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I. THE PROBLEM OF CONSTITUTIONAL INTERPRETATION A. LEGITIMACY OF JUDICIAL REVIEW: MARBURY v. MADISON 1 Before leaving office, President Adams made a lot of midnight judge appointments. William Marbury was one of the appointed justices of the peace for the District of Columbia. Although nominated, confirmed by the Senate and signed by the President, the formal commissions had not been delivered before the end of Adam’s term. Incoming Jefferson administration chose to ignore those appointments. Marbury et al asked the Supreme Court for a writ of mandamus relief to compel Secretary of State James Madison to deliver their commissions. · Court held that Marbury was entitled to the commission because it was signed and sealed. · Court also holds that Marbury is entitled to a remedy. This was an injury of an individual’s right, protected by the law, not a political decision up the sole discretion of the executive. · Ct held that the Judiciary Act of 1789 granting the SC the power to issue writs of mandamus was at odds with the Constitution. · Ct held that the Supreme Court can hold acts of Congress unconstitutional. · The grant of jurisdiction is at odds with the Constitution, thus the SC must invalidate that portion of the law in conflict with the Constitution. SC only has original jurisdiction to those which have been granted by the Constitution · If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the court has the authority and the duty to declare the statute unconstitutional and to refuse to enforce it. · Marshall looks to the purpose of the Constitution, its text and structure, the drafter’s intent and its political theory to conclude that the Const. is supposed to limit the government. · Very narrow reading of Article III §2(2) · He ignored the exemptions clause which gave SC some discretion as to what is within original and appellate jurisdiction. · Constitution is WRITTEN. It is clear and unchanging. There are limits which must be enforced to prevent the tyranny of the Congress. · What makes the Constitution law? (1) Art. III Cases arising under the Const; (2) Art. IV Const. shall be the Supreme Law of the land. · If there is a conflict between statute and Const. which trumps? Const. may and must. Art. IV Supremacy clause. · What if anything limits the cts. in their exercise of authority? (1) Senate could limit who sits, (2) Can only decide cases that come in front of them; (3) Cons. Amend; (4) Hamilton Fed. Paper 78—Judiciary doesn’t have command over the public funds nor the military; (5) Ct is bound by the written document; (6) only one SC can hear only a limited amount of cases.


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B. IMPLIED POWERS OF THE GOVERNMENT: McCULLOCH v. MARYLAND 2 1816  Congress chartered the 2nd Bank of the U.S. Bank set up local branches in many states with the Maryland branch as its most active. Maryland passed statute which allowed it to tax any bank not chartered by the Legislature. John James, suing for himself and Maryland against McCulloch, cashier of the Baltimore branch. McCulloch admitted that the Bank was doing business without authority from the state. · Maryland’s argument US government has not power to establish a national bank; true that the supremacy clause exists but here is no power to est. bank, 10th Amendment says specifically that powers not delegated are reserved to the states or people. · Ct holds that Bank is constitutional because it is an implied power of the Federal government and Maryland cannot tax the bank because the power to tax is the power to destroy. · This reasoning stands in opposition to Marshall’s “limits” discussion in Marbury. · Textual Support Marshall points out that the word expressly was taken out of the Articles of Confederation when put into the 10th Amendment, so federal powers can be implied in the Constitution. · “It is a constitution we are expounding” It is within the nature of the constitution to be broad and not to include all powers. Const. was never meant to be a legal code. It would never be understood by the people. Const. comes directly from the people. Therefore they have to understand it. · Necessary and Proper Argument Article I §(8)(18)  To make all laws which shall be necessary and proper for carrying into execution the foregoing powers. · Marshall reasoned that necessary means convenient and not absolutely necessary as stated elsewhere in the Constitution. To inquire into degrees of necessity is to overstep judicial bounds. Judges must reason and interpret, not only on broad issues, not on constantly changing policy. Necessity is determined by social morays and therefore should be decided by the popularly elected legislature. [Not anti-Marbury, it does allow judicial review, just not when deciding policy]. · When is something within the implied powers of the federal government? Let the end be legitimate, let it be within the scope of the constitution and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and the spirit of the constitution are constitutional. · Marshall says that if Congress under the pretext of valid ends does something not within its power, the court must declare it unconstitutional. Involves looking at motives or at least the realistic future consequences of such a statute. · Modern result courts rarely looks at legislator’s motives as long as the possible end is rationally related the means [no need for motive]. C. ORIGINAL INTENT INTERPRETATION: DRED SCOTT v. SANFORD 3 Dred Scott was a slave owned by a Missourian, John Emerson, who traveled with Emerson and his family in Illinois and in the Missouri territory before returning to Missouri. Dred Scott brought an action claiming that his earlier residence in the free state and territory liberated him from slavery. Sanford contested the court’s jurisdiction on the ground that a Negro of
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African descent was not a citizen of Missouri or the United States. Court decided for Sanford on the ground that although Scott was entitled to his freedom while in Illinois and the Missouri territory, his status as a slave reattached upon his return to Missouri. Scott appeals to the S.C. ·Ct held that Negroes are not included and were not intended to be included under the word “Citizens” in the Constitution and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the U.S. ·Court declares that the Missouri Compromise was unconstitutional. ·Was Dred Scott free? NO. If he were a citizen then he would have the privileges and immunities of citizenship, like interstate travel, yet he did not. ·Textual Support: (a) Right to import slaves until 1808 and (b) Run Away Slave provisions. These prove that the Negro was not included in the “Citizen” of the U.S. Constitution since if it had been, they would have been guaranteed the inalienable rights that are subjected here. ·Why can’t Dred Scott be a citizen? (1) look at England—no AA citizens there; (2) Maryland and Mass prohibit intermarriage; (3) framers were not hypocrites, they owned slaves, they couldn’t include them and own them; (4) Textual support. ·Taney Must interpret the Constitution with the intent in which it was written. Yet, Taney is legislating. He is taking into account what he considers to be the future of the Country and bringing it into the Due process clause. ·Cannot interpret Constitution with today’s morays. ·Federal government has no right to prohibit slavery 5th Amendment taking of property without due process of law. ·Problems with original intent? (1) static instrument may be engine of evil as moral judgments change. II. THE COMMERCE CLAUSE A. CONSTITUTIONAL AUTHORITY ·Art. I §8 gives Congress the power to regulate Commerce with foreign nations, and among the several States...” ·(1) it acts as a source of congressional authority and (2) it acts implicitly as a limitation on state legislative power. B. EARLY DEVELOPMENT OF THE COMMERCE CLAUSE a) Gibbons v. Ogden (1824): 4 New York legislature granted to Robert Livingston and Fulton the exclusive right to operate steamboats in New York waters in order to encourage the steamboat technology. Livingston and Fulton licensed Ogden to operate a ferry between NYC and Elizabethtown, NJ. Gibbons, Ogden’s partner, began operating a competing steamboat service in violation of Ogden's monopoly. Ogden obtained an injunction from the NY courts that ordered Gibbons to stop operating his ferries in NY waters. · Ct held that the injunction was invalid since it was based upon a monopoly that conflicted with a valid federal statue and thus violated the Supremacy Clause.

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Broad view of Congress’ power under the Commerce Clause Congress could regulate with respect to all commerce... commerce included not only buying and selling but all commercial intercourse. Commerce is traffic and intercourse. Commerce = navigation. Marshall stated that the congressional power to regulate interstate commerce included the ability to affect matters occurring within a state, so long as the activity had some commercial connection with another state. Only the completely internal commerce of a state can be reserved for the state itself. No area of interstate commerce is reserved for state control. 10th Amendment is not an independent limit on Congress’ power to regulate interstate commerce. HYPO: Fed government wants to regulate barbers. Allowed under Gibbons? NO, unless they are interstate. Must show that it is both commerce and interstate.

