purpose: protecting safety, public health, public morals
• virtually any goal that is not forbidden by the constitution will be deemed sufficient to meet the rational basis test
• the courts have commonly ruled that there is no legitimate interest in laws that award residents verses not residents and reward
people who have been residents longer
• since 1937 the courts have sided with the government in the vast majority of instances in which the rational basis test has been
used

must it be actual purpose or is conceivable purpose enough?

- Courts have taken the position that a conceivable legitimate purpose is sufficient.
• courts have ruled that actual purpose is irrelevant and that the law must be upheld if any of the facts are reasonable to be
justified
• critics argue that the rational basis test is only useful if the courts limit themselves at looking at the actual purpose of the law

9.2.3 requirement for "reasonable relationship"

deference in determining if there is a reasonable relationship
• laws will be upheld unless the government’s actions are clearly wrong
tolerance for under-inclusiveness
• it is no requirement of equal protection that all evils of the same genus be eradicated or none at all
tolerance of over-inclusiveness
• unfair to those that are unnecessarily regulated
- there are some cases that serve as an example where the supreme court has shown a little more bite when applying the
rational basis test, but these are rare and exceptional cases
Cases where laws are deemed arbitrary and unreasonable
- City of Cleburne, Texas v. Cleburne Living Center, Inc.
o While the court deemed the law unconstitutional under the rational basis test, it appears that there was more
“bite” to the court’s approach than usual for this level of scrutiny.
- This case and Allegheny Pittsburgh Coal indicate that while the rational basis test is not toothless, these are rare and
exceptional cases where laws failed the rational basis test.
9.3 Strict scrutiny
- justification for strict scrutiny?
- “a core purpose of the 14th amendment was to do away with all governmentally imposed discrimination based on
race.” – Chief Justice Warren Burger.
- The supreme court broadly held that the 14th amendment only applied to government action, not to private conduct,
and that therefore congress acting under §5 of the 14th amendment can regulate only government actions.
- Brown v. Board (1954) wildly criticized for focusing on education and this failing to provide a basis for
declaring segregation unconstitutional in other context.
o Heart of brown:
 Warren: how do we decide what is separate but equal?
 With brown only citing sociological studies instead of using the real world data and
condemning race based segregation as a whole undermines the court (bad
Nonoriginalism)
 Some might say that his approach is a legal realist approach
 Recognizing the issues with opinion in brown is a way we can see when an opinion is done badly
even when it is celebrated
Should discriminatory purpose be required?

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  This rides on whether the equal protection clause is only about equal protection from the government or should
also be concerned about equal results?
Evidence of a discriminatory purpose shifts the burden
- If the plaintiff produces evidence of a discriminatory purpose then the burden shifts to the government to prove that it
would have taken the same action without the discriminatory motivation
o If the court accepts the governments justification and rejects the claim of a discriminatory purpose, then o nly
rational basis review is used m

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----------------------------------------------------
FUNDAMENTAL RIGHTS
A) Intro: 6.1, 6.2.1, 6.3, 6.4.1, 10.1
a. Structure of the constitution’s protections
b. A review of the textual provisions protecting rights
article 1 § 9 writ of habeas corpus shall not be suspended unless cases of rebellion or invasion
◦ the scope and availability is a matter of federal statute 28 U.S.C §§ 2254 and 2255
◦ until 1867 only federal prisoners could seek habeas corpus
◦ until 1915 could only be used to challenge a courts jurisdiction
i. Key issue: (1) the extent to which the judiciary should protect civil liberties and civil rights when
doing so is striking down elected officials, (2) extent to which individual rights should be applied to
state governments and how aggressively they should be enforced
ii. The seven articles of the constitution are primarily about the structure of the government and not
individual rights
iii. The constitution is generally not applicable to private entities or actors. This was est. in the Civil
Rights Cases and reaffirmed in United States v. Morrison.
iv. The 14th amendment applies to only to the government, not to private conduct—remains the
law and is a central principle to constitutional law.
v. It should be noted that statutes, both federal and state, can apply constitutional norms to private
conduct.
1. Ex: equal protection only applies to the government, but congress enacted laws, such as
the Civil Rights act of 1964 that prohibits private discrimination by private employers
and by places of public accommodation
B) 10.1: intro to fundamental rights
a. Fundamental right: generally, the government cannot infringe upon them unless strict scrutiny is met. Ex.:
protecting family autonomy, procreation, sexual activity and sexual orientation, medical care decision
making, travel, voting, access to the courts, and the right to bear arms
b. Question: almost all these rights raise the issue of how the court should decide whether a liberty should be
regarded as a fundamental right
c. The court has concluded for almost all these cases that strict scrutiny should be used (a compelling
government interest must be proven for the law or act to be upheld).
d. Almost all these cases have been protected by the court under the due process clauses of the 5th and 14th
amendment and/or the equal protection clause of the 14th amendment.
i. The major difference between due process and equal protection as the basis for protecting
fundament rights is in how the constitutional arguments are phrased.
ii. If a law denies the right to everyone, then due process would be the grounds for analysis; but if the
law denies a right to some, while allow it to others, the discrimination can be challenged as
offending equal protection or the violation of the right can be objected to under due process
e. The 9th amendment does not provide rights. It is merely textual justification for the court to protect
nontextual rights
f. Framework for analyzing fundamental rights
i. Is there a fundamental right?
1. Carolene Product footnote 4: judiciary will defer to the legislature unless there is
discrimination against a “discrete and insular” minority or infringement of a fundamental
right
ii. Is the constitutional right infringed?
iii. Is there a sufficient justification for the government’s infringement on the right? (usually
strict scrutiny, not always)
iv. Is the means sufficiently related to the purpose?

