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Table of Contents
Six Constitutional Modalities......................................................................................................................................................... 2
Role of Court & Judicial Review...................................................................................................................................................... 2
Three Standards of Judicial Review – Rational Basis................................................................................................................... 3
Federal v. State Power Basics:....................................................................................................................................................... 4
Necessary & Proper – Art 1 Sec 8 Cl 18........................................................................................................................................... 4
Commerce Clause – Art 1 Sec 8 Cl 3................................................................................................................................................ 4
Civil Rights and Commerce......................................................................................................................................................... 6
Racism presented as Commerce................................................................................................................................................. 6
Limits to Commerce Power........................................................................................................................................................ 7
Counterarguments to Broad Commerce Power........................................................................................................................... 7
Civil War Amendments.................................................................................................................................................................. 7
13th Amendment........................................................................................................................................................................ 8
14th Amendment........................................................................................................................................................................ 8
15th Amendment........................................................................................................................................................................ 9
Xth Amendment.............................................................................................................................................................................. 9
Tax & Spend Power..................................................................................................................................................................... 10
Equal Protection Clause............................................................................................................................................................... 10
14th Amendment and Strict Scrutiny......................................................................................................................................... 11
Affirmative Action.................................................................................................................................................................... 12
Intermediate Scrutiny - Gender................................................................................................................................................ 13
Substantive Due Process Clause................................................................................................................................................... 14
Lochner Era.............................................................................................................................................................................. 15
Post-Lochner............................................................................................................................................................................ 15
Right to Privacy........................................................................................................................................................................ 16
Sexual Orientation & Right to Marry............................................................................................................................................ 17

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Place Statutes/Important Rules/Important Takeaways in Tables

Content goes here!

NOTE: Separate rule analysis from content of rule/statute with bolding.

HYPO
Suggested that hypos be placed in textboxes with contrasting colors so as to be easily distinguishable from rules, etc.

NOTE: I like to leave a line break at the bottom of my tables so as to not have the last line of text look like it’s underlined.

Six Constitutional Modalities

1. TEXT – what does literal text tell us about meaning of Constitution?

2. HISTORICAL CONTEXT – historical context surrounding writing of Constitution? How has historical context changed and
evolved? Intent at time written?

3. STRUCTURE OF GOVERNMENT – federal/state government structure to understanding meaning and purpose? Roles of each
branch

4. PRECEDENT – what do prior case decisions and other sources say about meaning and intent of Constitution?

5. PRUDENCE – predicted results of the decision? Do consequences align with Constitution’s goals? slippery slope idea – long
term consequences of SCOTUS decisions

6. NATIONAL VALUES – liberty and freedom, at times it can feel idealistic

Theories of Interpretation Today:

- Living constitution
o Meant to evolve and adapt
- Originalism/strict constructionism
o Interpretation confined to intent of framers

FEDERALISM:

Role of Court & Judicial Review

Judicial Review: power of court to review acts of Congress to decide whether they are constitutional
- This power is interpreted into the Constitution – Art III does not explicitly outline it

MARBURY V. MADISON:
- Facts:
o Election of 1800: Adams (Federalist) lost to Jefferson ( ), first time for transfer of power between parties
o Judiciary Act of 1801: created circuit courts so SC justices would no longer ride the circuits
 Adams confirmed Marbury for this role late in term
 Signed by Marshall, but new SoS Madison did not send them out
o Marbury wants Madison to release commission – filed under OJ
- Analysis:
o Does Marbury have right to commission? YES
 All appropriate measures were followed
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o Do laws afford Marbury a remedy? YES
 No one, not even President, is above the law – govt of law not men
o Can SCOTUS issue this remedy? No
 Judiciary Act of 1789 gives SCOTUS power to issue mandamus as matter of OJ
 Act conflicts with Article III, §2 which grants SCOTUS OJ only in certain cases (ambassadors, public
ministers, and counsels) – appellate jurisdiction for everything else
o SCOTUS was willing to invalidate a federal law on constitutional grounds!
- Rules:
o If conflict between constitutional provision and congressional statute, the court has authority and duty to declare
constitutionality and refuse to enforce statute.
 Establishes judicial review and power of judiciary
o Constitution is supreme law of land – Art IV Cl 2
o Judicial power to interpret loosely comes from Art III – “all cases arising under Constitution” (implied power)

Three Standards of Judicial Review – Rational Basis

MEANS ENDS
RATIONAL BASIS Rationally related To a Legitimate govt purpose
INTERMEDIATE SCRUTINY Substantially related To achieve an Important purpose
STRICT SCRUTINY Necessary to Achieve a Compelling purpose

Rational Basis Test: if law has rational basis in legislative competence, the Court will defer to the legislative process.
- Legislation for ordinary commercial transactions is not to be pronounced unconstitutional unless is cannot be based on
rational basis related to legit govt purpose
o Judicial review on reasonableness
o Whether ANY state of facts could be reasonably assumed to support it – even without facts it is presumed
o Later, Court likes to see findings to support this rational basis (LOPEZ)
- Default standard except does NOT apply when… (CAROLENE Footnote Four) – rather strict scrutiny
o Law affects any of first 10 amendments PLUS when embraces the 14A
 Does NOT apply to individual rights
o Law affects discrete and insular minorities (religion, nationality, race)
 Not exhaustive list – basically times of prejudice
o Law affects things that assure democracy (vague)
 Right to vote, poli orgs, etc