b) Formalist view: Manufacture v. commerce: U.S. v. E.C. Knight (1895) : 5 Federal antitrust prosecution under the Sherman Act, trying to set aside the merger of sugar companies that controlled 95% of the U.S. sugar refining. SC defined federal power by defining the scope of the words “commerce” and “interstate.” Court limited interstate commerce to transportation across state lines, thus narrowing the application of Gibbons. · Ct held that manufacturing and production were not interstate commerce. · States are allowed to be free of federal regulation in production/manufacturing area, even though Δ’s monopoly extends over more than one state. [artificial distinction]. · Implied that there must be a direct and logical relationship between the intrastate activity being regulated and interstate commerce. Manufacturing is incidental and indirect. · Rationale protection of states’ rights to regulate local activities. · DISSENT economically the monopoly will affect more than one state and interstate commerce will be hurt by higher prices. c) Substantial economic effect approach: Shreveport Rate Cases (1914): 6 ICC after setting rates for transport of goods between Shreveport, LA and TX, sought to prevent RR from setting rates for hauls totally within TX which were less per mile than the TX to LA rate. Commission’s theory was that Shreveport competed with certain TX cities for shipments from other parts of TX and that the lower TX intrastate rates were unfairly discriminating against the TC to LA interstate traffic. The RR countered that it was beyond Congress’ power to control intrastate rates of an interstate carrier. · Ct held that the commerce power necessarily included the right to regulate all matters having such a close and substantial relation to interstate traffic that control is essential or appropriate to the security of that traffic. · Since the ultimate object was protection of interstate commerce, the fact hat the regulated activity was intrastate did not place it beyond congressional control.
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Since Congress regulated only the interstate shipment of these evil articles. ii) Lottery tickets Champion v. it is Congress and not the sate that is entitled to prescribe the final and dominant rule.CONSTITUTIONAL LAW Page 5 of 84 Agencies of intrastate commerce can’t be used to cripple. roads. Not explicitly commerce. Ames (1903): 7 Court upheld the Federal Lottery Act that prohibited the interstate shipment of lottery tickets. transmission facilities) and so it may prohibit use of those facilities for any activity which it deems adverse to the public health. · DISSENT it is not commerce. 173 1 . Lottery tickets are subjects of traffic and therefore subject of commerce. it could not be said to be interfering with intrastate matters reserved for state control. Acting under the Act. Does not become commerce just because it is transported from one state to another. iv) Child Labor Hammer v. but the use of them. · PRACTICAL approach looking at the realistic results while Knight was the FORMAL approach [looking for objective criteria]. The right to seize adulterated eggs once they arrived at their destination was certainly appropriate to the right to bar them from interstate commerce and completes its purpose which is not to merely prevent the physical movement of adulterated objects. Regulating intrastate activities as a means of enforcing bans on interstate commerce is allowed. i) Prostitution Mann Act made it illegal to bring women across state lines for immoral purposes. Instead of regulating intrastate activities directly. Dagenhart: (1918) 8: Ct held that the federal statute that prohibited the interstate transport of articles produced by 7 8 p. federal officers seized a shipment of adulterated eggs after they had arrived in the state of their destination. welfare or necessity. The contract is consummated in the state in which it was made. Congress used the technique of prohibiting interstate transport of certain items or persons. Not pure economic regulatory matters also police power or moral regulation. Assumption that lottery was a clear evil which it was desirable for Congress to regulate. · 2 step approach: (1) Is it commerce [Knight] and (2) does it affect more than one state [Shreveport]. Rationale was that Congress has the plenary power over the chattels or facilities of interstate commerce (such as interstate carriers. · Whenever the interstate and intrastate transactions of carriers are so related that the government of one involves the control of the other. iii) Foods Hippolite Egg (1911): Congress passed the Pure Food and Drug Act of 1906. Upheld in the Hoke cases. · d) Prohibition of Interstate commerce as a Police Tool Congress began to use national legislation to deal with police problems [bad local activities]. retard or destroy interstate commerce. 169 p.

Ct held that the NIRA was unconstitutional because Π’s activity. · Formalistic approach. Nor did the production directly affect interstate commerce. Here the goods themselves were harmless. Other cases the interstate transportation being prohibited was part of the very evil sought to be prohibited. Allowed the President to adopt codes of fair competition such as maximum hours. Act was found not to be a valid use of the commerce power. · DISSENT (Cardozo) mining. THE NEW DEAL AND AFTER (THE RISE OF THE WELFARE STATE) ·1929 Stock market crashes. Statue was not allowed since the ends were not legitimate. ·National Industrial Recovery Act attempt to stimulate economy by raising wages. Not directly tied to commerce. C. more conservative court or WWI. Coal Conservation Act of 1935 which set maximum hours and minimum wages for workers in coal mines. the sale of poultry only to local retailers. agriculture and manufacturing are not interstate commerce considered by themselves. ·1930-3 industrial output decreased by 1/3 [15m farms close] ·FDR comes in and is worried about collapsing demand. If allowed. direct is not a good distinction. the fact that it has a collateral effect upon local activities otherwise left to the state control does not render the statute unconstitutional. IT appears that proximity or remoteness of activities to commerce is more logical. even though the materials produced would nearly all ultimately be sold in interstate commerce. was not in the current of commerce and because the wages and hours of Π’s employees would only indirectly affect the price structure of the industry. yet their relation to that commerce may be such that for the protection of the one there is need to regulate the other. Production was a pure local activity. Maybe reaction to interference with free market. Indirect v. Court returned to the distinction between manufacturing and commerce of Knight.CONSTITUTIONAL LAW Page 6 of 84 companies which employed young children was unconstitutional. collective bargaining. · DISSENT (Holmes) So long as the Congressional regulation falls within power specifically given to Congress. all manufacturing intended for interstate travel would be under federal control. 9 10 p. 180 1 . 178 p. b) Carter Coal Case: (1936)10 Challenge to the Bit. 1. · employer/employee relations do not directly affect interstate commerce. COURT BARRIERS TO THE NEW DEAL a) “Indirect Effects Theory” Schechter Poultry Case: (1935)9 Ct ruled that Congress does not have the power to extend the regulation of interstate commerce to intrastate activities that have only an indirect effect on interstate commerce. wages and prices. There was no direct logical relation between the production and the interstate commerce.

Wheat raised in excess of the quota was subject to a per-bushel penalty. but also quotas on wheat which would be consumed on the very farm where it was raised. Therefore. The plan was to apply to all levels of the federal judiciary and provided for a maximum of 15 members on the SC. Expanded “substantial economic effect” NLRB v. so Roosevelt may have lost the battle but won the war. · Because of the multi-state network of operations. so long as it has any appreciable effect whatever on interstate commerce. Roosevelt sought congressional authority for him to appoint an additional federal judge for each judge who was 70 years old and had served on a court for at least 10 years. Company failed to comply  NLRB sought judicial enforcement of its order. shift did occur in the court. Yet. ·Courts have abandoned the geographical [manufacturing is local] and indirect/direct effect concepts. · Court rejected the current of commerce theory.CONSTITUTIONAL LAW Page 7 of 84 c) Court Packing Plan: Reaction to the blow to the New Deal from Carter Coal. ·Affectation doctrine Congress has the power to regulate any activity whether it be interstate or intrastate in nature. Cumulative Effects Theory Wickard v. Jones & Laughlin Steel (1937): 11 NLRB found that the company was participating in unfair labor practices by discriminatory discharges of employees for union activity. 189 1 . commerce distinction. · RESULT (1) it is irrelevant whether the activity being regulated occurs before. THE MODERN TREND ·Courts showed a greater willingness to defer to legislative decisions. D. operated steamships on the Great Lakes.000 men. Therefore. labor relations at the PA plant could be constitutionally regulated by Congress. · DISSENT Discharge was for 10 out of 10. that activity could occur substantially before the interstate movement. 2. 1. 11 12 p. · Court also rejected the manufacture v. Fillburn (1942): 12 AAA of 1938 permitted the Secretary of Agriculture to set quotas for the raising of wheat on every farm in the country. Plan was defeated. 185 p. during or after the interstate movement. · Ct held that the NLRA was not unconstitutional and within the commerce power. a labor shortage of the PA intrastate manufacturing operations would have a substantial effect on interstate commerce. Board ordered the company to end discrimination and coercion. Any effect would be indirect and remote. · While Jones manufactured iron and steel only in PA. (2) so long as the regulated activity has a substantial economic effect upon interstate commerce. Congress could regulate labor practices. it owned mines in 2 other states. held warehouses in 4 states and sent 75% of product out of PA. The Act allowed not only the setting of quotas on wheat that would be sold interstate and intrastate. 10th Amendment is no longer a barrier to federal commerce clause power.

Consumption varies by 20% huge effect on price. BBQ catered to a family and white collar trade with a take out window for African Americans. The more wheat that is consumed on the farm where it is grown. Commerce Clause and Racial Relations Katzenbach v. but this decision taken together with that of many others similarly situated is far from trivial. · Protection of the interstate commercial trade in wheat clearly falls within the commerce power and the regulation of home-grown wheat is reasonably related to protecting that commerce. 46% of the meat was purchased from a local supplier who bought it out of state. Would have preferred a 14th Amendment analysis. 13 14 p. · Congress acted well within its power to protect and foster commerce in extending Title II coverage to those restaurants offering to serve interstate travelers. McClung: (1964) 13 Ollies’ BBQ was a family restaurant in Alabama with a seating capacity for 220 and located 11 blocks from an interstate highway. Since Congress has limited the protections. Just deference to Congress. · Ct upheld the act. whether interstate or not. on the ground that this was a purely local activity beyond the scope of federal control. · DISSENT (Black) not every remote speculative effect on commerce should make it applicable to regulation. He challenged the government’s right to set a quota on the wheat which he raised and consumed on his own farm. then less meat is going to be eaten. a) Child Labor U. Lower court held that since there was no demonstrable connection between food purchased in interstate commerce and sold in a restaurant then the Congress has no power to regulate it. v. Police Power Regulations substantially broadened after 1937. · (2) Π’s own effect on the market may be trivial. 203 p. · Supreme Court held that it affects interstate commerce since if AA can’t eat in restaurants. · (1) consumption of home-grown wheat is a large and variable factor in the economies of wheat market. · No one thinks that Congress’ primary motivation was more BBQs.S. ·Ct held that prohibition of the shipment of interstate goods produced under the forbidden substandard labor conditions is within the constitutional authority of Congress. the less wheat that is bought in commerce [from other farmers]. 3.CONSTITUTIONAL LAW Page 8 of 84 Filbrun owed a small farm in Ohio. they must abide by them. Congress must be able to rationally conclude that it affects commerce. 191 1 . 4. Congress need not show that in reality there will be an effect. Darby: (1941) 14 Fair Labor Standards Act of 1938 prescribed maximum and minimum wages for workers who manufactured goods for interstate commerce and prohibited interstate shipment of goods made by workers not employed in compliance with the Act. even as applied to home grown wheat. Darby = Georgia lumber manufacturer. · Douglas  would have preferred a 14th Amendment analysis as well. Challenges an indictment charging him with violating the Fair Labor Standards Act of 1938. · Ct relies on a variety of statistics.