C) Sexual autonomy and intimacy: 10.4

a. The court has yet to give conclusive answers to the appropriate scrutiny test but has implied that heightened
scrutiny could be possible

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 b.Bowers v. Hardwick (1986): the right to privacy does not protect a right to private consensual homosexual
activity.
c. Lawrence v. Texas (2003) overruled Bowers
i. States may not prohibit private consensual sexual activity between consenting adults of the same
sex. Expressly overrules Bowers. Sexual activity is a fundamental right to personhood and is
entitles to constitutional protection.
ii. Reaffirmed constitutional protection for privacy and applying it to private, consensual homosexual
activity. Powerful affirmation to the right to privacy under the constitution in general.
iii. Most important case in history recognizing the rights of gays and lesbians to equal dignity and
equal treatment under the Constitution.
iv. Texas justified the law as advancing moral judgment, which is enough to meet rational basis
review. The courts’ rejection can be implied as some form of heightened scrutiny, but a specific
scrutiny was not stated.
v. Scalia dissent: if moral disapproval of certain conduct is not a legitimate end, then a lot of laws are
invalid.
vi. Right established is broader than just homosexual intimacy, the opinion recognizes the autonomy of
adults to make decision related to intimacy and reproduction
vii. Thai: rights are not limited to historical meaning
D) Marriage: 10.2
a. Meyer v. Nebraska (1923): court expressly held that certain aspects of family autonomy are fundamental
rights and that the government interference will be allowed only if strict scrutiny is met.
b. The right to marry was established by the supreme court as a fundamental right protected under the liberty of
due process in Loving v. Virginia (1967).
c. Boddies v Connecticut (1971): preventing individuals from obtaining a divorce precludes them from
exercising their right to marry someone else.
d. Zablocki v. Redhail (1978): courts most extended discussion of the right to marry
i. Marriage is the “foundation of the family in our society”
e. Turner v. Safely (1987)
i. Upheld prisoner’s right to get married
f. United States v. Windsor (2013)
i. Court declared unconstitutional § 4 of the federal defense of marriage act, which defined marriage
as a legal union between one man and one woman.
g. Obergefell v. Hodges (2015): law prohibiting same sex marriage unconstitutional
(violated right to marry and equal protection)
i.4 supporting principles for the constitutional right to marry
1. The right to personal choice regarding marriage is inherent in the concept of individual
autonomy
2. The right to marry supports a two-person union unlike any other in its importance to the
committed individuals
3. Safeguards children and families thus draws meaning from related rights of childbearing,
procreation, and education
4. Court’s cases and nation’s traditions make it clear that marriage is a keystone to our
social order.
ii. No difference in same sex marriage and opposite sex couples when it comes to the importance of
marriage, for their children, and for society.
iii. Four dissenter: believe this is a question that should be resolved by the political process.
iv. Now every law that impacts the right to marry has been declared unconstitutional.
E) Family Autonomy and children
a. Santosky v. Kramer: government must provide “clear and convincing evidence” before permanently
terminating a parent’s right.
i. Would be a violation of the due process clause
b. Rights of unmarried fathers
i. Michael H. v. Gerald D. : even an unmarried father who participates actively in the child’s life is
not entitled to due process if the mother was married to someone else
1. This is a very important case because it questions: how should the court determine a
fundamental right: is the tradition determinative and, if so, must it be a tradition
stated at the most specific level of abstraction?
2. In contemporary society, many individuals might have a relationship with the child:
should the court recognize and protect these interests under the constitution?
c. Pierce v. Society of Sisters: court held unconstitutional a law that required children to attend public school

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 d. Wisconsin v. Yoder: court held that amish parents based on their right to control their children’s upbringing
and freedom of religion could exempt their 14 and 15 year old from compulsory school attendance.
i. Key question: whether making sure that children have basic schooling to at least 16 years of age is
a compelling interest that justifies interfering with parents’ choice to terminate formal school at an
earlier age.
e. Parham v. J.R.: what type of procedural process must be accorded to children when their parents
commit them to an institution?
i. The court concluded that before a child be institutionalized by their parent that they only need to be
screened by a doctor or another neutral fact-finder.
F) Privacy, Autonomy, and reproduction: 10.3
a. the right to procreate is a fundamental right, government imposed involuntary sterilization should meet strict
scrutiny.
b. Buck v. Bell (1927): BUT the court in Buck rejected this position and upheld a law that gave the government
the ability to sterilization the mentally retarded.
c. Skinner v. Oklahoma (1942): involuntary sterilization of prisoners was a violation of a fundamental right,
but did not overrule Buck.
i. Est. the right to procreate as a fundamental right
d. Griswold v. Connecticut (1965) court declared a state law prohibiting the use of contraceptives as
unconstitutional. They implied that a right to privacy existed in the 1st, 3rd, 4th, and 5th amendment of the
BOR. Violation of substantive due process.
e. Eisenstadt v. Baird (1972): declared a Mass. Law unconstitutional that made the distribution of
contraceptives to unmarried couples illegal under the equal protection clause of the 14th amend.
i. Expands on Griswold.
f. Carey v. Population Services International (1997)
i. Court said that law restricting contraceptives must meet strict scrutiny
ii. Limiting distribution of contraceptives to licensed pharmacists unduly restricted access to birth
control and infringed on the right to control procreation.
g. These decisions reflect the courts judgement that a basic right, such as the ability to control procreation, is
constitutionally protected even though it is nowhere mentioned in the text of the constitution expressly.