US V. CAROLENE PRODUCTS:
- Facts:
o federal Filled Milk Act – prohibited shipment of skimmed milk with any fat other than milk fat
- Analysis:
o Legislature is best to review evidence and determine rational means for legislation -> court isn’t competent to do
this
o Footnote Four exceptions to Rational Basis
- Rule: Congress has power to regulate commercial products that could impact health and safety of the public

WILLIAMSON V. LEE OPTICAL:

- Facts:
o OK state law made it unlawful for any person not licensed as optometrist or opthamologist to fit lenses for
eyeglasses without prescription
o Lee Optical brought suit that it violated Equal Protection - opticians cannot fit lenses on own then
 State law is just to raise earnings of opthamologists
- Analysis:
o Minimal rationality is sufficient
o Court can invent reasons for legislature’s rational choice - says means (classification) to ends (public health)
- Rules:

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o Court is going to defer to democratic authorities (even if state, not just federal) unless it is one of the exceptions
(individual rights or democratic process, etc)
o Total deference – most deferential standard for rational basis review
Federal v. State Power Basics:

Federalism:
- If state action conflicts with federal powers, federal power preempts state law.
o Supremacy Clause – Art IV Sec 1 Cl 2- “this constitution shall be the supreme law of the land”

Federal Government Powers:

- Limited powers: Art 1 § 1 - “all legislative powers herein granted”
- Enumerated plenary powers: Art 1 §8 + amendments that give congress the power to enforce and enact legislation
- No powers beyond what (1) falls directly within enumerated powers and (2) is implied from those enumerated powers
o Must not violate any limitation on federal power (e.g. – Bill of Rights)

State Powers:
- action by state government is presumed to be valid under federal law unless it violates Constitution
- all powers not delegated to federal government left to states
- state has police powers – to protect health, safety, or general welfare of state residents (10A)
o “power not delegated to US by Constitution, nor prohibited by it to the States, are reserved to the States”

Necessary & Proper – Art 1 Sec 8 Cl 18

Necessary and Proper Clause: Article 1 Sec 8 Cl 18 – to make all Laws which shall be necessary and proper for carrying into execution
the foregoing powers

MCCULLOCH V. MARYLAND:
- Facts:
o Debate over whether Congress had power to delegate a national bank under Constitution
o Congress chartered national bank – MD adopted an act imposing tax on all banks in state not chartered by state
o MD sued McCulloch – cashier for branch – for not paying tax
- Analysis:
o MD says constitution is for state sovereignty – SCOTUS says it is for the people
o Powers can be implied in Constitution
 Outline meant to be interpreted
 There wouldn’t be the restrictions in Art 1 Sec 9 if there weren’t implied powers derived from Sec 8
 Word “expressly” removed from Articles of Confederation
- Rules:
o “Necessary” is any means calculated to produce the end (appropriate means and legitimate end)
 Legitimate ends within scope of constitution and plainly adapted to that end
 Not prohibited
o Power to charter bank comes from power of taxation + N&P

Gonzalez v. Raich:

Gonzalez v raich dissent is modern N&P?

ACA

Commerce Clause – Art 1 Sec 8 Cl 3

Commerce Clause: Article 1 §8 Cl 3 – gives Congress the power to “regulate commerce with foreign nations and among the several
states, and with the Indian tribes”
- Commerce power = plenary power, very expansive
o Structure: if congress does not regulate this, who else will monitor activity between states?
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o Purpose: unifying the nation

History of Commerce Clause:

- Jones and Laughlin Steel: substantial effects test
- Darby: rational basis review
- Wickard: aggregate effect
- Lopez: 3 categories of commerce that congress can regulate
o Congress does not have general police power under this clause
o Congress can only act on interstate commerce once state action has occurred

LOPEZ: congress can constitutionally regulate…

- Channels of interstate commerce
- Instrumentalities of interstate commerce (people, machines, etc)
- Activities that substantially affect interstate commerce
o Economic activities can be aggregated to show a substantial effect (Raich)
o Non-economic activities cannot be aggregated to show a substantial effect (Morrison)

Commercial or Noncommercial Result Examples

Activity is arguably “commercial”
Activity is not “commercial”
Does not really matter if directly affects Wickard v. Filburn
interstate commerce, as long as generally Gonzalez v. Raich
part of activity that in aggregate
substantially affects interstate commerce
Needs pretty obvious connection – US v. Lopez
rational basis no longer suffices – findings US v. Morrison
are necessary

History of Commerce Clause Civil Rights & Commerce Clause Modern-day Commerce Clause
Hammer v. Dagenhart Heart of Atl Motel v. US US v. Lopez
NLRB v. Jones and Laughlin Katzenbach v. McClung US v. Morrison
US v. Darby Gonzalez v. Raich
Wickard v. Filburn NFIB v. Sebelius

GIBBONS V. OGDEN:
- Facts: Ogden got license under NY law to exclusively operate steamboats in NY waters. Gibbons got similar license from
federal government for waters between NY and NJ. Ogden obtained injunction against Gibbons.
- Analysis:
o Define terms of commerce clause:
 BROAD definition – traffic, navigation, commodities
 Interstate = concerns more than one state
 Limit = wholly intrastate with local purpose
- Rule:
o Congress has power to regulate interstate commerce
 Federal power trumps state again
o Power to regulate = complete in itself and acknowledges no restraint other than as prescribed in constitution and
by people and democracy
o States still have power over inspection laws, quarantine, health (before becomes article of commerce)

CHAMPION V. AMES:
- Facts: congressional act prohibited sending lottery tickets through the mail from one state to another – protecting from
moral evils and protecting states that outlawed it
- Analysis:
o Lottery tickets are commerce because they are bought and sold
o Regulation includes prohibition
o Does not take power away from states – supplementing action of states, can still have lottery tickets within state
- Rule:
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o Motive of congress doesn’t matter as long as it is within commerce power – plenary power

