I. II.

Constitutional Methodology and the Right to Bear Arms
A. Interpretive Methods B. District of Columbia v. Heller

The Bill of Rights and the Post-Civil War Amendments
A. Early History 1. Barron v. Baltimore (1833) Facts: wharf owner sues Baltimore alleging violation of 5th Amendment Takings Clause Holding: B.O.R. applies ONLY against the federal government Reasoning: historical; intratextual – Art. I, §§ 9 & 10 use the phrase “No State Shall...” 2. Dred Scott v. Sanford – the racist impetus for the Reconstructions Amendments B. Civil War Amendments, Generally 1. Constitutionalized the end of slavery – 13th Amendment. 2. “Black Codes” require passage of Civil Rights Act of 1866 of dubious constitutionality 3. 14th Amendment – designed to override this constitutional problem; framed in general, race-free terms. § 1 forms the core of this class. C. The Fourteenth Amendment 1. Citizenship is matter of federal constitutional law – overturns Dred Scott a. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 2. Privileges and Immunities – seemingly, most obvious for substantive rights (but just wait!) a. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...” 3. Equal Protection Clause – a. “[No] State [shall] deprive any person of life, liberty, or property, without due process of law” 4. Due Process Clause – binds the states as the 5th Amendment binds the Federal Government a. “[No state shall] deny to any person within its jurisdiction the equal protection of the laws.” D. Privileges or Immunities of Citizenship 1. The Slaughter-House Cases (1873) a. Facts: slaughterhouse monopoly (purposed as health/safety measure) challenged by out-ofwork butchers as violating the Privileges and Immunities Clause. b. Holding: P&I Clause protects only certain, limited rights of federal citizenship c. Reasoning: Amendment intended to protect newly-freed slaves should not be so broadly interpreted; Majority distinguishes bundle of rights protected by P&I Clause as distinct from the somewhat larger bundle of “wanderer’s rights” including in Art. IV, § 2. Disagrees with Dissent, which finds these bundles to be the same and not limited solely to wanderer’s rights, but applicable intrastate as well [i.e. at LEAST all the rights recognized in Corfield v. Coryell are now constitutionalized against state encroachment]. d. Importance: instead of recognizing a massive transfer of rights-protection-powers to the federal government, the Court guts the P&I Clause – leading advocates to look elsewhere. e. Limited Rights: right to come to seat of gov’t and participate; writ of habeas corpus. 2. Saenz v. Roe (1999) – modern viability of P&I Clause – durational residency a. Facts: CA law: if you move to CA, you cannot receive CA welfare benefits for 1st 12 months b. Holding: CA law violates 14th Amendment; with exception of more portable benefits (e.g. instate college tuition and divorce) state cannot prohibit people from coming in to take advantage of state benefits

Louisiana (1968) a. Rights Incorporated First Amendment (1) Establishment – Everson v. Size/Unanimity not standardized – as few as 6 OK. Chicago (2010) [Third Amendment] (1) Quartering Soldiers – Engblom v. SC (1963) and Romer v. New York (1925) (dictum) (4) Press – Near v. Board of Education (1947) (2) Free Exercise – Cantwell v. Burlington & Quincy R. MD (1969) (2) Self-Incrimination – Malloy v. Louis R. Co. Hogan (1964) and Miranda v.c. Murray (1869) [clearly erroneous standard] Eight Amendment (1) Cruel and Unusual Punishment – Robinson v. 1982) Fourth Amendment (1) Unreasonable Search and Seizure – Mapp v. Reasoning: P&I Clause protects migratory rights. Evans (1996) (7) [Expressive Ass’n] – NAACP v. TX (1965) (6) Subpoena Power to Obtain Witness Testimony – Washington v. Chicago (1897) Sixth Amendment (1) Speedy Trial – Klopfer v. v. Connecticut (1940) (3) Speech – Gitlow v. Minnesota (1931) (5) Assembly – DeJonge v. NC (1967) (2) Public Trial – In re Oliver (1948) (3) Trial by Impartial Jury – Duncan v. only 9 need agree on a verdict. no right to jury trial in state court juvenile delinquency proceedings McKeiver v. Incorporation of the Bill of Rights A. Ohio (1961) (exclusionary rule) (2) Warrants – Aguilar v. although state-created benefits are not considered fundamental per Art. PA (1971) (4) Notice of Accusations – In re Oliver (1948) (5) Confront Adverse Witnesses – Pointer v. III. Oregon (1937) (6) Petition – Edwards v. Carey (2d Cir. Texas (1967) (7) Assistance to Counsel – Gideon v. Co. Texas (1964) (3) “Unreasonable” standards – Ker v. requiring states provide “same privileges and immunities” to new residents as to own citizens. Wainwright (1963) [where jail sentence may be imposed] Seventh Amendment (1) Re-Examination – The Justices v. Rights Rejected Fifth Amendment (1) Grand Jury Indictment (5th Amendment) – Hurtado v. Alabama (1958) Second Amendment (1) Keep and Bear Arms – McDonald v. P&I protects right to move and stay there. CA (1963) Fifth Amendment (1) Double Jeopardy – Benton v. Arizona (1966) (3) Just Compensation – Chicago. for 12 jurors. v. Bombolis (1916) 3. California (1884) Seventh Amendment (1) Jury Trial in Civil Cases – Minneapolis & St.R. IV wanders’ rights. Rights Just Not Incorporated . CA (1962) 2.