h. ABORTION
i. Roe v. Wade (1973): court ruled that government may not prohibit abortions prior to viability and that
government regulations on abortion must meet strict scrutiny.
i. The court divided pregnancy into three trimesters
1. 1st: government could not prohibit abortions and could only regulate abortions as it
would regulate any other medical procedure
2. Gov. can still not regulate abortion but they may, if it chooses, regulate the abortion
procedure in ways that are reasonably related to maternal health.
3. Government may prohibit abortion except if necessary to preserve the life or health of the
mother.
ii. Debate: This is a bad opinion because it is not constitutional law and it is not trying to be. And that
the court gave insufficient weight in state’s interest to protect fetal life.
1. Pro: the court has safeguarded many other rights that are not expressly mentioned in the
constitution and where not intended by the framers
2. The court acted properly in deciding to leave it to the woman when personhood begins.
3. Forced motherhood is sexual inequality.
j. Webster v. Reproductive Health Services (1989): court upheld a Missouri law that (1) life begins at
conception, (2) prohibited use of government funds or facilities to encourage or counsel a woman to have an
abortion, and (3) allowed abortions after 20 weeks of pregnancy only if a test was done to ensure that the
fetus was not viable.
i. Attacked Roe greatly.
k. Planned Parenthood v. Casey (1992): reaffirmed roe however, court stated that states may regulate abortion
prior to viability so long as it does not place an “undue burden” on access to abortion
i. Joint opinion said that the right to an abortion is constitutionally protected because of the
importance of the choice and the intrusion in forcing a woman to remain pregnant against her will.
ii. They also emphasized the importance of stare decisis and the circumstances that justify overruling
an earlier precedent.
iii. The joint opinion did however overrule the trimester framework
iv. Finally, they said the spousal notification requirement is unconstitutional
l. Undue burdens: spousal notification (casey), closing most facilities in the state (whole women’s health),
fetal viability tests

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 m. Not undue burdens: parental notifications, waiting periods, informed consent requirements, prohibiting
partial-birth requirements, restriction affecting only “less than majority of women”
n. Supreme court held that the government is not constitutionally required to subsidize abortions even if it
paying for child birth

Triggers UNDUE BURDEN TEST

An undue burden exists if its purpose or effect is to place a substantial obstacle in the way
NO undue burden?  a state measure is “reasonably related” to the legitimate goal

A. Abortion
- An undue burden exists 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
- Absence of an undue burden  the test is whether a state measure is “reasonably related” to the legitimate goal of
persuading a woman to choose childbirth over abortion
- Invalid – only if its effect is to place a substantial obstacle in the woman’s path by preventing her from having an
abortion – increased cost or increased difficulty alone do not constitute an undue burden
- Balancing – any real benefits that outweigh cost?
- Facial challenge – show that no set of circumstances exists under which the law would be valid –m will be removed
from the books and can no longer be enforced against anyone
- As applied challenge – will be struck down as applied but can be enforced in other settings unless other as-applied
challenges further limit its enforcement

G) Second amendment: 10.10, II amendment

a. One side: creates an individual right to possess firearms
i. Operative clause: text granting the right
b. Other side: emphasizes the first clause and says that it is a right only for the purposes of service in the
militia.
i. Prefatory clause: text addressing the “militia”
c. United States v. Miller (2008)
i. Affirmed outlawing sawed-off handguns; prefatory clause limits the operative clause, which would
limit gun ownership to militia purpose, or the operative clause, which would grant gun ownership
as an individual right
d. D.C. v. Heller (2008)
i. First time the court invalidated a law regulated guns and found that the 2nd amendment is not
limited to protecting a right to have firearms for militia service.
ii. 2nd amendment is an individual right for law abiding citizens to bear arms outside the militia
context. The prefatory clause cannot negate the operative clause.
iii. Scalia used historical perspectives to back decision, but the majority of historians disagreed with
him.
1. He also tried to say that this was subject to strict scrutiny, not rational basis in the
footnotes, but he could not get anyone to agree with him
iv. Maintains that the 2nd amendment, like any other fundamental right, is limited nit absolute
v. Think about the effects of rights granted under the constitution.
vi. First and last modern version of originalism
vii. Thai: government should leave you alone until there is a reason not to
viii. Court did not define a level of scrutiny for the 2nd amendment
H) Short and happy guide
a. Due process: privacy 1: reproductive rights
b. Substantive due process: asks about the substance about the law itself not the processes, asks whether the
government has adequate reason or justification for depriving or taking away a persons life, liberty, or
property.
c. When a law burdens a fundamental right, substantive due process analysis is required to examine the law
i. How can we define that content/substance is so fundamental that it merits such protection?
d. Asking whether something extra should be read into the constitution in order to protect individual rights and
liberties in regards to personal rights and liberties.
e. Griswold v. Connecticut (1973)
i. Stuck down a contraception ban and the majority held that the law violated a fundamental right of
privacy but held that the law did not specifically violate an amendment but that the right to privacy
was found in the shadows of the bill of rights penumbras
ii. While the opinions in Griswold all varied about where the fundamental right to privacy is found in
the constitution, there is no doubt that it is found somewhere