Dissent in HAMMER V. DAGENHART:

- Facts: Child Labor Act – prohibited transportation of goods produced in factories employing children under 14 + other limits
- Majority Rule: NO LONGER GOOD LAW
o This is about local production, not transportation/commerce – purely local matters cannot be regulated by federal
government
- Dissent: later becomes majority
o If act falls within one of congress’ power, it is irrelevant if it has an effect on local activity otherwise under power of
state
o Effect on other states = within commerce power

NLRB V. JONES AND LAUGHLIN: substantially affects

- National Labor Relations Act prohibited company from firing employees for participating in unions
o Within commerce power – held warehouses in 4 states, sent 75% of product out of state
- Rule: can regulate labor relations via CC because labor has substantial effect on commerce
o Substantially affects = rational relationship as a matter of degree

US V. DARBY:
- Facts: prohibited shipment of interstate commerce if employees’ wages and hours do not conform to Act
- Even if motive is to regulate hours and wages, doesn’t matter, still within commerce power
o Overrules Hamer – motive doesn’t matter

WICKARD V. FILBURN:
- Quotas for how much wheat can be consumed on farm, even personal consumption
o Farmer considers self outside of market and outside of scope
o Congress wanted to stabilize price and interstate commerce
- Rule: local and intrastate commerce can be regulated if in the aggregate it substantially affects interstate commerce
o Home consumed wheat would influence price in market (if this were the case for an aggregate, market harm)

COMMERCE POWER LIST:

1. Goods
2. channels of interstate commerce (one step removed)
3. substantially affects interstate commerce
4. necessary and proper + commerce
5. aggregate private intrastate activities that substantially affects interstate commerce

Civil Rights and Commerce

HEART OF ATLANTA MOTEL V. US:

- Title II regulated no discrimination of certain sizes of commercial business
- Hotels by nature are channels of interstate commerce
- Racial discrimination disrupts commercial intercourse by suppressing commerce (within commerce power)
o Just because legislating against moral wrong does not make them invalid

KATZENBACH V. MCCLUNG: BBQ

- Half of meat from BBQ restaurant from local supplier who procures from out of state ($75k)
- Discrimination by restaurants -> sold less interstate goods -> interstate travel obstructed -> business suffers
o Even if insignificant volume, just like Wickard, does not outside scope of CC
- Once there is rational basis for legislation, deferential review over congress is power of commerce

Racism presented as Commerce

PRIGG V. PENNSYLVANIA:
- Facts:
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o Prigg forcibly removed family violating PA law that requires brought before judge or magistrate in PA
o Fugitive Slave Act of 1793: person delivered upon claim over them
o PA Statute: stop self help, create process
- Analysis:
o Slave trade not express in constitution – but in Art IV Sec 2 Cl 3
- Majority Rule: No longer good law
o FSA is constitutional to exercise Art IV exclusive right to catch fugitive slaves – N&P
 State does not have concurrent right – PA law is unconstitutional
o Constitution gives exclusive authority to federal government to make laws regarding capture/return of slaves

DRED SCOTT V. SANFORD:

- Issue: is a former slave free because he traveled north to free territory? Is he a citizen?
- Analysis:
o Drafters of Constitution did not think black people imported as slaves were entitled to constitutional rights and
protections
o State citizenship is not US citizenship
- Rule: No longer good law
o Black people brought to US as slaves are not considered citizens of US and not entitled to protections of
constitution

Frederick Douglass Response to Dred Scott:

- Constitution should only be interpreted based on what is in text plainly written
- Gives benefit of doubt to slave provisions of Constitution
o 3/5th compromise encourages freedom for political power
o Slave trade until 1808 provided for abolition
- We the people – not we the white people

Limits to Commerce Power

US V. LOPEZ:
- Gun free school zones
- Rule: where non-economic activities, rational basis is more scrutinized
o Need to show findings of substantial effects on IS
o Creates formal procedures
- Holds guns in schools are not related to commerce
o But if Congress were to go back and show findings – could be

US V. MORRISON: VAWA
- Gave victims a federal civil cause of action
o Says gender motivated violence exacerbates gender poverty nationwide
- Gender motivated crimes are not economic activity
o Concerned could create federal police power (federalism arg)

GONZALEZ V. RAICH: marijuana

- CA law decriminalized for medical – federal laws would prohibit
o Medical use exception makes it non-commercial intrastate
- Fell on Wickard side of line (aggregated)
o Dissenters in Lopez/Morrison were majority here
o Scalia’s concurrence: N&P allows congress to regulate non-economic if effectuates “comprehensive federal
scheme legitimately enacted as long as reasonably adapted to legit end (huge door)

NFIB v. Sebelius: ACA

Counterarguments to Broad Commerce Power

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Originalist:
- Commerce clause has gone too far
- Framers did not include things like “substantially affects”
-

Civil War Amendments

Civil Rights Act of 1866: prevented discrimination in contracting and property ownership – passed pursuant to §2 of 13A
- Response to black codes
- Debate over which rights included – narrowed to “essential” rights (contracting, property)

Civil Rights Act of 1875: banned discrimination with public accommodations – passed pursuant to 14A

13th Amendment §1 - Bans slavery, badges, and incidents

§2 - congress has enforcement power, operates on individuals
14th Amendment Limits state discrimination NOT individuals
§1 – broader rights given – citizenship, privileges and
immunities, due process, equal protection
§5 – power to enforce – react to state action
15th Amendment Right to vote regardless of race
§2 – enforcement power

13th Amendment
13th Amendment does not require state action to trigger.