endorses natural law position. Lochner v. MERE PRETEXT. Chicago (2010) a. 5th Amendment includes the substantive right to property. somewhat inconsistently (not where litigants were able to override pretext presumption). Holding (overruled by Benton) double-jeopardy NOT a fundamental right c. b. C. New York (1905) – the Laissez Faire Court 1. California (1947) a. invite subjective judgment. 4. 1. Hogan) self-incrimination NOT fundamental c. Bull (1798) – suggests that judges should be able to protect “fundamental principles. 1. to override economic legislation until 1937 and end of Laissez-Faire era. Frankfurter (concurrence ) – does it offend American basic sense of justice and liberty? Black (dissent) – total incorporation. Assuming. Dred Scott v. periphery against states. The Incorporation Controversy Cardozo/Frankfurter/Harlan Black Murphy/Rutledge Selective incorporation: Total incorporation: original Total Incorporation. Conservatives: wanted to overrule the Slaughter-House Cases in order to get rid of the militia (prefatory) clause and just incorporate the individual right to bear arms b. it would violate 5th Amendment. Adamson v. Facts: NY law imposing maximum work hour for bakers 2. McDonald v. Unpredictable: vague standards Awkwardness of incorporating Best/worst of both worlds. The End of the Laissez-Faire Court – Economic regulations presumptively constitutional. Both sides: want to be able to use P&I Clause as repository for both economic liberty and privacy rights. Holding: (overruled by Malloy v. Importance: Court continued. Reasoning: only fundamental rights are incorporated by 14th Amendment 2. Sanford – the birth of substantive due process. Pre-Lochner Period 1. Calder v.” even if they are not included in the Constitution. Reasoning: Law does NOT bear reasonable relation to a legitimate governmental interest because law is NOT a valid exercise of state police power. Reasoning: Selective Incorporation. Facts: NY law imposes price controls on milk . IV. arguendo. Holmes Dissent: “[A] constitution is not intended to embody a particular economic theory. 2. not fundamental.Eighth Amendment (1) “Excessive” Bail and Fines B. New York (1934) a.” 5. 3. The Due Process Clause and Economic Liberty A. PLUS fundamental vs. sentenced to death second time. Connecticut (1937) a. substantive rights because wanted to use P&I Clause. Facts: Palka was retried for murder. Facts: Adamson challenges murder conviction on grounds that privilege against self-incrimination was violated by permitting prosecution to comment on his failure to testify. non-fundamental purpose was to incorporate all BOR rights. b. Palko core vs. Palko v. Nebbia v. Holding: Law unconstitutional infringes Liberty of Contract guaranteed by the Due Process Clause of the 14th Amendment 3. but rather a labor law. B.

upholds minimum wage limits for women. more interest in motive for classification. law satisfied the rational basis test. (b) valid public interest in preventing exploitation of workers in weak bargaining position. Inexorable logic of inferring a legitimate end from whatever means are used. Darby). Equal Protection A. or refitted to first obtain a prescription. West Coast Hotel Co v. 2. Williamson v. Lee Optical Co. Introduction – Theories of EPC 1. Lochner era suspicion of labor laws is over [permissible goal in redressing inequalities in bargaining power between legal equals] a. judicial restraint over commerce power. Railway Express Agency v. 3. where: (1) legislation appears on its face to be within a specific prohibition of the Constitution (2) avenues of political change are blocked – political input rights (3) prejudice against discrete and insular minorities (religious. Reverse Incorporation – Bolling v. B. deeply unfair to place detriments on immutable characteristics – so strong presumption of unconstitutionality which may only be overcome by enormously strong social utility. C. End of Judicial Activism in Certain Areas a. (1955) – rational basis and attribution i. BUT: United States v. Sharpe (1954): 5th Amendment DP Clause covers some of same interests as 14th Amendment EPC. c. general elimination of federal common law in diversity cases – Erie R. Holding: Constitutional c. national. ii. v. Reasoning: there is no requirement under the DP Clause for a law to be in every respect logically consistent with its aims.b. capricious. Parrish (1937) . Facts: Oklahoma law required every person seeking to have eyeglasses made. the court and advocates may be able to attribute rationale for law ex-post. protected optometrists and ophthalmologists. Reasoning: Law is consistent with minimum rationality standard – so long as court finds law to have reasonable relationship to proper legislative purpose [and court may even impute this interest to legislature] which is not arbitrary. Rationality Review 1. Carolene Products (1938) – while deferential presumption of constitutionality regarding economic legislation.S. Footnote Four: dictum recognizing situations in which courts may be more strict. bigoted dislike) – these violate constitution. Federal commerce power expands greatly (U. Holding: the law did NOT violate due process iii. forcing regular opticians out of business. discrete (identifiable) and insular (cut off) minority. due process is not offended..R. b. discriminatory. 2. economic regulation by state or federal government OK (West Coast Hotel). New York (1949) ..e. racial) V. Reasoning: imposing living wage is reasonable because (a) cost to government and community without it – inevitability argument. Thompkins. Burden of persuasion will be complainant. Equal Protection and the Federal Government 1. for you can’t make classifications in bad faith and they may reflect politically prone. a. Normative Account: government should only place detriments on individuals/classes due to just deserts. v. repaired. Process and Prejudice: certain classifications are highly likely to reflect prejudice and antipathy (i.