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 iii. Griswold, insured the right to privacy, at least in the marital room. It was in Eisenhart v. Baird that
they banned a law that prohibited contraception to unmarried people
iv. Griswold established the right to privacy. What follows is defining the rights to privacy.
v. They still not establish where the right to privacy is found in Roe v. Wade. BUT it is not found in
the penumbras of the BOR
vi. In Roe, the key question is where is it written? Where is it written in the constitution that there is a
constitutional right to abortion?
vii. This leads to a much broader question: how the courts interpret the constitution and when, if
ever, it is proper for the court to protect unenumerated right?
viii. The court found a right to privacy in the 14th amendment and that that right encompasses a
woman’s right to choose to terminate pregnancy
f. Planned Parenthood v. Casey (1992)
i. (1) principles of institutional integrity, (2) rule of stare decisis, the essential holding of Roe v.
Wade should be retained and once again reaffirmed. What does this mean?
1. Women have the right to choose to terminate a pregnancy in the period before viability
without undue influence from the state
2. The state has interest in the fetus, such that it may restrict abortions as long as any law
has exceptions for pregnancies which endanger the woman’s life or health
3. The state has interest in the woman’s health and the fetal health
ii. First and foremost, the opinion is based on the due process clause and Roe
1. Reaffirmed based on Roe and that the due process clause has a substantive component,
rejecting any component on the contrary
iii. Key: reaffirmed Roe and stated a constitutional liberty interest that a woman possesses a control
her reproductive rights and, consequently, the right to choose to terminate pregnancy. SO roe was
upheld.
1. While the court reaffirmed roe, they rejected roe’s three semester framework. The court
came up with a new analytical method
2. Current analytical method for abortion est. by casey: the state must not place an
undue burden on the right to choose to terminate pregnancy pre-viability
a. When is viability?
b. What is considered undue burden by the state: a law is unduly burdensome if it
“has the purpose of effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus.”
3. While this seems like a victory for abortion rights, the Court also upheld most of the
restrictions on abortions that had been challenged.
4. The part of bodily privacy implicitly found in the due process clause, while the right is
not absolute, the state may not place an undue burden
iv. Casey provides the current definition of the nature of the privacy right involved in abortion,
it also reveals a deep-seated divide in the court over how to interpret the Constitution; the
meaning of the due process clause; the specific meaning of roe; and the importance of stare
decisis
v. To overrule Roe would not only destabilize the individual right but it would also undermine the
legitimacy of the court and call into question the rule of law
vi. Current cases are still working through what exactly undue burden is and what is a substantial
obstacle.
I) Privacy II: bodily right
a. (1) private sexual conduct, (2) death and dying
b. Bowers v. Hardwick (1986): court upheld a Georgia law that banned sodomy, defined to include anal and
oral sex. The majority rejected the argument and that specific act fell within the sphere of privacy that the
court held in Roe.
c. Lawrence v. Texas (2003): while the core question was about the rights for adults to engage in private
consensual sexual conduct, the core issue was liberty. The question was about what to do about the
precedent in Bowers.
i. the courts answer: we need to reconsider it. Looking at Casey, Bowers, and Romer v. Evans. The
court concluded that Bowers could not stand.
ii. The court emphasized the importance of stare decisis.
iii. TAKEAWAY: individuals have a right to privacy firmly rooted in the 14th amendment due
process clause. That includes the right to engage in consensual sex acts (same sex or opposite sex)
iv. Justice Scalia dissent: the law in question is firmly rooted in history and it is acceptable for society
to criminalize something that they deem immoral.

33
 v. Justice Kennedy opinion: constitution endures persons in every generation can invoke its principle
in their own search for greater freedom, this is about the role of the court as the protector of
individual rights in our democracy.
J) Right to die
a. Cruzan v. Missouri Department of Health (1990): the court upheld Missouri’s standard of proof to exercise
the right (clear and convincing evidence when involving an incompetent individual
K) Fundamental right: education
a. San Antonio Independent School District v. Rodriguez (1973): established that there is no constitutional
fundamental right to an education
i. The court held that poverty was not a subject class and thus the law was reviewed under the rational
basis standard
ii. There is no explicit mention of educational rights in the constitution and there is not an implicit
right through history either.
b. Plyer v Doe (1982): while public education is not a “right granted to individuals by the constitution, it is
protected at the state level and denial of that state right can still be protected by the U.S. constitution and
courts.

Triggers STRICT SCRUTINY TEST

(1) Necessary to achieve a compelling government purpose and (2) narrowly tailored to furthering that interest
Narrowly tailored – the classification at issue must ‘fit’ the alleged compelling interest with greater precision than any
alternative means—overinclusive or underinclusive?
MEANS
- Are the means necessary?
- Are there less discriminatory or less intrusive alternatives?
ENDS
- Is the government interest compelling?

A. SUSPECT CLASSIFICATION BASED ON RACE, ALIENAGE, NATIONAL ORIGIN

UNDER THE Equal Protection provisions of the 5th & 14th amendments AND Due Process
AFFIRMATIVE ACTION
- Remedial purpose (more strict)
Compelling interest test:
 Classification must seek to rectify the effects of identified racial discrimination within the entity’s regulatory
jurisdiction
AND
 Entity adopting the remedial scheme must have a “‘strong basis in evidence’ to conclude the remedial action was
necessary ‘before it embarks on an affirmative action program.’”
Narrowly tailored test
 The gov. must demonstrate that the race-conscious remedy was adopted as a last resort after all race-neutral
remedies were examined and found inadequate
AND
 The use of race must be no more extensive than necessary to redress the past wrongs
- Educational diversity purpose (less strict)
Narrowly tailored test
 Program cannot employ a quota system that insulates certain categories of applicants with desired qualifications
from competition with others, such as by reserving a set number or proportion of the available seats for the
favored group (race may only be used as a “plus” factor)
 The sue of race as a “plus” factor can never be weighted so heavily that it becomes the defining feature of an
individual’s application – cannot be the DECISIVE factor
 There must have been a “serious, good faith consideration of workable race-neutral alternatives that will achieve
the diversity the university seeks” Grutter v. Bollinger
 The race-conscious admissions program must not “unduly burden” those who are not members of the favored
racial group but must instead be designed to “work the least harm possible to other innocent persons competing for
the benefit” Grutter
 “race-conscious admission policies must be limited in time”
ALIENS
 State and local discrimination against lawfully admitted aliens is subject to SS

ANALYSIS
1. What type of discrimination is involved?