JONES V. ALFRED H MAYER CO:

- Congress passed CRA 1866 to prevent racial discrimination in real estate
- 13A§2 + N&P = congress can pass any laws necessary and proper for enforcing 13A’s abolishment of badges and incidents
of slavery
- Congress determines what are badges and incidents
- Note: language same as 14 and 15 but this one has never been questioned

14th Amendment
14th Amendment requires state action to trigger.

14A§5 BIG POWER:

- Power to legislate more broadly and remedy state action they feel denies liberty in an unconstitutional way
o As long as congruent and proportional to state action
o As long as don’t dilute rights
o As long as means are appropriate to achieve legit ends
- Enforcement is remedial and preventative
o Show findings to show justified
o Findings should be fresh (SHELBY COUNTY)

STRAUDER V. WEST VIRGINIA:

- Facts: black man convicted by jury without any black people
o Issue of no possibility of black jurors not the right to have one/some
- Purpose of 14A = no discrimination made by law because of their color
o Exemption from unfriendly legislation and legal discriminations2
- Two ideas of Equality:
o Sameness (formal equality)
o Affirmative action/friendly legislation to reverse hierarchies
- Rule: suggests laws can have race categories as long as not creating a stigma

SLAUGHTERHOUSE CASE: state law challenged by 14A

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- Rule: limited number of privileges and immunities protected by 14A, rest left to states
o E.g. high seas, habeas corpus, bring claims
o P&I’s of US citizenship
- Says that state law on slaughterhouses was within police power, outside scope of congress 14A
- P argues that abridges P&I of right to labor/self employment – fundamental right
o Fails

CIVIL RIGHTS CASES: CRA of 1875

- Federal law under 14A which pre-empts state laws – allowed?
o Not a response to state action
- 14A does not grant power to legislate subjects within domain of state legislature, but provide means of relief against
prohibited state legislation
o Otherwise fed would be taking direct action against individuals
- 14A is corrective not for general legislation creation
- Dissent:
o What is point of abolishing slavery ad 14A if fail to protect those civil rights and leave discretion to states
 Narrow interpretation defeats 14A
o Rights of access are fundamental (quasi public – response to need for state action)
 Private places where gov’t contracted out duties or are licensed by state should be considered the state
PLESSY V. FERGUSON:
- Railroads separate but equal accommodations
- Arguments:
o Separate but equal would allow for a lot of state laws such as walking on different sides of street, separate cars by
hair color, required to paint houses certain colors
 Court replies exercises of police power have to be reasonable and for public good and this is reasonable
because defers to custom
o Separation shows inferiority – social and political consequences
 Courts replies equality comes from mutual appreciation – cannot force equality or integration

KATZENBACH V. MORGAN:
- NY law required ability to read and write in English (NY not subject to VRA preclearance)
o State says just want voters to be informed
- Rule: enough for congress to perceive a rational basis that is plainly adapted to end

CITY OF BOERNE V. FLORES:

- Church building permit denied, church challenged under Religious Freedom Act
o RFRA – changed what court said violation of 1A/14A so that neutral laws can interfere with religious exercise
- Rule: Congress can pass laws to remedy state action that they feel denies liberty in any way 14A§5
o Must be congruent and proportional (limited schemes of subject, time, place, etc)
o Must be remedial not substantive
o Must enforce rights as they are defined by the courts

§5 of 14 (public accom – struckdown?)

§2 of 13 (CRA 1866)
§2 of 15 (voting rights)

15th Amendment
SC V. KATZENBACH: VRA
- Formula of VRA defining states that need preclearance determined
o Individual case by case litigation was insufficient
- Rule: 15A can be used to regulate state voting laws – enforcement is to protect core rights of §1
o “plainly adapted” is limit – broader power than courts
o Remedial and prophylactic (preventing certain states from changing rules without preclearance)
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SHELBY COUNTY V. HOLDER:

- VRA kept 1972 preclearance data – reauthorized in 2006
- Rule: identifying jurisdictions based on past conditions not current = not proportional or congruent
- Real issue: second generation voting discrimination laws protected against by 14/15A?

Xth Amendment
How does 10th Amendment limit congress’ power?
- Anticommandeering: Congress cannot commandeer state legislatures or officials to regulate on behalf of federal govt

MAYOR OF NY V. MILN:
- NY law requires ships to provide account of all persons on board
o Purpose of law = safety and prosperity for internal benefit, not external commerce
- Rule: state police power in 10A is sovereignty of state retained

NATIONAL LEAGUE OF CITIES V. USERY:

- Congress extended minimum wage to state employees
- Rule: Congress can’t legislate traditional state functions
o Would affect state’s ability to structure employer relations – important for state/fed sovereignty
o How do you define traditional? Lots of inconsistency

GARCIA V. SAN ANTONIO MTA:

- Reverse Usery
- “traditional govt function leaves decision up to judiciary and creates inconsistency
o State sovereignty is better protected by procedural safeguards inherent in federal system
 State elected officials participation in federal system advocate for state
- 10A is still subject to commerce clause power – congress can regulate wages of state employees

NY V. US:
- Federal govt and states colluding to control individuals
- Congress created 3 incentives for handling waste
o Monetary
o Access
o Title provision – take possession of all waste in their borders and pay damages to generators if fail to do so
promptly
- Rule: federal govt cannot compel/coerce states to legislate (Anticommandeering)
o States must have a choice – otherwise accountability is diminished
 Could displace blame on fed