education) 3. United States (1944) . leading to less credible verdicts. Auth. not episodic. Facts: upheld law restricting hiring of methadone users as having rational basis for classification of narcotics users. d. goes far beyond the question presented [JX] to constitutionalize race slavery as property right and outlaw the Missouri Compromise. Deference to judgment of local legislature. No invidious purpose. Generally: So long as there is nothing invidious about way classification is made [constitutionally invidious characteristic is employed or directed/applied against group where there is systematic. Mixed bag – while striking down the law. Dissent: Argument that this is NOT Railway Express situation because methadone users are politically vulnerable per Carolene Products. v. a. b. Found law restricting making/sale of wooden caskets to funeral operations with professional licenses to be pure protectionist measure. while there were plausible arguments about racial attitudes and the likelihood of disruption from integrated juries. CA justifies on basis that change protects people from run-up in property values which might force them out. also. D.Olech (2000) – Village requiring twice-longer easement of Olechs in order to connect to municipal water supply VIOLATED EPC because there was entirely lack of justification – not always necessary to prove animus. a. Facts: NYC ordinance prohibits operating any advertising vehicle on public streets except businesses may advertise their own products on their own vehicles. (2) court willing to attribute purposes to statute – as long as there is some reason to make classification rational. Villiage of Willowbrook v. methadone users. b. For hardcore rationality review. Court indicated there could still be other characteristics for disqualification. Blacks can never be US citizens – requires 14th Amendment. 3. Holding: ordinance consistent with EP Clause c. Sanford (1857) – complete garbage opinion (reflects white supremacist attitudes. Dred Scott v. basically ensured outbreak of the Civil War). Strauder v. Limits on Deferential Review – St. b. (1) presumption of constitutionality with burden of persuasion on challenger. c. Nordlinger v. Race and National Origin – Strict Scrutiny Review 1. Hahn (1978) – CA Proposition 13 upheld [tax value changed from market value to acquisition value. need only point to average differences between classes which tend to render the classification rational to achieve legitimate purpose. birth of the dubious doctrine of SDP. problem of the people in power (here whites. Reasoning: Jury is important civil institution – this is about trying to deal a blow to the social web of discrimination and social attitudes about race. bias] then OK. 4. La. New York City Trans. Castille (E. real property-ownership. Joseph Abbey v. but could be blacks) excluding the out-of-power people. Rationale for ordinance was public safety (distraction to pedestrians and motorists). Court wants to deal with the pervasiveness of discrimination. Korematsu v. thus protecting interests of long-time/older residents] from EPC challenge. 2. Equal protection does NOT require that all evils of same genus be eradicated or none at all. 7/21/11) a. b. West Virginia (1880) – struck down as violation of the EPC the systematic exclusion of African Americans from the jury pool. Reasoning: Classification is rationally-related to statutory purpose. Beazer (1979) a. Deference to legislature where there are competing purposes.D.a. including age. sex. 2. and by extension.