34
  Facial discrimination – in the text
 Discrimination by design – purpose or design
 Discriminatory application
2. If the type of discrimination is one that calls for heightened scrutiny, has the plaintiff established a prima facia
case that the def. has been unable to rebut?
(a) The law has a disproportionate or disparate IMPACT on a particular group (heavily burden one group of persons
more than another)
(b) The impact on this group is intentional in the sense that it results from a discriminatory PURPOSE or design
o De jure – requires showing purpose or intent
 “Foreseeable and anticipated disparate impact” will not support finding of discriminatory purpose by
itself
Ways of proving purpose
 Disparate impact
 Legislative history
 Evidence of past discrimination
 The manner of adoption
 Can infer purpose from impact AND circumstantial evidence
 Inferring intent from application
 Keyes presumption (of evil intent)
o not de facto
3. Has the defender of the law justified the discrimination under the applicable standard of review?
 Def. rebutting plaintiff’s prima facia case of discrimination:
o By disproving element of impact
o By disproving element of purpose
o By showing the discriminatory impact was not caused by the def. purposefully discriminatory acts

B. VOTING RIGHTS

C. AGE AND WEATH DISCRIMINATION

D. FUNDAMENTAL RIGHTS/LIBERTY INTERESTS

Bear some relation to right of autonomy or right to privacy
Due Process Liberties and Equal Protection Liberties
USING EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS TOGETHER
If a law denies a right to everyone, then due process is the best ground for analysis. If it denies a right to some while reserving it
for others, use equal protection and due process together.
DUE PROCESS = gov interference justified by a sufficient purpose?
EPC = gov. discrimination justified by sufficient purpose?

E. FUNDAMENTAL RIGHTS/LIBERTY INTERESTS

Bear some relation to right of autonomy or right to privacy
Due Process Liberties and Equal Protection Liberties
USING EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS TOGETHER
If a law denies a right to everyone, then due process is the best ground for analysis. If it denies a right to some while reserving it
for others, use equal protection and due process together.
DUE PROCESS = gov interference justified by a sufficient purpose?
EPC = gov. discrimination justified by sufficient purpose?

ANALYSIS
1. Does the interest in question qualify as a protected liberty under the DPC?
 YES, go to 2
 NO, apply RB

FUNDAMENTAL RIGHTS
Right to Privacy
- Marital Privacy
- Same-sex marriage? Not explicitly stated [not SS]
Right to Autonomy
- Medical Decision Making – Right to refuse treatment; No Right to suicide – up to the States; Abortion?
“Undue Burden Test” [not SS]a
- Family Autonomy – No Right to education – but implied right under family autonomy to educate one’s

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 children as desired
IMPLIED RIGHTS
- To control child’s education
- Marital privacy
- Families right to live together
Implied rights, but not SS
- Intimate relations [same-sex] “zone of privacy”
- Abortion “undue burden test” – Courts will apply the undue burden test and only strike down legislation
with the purpose or effect of imposing a substantial obstacle on women seeking and abortion (SC seems
willing to allow states a fair amount of leeway under this standard)
Economic Substantive Due Process
- Lochner Era substantive due process protected the individual liberty to contract like it was a fundamental
right
NON-FUNDAMENTAL LIBERTY INTERESTS - RB
Education
- Brown v. Board of Education (1954): education is not a fundamental right, but it is not merely a benefit;
important in exercise of other fundamental rights [speech]; state cannot deny undocumented alien children
access to public schools. [RB+]
(1) education is not a fundamental right, but;
(2) educating one’s children as one desired is recognized as a part of the implied fundamental right to family
autonomy.
Right to Die
- Some states may grant living will provisions, but that power is completely up to the states
- Cruzan v. Director, Missouri Health Dpt. (1990): Missouri could insist on clear and convincing evidence of
a person’s wishes to refuse medication, food and water before allowing termination of the treatment. The
right to refuse life-saving treatment is an ordinary liberty interest, so it can be limited by the state [even
with specific direction from patient – no right to have desires fulfilled] [RB]
(1) It is an ordinary liberty interest to refuse life-saving treatment
- Washington v. Glucksberg (1997): “The search is for fundamental rights which are ‘deeply rooted in this
Nation’s history and tradition,’ ‘implicit in the concept of ordered liberty,’ and so indispensable that
“neither liberty nor justice would exist if they were sacrificed.”
(1) No fundamental right for assisted suicide; state has legitimate interests in protecting medical profession,
protecting vulnerable groups from abuse, neglect, and mistakes. [no balancing, RB]
FUNDAMENTAL LIBERTY INTERESTS - SS
Right to Privacy
- Griswold v. Connecticut (1965): struck down a law making it illegal to use or counsel the use of
contraceptives.
(1) There are certain intimate contexts that are off-limits from governmental intrusion and contrary to
fundamental understanding of liberty [no storm troopers invading your bedroom]
(2) Amendments: 1st [association, free exercise] 3rd [quartering] 4th [search and seizure] 5th [self-incrimination]
9th [unremunerated rights]: have penumbras presupposing a right to privacy that give them substance and
are at the heart of their purpose [now disavowed]
(3) Foundation for many other rights deemed fundamental: protecting of family autonomy, reproductive
autonomy, sexual activity
(4) Sister case: Eisenstadt v. Baird (1972) extended the use of contraceptives to unmarried persons.
Precedent:
Pierce v. Society: right to send children to private school. [Mandatory Public schools case]
Skinner v. Oklahoma: fundamental right of procreation [can’t sterilize habitual criminal offenders]
Right to Reproductive Autonomy / Abortion
- Roe v. Wade (1973): the right of privacy is “broad enough to encompass a woman’s decision whether or not
to terminate a pregnancy.” The word “person” as used in the Constitution does not include the unborn.
BUT, the state does have an important and legitimate interest in protecting the potentiality of human life,
which becomes compelling when the fetus is viable at approximately the third trimester.
(1) First Trimester = cannot prohibit abortion/ limited regulations
(2) Second Trimester = cannot prohibit abortion/ may regulate in relation to maternal health
(3) Third Trimester = prohibit abortion unless life/health of mother is in jeopardy
- Planned Parenthood v. Casey (1992): the essential holding of Roe is affirmed. Established the ‘undue
burden’ test = An undue burden exists 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. In the absence of an undue
burden, the test is whether a state measure is “reasonably related” to the legitimate goal of persuading a
woman to choose childbirth over abortion.
 Tradition: general tradition of personal choice regarding medical decisions and autonomy regarding sex