S.which might have a substantial and harmful impact upon that commerce. ·Government claimed that it was substantially related: (1) possession of gun may result in violent crime. LIMITS OF THE COMMERCE CLAUSE ·Some limits still exist. ·If the activity is interstate. Congress made it a federal offense for any individual knowingly to possess a firearm at a place that the individual knows. even if totally intrastate.. ·Power of Congress to promote interstate commerce included that power to regulate the local incidents thereof. ·Ct struck down the statute holding that it is not enough that the activity being regulated merely affect interstate commerce. ·Congress may choose any means reasonably adapted to the attainment of a permitted end and motive is irrelevant. substantially affects interstate commerce. Statute = GunFree School Zones Act of 1990. the activity must substantially affect interstate commerce. then you are subject to federal commerce power. v. as long as it’s part of a class that. Lopez: 16 Lopez = 12th grade student who was convicted of knowingly possessing a concealed handgun and bullets at his San Antonio high school. Court of Appeals reversed ruling that the law was beyond the reach of the commerce power. ·Wickard has not been overruled. Court held that it is constitutional since discrimination by hotels and motels impedes interstate travel [both in impairing the Negro traveler’s pleasure and convenience and in discouraging travel on the part of a substantial portion of the Negro community. ·Rejected argument since under this approach. 15 16 p. Instead. (2) violent crime affects function of national economy. or has reasonable cause to believe is a school zone. U. ·No 14th Amendment analysis since they were private parties. the Court will continue to allow Congress to regulate that transaction..CONSTITUTIONAL LAW Page 9 of 84 ·Overruled Hamer which looked at motive and at the harmful effects of goods to be prohibited. in the aggregate. (1964) 15 Motel in Atlanta challenged the constitutionality of the public accommodations provisions because it wanted to continue its practice of refusing to rent rooms to African Americans. b) Civil Rights Heart of Atlanta Motel v. it is difficult to perceive any limitation on federal power even in areas such as criminal law enforcement or education where States have traditionally been sovereign. 1. 203 p. ·Where the transaction being regulated is itself clearly an economic or commercial one. Congress can regulate. U. ·10th Amendment will no longer act an independent limitation on congressional authority over interstate commerce. 142 1 .S.] ·Ct held that motive is irrelevant. E. Advertise to interstate travelers.

a court must consider not the effect of an individual act. (3) the Constitution requires us to judge the connection between a regulated activity and interstate commerce not directly but at one remove. Absent a stronger connection or identification with commercial concerns that are central to the Commerce clause. machines and other things] [Shreveport Rate] (3) Activities having a substantial effect on interstate commerce [ Jones & Laughlin] · substantial effect has real bite · If the activity is commercial then it does not matter whether the particular instance of the activity directly affects interstate commerce. that interference contradicts the federal balance the Framers designed and this Court is obliged to enforce. Souter. (2) In determining whether a local activity will likely have a significant effect upon interstate commerce. Substantial effects test is far removed from both the Constitution and from our early case law and that the Court’s opinion should not be viewed as “radical”. It undermines the education  causes poorly educated workers lower wages  buy less.CONSTITUTIONAL LAW Page 10 of 84 ·Why is it important to retain some area of concern? (1) limit on federal power. The real question to ask is: whether Congress could rationally have found that violent crimes in school zones through its effect on the quality of education significantly or substantially affect interstate or foreign commerce. ·CONCURRENCE (Thomas) The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest. [People. Ginsburg) (1) the power to regulate Commerce encompasses the power to regulate local activities insofar as they significantly affect interstate commerce. (2) better to have some decisions made by local people who know the problems. There was no question that activities wholly separated from business such as gun possession were beyond the reach of the commerce power. Congress has asked this question and answered it affirmatively. even when they come only from intrastate activities. as long as the instance is part of a general class of activities that collectively affect interstate commerce. it also does not support the proposition that Congress has authority over all activities that substantially affect interstate commerce. 2. Intervention here is required. but rather the cumulative effect of all similar instances. ·CONCURRENCE (Kennedy/O’Connor) The federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scales too far. Heart of Atlanta Motel] (2) instrumentalities of interstate commerce. We must respect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce. waterways and air traffic] [ Darby. Stevens. Summary of Modern View ·Congress can regulate 3 broad categories: (1) Channels of interstate commerce [highways. (3) better to let the state experiment on a local level. 1 . ·DISSENT (Breyer. than to have the federal government experiment on a national level.

·If what’s being regulated is an activity that has traditionally been the domain of the states. ·All conceded that it clearly affected commerce. · F. they violated the independent requirement imposed by the 10th Amendment that Congress may not exercise power in a fashion that impairs the State’s integrity or their ability to function effectively in the federal system. Environment [Air and water pollution migrate across state boundaries] ·If it is apparent that there is room for a number of different state solutions with the best one able to attract additional states over time. the court is more like to find the regulation invalid. This lead most to believe that the 10th Amendment was completely dead as an independent check on federal power under the Commerce Clause. 17 Xerox I 1 . family law. the Sup. 1. Must in fact exist. 3. Education. I § 8 cl. No longer will Congress’ rational basis for believing that the effect existed suffice. Usery: (1976) 17 Ct held that the 10th Amendment barred Congress from making federal minimum-wage and overtime rules applicable to state and municipal employees. compliance would have cost the states and their subdivisions substantial sums. did not invalidate a single statute on the ground that it violated state or local government sovereignty. yet. (2) Amendment procedure presupposes existence of state legislature. ·If the wages were allowed to stand. Ct. Consistent with notion of state as laboratories performing their own experiments. then there will have to be a pretty obvious connection between the activity and interstate commerce. (2) Removal of discretion Stripped the states of their discretion to decide how they wished to allocate a fixed pool of funds available for salaries. (3) electoral mechanism. then Congress would have the right to make fundamental employment decisions regarding state employees and there would be little left of the States separate and independent existence. they are not within the authority granted Congress by Art. ·Ct stated that insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions. general criminal law are areas where Court will be suspicious of congressional interference. the Court is less likely to find that Congress acted within its Commerce power. ·Traditionally local can be outweighed by the need for a national solution. ·Little deference will be given to Congress to that fact the Congress believed that the activity has the requisite substantial effect on interstate commerce.CONSTITUTIONAL LAW Page 11 of 84 If the activity is not commercial. (4) guarantee of republican form of government. and as to which the state has expertise. ·What textual support is there for state sovereignty? (1) Full faith and credit clause. National League of Cities v. THE TENTH AMENDMENT AS A LIMIT ON CONGRESS’ POWER ·For 40 years after Carter Coal. ·Wage/Hour violated in 2 ways: (1) Cost impaired the state’s ability to function effectively purely as a matter of cost.

· State sovereign interests are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power. Garcia v. · Any rule of state immunity that looks to traditional integral or necessary nature of governmental functions inevitably invites an uninvited federal judiciary to make decisions about which state policies it favors and which one it dislikes. · Traditional governmental functions test of National League of Cities is unworkable. Look at the nature of federalism. [10th Amendment is unimportant again!!] · Significance Once Congress regulates the state. · Ct held constitutional since Blackmun changed his mind!! Overruled National League. Invokes a fundamental problem of federalism. Yet. 210 1 . 2. Balancing test is not appropriate.CONSTITUTIONAL LAW Page 12 of 84 ·Rehnquist looked to see if they are traditional state government functions and integral ·Where operations of the state [attempt to draw a Knight-esque bright line rule]  too messy. Now interest groups. Cites Marbury. Leave the decision making up to Congress. the process of Constitutional adjudication does not thrive on conjuring up horrible possibilities that never happen in the real world and devising doctrines sufficiently comprehensive in detail to cover the remotest contingency. · Could lead to bizarre results moving the state capital if affected commerce. San Antonio Metro Transit Authority (1985) 18 Subjection of the Transit Authority to the minimum-wage and overtime requirements of the Fair labor Standards Commission. Ct found that 10th Amendment protects schools and parks. · Problems Procedural safeguards that existed before do not exist as they do now. the fact that it is a state being regulated has virtually no practical significance—if the regulation would be valid if applied to a private party. · Powell Dissent It is dangerous to make federal political the sole judges of the limits of their own power. not Congress. it is also valid as to the state. Doesn’t like that States are treated like individuals when it comes to the issue of the federal commerce power. National interest must be demonstrably greater than states’. · O’Connor Dissent  States have legitimate interest which the National government is bound to respect even though its laws are supreme. did Rehnquist’s ideas come from? (1) INTENT the principle behind federalism in states counteracting federal powers. ·Overruled Maryland v. it is up to judges to say what the law is. (2) TEXT certain rights are actually reserved to the states [supra]. not the states. 18 p. Looks at intent: state autonomy was cause for 10th Amendment. Wirtz Statute was upheld when applied to state employees of hospitals and schools. get Senators elected. No distinction that purports to separate out important governmental functions can be faithful to the role of federalism in a democratic society. She would like to have a balancing test. ·CONCURRENCE (Blackmun) Ct should apply a balancing test. Local governments are more responsive to the will of the people. She doubts whether the structural or procedural features would be enough to prevent Congress from trampling state sovereignty.