Rule: overt racial classifications are suspect and should be strictly scrutinized – STRICT SCRUTINY: STEP 1: ENDS must be legitimate. law can be justified on racially-neutral grounds. of Topeka (1954) a. PRINCIPLE)? c. Davis] but Constitutional. or covertly by action of state officers. Facts: Black applicant to DC police force who failed civil service exam brought EP challenge because higher percentage of blacks failed than whites.e. but REMEDY is often unclear [very easy in Yick Wo just to overturn his conviction]. Holding: unconstitutional under EPC even though facially valid c. Right to be free from de jure segregation. closed all public swimming pools after desegregation order. Facts: Jackson. jury selection). Reasoning: COVERT racial discrimination is equally as unconstitutional as OVERT racial discrimination d. “narrowly tailored” to that legitimate end. Miss. Palmer v. i. 7. Board of Educ. Reasoning: while suspect racial classifications are unconstitutional unless pressing public necessity exists for them. Ferguson by saying that. no viable race-neutral alternatives. single non-Chinese rejection. MUST desegregate entirely to remove all vestiges of segregated system . Hopkins (1886) – Covert Discrim – Invidious enforcement a. and equal school facilities. no racial injury. teacher faculties.i. b. b. and STEP 2: the MEANS must be very closely related i. Brown v. de facto segregation is NOT unconstitutional. Washington v. c. Court less interesting in hearing about evidence of racial motivation when one of multiple explanations for race neutral policy. Turning Point: employing the value of 20th century regardless of original intent (pretty clear the radical republicans who passed the 14th Amendment didn’t think it would desegregate schools – they instituted such schools in DC at the same time). Yick Wo v. Scalia – formulated as a RULE) OR Anti-Caste (nonoriginalists – social theory concerned with power relations. Holding: Overturns Plessy v.e. Facts: facially-neutral ordinance requires permit for operating a laundry in wooden buildings. Chinese alien who operated laundry in defiance was imprisoned. Importance: discriminatory enforcement cases are very difficult to prove (BOP with π). . Thompson (1971) – Covert Discrim – Even-handed application (maybe OK) a. 5. BUT. Principle: Colorblindness (Harlan I. Holding: order survives EPC challenge. b. categorical rejection of all 200 Chinese applicants. need for end must be OVERRIDING or COMPELLING to uphold racial classification. AND remedial obligation (Brown II) that if de jure (overt) segregated school. 6. Education as foundation of good citizenship and cultural values. at least as far as public education goes. Davis (1976) – Covert Discrim/Disparate Impact a. Reasoning: [Probably overruled by Washington v.g. Even-handed application and impact. integrated student bodies. 4.e. citing public safety reasons – fear of civil disorder. Facts: Citizens and non-citizens of Japanese descent on certain portions of West Coast were excluded and placed in internment camps. hard to show stark enough pattern to make out prima facie case – somewhat easier in situations involving randomness (e.a. b. separate is inherently unequal. d. deference to military in time of war/national security threat in supporting the exclusion and internment orders.

Regents of the Univ. Reasoning: Disparate impact alone is NOT enough to establish violation of EPC – Const. 2. a. cannot survive strict (or even RR) scrutiny. (1977) – Covert Discrim/Disparate Impact a. Charlotte Mecklenburg allowed schools worried about past history of segregation to make race conscious decisions. is concerned with laws motivated by discriminatory purpose. Arlington Heights v. Housing Corp. argument concerning equal application fails because only applies to whites marrying – solely motivated by desire to preserve purity of white race. Split court: four refuse to address constitutional question. the only basis of the law is white supremacy. similar to the Harvard system. school remains racially-segregated) even where school can point to non-racial standards. Nixon’s mechanism of inspecting and relying on results. desegregation of the federal government – requirement for integrated workforces in government contracting. history of racial animosity? (3) substantive departure from prior policies? (4) procedural irregularities in behavior of decisionmaker? (5) contemporaneous statements by decisionmaker (6) examination of subjective motives 9. Title VII lacking bar to voluntary race-conscious decision making for employers attempting to ensure compliance with executive orders. Court does not want to import Title VII “impact” burden shifting framework. 8. Facts: Chicago suburb refused to grant rezoning request (single to multi-family) when nonprofit developer intended to build federally-subsidized housing units in largely white suburb for low income tenants. 3. Metro. Virginia (1967) a. Facts: interracial couple gets married in DC. here. more like the Korematsu principle that you only get the $20. of Cal. race may be considered as one of many factors.000 check if you were interned. c. b. Reasoning: “Subjects of Proper Inquiry” for considering whether unconstitutional discriminatory purpose exists: (1) impact of decision. (2) historical circumstances – e.g. v. c. b. Holding: Quota system based on race is unconstitutional. Bakke (1978) a. Justices Fall into Three Major Groups (1) Colorblindness – Scalia and Thomas – strongly against race-based decision-making (2) Middle Ground – Powell and O’Connor – softer and quieter diversity factor. on whether race is a legitimate thing to use as a proxy for another more legitimate end. Loving v. Reasoning: VA’s law violates the EPC. preferring to base their decision on the prohibitions in Title VI. Issues schools face – suspicion of intentional discrimination if there are no results (i. D2: Affirmative Action Cases 1.e. claims strict scrutiny is necessary because there are concerns of normative fairness concerning detriments being imposed based on fixed characteristics. per Korematsu. . (3) Anti-Caste Principle – Brennan and Marshall – deferential to “beneficial” race-based policies -Argument against reparations: this is NOT 40 Acres and a Mule [you weren’t enslaved!]. b. returns to VA where convicted for violating VA’s ban on miscegenation. Significance: not a hard question here – difficulty arises.b. four find EPC and Title VI co-extensive [EPC applies only to states whereas Title VI applies to private universities]. Powell: disagrees with University’s argument that this is no Carolene Products-type situation merely because it is minority advantaging.