Tax & Spend Power

Equal Protection Clause

Equal Protection Clause of 14A: “no state shall make or enforce any law which shall… deny to any person within its jurisdiction equal
protection of the laws”
- Note: applies only to state government – federal government bound by same rules through 5A

Approaching an Equal Protection Issue:

1. What is the classification?
2. What is the level of scrutiny?
3. Does govt action satisfy the level of scrutiny?

Type of Classification Standard of Review

Race, religion, national origin, fundamental rights Strict scrutiny
Gender Intermediate scrutiny
Sexual Orientation Unclear, rational basis with bite
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Social or Economic Rational Basis

CAROLENE PRODUCTS footnote 4:

- Exceptions to rational basis:
o Law affects Bill of Rights (embraces 14A)
 No RB for individual rights
o Discrete and insular minorities
 No RB for religion, nationality, race
 Discrete and insular =
 History of discrimination
 Obvious, immutable characteristic
 Politically powerless
 Characteristics that have little relation to legislative objective
o Things that assure democracy (vague)
 Right to vote, political orgs, etc

14th Amendment and Strict Scrutiny

Strict Scrutiny: NECESSARY TO ACHIEVE A COMPELLING PURPOSE
- Compelling Purpose:
o National security
o Diversity in edication
o Remedying past discrimination (specific not general)
- Necessary:
o Most narrowly tailored means to achieve ends
o Can’t be over or under inclusive

Strict Scrutiny as applied to Racial Classifications:

- Why SS for race classifications?
o Race is usually irrelevant for classifications – immediately suspect
o History of discrimination
o Immutable characteristic
o Politcally less powerful
- SS applies to…
o Laws that discriminate on face
o Laws that have discriminatory impact AND intent
 if not discriminatory on face, need to show intent

Two Principles against Racial Discrimination:

1. antisubordination
a. harm of inequality arises from hierarchy and subordination
2. anticlassification
a. harm of inequality arises from classifying persons by race

BROWN V. BOARD:
- racial segregation in schools
- Analysis:
o Challenged premise of separate but equal in past cases for segregated law schools as “not equal”
o Created mass of cases to show separate isn’t equal
o Here, to separate students from others of similar age and qualifications solely based on race generates feeling of
inferiority
 Affects motivation to learn
- Rule: separate schools for different races are inherently unequal and violate EP of 14A
- Takeaways:

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o Did Brown really overrule Plessy? Not sure because specific to educational facilities – doesn’t say segregation is
unequal generally
o Later, extended to other contexts

LOVING V. VIRGINIA:
- VA ban on interracial marriage
o State argues that EP Clause just intends everyone to be treated equal – this applies equally to white people and
black people so both punished the same
 A lot of “purity” talk
- Rule: analysis for statutes with racial classifications requires strict scrutiny not rational basis
o If racial classifications are ever to be upheld, they must be “necessary to achieve some permissible state objective”
 Here, no legit compelling purpose independent of invidious racial discrimination (wanted racial purity)
- Note: also touches on marriage being a basic civil right that when violated violates DP

KOREMATSU V. US:
- After Pearl Harbor, all Japanese and Japanese Americans sent to detention camps
o US said – national security!
- Strict scrutiny analysis (but not really)
o National security = compelling purpose
o It is a war-making power so deal with it
- Takeaways:
o Later found to be bad – under and overinclusive (detained ALL Japanese people)
o Necessary should be most tailored means by which ends are achieved

H V. DAVIS:
- Black people excluded from police force in DC because failed test – disproportionally affected black people
- Rule: discriminatory impact can be inferred from facts, but its existence alone does not trigger strict scrutiny
o If facially neutral, need to show disparate impact + discriminatory purpose

TRUMP V. HAWAII:
- Claims of national security basically means it gets and survives rational basis
o Presidential power that is facially legitimate gets deference

Affirmative Action
Strict scrutiny is still level of review for benign race-based legislation.

Compelling Interest for Affirmative Action:

- Diversity in education
- Remedial (specific, not general)

Necessary – Narrowly Tailored:

- Race neutral means tried first and unsuccessful
- Time limitation
- No quotas

Permissible Methods of Affirmative Action:

- Race as a “plus” or factor in holistic decision-making process
o NOT QUOTAS
- “critical mass” is okay
- All other race-neutral means considered first

UNIVERSITY OF CA V. BAKKE:
- Medical school set aside 16 of 100 seats
o Sued for violating EP Clause – he was only eligible for 84 seats where black people were eligible for 100
- Analysis:
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o Can’t claim history of national discrimination as compelling interest – has to be more specific or it is always
satisfied
o Court concedes that diversity in admission is compelling interest
o “set aside” or quotas are not least restrictive means – race can be a “plus” but not without other considerations
- Rule: racial quotas are not least restrictive means (i.e. not necessary)

CITY OF RICHMOND V. CROSON:

- City said at least 30% of contract has to go to minority businesses (set aside)
o Studied showed city was 50% black but only .67% of contracts went to MBEs
- Analysis:
o City cited general exclusion of minorities from trade unions and training programs – no generalized discrimination
as interest
o Also not narrowly tailored – 30% was borrowed from fed – need more findings and targeted close relationship
- Rule: state has to identify discrimination with particularity and remedy in proportional amount

GRUTTER V. BOLLINGER:
- UMich Law School gave weight to race but also considered other qualitative and quantitative measures
- Analysis:
o Diversity in education is compelling interest, holistic analysis was narrowly tailored
 Benefits of diversity are cross racial understanding, learning outcomes, better prepared workforce
 National values – universities are labs of citizenship, prepare for leadership
- Rule: holistic review, even with racial considerations, is trademark of constitutional process
- Notes:
o Undergrad assigned numbers to each factor -> unconstitutional
o Things like athletes, legacies, or income aren’t suspect classes so no strict scrutiny