(3) Local governments are more responsive They govern your fate. by Const. Problem not always possible to leave.g. Move to OH. (4) Local government is a check on national power generate alternative ideas. States Rights ·4 ADVANTAGES OF FEDERALIST STRUCTURE (1) Local governments have ability to match solutions to local problems Get better outcomes. Need overall theory to prevent exploitation. not judges (1) Difficult to get min. (2) Individual liberty/choice If you have a series of different regimes to choose among. as federal government and state interests. appropriate venue and may not regulate interfere only to make sure that the process works PROBLEMS Too rigid (1) Incommesurability (2) const. then it is less likely that you will get stuck in regime you don’t want. (3) National consensus is more likely to be right than state (e. 3. Problem have competing groups.CONSTITUTIONAL LAW Page 13 of 84 DEFINITIONAL BALANCING POLITICAL ABSOLUTIST PROCESS CASE National League Garcia Ashcroft ATTRIBUTES once something is Evaluate the degree to Define political process defined as integral. racism) (4) National regulation prevents states from hurting each other (5) Factions are less likely to take control of national government than state. Federalist v. process. interests recognized (2) Const is one of written laws. more efficient and effective. minority will be subordinated if overall desire to vindicate rights of majority. law shifting with balance in trade (3) how do officials follow the law? (4) issue for demo. Depression—don’t coordinate wheat $$. problem: impose costs and benefits on people who aren’t their constituents. 1 . ex. the which there are federal est. then all lose. Problem local can overreach just like the national. (6) National interest prevent tyranny of local majority because a minority may have more strength when grouped with others around the nation. CA. you are less likely to end in tyranny. (2) It is easier to get a valid idea of consensus from the nation because states can be tightly controlled by small powerful groups. ·ADVANTAGES OF NATIONAL RIGHTS (1) National interests are as a whole more important than state ones.

it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides this balance. If Congress meant otherwise. the federal interest is demonstrably greater than the state interest. HYPOS: (1) National government passes statute to prohibit state from burning coal because coal causes acid raid which travels interstate. it is inconsistent since it tries to draw a bright line. Response Federal interest is larger. problem of $$$. · It is essential to the indep. Better trained people better GNP. defer to Congress. State interests are local control. make it EXPLICIT Gregory v. State are forced to institute computer curriculum in classroom. Congress has final word. ·Here. ·Consistent with Garcia since it forces legislature to deal with problem. Yet. Which way should the balance go? · Federalist Papers say give confidence where it would be most due. Thus. Put the scale on the one most responsive. Effects on other states have direct impact. it must be plain to anyone reading the Act that it covers judges. of the states that their power to prescribe the qualifications of their own officers should be exclusive and free from external interference. Response On balance. Filed suit against Governor alleging that the Act violated the federal Age Discrimination in Employment Act of 1967 and the EPC of the 14th. ·Ct held that the power to determine qualifications of state government officials is a power reserved to the states under the 10th Amendment and guaranteed by a republican form of government. Court held that if Congress wants to manipulate the balance they must make a plain statement of it. Want injunction agn EPA from regulating burning coal. (2) Federal government says that it is concerned about the fact that America’s emerging stable economy is dependent upon technological capacities of workforce and indication that work force is lacking in computer literate employees. Ashcroft: (1991) 19 Missouri Constitution requires a mandatory retirement age of 70 for most state judges. Interferes with natural power of sovereign state. Court is not in the business of balancing value conflicts. Police barracks in OH are heated by coal. ·In general.CONSTITUTIONAL LAW Page 14 of 84 4. except so far as plainly provided by the Constitution. ·Under National League of Cities state law rules!! ·Under Garcia state and federal have competing interest. · Congressional interfere would upset the usual constitutional balance of federal and state powers. · Powell 2 sets of democracies. 5. Make it manifest. Petitioners [Judges] were appointed by the Governor and retained in office by means of retention election. alternatives. 19 Xerox I 1 . If Congress wants to interfere.

is cursory and unconvincing. · Problem where does pressure turn into coercion.S. 6. 212 1 . 7. it may attach conditions on the receipt of federal funds. highway safety.S. and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal $$$ upon compliance by the recipient with federal statutory and administrative directives.CONSTITUTIONAL LAW Page 15 of 84 ·States retain some substantial sovereign powers under our constitutional scheme power with which Congress does not readily interfere. (1992) 21 New York and 2 of its county sought a declaratory judgment that the 3 incentives provisions of the Low-Level Radioactive Waste Policy were unconstitutional and exceeded the delegated powers of the Congress and violated the 10th Amendment. · Congress cannot condition a federal grant in a manner that abridges this right. · Establishment of a minimum drinking age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose. Dole: (1987) 20: Petitioner SD permits persons 19 years old to purchase beer containing 3. Congressional directive to enact legislation New York v. Congress enacted 23 U. Congressional incentives South Dakota v. Response The argument as to coercion is more rhetoric than fact [only 5% withheld]. The only possible connection. Act provides 3 incentives: Monetary incentives. has nothing to do with how the funds Congress has appropriated are expended. · Not an infringement it’s not a must. · This regulation is reserved to the States by the 21st Amendment. · Congress simply lacks the power under the commerce clause to displace state regulation of this kind. §158 which directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise allocable from states in which the purchase of public possession of any alcoholic beverage by a person under 21 years old is lawful. · Condition to be regulated must have some direct relation to the purpose of the regulation Congress found that the lack of uniformity creates an incentive to drive to states with lower drinking age and get into an accident [interstate!!!] · Incident to Congress’s Commerce power. It is just an incentive for the state to follow the choice made by Congress. · DISSENT (O’Connor) It is an attempt to regulate the sale of liquor [an attempt that lies outside Congress’ power to regulate commerce because it falls within the ambit of § 2 of the 21st Amendment] · The court’s application of the requirement that the condition imposed be reasonably related to the purpose for which the funds are expended. · Ct held that this legislative effort was within constitutional bounds even if Congress may not regulate drinking ages directly. the 20 21 Xerox I p. U. Access incentives. · DISSENT (Brennan) Regulation of the minimum age of purchasers of liquor falls squarely within the ambit of those powers reserved to the States by the 21st Amendment.C. Take title provision ·Ct held that while Congress has substantial power under the Constitution to encourage the states to provide for the disposal of radioactive waste generated within their borders.2% alcohol.

nor command the States’ officers or those of their political subdivisions. due to spending power ·Take title!! PROBLEM. No commandeering of the executive branch Printz v. Petitioners file actions challenging the constitutionality of the Brady Act’s interim provisions. while the federal officials who devised the regulatory program may remain insulated from the electoral ramification of their decisions. and not states. ·Access o. · Ct held that the Fed government may neither issue directives requiring States to address particular problems. 8. U. · The background check procedure was held unconstitutional. · All this stuff could be incentivized.CONSTITUTIONAL LAW Page 16 of 84 Constitution does not confer upon Congress the ability to compel the states to do so. ·All the decision does is require the state to think twice. · It is essential attribute of the state that they remain independent and autonomous within their proper sphere of authority. Where the federal government directs the states to regulate. · President is suppose to execute the law. ·Accountability is diminished when due to federal coercion. Rather Congress has responded to a request by many states to ratify a compromise worked out among themselves. ·Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals. to administer or enforce a federal regulatory program. ·Claim of federal need does not override the prohibition on commandeering state interests. · 2 Concurring said that the provision violated the 10th Amendment. Don’t tell just ask them to do it.S. ·Congress may not simply commandeer the legislative processes of a State by directly compelling them to enact and enforce a federal regulatory program. due to commerce clause ·Monetary o.k.k. Nothing in the constitution prevents the national government from acting as referee among the states to prohibit one from bullying the other. This is limitation on ability of Congress to get around the President. · Congress may not (1) force a state to legislate or regulate in a certain way or (2) require state executive branch personnel to perform even ministerial functions. ·DISSENT This is not an instance where the court is forcing its will upon the states. it may be state officials who will bear the brunt of public disapproval. Congress has the authority to pass laws requiring or prohibiting certain acts. (1997) 22 Brady Act requires the AG to establish a national instant background check system and immediately puts in place certain interim provisions until that system becomes operative. elected officials cannot regulate in accordance with the views of the local electorate in matters not pre-preempted by federal regulation. such commands are fundamentally incompatible with out constitutional system of dual sovereignty. Ultimate result would be the same. 22 Xerox I 1 . Petitioners Printz and Mack are CLEOs for 2 counties. so that the waste disposal problem will be solved.

to be heard. NATURAL RIGHTS AND NATURAL POWERS A. ·Kennedy Etiquette of Federalism: If you want federal government to reach over traditional federal limitations. · The majority’s rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. Bottom Line Congress wins!! ·Federal government can oust state from control of activity within commerce power ·Federal government can encourage to act in certain ways even if can’t commandeer. must do it in particular ways to show that it is cognizant of its overreaching. · The 10th Amendment provides no support for a rule that immunizes local officials from obligations that might be imposed on ordinary citizens. SUBSTANTIVE v. 9. PROCEDURAL DUE PROCESS ·procedural due process = one cannot be deprived of life. INDIVIDUAL RIGHTS ·What kind of individual rights are protections against tyranny? PROPERTY PROCEDURAL LIBERTY 1 . opp. · Deference to Congress—If congress believes that such a statute will benefit the people of the nation. it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens. liberty or property without due process of law.CONSTITUTIONAL LAW Page 17 of 84 · DISSENT When Congress exercises the power delegated to it by the Constitution. B. unbiased adjudicator] ·substantive due process = limits inherent in notion of due process of law. 10. COMMERCE POWER TODAY ·Trivial impact is not acceptable ·Congress must show the degree of impact and needs solid evidence ·Must be commercial in some sense ·Ration relation to interstate commerce ·Motive is irrelevant III. we should respect both its policy judgment and its appraisal of its constitutional power. and serve the interests of cooperative federalism better than an enlarged federal bureaucracy. · Leverage on private parties quarantine nuclear waste to one state until compliance · Money incentives withhold funds!! ·Congress has last word. [Notice.