or agencies. Bollinger (2001) a. legislatures. who do NOT have the 14th Amendment power like Congress. c. c. No doubt.Racial balancing is NOT a compelling state interest. b. Diversity not compelling interest in contracting. (2) consistency – doesn’t matter which race is being burdened. 8. tailoring to relieve those wrongs. and limit in time – and must be done by courts. who was affected. but used racial tiebreaker when demographics deviated by certain % from proportion.d.” thus changing award to Gonzalez instead of Adarand. Facts: Richmond minority set-aside program assuring at least 30% of money from city construction contracts. Croson (1989) a. Holding: unconstitutional under strict scrutiny – need for individualized determinations. But Kennedy opinion controls – states may use “race conscious” means to achieve diversity BUT schools did not use sufficiently narrow tailoring. Adarand Constructors v. b. Bollinger (2003) a. Reasoning: Roberts . Aspiration to end program in 25 years. 6. allowed students to apply to any HS in the Seattle school district. Reasoning: racial classifications should be met with (1) skepticism – i. Fullilove v. Pena (1995) a. Holding: Unconstitutional under strict scrutiny. Importance: remediation is NOT a valid argument/goal – too much to prove – who did it. Holding: federal race classifications are subject to strict scrutiny. Grutter v. Result: Led Clinton Administration to publish “Findings of Past Discrimination” at 61 Fed. Parents Involved v. not universities. strict scrutiny = careful and searchingly examined. c. § 5 power clause. Klutznick (1980) – 10% minority set-aside for federal contracting OK – different since it’s Congress doing it – the 14th Amendment. race may be considered as a plus factor. UM utilized a plus system b. plus-factor approach. Reg. not quota because softer. Have to show evidence of past discrimination and close tailoring of benefits. and determine whether you’ve exhausted race-neutral alternatives. Facts: Kentucky and Washington assigned students in public schools solely for purpose of achieving racial integration. are required to demonstrate compelling interest and narrow tailoring. Seattle (2007) a. not individuals – and worry about race spoils system. that Constitution does NOT . but diversity may be a compelling state interest. Gratz v. Reasoning: States. (3) congruence – less deference to Congress. UM utilized automatic 20 point award for underrepresented minorities with admission at 100 points.e. and narrowly-tailor to those people. same as states? d. Facts: the law school. Holding: AA program withstood strict scrutiny. tricky because it’s firms. 26042 (1996) as predicate for certain affirmative action programs. Holding: Richmond program unconstitutional under strict scrutiny EPC review. Also. 5. Facts: undergraduate school. b. c. Reasoning: recognized compelling state interest in “the educational benefits that flow from a diverse student body” – UM’s interest in obtaining a “critical mass” of minority students is “narrowly-tailored” to that end. overrules the intermediate scrutiny found in Metro Broadcasting. Finding by competent binding of prior wrongs. Richmond v. however. b. 9. 7. Facts: Federal contract stipulated additional compensation if GC awarded the job to subcontractor run by “socially and economically disadvantaged individuals. 4.

Brennan wants suspect classification. court rejects Idaho’s argument that the preference reduces administrative burdens (number of hearings. Holding: Unconstitutional – any statutory scheme drawing sharp line between sexes solely for purposes of administrative convenience violates EPC (Reed). v.impose duty to desegregate upon districts which have not practiced racial discrimination. 5. 10x greater statistical chance.2%] to males under age of 21 and females under age 18. Facts: complicated preference for men over women for administrators of estates (wihin the same entitlement class). SOR: average differences don’t cut it – e. c. where males and females are not similarly situated. if there are viable gender neutral alternatives.g. Rostker v. 3. Hogan (1982) a. Facts: post-WWII law that women can’t be bartenders (except wives/daughters of bar owner) b. but unclear SOR – a reasonable legislature could have applied rationality review and found marginal differences between men and women recommended the former over the latter. E. but more to it. Richardson (1973) a. reflecting misogynist attitudes 2. Holding: Applied Rational basis – upheld Michigan law. Reasoning: cost of gender-neutral alternative (disincentive to reporting) is very high. b. 6. Facts: Oklahoma law prohibited sale of “near beer” [3. also. not for males. strong deference to legislature. Illinois (1873) a. although hidden story is fact that girl’s testimony at trial points toward actual rape. Facts: man denied admission to women’s college of nursing b. Craig v. Importance: S. the law will likely not be upheld. c. Miss. government did not show that it had saved money. statutory differences are constitutional because based on real physical differences. age of consent 18 for females. Bradwell v. state failed to justify system as benign or compensatory. exclusion constitutional because only men are eligible for combat – process approach. b. Univ. for Women v. Reasoning: intermediate scrutiny applies to gender classifications affecting males. b. Superior Court (1981) a. Frontiero v. Gender Classifications – Intermediate Scrutiny 1. Ct. 4. SOR: still acting like rational basis. Reed v. Cleary (1948) a. streamlining the process). Facts: federal law afforded male members of armed forces automatic dependency allowance but required women service women to prove the dependency of their husbands. 7. Boren (1976) a. Holding: Constitutional. question whether that exclusion is permissible [certainly arguable]. Goesart v. Holding: unconstitutional. Reed (1971) a.18% females had been arrested for DUI. c. Holding: unconstitutional c. Michael M. 8. Facts: gender discriminatory statutory rape law – punished males only. Justification was traffic safety – 2% of males 18-20 versus 0. Goldberg (1981) – upheld Military Selective Service Act requiring registration of males but not females. Holding: Intermediate scrutiny – statutes which discriminate based upon someone’s sex violate EP if the create gender-based classification not substantially related to an important (not necessarily compelling) government interest. upheld ban on women practicing in Illinois. b. .