36
 exists, but specific tradition of woman’s right to choose to terminate does not exist.
 State has 2 compelling interests: maternal health and potential life
 “Undue burden” test until viability point – no prohibition before viability, no spousal notice/consent
requirements
 Large scope to constitutionally permitted regulations – purpose or effect cannot impose a substantial
obstacle pre-viability, but obstacles not deemed “substantial” are allowed
Right to Marry
- Loving v. Virginia (1976): basic civil right fundamental to existence and survival; part of right to privacy
 Strict Scrutiny
 Reasonable regulations that do not interfere with marriage relationship are permitted [minimum age]
 SS only for monogamous and heterosexual marriages
Right to Family Integrity/Autonomy
- Moore v. City of East Cleveland (1977): invalidated ordinance barring grandmother and grandsons from
living together
 Strict Scrutiny
 Does not protect all groups who want to live together
 Infringement must be direct and substantial
- Troxel v. Granville (2000): fundamental right of parents to control the upbringing of their children.
- Michael H. v. Gerald D (1989): parents have a fundamental right to the custody of their children.
- Pierce v. Society of Sisters (1925): parents have an implied fundamental right to educate children as
desired.
Right to Intimate Association
- Fundamental right of a group possessing characteristics of family to live together
Right to Travel
- (protected under EPC, or 14th Amend. P&I clause)
- right to move [w/o being discriminated against]
- right to interstate travel
HAZY AREAS – unknown test
Right to Sexual Intimacy
- Lawrence v. Texas (2003): Consenting adults have the right to engage in intimate sexual behaviros,
including that with members of the same sex, in private circumstances [purported RB, but really RB+]
 Avoids establishing a fundamental right of sexual orientation
 Could be argued as gender discrimination and be evaluated under Equal Protection with intermediate
scrutiny
Right to Refuse Medical Treatment
- Cruzan: competent adults have the right to refuse medical care, but it is not an absolute right. Left
discretion to the States. [no standard of review established]
 Right to refuse treatment is individual; state can prevent others from exercising it.
 Important interests of the State: protecting life, preserving integrity of medical profession
 There is no right to physician-assisted suicide
 The right to reject life-sustaining medical treatment (must be competent person) BUT NO right to
accept life-ending medication (i.e. physician assisted suicide)

“Special relationship” EXCEPTION

The right to protection and care from gov.  Gov. duty to protect and care is triggered when gov. has limited an
individual’s “freedom to act on his own behalf,” (through incarceration, institutionalization or other similar restraint of
personal liberty), thereby rendering the individual “more vulnerable” than he or she would otherwise have been

2. Is the protected liberty one that is deemed fundamental?

 YES, go to 3
 NO, apply RB
3. Does the challenged law impinge on or unduly burden that fundamental liberty interest to a degree sufficient to
trigger strict scrutiny?
 YES, apply SS (below)
 NO, apply RB
TEST
4. If a fundamental liberty has been impinged on or unduly burdened, does the law substantially further a
compelling governmental interest?
5. Has the government chosen the least burdensome means of achieving its compelling interest?

F. SUBSTANTIVE DUE PROCESS – intruding on fundamental liberty interest (SEE ABOVE)

37
Insists that the law itself be fair and reasonable and have an adequate justification regardless of how fair or elaborate the
procedures might be for implementing it
5th and 14th amendments – Gov. cannot deprive a person of liberty without due process of law, which includes implied or
unenumerated rights

 SDP claim asserts that a law is invalid because the government lacks sufficient reason or justification
to warrant interfering with liberty or property
 SDP asks whether what the government is doing is fair

What is the standard of review?

 Is the action the government is taking impairing a fundamental right? – SS
 If it does not impair a fundamental right? – RB

G. NONECONOMIC DUE PROCESS

Deals with the clause’s application to laws that infringe on civil or personal liberties, such as the freedom to marry and the
freedom from physical restraint
 If noneconomic personal liberty at issue is deemed fundamental = SS – otherwise, RB

H. DISCRIMINATION AGAINST OUT-OF-STATERS

Challenged under COMMERCE clause; P&I of citizenship Clause of Article IV, § 2; impairing right to travel under
EPC; P&I Clause of 14th amendment OR such laws as being arbitrary and unreasonable under EPC

Triggers INTERMEDIATE SCRUTINY TEST

Substantially related to an important government purpose
MEANS
- Do the means substantially further the government’s ends?
- Are the means efficient? Overinclusive? Underinclusive?
ENDS
- Is the government interest important? [Interests balancing]