· Purpose for which men enter into society will determine the nature and terms of the social compact. · The genius. have natural rights against federal government Calder v. trial by jury 5th. freedom to contract. no limitation on state power] 1. ·When government acts in violation of those ends illegitimate. 6th . [e. B. III treason Art. tests can’t be required 1st Amend 4th Amend 8th Amend NONE ·What’s not included? Medicine. An act of the legislature contrary to the great first 23 p. vote in the political process. laws that strengthen the social compact]. Lot of protections for property. · NO man should be required to do what the laws do not require—nor to refrain from acts which the law permits.CONSTITUTIONAL LAW Page 18 of 84 FEDERAL Taxes I §§2. the right to own property. but simply from the nature of things. (4) general welfare.9 Ex post facto law I th Takings 5 Amend §9 Bill of Attainder Article III. · Natural law doctrine certain rights are derived not from any law. Legislation required a new hearing and at the hearing the will was approved. · Constitution = whole and a guarantor of fundamental rights—stemming from the social compact and do not need explicit textual support. STATE I §10 Coining Art IV Fugitive Slave Clause Full Faith and Credit Clause Copyrights and Bankruptcy EPC State I §10 Art. Bull: (1798) 23 Court rejected an attack on a Connecticut Legislative act setting aside a probate court decree that had refused to approve a will. no ex post facto laws.g. 7th As. (3) justice. Court rejected the heirs claim that the ex post facto clause barred the Connecticut Act. education. 455 1 . People enter into a social compact which legitimizes society and protects natural rights [Lockean argument]. ·Very few protections for liberty. the nature and the spirit of our state government is to protect natural rights and the general principles of law and reason forbid abridging them. · Court held that the SC should reverse state legislation which violates natural rights. (2) protection for persons. IV Privileges and Immunities Div. [limitation on federal power. Jurisdiction Art. VI rel. Men are the foundation of the legislative power—they will decide what are the proper objects of it. Indiv. BEGINNING OF NATURAL RIGHTS [PRIOR TO 14th AMENDMENT] ·1791 Bill of Rights was adopted to protect the individual from federal government. ·Preamble determines scope of legitimate governmental authority: (1) protection for property. no status caste.

applies only to the states and is not directly binding upon state governments. keeping and slaughtering of livestock. City of Baltimore: (1833) 24 Petitioner sued the City for ruining the use of his wharf. Ct said that the Bill of Rts. group of New Orleans butchers. thinks that B should get it would be unconstitutional!! Iredell’s Response Prevails for 2 generations. and 15th Amendments. then the leg. (3) It denies Petitioners equal protection of the laws 14th . opinion is as good as the court’s.CONSTITUTIONAL LAW Page 19 of 84 · · principles of the social compact cannot be considered a rightful exercise of legislative authority. and must rely upon what is written. 14th. · Π felt that the right from unjustified takings was a natural right. Only that legislation which violates the Constitution specifically will be struck down. and (4) it denies Petitioners of their property without due process of law. claiming that the City had diverted the flow of streams in the course of street construction. C. Slaughterhouse Cases (1873) 25: Πs. If we rely upon natural justice. 14th 24 25 p. PRIVILEGES AND IMMUNITIES CLAUSE OF THE 14th AMENDMENT ·Civil War Amendments (1865 – 1870)  13th. Bill of Rts applies only to federal government Barron v. was written out of a fear that fed. It’s not the court’s duty to enforce rights based upon natural law [Hobbesian viewpoint] 2. They were adopted to bar discrimination by the states agasinst the newly freed blacks. (2) It abridges the privileges and immunities of citizens of the United States 14th . Law that would take from A and give to B for no other reason than the leg. there is no fixed standard. the diversion deposited large masses of sand and earth near the wharf and the water is now too shallow for boats. Petitioners only means of practicing their trade was to pay fees to the state cooperation and work at the corporation's plant. As a result. The Bill of Rts. · Rationale original intent. · While Calder stands for the proposition that individuals have natural rights against the government. 1. Drastic change from the constitutional restrictions on relations bettween the state government and individuals. govt. So it would not make sense that drafters would have wanted to limit the state governments as well. Petitioner claims that the City’s action violated the 5th Amendment guarantee that private property shall not be taken for public use without just compensation. We have a written Const. Barron states that they do not. 418 Xerox I 1 . challenged a state law granting a state cooperation the exclusive right to operate a facility in NO for the landing. Petitioner’s argument: (1) The statute creates an involuntary servitude forbidden by the 13th . · Ct held that the just compensation provision of the 5th Amendment is intended solely as a limitation of the exercise of power by the government of the US and is not applicable to the legislation of the states. and couldn’t be violated even by the states. If natural justice is only source. was too powerful.

if the state does not provide protection. federal protection on the high seas. He did not want the federal courts to impose on all aspects of state law. the Πs are out of luck!! If involves Health. as flexible to solve the crises of the era. it would be overstepping its boundaries. SUBSTANTIVE DUE PROCESS A. including the right to practice one’s calling.S. The constitutional guarantee the no person shall be arbitrarily deprived of his liberty. ·Late 19th Century  1930s = the rise of substantive due process 1 . none is more essential and fundamental that the right to follow such a profession or employment as each one may choose. Suggests a 2-tier approach to the 14th amendment: When rights of slaves are involved. Look at what is necessary to be truly free [ability to make living without being a wage slave. the amendment must be read expansively to provide comprehensive protection. Reconcile with McCulloch? Not really. morals or welfareSC won’t get involved. to vote in national elections. It is an attempt to deal with the freed slaves. Among the P/I. The federal government would be able to require the state to provide what they thought was a P/I. Modification of Barron federal government protects rights of U. RISE OF SUBSTANTIVE DUE PROCESS ·substantive due process doctrine that the due process clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content as well as application. Therefore. McCulloch views the Const. If the Court enforced the right to earn a living. Quotes Adam Smith stating that the right to make a living is a right of a citizen. DISSENT (Bradley) Looks at traditional rights in England and in the Magna Carta. UNLESS CLEAR. the protections of the federal citizenship are narrower and a state resident’s primary recourse for protection of his rights lies within his own state government. DISSENT (Field) The P/I designates are those which of right belong to the citizens of all free governments. Miller does not want to reach outside the Constitution to protect natural rights. Ct holds that 14th Amendment protects only the rights of U. right to travel from state to state. not state citizenship. Πs argued that the butchers are not included in the monopoly and feel that the statute is depriving them the privilege and immunity of LA citizenship. citizenship and states protect rest. THE P/I CLAUSE WILL BE READ NARROWLY. Only possible reconciliation preserve autonomy of federal government over state.CONSTITUTIONAL LAW Page 20 of 84 · · · · · · · · · · · · · 13th Amendment REJECTED it was a prohibition on slavery Due process REJECTED 14th Amendment Equal Protection REJECTED must interpret the 14th Amendment in light of its history. IV. When racial discrimination is not at issue. 14th Amendment Privileges and Immunities. safety. Rights of national citizenship include free access to seaports. To practice one’s calling was not a right of national citizenship.S. citizenship. life or property.

Must be real and substantial relationship between statute and goals it was to serve. dev. · Ct was skeptical of motive wealth redistribution may lay at the heart of the act [not legit]. Regulation of safety and health is o. 26 p. · Ct held that there is no reasonable ground for interfering with the liberty of person or the right of free contract. Readjustment of bargaining power between employer and employees is not sufficiently public. by determining the hours of labor. New York (1905) 26 NY law prohibited the employment of bakery employees for more than 10 hours a day or 60 hours a week. Taney felt there was not such thing. Court was reluctant to conclude that the 14th Amendment might limit states’ powers. · TEST for determining valid uses of state police power: · (1) The end must be legitimate for an act that interferes with freedoms considered valid. · Not a safety or health measure Bakers are not an especially endangered group [unlike miners]. Lochner was convicted and fined for permitting an employee to work in his bakery for more than 60 hours in one week or more than 10 hours a day.. Unless bakers are a class of special people that need special protection. · NY defended on: (1) valid labor law and (2) protected health and safety of workers. ·Growth of industrialization and corporate power in the post-Civil war years stirred popular demands and legislative responses. · Health.CONSTITUTIONAL LAW Page 21 of 84 ·Late 1930s abandonment of the doctrine’s use with economic regulation. · NO deference given to the legislative findings of fact and concluded for themselves that long working hours did not affect the public health and safety. 1. · Not a valid labor law police power extended only to protection of the public welfare. ·Slaughter houses temporarily blocked the utilization of the 14th Amendment as a substantive restraint on state legislation. · (2) There must be a direct relation between means and end. 460 1 . ·Court showed willingness to engage in substantive review. (2) Only certain legislative objectives were acceptable. ·Rise of substantive due process is tied to (1) natural rights theory [certain rights are fundamental]. long hours did not affect the public health and safety by making bread unfit to eat. in the occupation of a baker.. readjustment of wealth is not. Liberty to contract Lochner v. then it is invalid. (2) Laissez Faire economic theory [post-CW eco. interference] and (3) 14th Amendment [despite initial rejection]. quality of bread are both legitimate ends. ·After rebirth of the doctrine as applied to non-economic areas. ·New changes  liberty to contract movement. · SUMMARY (1) Requires a close fit between the statute and its objectives. minimizing govt. P/I not used now. Other ways exist to ensure wholesomeness without interfering with liberty to contract.k.