NO attribution. c. Means to Ends Rational Basis. (2) strange argument that the EPC is meant to uphold traditional values Ends Legitimate (courts will be willing to attribute) presumption of constitutionality Not just legitimate. If “colorblindness” is the purpose of the EPC. (1) Normative principle of equal protection – unfair to distribute benefits and burdens on traits that are immutable or over which one has no control of no reference to talent or character – argument that this will apply to gender too. and must should unavailability of gender neutral alternatives unless costs are high. but probably. Reasoning: rejects arguments that VMI is part of state’s approach to educational diversity and that school’s important adversative method would have to be abandoned for women to be admitted. Holding: unacceptable to rely on average differences/stereotypes that men will be more sympathetic than women to arguments of out-of-wedlock father. Facts: state tried to use peremptory challenges to strike male jurors b. presumption of unconstitutionality.B. However. (gender statutory rape law). uncertain about gender light versus gender heavy.9. J. Not just legitimate. Race light over race heavy (Grutter over Gratz and Bakke). Alabama (1994) a. United States v. all the Civil War Amendments were about race and 14th § 2 even talks about men being equal. unclear about attribution – Michael M. Facts: woman denied entry to VMI solely based on gender b. As far as Carolene Products goes here: Women are NOT a minority. d. empirical presumption in favor that it will favor the legitimate ends Substantially related. but compelling (weight). Holding: Unconstitutional.E. then it has nothing to do with sex discrimination. (2) Anti-Caste and Anti-Subordination – how do gender relations stack up against race relations? These can be understood benignly or as patriarchy. 10. Women are NOT cut off from the . not the same as the brutal subordination and separation for race. v. alternatives are irrelevant. but important – less than compelling (weight). which should be accorded only rational basis review. Raced based means must be narrowly tailored or strongly necessary to satisfy that compelling end. Non-suspicious classifications (default) Railway Express Quasi-Suspicious (gender. national origin) 11. State may not discriminate based on gender unless it has an “exceedingly persuasive justification” for doing so. Virginia (VMI Case) (1996) a. Dissent: Scalia makes (1) more legitimate argument that the SOR utilized by the court is closer to strict scrutiny than intermediate. nonmarital children) Suspicious (race. must use raceneutral alternatives unless costs are very high Grutter (explicitly) and Korematsu (implicitly). alternative to VMI (women’s leadership school) is far to second rate. Arguments for and against using Strict Scrutiny Problem for originalists.