Arugments Against Affirmative Action:

- Regulations cause more harm than good
o When minority students are admitted and assumed to be less qualified – more harm
- Anti-classification

Arguments For Affirmative Action:

- Anti-hierarchy and anti-subordination

Intermediate Scrutiny - Gender

Intermediate Scrutiny = test for gender discrimination
- Substantially related to an important government interest
o Exceedingly persuasive justification
- Gender classifications based on roles/stereotypes are NOT allowed
o Don’t need to show gender neutral alternatives like race though
- Administrative convenience is NOT an important government interest

Progression for Gender Cases:

- REED V. REED: men rather than women as estate administrators was arbitrary (failed rational basis)
- CRAIG V. BOREN: announces intermediate scrutiny for gender classifications

Gender Classifications:
- While race discrimination is rooted in inferiority, gender/sex classifications are rooted in roles and paternalism
- Built sex into the 14A by analogy – often parallel to race
- Quasi-suspect

FRONTIERO V. RICHARDSON:
- Servicewomen would have to qualify to claim husbands as dependents, but servicemen’s wives auto-qualified
- Analysis:
o No purpose other than administrative convenience -> not a compelling interest
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Professor Name, Class, Year Your Name
o Material harm = given less money, procedural harm = more forms, expressive harm = perpetuates stereotypes and
proscribes roles for what women should do
- Rule: archaic and overbroad gender stereotypes should not be ratified into law as the perpetuate inequalities

MISSISSIPPI UNIVERSITY FOR WOMEN V. HOGAN:

- Excluded men from all-women’s nursing school (creating precedent through cases that benefited men for sex EP)
- Analysis: really was just perpetuating stereotype that nursing is for women

US V. VIRGINIA:
- VMI with “adversative method” and refused to admit women
o after a ruling, created parallel school but with different methods and resources
o wants to create citizen soldiers – says method would have to be modified if admitted women
- Analysis:
o Applies intermediate scrutiny – justification must not rely on overbroad generalizations
o In the same way that some women would not qualify, some men would not as well
 Capable and willing women should be allowed, no different
- Rule: all gender classifications must show an exceedingly persuasive justification for its classifications
o Sex classifications can be used to compensate/promote equal opportunities, not perpetuate inferiority
 Concedes there are differences between men and women

NGUYEN V. INS:
- Federal legislation automatically grants citizenship upon birth to child born out of wedlock in foreign country to US citizen
mother, but not automatically if father is citizen (needs to go through process)
o Justifies extra requirements:
 Interest in ensuring biological relationship exists
 Verifiable by birth with woman
 Interest in ensuring demonstration of potential for everyday relationship beyond just legal
 Assume birth and pregnancy creates this with woman
- Analysis:
o Applies intermediate scrutiny – law explained by facts rather than overbroad generalizations – okay
- Rule: basic biological differences can be acknowledged in law without violating EP
- Dissent:
o Over-inflates emotional connection for mother – rooted in generalizations
o Does not inquire into gender-neutral alternatives

Substantive Due Process Clause

14th Amendment – “nor shall any state deprive any person of life, liberty, or property without due process of law”
5th Amendment – “no person… shall be deprived of life, liberty, or property without due process of law”

Typical Issue: How to define? By statute or by courts?

Substantive Due Process:

- Fundamental rights shaped by “deeply rooted traditions”
o Not affirmative, but negative (keep govt out)
- Fundamental Rights Analysis:
o How do you define it?
 If want it to be fundamental – define broadly (e.g. contraception as the right to privacy)
 Also gives opportunity for it to be taken away, though
 If want to limit judicial power – define narrowly
 Limits individual rights as well
 From categories
 1A bucket
o Political organizations and intellectual property
 Physical bucket
o Bodily autonomy
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Professor Name, Class, Year Your Name
 Relational liberty
o Home based (family)
o Is right being infringed?
 Typically a criminal sanction
o Subject to strict scrutiny if fundamental right

*Procedural Due Process = to ensure states act with adequate or fair procedures when it takes away someone’s life, liberty, or
property

Finding the Right to Privacy: GRISWOLD

- Text
o Bill of rights
o Penumbra
o + precedent
- Tradition and Hx
o 9A + conscience of people
o Laws
o Civil institutions
o Social sciences
o Living not static
o E.g. no involvement of state in marriage/family choices
- Ordered Liberty

Rights of Privacy:
- To decide how to bring up children (Pierce v. Society of Sister, Meyer v. Nebraska)
- Right to use contraceptives
- Procreation
- Right to private, consensual, homosexual activity (Lawrence v. Texas)
- Marriage (Obergefell)

Lochner Era
Characterized by “absolute freedom of individuals”
- Freedom to contract = fundamental

LOCHNER V. NY:
- NY law that can’t work more than 60 hours per week in bakery
o Infringes on right to contract v. public health
- Police power allows for reasonable conditions on right to contract, but not absolute power
o Need a closer relationship between means and outcome desired (strict scrutiny)
o Alternatives could have been inspect for cleanliness, etc
o Maybe a proper regulation for occupations like mining, but not baking
o This does not protect health (ignores a lot of evidence for this)
- Rule: state cannot interfere with working hours agree upon by employers and employees as it violates 14A right to contract
freely under DP Clause
o ***BAD LAW
- Dissent:
o A reasonable man could find this to be a proper measure for health
o Court should be indifferent to different economic theories