i) Muller v. Women are a weaker class disadvantaged in the struggle for subsistence and thus needing special protection. unreasonable exercise of police power? · Harlan Could a legislative reasonably believe it is a boon to the public welfare? · Holmes Could anyone reasonable believe it is within the public interest? 2. Liberty should be found to be violated only when a rational and fair man necessarily would admit that the statue would infringe fundamental principles as they had been understood by the traditions of our people and our law. 14th Amendment does not enact Mr. The Lochner Era (1905 – 1934) · Widespread invalidation of economic legislation on substantive due process grounds. Herbert Spencer’s social statics [laissez faire theory]. working hours for factory workers of both sexes [overruled Lochner] 27 p. · 2nd guessing of state legislatures (a) Maximum Hours Ct was willing to allow such laws where it found that the benefited class for some reason needed special protection.CONSTITUTIONAL LAW Page 22 of 84 · · · DISSENT (Harlan) It is an expression of the people of NY that in the case of the average man. no voting rights. the less legitimate the ends become. labor in excess of 60 hours a week in such establishments may endanger the health of those who thus labor. If leg. beyond that given to workers generally. It is not the province of the court to inquire whether or not it was wise for NY to do so.[Like Carolene] If there are grounds for disagreement. Oregon: (1908) Ct upheld statute setting max. (2) Court is too far removed from people DISSENT (Holmes) Ct had no rights to impose its own views about current economic theory on the Legislature. 457 1 . This cripples the power of the state to care for the lives and health of their citizens. there is a reasonable relation. reproductive powers. [DEFER to legislature] · Problems: (1) deference to legislature They may cater to special interest groups without looking at ends/means relationship. Weaker. Based on facts. End = healthy women  healthy babies. MWPA. · Problems: (1) value skepticism. court must defer to the legislature because they represent the majority. so just allow the natural outcome of the dominant opinion. ii) Bunting v. Danger of tyranny of the majority. Oregon: (1908)27 Ct sustained a law barring the employment of women in a factory or laundry for more than 10 hours a day. the less strict we are with ends/means relationship. May not be a right answer. (2) value relativism. wants to sterilize mentally retarded people. Constitution is not intended to embody a particular economic theory. should we let them? COMPARE: · Peckham Is it a fair. whether of paternalism and the organic relation of the citizens of the state or of laissez faire.

Π appeals to the Supreme Court claiming that the statute authorizing the judgment is void under the 14th Amendment as denying the Π in error due process of law and equal protection of the laws. Hard to see any objective for minimum wages other than lessening economic inequality. U. (c) Minimum Wages Ct struck down minimum wage laws.S. Whenever the Superintendent decides that it is in the best interests of society and the patient. ·Any goal which is legitimate.CONSTITUTIONAL LAW Page 23 of 84 (b) Anti-Yellow Dog Contracts Contract which an employee was required to sign as a condition of employment. Children’s Hospital: (1923)29 Ct invalidated a minimum wage law for women. ii) Coppage v. Removal of inequalities in bargaining power was viewed by the Coppage majority as an impermissible legislative end. Superintendent petitions the board. 457 Xerox I 30 Xerox I 1 . Such large scale government intervention was at odds with the Lochner freedom to contract philosophy. Bell: (1927) 30 Superintendent was ordered to sterilize Carrie Buck. 28 29 p. i) Adair v. Act states that the health of the patient and the welfare of society may be promoted in certain cases by sterilization. the leg. (d) Sterilization of Mentally retarded women Buck v. FALL OF SUBSTANTIVE DUE PROCESS ·FDR was elected and convinced people of the need for aggressive legislation to ensure the nation’s economic survival. Circuit Court may review. B. ·Threat of Court packing lead to shift towards deference to legislative intervention in economic affairs. only the right to not have them taken away without procedural due process. Kansas: (1915) Ct held that such ban on yellow dog contracts violated substantive due process on the grounds that they interfered with freedom to contract. even though a few years before accepted maximum hour laws for women. Holmes dissented. Supreme Court of Appeals of Virginia affirmed the decision. could adopt as long as not inconsistent with the people and the laws. he can order them sterilized. provided that he would not join a union. because it is an illegitimate end to compel any person in the course of his business to retain the personal services of another. i) Adkins v. Appeal to the Supreme Court of Appeals is the final vote. ·Here she had lot of procedures. Holmes dissented. Inconsistency? NO. Freedom to contract. (1908)28 Ban on yellow dog contract are unconst. maximum hours could be seen as promoting health objective. ·Ct [HOLMES] held that the statute was legitimate since there is no right to life and liberty per se.

· Yet. It does not dictate how much return the dairy gets. · Not an explicit rejection of Lochner. but if gave more weight to state’s interest in redressing women’s inferior bargaining power as well. · Regulatory legislation affecting ordinary commercial transactions is not to be unconstitutional unless it is of such a character as to preclude the assumption that it rests upon some rational basis with the knowledge and experience of the legislators. · Still maintained Lochner test of real and substantial relation to legitimate end. arbitrary. 474 p.S. 2. Ends and means are debateables. · Same test as Lochner. Parrish: (1937) 32 Ct upheld a state minimum wage law for women. Carolene Products: (1938) 33: Ct sustained against a due process attack a federal prohibition on the interstate shipment of filled milk [skimmed milk with non-milk fats]. 3. · Justification: Milk is an essential item of diet  failure to receive reasonable return  relaxation of vigilance against contamination  health and prosperity of the state’s people. · What women lose in wages. but the court was not going to impose upon legislatures its own views about correct economic policy as Lochner did. or capricious. Initial decline Nebbia v. v. the Court held that the existence of facts supporting the legislative judgment is to be presumed. and that the means selected shall have a real and substantial relation to the object sought to be attained. we make up in taxes.15 cents Convicted of selling milk below the minimum. · Quasi-Harlan approach If legislature says it will be bound by public interest. therefore.Y (1934) 31 NY Legislature established a Milk . v.: Control Board with power to fix minimum and maximum retail prices to be charged by stores to customers. and to enforce that policy by legislation adapted to its purpose. the statute does not necessarily help the dairy. Minimum rationality U. but placed less emphasis on what are impermissible state ends. · Ct held that a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare. · Ct mentioned the state’s interest in protecting the health of women. Overrule of Adkins West Coast Hotel Co. · Even in the absence of explicit legislative findings. 31 32 p. · Ct held that Congress had acted upon findings of fact [committee reports] showing a public health danger from the filled milk. so defer to the legislature. yet noted that due process required only that the law shall not be unreasonable. [. While Lochner focuses on the ends. Nebbia looks at the means.9cents/quart] Nebbia = owner of grocery store in Rochester and sold 2 quarts of milk and a 5 cent loaf of bread for . · Readjustment of economic bargaining power in order to enable workers to obtain a living wage was a legitimate limitation on the freedom to contract.CONSTITUTIONAL LAW Page 24 of 84 1. 476 33 p. 478 1 . N. we will defer to the legislature if plausible. it does not really serve its legitimate end.

and (3) prohibits optometrists from working in a general retail establishment. Record indicates that TXO had engaged in similar nefarious practices throughout the country.CONSTITUTIONAL LAW Page 25 of 84 · · TEST: Minimum rationality coupled with a presumption of constitutionality. We should give more deference to jury verdicts. Alliance Resources: (1993)35 TXO had engaged in bad faith negotiations with Alliance. caprice or passion $10 million punitive is a 34 35 p. · Assuming that fair practices were used  jury verdict is entitled to certain amount of deference. 4. · There are numerous procedural safeguards which cannot be overlooked. · DISSENT (O’Connor) Fundamental fairness requires that impermissible influences such as bias and prejudice be discovered nonetheless by inference if not by direct proof. among other things: (1) forbids an optician from fitting or duplicating lenses. · Ct held that the statute was a rational health measure since the legislature might have concluded that in some instances prescriptions were necessary to permit accurate fitting. (2) prohibits advertising of eyeglass frames. TXO advanced a quitclaim deed in bad faith upon those claims. · Distinguishable from Lee Opticals since this is a jury verdict and not legislative. even replacements without a prescription from an ophthalmologist or optometrist. not only for correcting vision. TXO knew that Alliance had good title to the oil and gas development rights at issue.000 actual damages and $10 million in punitive damages. but also for detecting latent ailments or diseases that every chance frames and every duplication of lens should be accompanied by a prescription from a medical expert. even though it perhaps was not the real end. Due process requires judges to engage in searching review where the verdict discloses such great disproportion as to suggest the possibility of bias. but also all reasons which the legislature might have considered. · Ct upheld the award by holding that general rule of reasonableness enters into the constitutional calculus. or that eye examinations were so critical. 5. Respondents obtained judgment for $19. their verdict was the product of collective deliberation. · Look at what the harm would have been had they succeeded. · Even in the absence of explicit findings or evidence that these reasons in fact motivated the lawmakers. when evaluating punitive damage awards. Hypothetical rationality Williamson v. The jury was ensured to be impartial. Lee Opticals: (1955) 34: Lee Optical challenged a state law that. Here the claimed end of public health did not preclude the assumption of rationality. Deference to jury verdicts TXO v. 481 XEROX I 1 . · Court is willing to accept any rational assumptions so long as some evil the court has been identified and statute could be rational way to combat that evil · Consequence one who attacks the legislation must not only rebut the reasons given by the legislature.