the BOR applies – with exception of DPC in terms of exclusion and deportment. Orr (1979) a. the husband would not get benefits. e.g. less deferential to legislature. Other Questionable Classifications a. Still. situational suspicion – rested on impermissible prejudice. iv. builds sympathy. iii. Sexual Orientation – in flux: now (maybe stronger) rational basis – Romer v. ii. While Congress can exclude any category from admission to US. also implied preemption theory – state undermines federal interest in admitting the person originally. Intermediate scrutiny – not immutable quality. BUT still possibility of prejudice. iii. hard to measure qualities (e. Age – Mass. long practice of using age as workable proxy for other. Holding: unconstitutional. Process theory. Board of Retirement v. Mentally-Disabled – Cleburne v. Courts should NOT be generally suspicious here because there ARE real differences which legislatures have to take into account. Facts: Alabama alimony case – obligations imposed only on husbands b. but reinforces stereotypes and actually discriminates against working women! F. Facts: Amendment to CO constitution strips homosexuals of anti-discrimination protections . Wiesenfeld (1975) a. although NOT a suspect classification. BUT – Congress has plenary authority to exclude them from constitutionally gratuitous interests (e. Classifications based on citizenship status are suspicious (strict scrutiny) ONLY when it’s the states that engage in them. b. Rational basis review.g. iii. 13. civil service employment) based on non-citizen status. b. not just high level – including public school teachers and police officers – on theory need to be trained in values of American citizenship – ending with (overturned for) notaries public) d. 12. maturity). ii. Non-citizen aliens i. recognition of private prejudiced animosity cannot justify classification. Medicare. Orr v. Holding: unconstitutional – obviously not intended to remedy past discrimination against women. if woman worker died. Murgia (1976) i. Women are NOT ghettoized or insulated from the disinfectant of interactions which break down prejudice. Evans (1996) i. Importance: Lupu thinks age is not suspect because equalizing effect of time. v. Facts: statute requiring uniform cops to retire upon reaching age 50 ii. but changeable ONLY by parent. Cleburne Living Center (1985) i.political process. not normative theory (because not immutable characteristic). Unconstitutional. Weinberger v. c. BUT – state may exclude non-citizens from political community (vote/political office. Alabama decides to equal UP – impermissible because reinforces stereotypes about traditional gender roles. Facts: survivor benefits – only go to women/minor children. problem is pegging to sex instead of financial need. Discrete and Insular Minorities does NOT have the same punch here. seeming departure from ordinary rationality review. once they’re here. Non-marital children – intermediate scrutiny i. long history of stigma and prejudice. Holding: Not invidious discrimination – Rational Review as age is not suspect classification.

Trimester Framework: (1) not regulatable. (2) state’s interests in regulating for health of mother kick in. and continuation of pregnancy. Reasoning: Rejects heightened scrutiny. BUT the law came as a result of animus – state’s approach demonstrated no goal but prejudiced animosity. violates equal protection clause – discrimination between married/unmarried persons. Facts: TX law prohibited abortion except when woman’s life was in danger. Society of Sisters (1925) a. The Due Process Clause and the Right of Privacy A. Also special context of eugenics concerns (Third Reich) and irreparability if done. SOR: avoids suspect classification out of concern for DADT/military. pregnancy. d. Roe v. Facts: state law that upon 3 convictions for a specific subset of crimes. Undoes Griswold’s emphasis on marriage and traditional rights. Wade (1973) a. c. state’s rationale was that law was intended to outlaw extra-marital affairs. d. and cannot be invaded absent showing of compelling state interest/narrow tailoring. more important was sort of common law or even natural law anti-totalitarian principle of right of parents to direct and control the upbringing of their children. applying rational basis instead. Meyer v. c. Traditional rights – difference between matters of sexuality which state has traditionally regulated (non-consensual. b. b. Holding: Unconstitutional – Right to privacy includes right for woman to choose to terminate her pregnancy in its early stages without state interference. b. Skinner v. Baird (1972) a. c. Douglas: the right emanates from penumbras of the Bill of Rights. 2. Harlan: Not a BOR question – proper inquiry is whether this infringes on Due Process Clause for violating basic values implicit in the concept of ordered liberty. Nebraska (1923) and Pierce v. VI. iii. (3) interest in protecting fetal life beings at viability. Procreative rights attach to individuals. Griswold v. Holding: law is unconstitutional. Oklahoma (1942) a. but right is not absolute – strict scrutiny. Court effectively separates reproduction from marriage. Eisenstadt v. Cases only partially rested on First Amendment. 14th Amendment includes a right to marital privacy. The Right to Privacy – Procreative Rights 1. but not others. Holding: overturned conviction under law banning distribution of contraceptives to unmarried people. iv. Holding: Unconstitutional. not couples. i. Connecticut (1965) a. 3. . Reasoning: Procreation is fundamental constitutional right. Holding: Unconstitutional – prohibiting laws protecting homosexuals from discrimination violate equal protection. sodomy) and this law affecting marital conduct in most intimate concerns of individual’s life 4. extends to procreation. Facts: director of PP arrested for providing advice to married couples in violation of noncontraception statute. based on semi-equal protection analysis that protection is a basic civil right – but EPC requires it to be framed as a comparative right. person is subject to compulsory sterilization upon initiation of state AG. Reasoning: some EP concerns in that it covers some offenses (blue collar).ii. but really this is a SDP case with Douglas (New Deal Justice) trying to avoid using substantive due process. 5.