A. INTENTIONAL GENDER DISCRIMINATION – QUASI-SUSPECT

Equal protection provisions under 5th and 14th amendment
 Defender must demonstrate
(1) The classification serves “important gov. objectives” that do not rely on archaic or “overbroad
generalizations about the different talents, capacities, or preferences of males and females”
(2) These objectives are “genuine” in the sense that they “describe actual state purposes, not rationalizations for
actions in fact differently grounded” and
(3) The discriminatory means employed are “substantially related” to the achievement of these objectives

B. NON-MARITAL CHILDREN -- QUASI-SUSPECT

C. PRIVILEGES & IMMUNITIES OF CITIZENSHIP—ART. IV

Non-discriminatory substantial burden on interstate commerce

Triggers CAREFUL SCRUTINY/RATIONAL BASIS +

Rational basis with bite
MEANS
- Is the law effective?
- Is there evidence the means promote the government’s objectives?
- Proven effectiveness?
ENDS
- Is the objective of the government articulated?
- Could an impartial law maker logically conclude the policy serves a legitimate purpose transcending the harm to the
disadvantaged class?

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A. INTENTIONAL DISCRIMINATION AGAINST THE MENTALLY RETARDED

B. DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

C. INCURSIONS ON FEDERALISM

Triggers RATIONAL BASIS TEST

Congress had a rational basis for believing that the regulated activity has a close and substantial relation with a legitimate
government purpose
MEANS
- Is there a rational basis for believing the means further the ends? Presumed effectiveness
ENDS
- Is the objective legitimate?

A. ARBITRARY OR IRRATIONAL CLASSIFICATIONS

ALIENS
- Federal laws that discriminate against aliens = RB
- Political function exception = RB
(1) The classification that excludes aliens must be fairly specific as to the positions that are involved rather than a
disqualification aimed at a wide range of positions
(2) The position must involve broad discretionary authority in the formulation or the execution of public policies and
(3) The authority exercised must have an important impact on the citizen population
- Undocumented aliens = RB

FORMATTING AN ESSAY RESPONSE

1. THESIS: state the specific ruling you advocate

2. JUSTICIABILITY: discuss only if there are real issues with the following and fed. court is addressing the issue:
(1) Jurisdiction extends only to a “real case or controversy”
- Timing – the issues must be fully developed, clearly defined, and not speculative or conjecture
 Has the law been enforced?
 Certain as to how the law’s effects will play out
(2) Must be an invasion of a legally protected interest (i.e. injury) which is:
 Concrete and particularized?
 Actual or imminent? [not hypothetical]
(3) Causal Connection:
 Is the injury traceable to the challenged action of the DF?
- Redressability:
 Will the injury be properly redressed by a favorable decision?
3. STATE ACTION: discuss only if there are real issues [summarize constitutional claim prior to analysis of this issue]
- Is the state the party whose action is being accused of violating a party’s constitutional rights?
4. CONSTITUTIONAL BASIS FOR CLAIM: what rights are endangered by government?
5. DEFINE & JUSTIFY STANDARD OF REVIEW
- DEFINE: define the appropriate test
 Strict Scrutiny
 Intermediate Scrutiny
 Rational Basis Plus
 Rational Basis
- JUSTIFY: justify the standard of review [see page 29&30]
 Explain the Constitutional reasons for judicial suspicious or judicial deference
6. APPLY STANDARD OF REVIEW:
- Identify government interests
 Define the objects of government action
- Examine means and ends:
 Are the interests: Compelling – Important – Legitimate interests?

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  Is government action: Necessary - Effective? – Reasonable – Rational actions?
 Value balancing: is the government’s object more appealing than the constitutional value in peril? What is the
relation between means ends?