Court’s Role:
- Should they second guess state statutes?
o ONLY if fundamental rights
 Lochner = contracting
o Defer otherwise
- So, if 14A doesn’t protect individuals against private acts of racism in public accommodations who does it protect?
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Professor Name, Class, Year Your Name
o Corporations (Slaughterhouse, businessman (Lochner, and inn keeper (CRC)

Post-Lochner
Dismantling Lochner:
- Much more worried about public welfare – Great Depression
- Roosevelt Court Packing Plan

NEBBIA V. NY: MILK

- Sold milk below minimum retail price fixed by Milk Board
- Defer to what is reasonable, and legislature determines that
- Rule: liberty of contract is not absolute
o DP Clause of 14A does not prevent economic policies for the public good as long as not unreasonable or arbitrary
- Doesn’t fully overrule Lochner

HOME BUILDING ASSOC V. BLAISDELL:

- Extended time for mortgage payments during Great Depression
- Analysis:
o Emergencies do not suspend the constitution
o Intent of framers was to allow constitution to adapt to changing circumstances
- Rule:
o State can alter remedies of contract as long as does not impair substantial rights of the contract
o Contracts are a qualified right that state still has some power over – purpose to stabilize economy

WEST COAST HOTEL V. PARRISH: minimum wage for women

- Sets minimum wage for female employees
- Analysis:
o Constitution speaks of liberty of contract, but not absolute and unlimited liberty
o Court should not second-guess state legislature on socio-economic issues
- Rule: OVERRULES LOCHNER
o Contract is not a fundamental right
 Rights of employees can be prioritized over contracts

Right to Privacy

GRISWOLD V. CONNECTICUT: married couples can have birth control

- CT law made it criminal for married couples to use contraception or to counsel others on use
o Purpose: to protect institution of marriage and monogamous relationships
- Directs of PP convicted of counseling on contraception
- Analysis:
o Specific guarantees of BoR also have penumbras (zones of implied rights)
o 1A, 3A, 4A, 5A, and 9A all create penumbra that protects privacy
o Precedent: privacy in regard to raising children, sterilization, and freedom of association
o Deeply Rooted Traditions: court will look to the traditions and collective conscious of the people to determine if
fundamental
- Rule: implied right of privacy exists within the BoR that prohibits states from preventing married couple from using
contraception
o Pathway for substantial due process: (1) text and penumbras, (2) deeply rooted traditions, and (3) ordered liberty
- Concurrence: right of marital privacy should just be found in 9A which allows for unenumerated rights
- Concurrence:
o Ordered liberty = kind of rights we would never give up even to get into society
 Includes freedom from state interference in intimate, familial matters

EISENSTADT V. BAIRD: unmarried people can have contraception, too

- MA law made it a crime to disperse contraceptives to unmarried people
- Analysis:
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Professor Name, Class, Year Your Name
o Distinction between married and unmarried does not satisfy rational basis
- Rule:
o Right of privacy is right of individual to be free from govt intrusion into matters so fundamentally affecting a person
as the decision whether to bear a child
o Griswold applies to individuals and includes decision to bear or beget

CAREY V. POPULATION SERVICES: minors can have birth control, too

- Rule: Griswold protects individuals and so minors have right to use condoms (bear or beget)

ROE V. WADE: legalizing abortion

- TX law restricted abortions to for the purpose of saving the life of the mother
- Roe’s argument:
o Griswold’s right to privacy includes right to choose to terminate pregnancy
- TX argument:
o Fetus is person and has right to life guaranteed by 14A
- Court analysis:
o Defining personhood is what creates fundamental rights (personhood = independence)
 Reason for viability line
 Medical professionals cannot even determine when life begins, so court shouldn’t (leave it to woman)
o Precedent: Skinner, Griswold, Eisenstadt, Carey
 Bodily autonomy, space, privacy in doctors, home, family
 After viability, other rights involved that state can intrude on
o Tradition/Hx: no history of US criminalizing abortion before quickening (when becomes visible to public, no more
privacy) – left to woman and doctor
o Rule: Trimester Framework
 Compelling Point at First Trimester:
 After this point a state may regulate abortion as it reasonably relates to preservation and
protection of maternal health
 2nd Compelling Point at Second Trimester:
 Creates interest in potential life because of viability
 Personhood because capable of meaningful life outside womb
 Can proscribe abortion during that period where it is necessary to preserve life or health of
mother
o Details:
 Health and life exception = always
 To protect maternal health = during 2nd tri and after
 To protect potential life = after viability
o Concerns:
 Viability changes – should medicine shrink rights of women?
 Alternatives:
 Strictly woman’s decision
 Strictly state choice – oppo of fundamental

**note: often infringements on fundamental rights are criminalizations, but Casey shows otherwise
*reaffirms right of women to choose up to viability, but changes certain lines

PLANNED PARENTHOOD OF S.PA V. CASEY: reaffirming Roe

- PA had five restrictions on abortion
o 24 hour wait period, parental consent for minors, must notify husband
- Analysis:
o Stare decisis requires gauging costs of overruling
 Whether it is unworkable – removed without serious inequity to those who have relied on it
 Legitimacy of court
o Reliance on Roe –