Ct. said that the state cannot insist on this. suggested that one of the ways of measuring whether a regulation was overly broad was to look at customary medical practices c) Third Party Notice and Consent i) Two kinds : (1) spousal consent (2) parental notice/consent (1) the only novel issue in Casey was the spousal consent rule ii) Missouri had spousal consent rule before Casey – S. Holding: spousal notification is undue burden. so long as NOT creating undue burden. Spousal notice: required women to sign document saying they notified their husbands – undue burden because forces women who don’t want to tell their husbands to lie or go to black .Ct. court held that this is unconstitutional b/c it was a regulation of first trimester ii) All second trimester abortions have to be performed in hospital. Facts: Challenged to PA law requiring doctors to dispense information to. Reasoning: Troika – regulations on abortion should be tested against undue burden standard (need to prove that law imposed a substantial obstacle). Planned Parenthood v. Ct. the state is permitted to regulate re: mother’s health but it must be narrowly tailored and this isn’t iii) ct. informed consent is NOT. said that can’t give husband an absolute veto – this would mean that by getting married a woman gives up her constitutional right iii) Parental notice – S. not outpatient clinic (Akron II) – S. obtain informed consent of.6.Ct. Reproductive Health Services (1989) (1) Missouri law → If the physician believes that fetus is 20 weeks or older. is not burdening abortion when it fails to subsidize it – it is only burdening it when it regulates (1) the challengers unsuccessfully argue that the govt. b) Health Regulation (also informed consent by patient) i) When Akron insisted on informed consent of patient regarding the benefits of childbirth/non-abortion choices and a 24-hour waiting period → the S. then there may be an affirmative obligation by govt. b. Casey (1992) a. there are four basic categories of cases: a) Government Funding i) the court says time and again that the govt. is divided – plurality opinion.Ct. states have tried to reduce late 2nd semester abortions ii) Webster v.Ct. and retain information about pregnant women seeking abortions. says that parental notification laws are okay as long as the state provides a judicial bypass d) Determining Viability i) In a variety of ways. says that it will construe this as permitting the physician to dispose with the tests if in his judgment the tests are irrelevant to determining viability (a) the opinion challenges Roe trimester framework 7. d. has to be neutral b/w childbirth and abortion (2) there is a hint in Webster (1989) that if the state closes public hospitals and there is nowhere else to get an abortion. state may take measures to ensure woman’s choice is informed and enact regulations to further the health and safety of the women seeking abortion. In the wake of Roe. the physician needs to do certain tests to determine viability (2) S. reaffirmation of core of Roe (that viability of fetus is diving line between when a state may prohibit abortion and when it may not) c.

b. Hardwick (1986) a. Facts: homosexual male. Reasoning: Application of minimum rationality standard – Court mistakenly construes statute to present issue only of whether there is a fundamental right to engage in homosexual sodomy. but sexual. d. D. Homosexual sodomy is not a right protected by DPC and states may constitutionally prohibit such conduct. VII. Informed consent: law required women to come in twice – to get materials and then 24 hour waiting period – NOT undue burden because facilitates wise exercise of the right. c. sued to challenge Georgia sodomy law criminalizing oral and anal sex in private between consenting adults. Holding: Constitutional. b. Family Relationships 1. privacy. shies away from relying on EPC because states could neutralize the statute to sodomy generally. charged but not prosecuted for private sexual acts. Equal Protection and Fundamental Rights A. Rodriguez (1973) a. merely rational basis scrutiny. Facts: TX law criminalized two persons of same sex to engage in certain intimate sexual conduct. b. unlike procreative choice. and (2) policy of selective application must be supported by neutral and legitimate state interest – none exists here. Reasoning: court was looking at equal protection through the lens of fundamental rights. as-applied challenge to act of consensual sodomy in privacy of home. Texas (2003) a. impoverished school districts are not a suspect class – therefore. general way in which all local/services are financed in US. allocation of resources. but did not pay. marriage is about entering into legal relationship with the state. Facts: Wisconsin law prohibited marriage for people who had minors not in custody to whom they owed. also.market abortion clinic. child support. Welfare and Education 1. Holding: Unconstitutional to create impediment to marriage along these lines c. e. Zablocki v. question then because EPC applied to homosexuals – argument that (1) fact that governing majority traditionally views a practice as immoral is not sufficient reason for upholding law. Lawrence v. Holding: school financing system based on local property taxes does NOT violate EPC. c. equal protection argument raised by poorer districts that EPC requires state school financing scheme without disparity in per-pupil expenditures b. v. 2. Sexuality 1. Problem: state’s rationale is purely moral choice. Bowers v. Reasoning: education is NOT a fundamental right. Stevens: argument that right to sodomy is protected by Griswold and thus applies to heterosexuals through Eisenstadt and Roe. Griswold can certainly be construed as protecting not just procreative. Education as NOT fundamental right but rather one step removed – issues of scarcity. Holding: Unconstitutional. The Franchise B. C. School Dist. Uses DPC – (1) right at stake is more general right to intimate relations. problem with straight DPC here is. Does NOT create suspect classification. Redhail (1978) a. Stevens finds right to intimate association. (2) social conceptions have . even expanding provision to account for women fearing coercion may deter them with fear cops will go after husband. Facts: property tax rate and taxable property in particular districts determine school finances. San Antonio Indep.

and (3) morals of general public are insufficient to intrude on privacy.changed – Romer/Casey/only 13 states proscribing. .