Bill of Rights: not a society of different views. CONCURRENCE (Scalia) The Bill of Rights is not the secret repository of al sorts of other unremunerated. FN 4 of U. · The procedures by which the conviction was obtained shocks the conscience. Petitioner swallowed them. groups with which the leg. Petitioner was arrested for possession of morphine. (b) when it deals with the political process Self corrective process is diminished. There is a simple and straightforward explanation for the jury award  TXO acted with malice. passion. Carolene: Certain [non-economic] rights may deserve special scrutiny by a courts [a narrower presumption of constitutionality] if a legislature restricts them [in accordance with the 14th Amendment]. consistently excluded—process of loss will pyramid upon itself. the Constitution has been violated no matter what the absolute or relative size of the award.S.CONSTITUTIONAL LAW Page 26 of 84 · · dramatically irregular. Vomit contained 2 capsules of morphine. Violation of fund. SUBSTANTIVE DUE PROCESS REVISITED:WHEN SHOULD COURTS INTERVENE? 1. The police illegally broke in and forcibly removed the contents of his stomach. 1949  Police entered the home of Petitioner through an open door and then broke through the second door. v. · Courts should be very deferential to states in the administration of their criminal procedures. C. decisions. Jury was unduly influenced by the fact that TXO was a very large out of state corporation. Yet. When asked who owned the capsules. Police tried unsuccessfully to pry the capsules from his mouth. California: (1952) 36: Police received a tip that Petitioner was selling narcotics. Police found Petitioner sitting on bed with 2 capsules on the nightstand. · Ct held that due process of law requires that convictions cannot be brought about by methods that offend a sense of justice. 2. There are various limitations of states’ power to enforce their penal codes. A jury is bound to consider only the evidence presented to it in arriving at a judgment. outcasts can’t make alliances to log roll. rights-the “Yuck Test”  Rochin v. (a) when the law violates an expressly protected constitutional right Ex. July 1. CONCURRENCE (Kennedy) When a punitive damage award reflects bias. or prejudice on the part of the jury. if not shocking verdict by any measure. Due Process does not include the right to not be subjected to excessive punitive damages. does not empathize. substantive rights. the Court has the responsibility to review the proceedings if colorable constitutional challenges are raised. Petitioner was taken to the hospital where his stomach was pumped against his will. (c) when it disadvantages a discrete and insular minority. there are entrenched in collective consciousness and form the matrix of demo. rather than a rational concern for deterrence and retribution. 36 XEROX I 1 .

· Dislike coupled with propensity for violence Kansas v. Ct. Donaldson: (1975) 37 Respondent was committed by his father who thought that his son was suffering from delusions. · Prima facie right to personal liberty. · It is rationally related. It was just a regime of enforced custodial care. It is hard to claim it is a fundamental right. Public intolerance O’Connor v. public health problem of suicide. · State’s interest cannot be a dislike of some member of society. Glucksberg: (1996) 39: Ct holds that Washington’s prohibition against causing or aiding suicide does offend the 14th Amendment. · CONCURRENCE (Stevens) Exception: have the individual come forward and prove that he does not fall within any exception. · Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s personal liberty. Hendricks (1996) 38: Ct held that the government can lock up Hendricks due to mental abnormality but combined with likelihood of engaging in acts of sexual violence. Acknowledge notion of physical pain. Potential for abuse is the same as individuals 37 38 XEROX I Supp. · Ct held that a state cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. · CONCURRENCE (Breyer/Ginsburg) Pain is more objective or better analogized to torture than dignity. preservation of life. · Coercion. At the hearing. 31 39 Supp. no treatment was administered to Respondent. Respondent was diagnosed as a paranoid schizophrenic and was committed for care. During that time. should look at other things such as dignity. · Court will intervene when a state has acted on insufficient regard for protection of individuals [minorities who cannot protect themselves]. Question of when a court should intervene should not just be based on history or tradition. keep the medical profession within traditional roles. [Legitimate end]. Washington v. · This is not traditional. Interests infringed upon is conmeasurate with the interest invoked. · CONCURRENCE (Souter) Lochner approach. maintenance and treatment.CONSTITUTIONAL LAW Page 27 of 84 · · One at odds with traditions fundamental to consciousness of our people [HOLMES] Ct’s role is to determine if laws offend those canons of decency and fairness which are so rooted in the traditions and conscience of our people as to be ranked as fundamental. 34 1 . 4. 3. deep-rooted consensus of the people. Respondent brought suit against the Superintendent of the institution alleging that he and others had intentionally and maliciously deprived him of his constitutional right to liberty. Commitment lasted 15 years. State has a right to protect the lives of its citizens.

·Most general economic and social welfare legislation falls within this category. ·Glucksberg shows that the most supine deference is due even to non-economic interests. [Slaughterhouse] · (2) Due process limited to deprivations of life. ·Economic rights has receded from strict scrutiny. THE EQUAL PROTECTION CLAUSE A. or if it is shocking. If the interest is intrusive and justification is not commensurate. irrational or illegitimate objectives. discrete and insular minorities and the actions of juries [since they are not accountable to the political process] · Excludes certain means types of coercion offend traditional notions of decency. ·legitimate public objective Courts give extreme deference to the legislature’s right to define the objectives. ·Courts will intervene regarding substantive due process violations under circumstances: · Conflict with Constitutional text [explicit rights] · Things that impact the political process. liberty and property [patently arbitrary interventions] · (3) Equal Protection Clause V. RATIONAL RELATIONSHIP ·Where neither a suspect class nor a fundamental right is implicated. unless facts preclude that conclusion. the Court will review the classification with extreme deference and with a heavy presumption of constitutionality. ·Relaxed standard of review under substantive due process. Law will be stricken only if the classification is purely arbitrary. The legislature still must have a LEGITIMATE end and some RATIONAL basis for connecting the suggested means to that end.CONSTITUTIONAL LAW Page 28 of 84 being trapped in undignified situations. then it is invalid. as long as some reasonable plausible state of affairs exists. ·Court will assume that the legislature acted REASONABLY. courts will intervene. D. · Excludes certain ends government cannot use public animosity as grounds for denying liberty [improper purpose] ·14th Amendment 3 potential bridges to constrain the government: · (1) privileges and immunities limited to narrow set of interests between individual and government. ·mere rationality statute will not be stricken if it’s conceivable that there is some rational relation between the means selected by the legislature and a legitimate legislative objective. Court is entitled to review the interest. SUMMARY OF MODERN APPROACH ·If there is a historical commitment . 1 . ·TELL ME A STORY DEFERENCE is appropriate unless some deep-rooted consensus such that intervention trammels an individuals’ rights.

· CONCURRENCE (Jackson) The majority’s rationale was an invitation to arbitrary action. Conceivable Basis Standard Since determining actual intent of the act may be frustrated by (1) lack of reference to purpose in legislative history or (2) presence of other factors that are other purposes in conjunction with true purpose. Sharpe. · As long as the court can conclude that it’s related to some state concern [low threshold]. Court will consider any purpose which the statute’s defenders can assert as having been the or even a consideration which motivated the legislature. 639 p. If the Court agrees that this purpose may have motivated the legislature. the court has viewed the DPC of the 5th to have an equal protection component. since this kind of under-inclusive act would allow legislators to choose only a few to whom they will apply legislation and thus to escape the political retribution that might be placed upon them if a lot were affected. 2. · Legislature may deal with a problem one step at a time statute that is underinclusive is not necessarily invalid. · If the state said that only “X” may advertise not legitimate. Railroad Retirement Bd. 1.S. a) U. and that purpose is legitimate and rationally related to the means used by the legislature. Statute should be upheld because there is a real difference in doing something in self-interest and doing for hire so that it is one thing to tolerate the action form those who act on their own and it is another thing to permit the action to be promoted for a price. One exception—business delivery vehicles [engaged in usual business and not used merely for advertising]. One step at a time approach Railway Express Agency v. ·Equality means that those similarly situated must be treated similarly. · If in the aggregate the legislature may have believed that there is a difference then that’s enough to sustain the legislation. Yet. Operates 1900 trucks in NYC and sells space on the exterior sides of trucks for advertising [unconnected with business]. the statute will be upheld even if there is no hard evidence that the purpose was in fact a motivation to the legislature. 653 1 . State court held for Appellee claiming that advertising on vehicles causes a distraction to vehicle drivers and to pedestrians alike and therefore affects the safety of the public in the use of the streets. Fritz (1980): 41 Prior to 1974  federal law permitted retired persons who had worked in both railroad jobs and 40 41 p.CONSTITUTIONAL LAW Page 29 of 84 ·Does EPC clause apply to the federal government? NO. · Defer to state courts they know more about what the legislature is doing. v. ever since Bolling v. · Ct held that it is no requirement of equal protection that all evils of the same genus be eradicated or none at all. · Local authorities could well have justified that those who advertise their own wares pose less of a threat to safety than those who advertise the wares of others. Appellant = engaged in nationwide express business. New York (1949) 40 Section 124 of NYC Traffic Regulations prohibits any advertising on cars.