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Professor Name, Class, Year Your Name
 Two decades of economic and social developments, intimate relationships, and places in society have
relied on availability of abortion
o New factual assumptions or medical advancements can only speak to time schemes, not central holding of Roe
o State can take steps to ensure choice is thoughtful and informed – allowed to persuade (trouble)
o PA statute:
 Informed consent: reasonable for state interest, must be truthful, doesn’t undermine right just creates
more informed decision (trouble)
 State just can’t unduly burden
 Notify husband: issue of DV, women do not lose rights when marry, undue burden
 “father” notification may have been different
 Parental consent: children aren’t fully free like women
- Rule: Undue Burden Standard
o State regulation has purpose or effect of placing a substantial obstacle in path of woman seeking abortion
 Not strict scrutiny, but close
 Persuasion, as long as not undue burden, will be upheld if reasonably related
o No more trimester framework – too rigid

Sexual Orientation & Right to Marry

Very inconsistent with the analysis of these cases.
Here, rational basis – plausible purpose that is legit.
- Need to show irrational, arbitrary, animus

BOWERS V. HARDWICK: sodomy – substantive due process

- Arrested for violating sodomy law with another male in own home
- Analysis:
o State has no other purpose other than thinks it’s immoral
o But, constitution provides no support for this right
 Not under privacy or anything else
 No connection to traditional values
o Court narrows analysis to gay sodomy (fundamental rights should be broad – easier to use precedent)
- Rule: fundamental rights have to be implicit in ordered liberty (liberty nor justice would exist if sacrificed) or deeply rooted
in tradition
- Dissent: becomes majority
o Right to be let alone, private sexual activity

ROMER V. EVANS: Colorado case – classification not rational (RB but more)
- Three cities adopted protected status for sexual orientation, state passed ordinance to override local laws
o Cannot enact anti-discrimination measures to protect homosexuality
o Adopted by popular referendum
- Analysis:
o State says just protecting business freedom of association and conserving resources for other recognized classes
o Court says actually withdraws from homosexuals, but not others, specific legal protections
 May even deprive them of general laws that prohibit arbitrary discrimination
 This is just a bare desire to harm – allow discrimination by sexual orientation
o Fails inquiry into if fundamental right or suspect class – so rational basis
 Just rooted in animus – fails RB
- Rule: cannot pass a law just because don’t like something (animus)
o the freedom of association argument for businesses is too broad
- Dissent:
o Just trying to preserve traditional values
o Can legislate to determine one way of life is preferable
o Leave it to states

LAWRENCE V. TEXAS: criminalized same sex sex – substantive DP

*overrules Bowers
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Professor Name, Class, Year Your Name
- TX statute made it a crime for two people of same sex to engage in sexual conduct (Bowers, but targeted LGBTQ)
o Police entered home for different reason and saw him
- Analysis:
o Bowers cited history that was as much about nonprocreative sex as homosexuality, got history wrong
o 25 states similar during Bowers, dropped to 13 with only 4 enforcing
 Really, there is a cultural shift and the court just pushes it over the finish line
o Casey reaffirmed protection for personal decisions relating to marriage, procreation, contraception, etc
 Autonomy and defining one’s own existence
o Here, either saying fails RB because no morality rationale or creates fundamental right (huge)
- Rule: DP Clause of 14A includes right to liberty in decisions about sexual intimacies
o Basically, state can’t mandate a moral code with harm to other parties (3 rd party harm)
 But how do you define harm
- Concurrence:
o Should be EP not DP – treats homosexuals different than heterosexuals
o Fails rational basis because moral disapproval is not sufficient interest
- Values! counterarg to “leave it to the states” = court is representing national majority even if not each state’s majority

AG Holder Letter:
- Obama admin issued statement saying that they would enforce DOMA but no longer defend it in court
- Also, said that sexual orientation should be considered a suspect class
- 4 Characteristics of Suspect Classes:
1. History of discrimination
2. Group defined by immutable characteristics
3. Characteristic irrelevant to govt objectives generally
4. Group is politically powerless/disenfranchised

US V. WINDSOR: DOMA case

- DOMA §3 – dictionary act changed marriage and spouse to exclude same sex partners for all federal regulations
o Same-sex couple married in Canada, one died, trying to claim tax exemption for surviving spouses
- Legal Advisory Group of House or Reps defended DOMA
- Analysis:
o Congress says it is in the name of clarity and uniformity
o First, court makes this huge federalism argument – that marriage is domain of states
o Congress does have limited reach to make determinations that bear on marital rights (taxes, military benefits,
social security, etc)
 *first issue spotter: does congress have this power?
o So, then rational basis with bite
 Does not say fundamental right or heightened scrutiny
 Says DOMA is unconstitutional because it is bare desire to harm and it is arbitrary and not rationall
related to legit interest
- Rule: DOMA denies equality and due process to same-sex couples married under the law
o Cannot treat same-sex couples any different than heterosexual couples under the law
- Dissent:
o Scalia says it is unclear what doctrine was even applied
 Should have been mere rationality under which DOMA would survive
 Leave it to democratic process

OBERGEFELL V. HODGES:
- Oral argument: super conservative
o Want in on traditional idea of marriage
o “story of America” – picking people you love
- Analysis:
o Dual EP and DP – profoundly connected
 EP enforces right provided by DP Clause
 DP provides right to marry
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Professor Name, Class, Year Your Name
 EP protects classification of right to marry
o Creation of fundamental right
 Precedent (same-sex cases aren’t about fundamental rights though and others are distinguishable)
 Is it really a privacy issue? It could be an ordered liberty idea in that marriage plays central role in
life
o Would it fail rational basis anyway?
 No evidence that traditional marriage is harmed by expanding definition
 Just like wasn’t hurt by divorce, etc
 Just because it’s always been this way ≠ legit reason (everything would pass)
- Dissent: not a fundamental right
o Judicial overreach

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