40
41
 Equal Protection & Judicial Formalism
Carolene Products case introduced heightened scrutiny concept.
Economic regulation is generally rational basis
Characteristics of suspect classifications:
“discrete and insular minorities”
“politically powerless”
2 ways to demonstrate that a suspect classification has been made:
Facial classification – “black train car & white train car”
Disparate impact + Discriminatory intent
Difficult to prove intent of the law absent smoking gun
14th Amendment applies to states; 5th Amendment applied to Feds.If
state is discriminating upon national citizenship, SS applies unless the
function is in interest of self-government or democratic process. (i.e.
SS if restricting welfare beneifts; RB if restricting jury/police participation)
Fundamental Rights
Substantive due process is the practice of identifying unenumerated
rights protected within the “liberty” of 5A or 14A.
3 methods to identify a fundamental right:
Originalists – “deeply rooted in nation’s history or
traditions”Glucksberg, must define right at the “most specific level.”
Non-Originalist – “implicit in the concept of ordered liberty”Palko,
used by Alito in McDonald, broader than Originalist.
Modern Purposivist – “reasoned judgment & new insight”Obergefell,
only a vocabulary difference from Non-Originalists.
If Court declares a right to be fundamental, any infringement must
pass strict scrutiny; if not, rational basis applies.
Fundamental Rights that have been recognized under privacy:
Marriage (Loving v. Virginia, Obergefell)
Maintain Family and Custody (Moore, Michael H.)
Child-rearing (Meyer v. Nebraska)
Procreation and Contraception (Griswold, Skinner)
Autonomy of Sexual Decisions (Lawrence v. Texas)
Abortion (Roe v. Wade, Casey v. Planned Parenthood)
Now uses “Undue Burden” test
Fundamental Rights recognized under privileges & immunities:
Right to vote in elections
Right to interstate travel
Second Amendment?
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Legislative Powers & Limits
Commerce Power
Lopez holding: 3 categories to fall in–
Channels of interstate comm. (highways etc.)
Instrumentalities of IC (cars, truckers etc.)
Substantial effects on IC (aggregation possible)
Rational basis applied to all economic regs.
Limits upon Commerce Power:
Can’t aggregate noneconomic activities (domestic violence,
Morrison)
But homegrown marijuana is an economic activity (Raich,
affirms Wickard)
Can’t compel economic activity because inactivity has a
substantial, aggregate effect (individual mandate, Sebelius)
Is it a condition of participation or compelled?
Isn’t all activity also inactivity?
Is economic regulation compelling state & local officials to carry
out federal functions?
(local firearm registration, Printz)
More of a 10th Amendment limit, but relevant
Tenth Amendment Powers & Limits
10A confers no power to Federal government
Debated as to function as independent limit
Current court recognizes its limiting power for:
Protection against federal tyranny
Promotion of democracy closer to people
States can be labs for innovation
When does federal government run afoul?
Anti-commandeering principle(states cannot be compelled to act
or not – NCAA)(local officials can’t be impressed to act – Printz)
(state must not have a forced choice – New York)
Federalism; infringing on state zones of control(unduly coercive,
illusory choice – Sebelius, NY)
(noneconomic, violent crime – Morrison)
Tax & Spending Power
Tax power can be used to promote general welfare
Minority view = only to further other enumerated powers
Tax must actually be a tax, not a criminal penalty/punitive
Is it administered like a tax? (IRS collects, Sebelius)
Does it raise revenue? (Funds go to Treasury, Sebelius)
How is it calculated? (allows genuine choice)
Mustn’t force to buy $100 insurance or tax $10,000.
Tax cannot be a purely punitive, disguised regulation
Bailey v. Drexel Furniture (1922) (child labor tax)
Congress = broad spending for general welfare (Helvering)
Conditions that Congress must satisfy to attach strings:
Spending must be related to purpose of law (Dole, highway)
Conditions must be clearly stated. (Pennhurst)
Condition mustn’t be unduly coercive (Medicaid, Sebelius)
Takeaway: Conditions on spending programs can attach to new
programs more easily; critical, existing programs can’t be hung
like Damocles’ sword.
 Method for Approaching Constitutional Law Questions Executive Powers & Limits
Who is the actor in question? (which branch is doing it?) President has express powers granted by Art. II.
Congress Debate over whether the Executive has inherent, unenumerated
Do they have authority to act from Art. I, Sec. 8 or Reconstruction powers since Founding:
Amendments? Federalists say yes; language difference in Arts. I and II.
If no, unconstitutional for a lack of power. Anti-F’s say no; inconsistent with separation of powers.
If they can act lawfully, have they exceeded a limit on their power? 3 views of Presidential power: Domestic, Foreign, Wartime.
Individual/Fundamental rights Domestic & Wartime Powers
Equal Protection Youngstown Steel deals with Domestic & Wartime power:
Commerce Power limits Holding: no inherent unenumerated powers. Must have express
Taxing & Spending limits Art II power or statutory grant of power. Rejects idea that powers
10th Amendment limits expand in wartime.
President or Executive Branch Frankfurter Concurrence: if Congress knows & tacitly approves
Do they have authority to act from Art II or a statutory grant of power executive act, it becomes valid Executive power.
from Congress? Jackson Concurrence: 3 levels of Presidential power
Steel Seizure framework Max: Act within Presidential power + statutory grant
If he may act, has he exceeded his grant of power? Middle: Act in Congressional silence = legality TBD
Usurped the role of another branch Lowest: Act against Congressional wishes; doubtful.
Same as Congressional limits Douglas Concurrence: “interstitial power” President has
Judiciary unenumerated powers as long as the act is executive in nature. If
Does Court have ability to hear the case? Is it justiciable? usurps another branch, unconstitutional.
Political question doctrine Dissents: During Korean War and other wartimes, Executive has
State or local official broad, inherent, emergency power.
Power not granted by Constitution. Have they violated another Similar to Korematsu’s - “wage war successfully”
Constitutional limit? Foreign Powers
Private entity Inherent conflict between branches:
Unless the 13th, Constitutional limits don’t apply. Congress has power to declare war
…but President is Commander-in-Chief
… and Judiciary has little to no power in the area.
Supreme Court largely defers to Executive in foreign issues.
Doesn’t view itself as capable of oversight.
Executive presents united front of USA to world.
Political Question Doctrine & Justiciability Executive has treaty & executive agreement power.
Justiciability is the determination that a case is able to be heard by the Treaties must be ratified by 2/3 of Senate, though.
Supreme Court. Only covered Political Question doctrine, though Exec. Agreement does same thing without ratification.
others exist. Trump v. Hawaii demonstrates foreign power of Executive
Created by Taney Court in Luther v. Borden which declined to hear Rational basis weakly applied in oversight
challenge to “Guarantee” Clause. Curtiss Wright Export Corp
Political Question Doctrine: President has broad, inherent foreign policy powers.
An issue will be ruled a non-justiciable political question if: Zivotzky v. Kerry
It is textually committed to another branch of government(e.g. President’s ability to choose to recognize foreign governments or
impeachment is for Congress – Nixon v. U.S.) not.
(e.g. Congress
(e.g. President controls in foreign policy)
There are no judicially manageable standards to resolve it.(e.g.
gerrymandering math is really difficult– Rucho)(Military policy is
beyond our expertise – Korematsu dissent)

Examples of non-justiciable political questions :

Republican form of government clause
Treaty-making
Impeachment
Gerrymandering
Unless an equal protection, 1 person = 1 vote issue (Reynolds)

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