the Retirement system was threatened with bankruptcy. · Congressional purpose: (1) Raise levels of nutrition among low-income households and (2) increase consumption of food to strengthen the agricultural economy. b) U. Yet. · Because Congress could have eliminated windfall benefits for all classes of employees. imprecise and wholly without any rational basis. EQUAL PROTECTION AND RACE: THE AMERICAN DILEMMA A. 1974 Congress restructured the system by eliminating future accruals of dual benefits. · Maj Statutory exclusion was clearly irrelevant to the purpose. · Ct held that where there are plausible reasons for Congressional actions. The exclusion of unrelated persons was found to be irrational. · It is constitutionally irrelevant whether this reasoning in fact underlay the legislative decision. 648 1 . but not others. They claim that depriving one set of unretired workers dual benefits while continuing them for another who satisfied the criteria denied them of equal protection. Dept of Agriculture v. Wants to find actual legislative purpose [probably unworkable]. One grandfather clause = preserved dual benefits for some. it was not constitutionally impermissible for them to have drawn lines between groups of employees for the purpose of phasing out the benefits.CONSTITUTIONAL LAW Page 30 of 84 nonrailroad jobs to receive dual benefits [social security and railroad retirement system]. VI. · DISSENT(Brennan/Marshall) A challenged classification must be sustained only if it is rationally related to achievement of the actual legitimate governmental purpose. Real excluded group = hippies.S. THE LEGAL SYSTEM AND THE LEGACY OF SLAVERY ·Civil War Amendments: · 13th outlawed slavery 42 p. the courts may not intervene. · CONCURRENCE (Stevens) Looks for correlation between classification and either the actual purpose or a legitimate purpose that we can reasonably presume to have motivated an impartial legislature. Moreno:42 Court struck down a provision of the federal food stamp program for assistance to households [related persons]. · Equal protection means that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. [Compare with O’Connor]. · The language of the statute is clear and the courts have long held that it is safe to assume that Congress intended what it enacted. Appellees = unretired class of railroad workers who would have qualified under the old system but failed to meet one of the three qualifications. Retired and presently receiving benefits  continue to receive them.

thus the statute fails the test of equal protection. Freeholders withered away. Hopkins: (1886) 44 San Francisco passes an ordinance requiring that all laundries housed in wooden buildings be licensed before operating. State statute prohibits any persons except white males from sitting on juries. Supreme Court of the state affirmed the conviction. · HYPO Statute requires 20% AA. No state shall deny to any person within its jurisdiction the equal protection of the laws. · Statute may prescribe the qualifications of a juror. it was clear that Southern states could not be depended upon to protect the rights of newly freed slaves. a citizen of the country and of the state where they reside. Discriminatory purpose Strauder v. Discriminatory effect Yick Wo v. · A statute that restricts jurors to all male. Educational qualification withered.k. Discrimination implies inferiority in civil society and lessens the security of their enjoyment of the rights that others enjoy. so the main threat on individual rights no longer came from the federal government. Unconstitutional under Strauder? YES. but not one that restricts to Celtic ancestry. · Purpose of the 14th Amendment was to guard against: (1) reimposition of subordinate status on blacks. Π appeals on the ground that he was denied rights to which he was entitled under the Constitution and the laws of the States. (2) unfriendly legislation. property holders would be o. · Age still exists. · Restricting blacks from juries brands them as inferior and stimulates race prejudice and is a practical step towards subjugation. · Exclusion from participation in government excludes AA from protecting themselves as group against depredations of the majority. Π was 43 44 XEROX I XEROX I 1 . 80% European-Am on a jury reflecting % in society. and (3) legislation implying inferiority. · There must be the same law for blacks as for whites. · When a law is found to discriminate on its face. Individuals seeking to sit on the jury are being treated unequally for whites and for blacks. · 15th gave Blacks the right to vote ·By the end of the CW. liberty or property to a colored man is in conflict with the Constitution. · There’s a right to exemption from unfriendly legislation. · Ct held that any state action that denied the immunity from inequality of legal protection either for life.S. Gender 1970s emerges as suspect classification. · In relation to access to civil society Blacks and whites cannot be treated differently. West Virginia: (1880)43: Π was indicted for murder and convicted. and in so doing make discriminations.CONSTITUTIONAL LAW Page 31 of 84 14th overruled Dred Scott making every person born or naturalized in the U. · 1. City license expired and he applied for a new one denied. 14th Amendment does not prohibit this. citizens. 14th Amendment intervenes when the discrimination is based upon race or color.. 2. the court will not require that it be shown to have an actual discriminatory impact in the case at hand.

Caste does not exist here. · Separate carriages promote order and public peace [consistent with Yick Wo since there was a justification] · No concern over slippery slope because laws won’t be passed without good justification. If you take away those rights problem. · No reason exists except for hostility to race and nationality. · State cannot force the 2 races to meet upon terms of social equality. Constitution need not always be colorblind [race riots in prisons]. it was discriminatory in its application.S. Petitioner refused to comply and he was ejected from the train. virtually all non-Chinese who made application received permits. Petitioner paid for a first class ticket on the East Louisiana Railway and entered the section and took a vacant seat. [Like Lochner] Look beyond the face of the law to see if it has a brand of inferiority. whether or not they are U. It must be the result of their natural affinities. · DISSENT (Harlan) Everyone knows what the purpose was: exclude blacks from white cars and NOT vice versa. Π was a native of China and not a U. · Matthews believes that the 14th A. · Ct held that separate but equal does not violate the EPC. a mutual appreciation of each other’s merits and a voluntary consent. · Law applied with an evil eye and unequal hand is no good. Π has been engaged in laundry business for 22 years in the same premises and had been inspected by a fire warden. How is the nanny an exception?? 45 XEROX I 1 . 3.that’s the legislature’s job. says no unequal. · Problems with DISSENT: School segregation in MA and DC [which is governed by federal law].S. · Although the statute was neutral on its face. Petitioner was required by the conductor to vacate the seat since he was in violation of a Louisiana statute that authorized separate cars for separate races. · Social equality was not the goal of the 14th Amendment. political equality was. Plessy v. · Strong 14th Amendment only protected different races. Constitution is colorblind. Ferguson: (1896) 45: Petitioner is a citizen of US and resident of LA [mixed descent]. Meagles] · Ct held that the 14th Amendment equal protection apply to all persons.. citizen. It is not the role of the Court to determine if a law has a good justification. No whites were denied [except Mrs.CONSTITUTIONAL LAW Page 32 of 84 found guilty of violating the ordinance. Strauder is limited to access to political participation. Look at the motivations.. unjust discrimination of any group without a legitimate reason. Avoid sewing the seeds of racial hatred. It is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences. · No badge of inferiority because all carriages are equal If there is any badge of inferiority  it is self-imposed. Π and 200 other Chinese laundrymen had been denied permits. To treat races differently based solely on race is not justified. · Government’s job is to secure equal rights before the law and equal opportunities for improvement and progress. Citizens.

CONSTITUTIONAL LAW Page 33 of 84 · · Aftermath of Plessy exclusions mushroomed into separate set of institutions like American Apartheid. 9066 authorized military commanders to prescribe military areas from which all person may be excluded. [imminent danger] ·All laws which discriminate against a race are immediately suspect and demand rigid scrutiny. 673 1 . North. ·SUMMARY OF STRICT SCRUTINY TEST: (1) There must be an end (state interest). had a lot of informal segregation. He wants to drop the conviction. Court intervened only 3 times: (1) prohibition on property ownership (2) Manipulation of voting qualifications must be explicit (3) Missouri Intervene at graduate school level where physical facilities are not equal to white facilities [tangible] 3. SC. Here the rigid scrutiny was satisfied by a pressing public necessity ends scrutiny. VA and DE minor Negro children seek the aid of court to obtain admission to the public 46 47 XEROX I p. Up until WWII. 1. United States (1944) 46 Executive Order No. (2) The end must be legitimate. Some were sent home on the condition that they remain outside of the protected areas and some were ordered to Relocation Centers. THE BROWN REVOLUTION ·Ct did try to enforce separate but equal facilities but found that it was nearly impossible. but send Korematsu to camps. Korematsu was tried and convicted for remaining in his home contrary to the exclusion order. Military should have declared martial law. Korematsu v. although no explicit segregation. and (3) racial classification must be necessary to accomplishment of that end. B. [Majority ignored the facts and believed the lies] ·DISSENT (Murphy) Military orders are given deference but must have reasonable relationship to removal of the danger. but this conviction does violate the principles of the Constitution. 1942  military commander required persons of Japanese decent to leave their homes and report to Assembly Centers. Court should not intervene in military decisions in the middle of a war because it does not know what is militarily necessary. Board of Education of Topeka (1954) 47: Kansas. The only way the military is limited is that there must be a reasonable relations between the ends and the means in its actions [substantive due process] ·DISSENT (Jackson) Acquit Korematsu. Military commander ordered imposition of a curfew on all Japanese persons living on West Coast. Supreme Court upheld the constitutionality of the curfew [Hirabayashi] May 3. Brown v. Can’t assume that all Japanese are dangerous. not means scrutiny. ·Ct held that there was a compelling need to prevent espionage and sabotage and that there was no practical and sufficiently rapid way for the military to distinguish the loyal from the disloyal.

and thus it imposes on Negro children a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.CONSTITUTIONAL LAW Page 34 of 84 schools of their community on a nonsegregated basis. the doctrine of separate but equal has no place.C. · Expert information Impact of segregation is the greatest when it carries the force of law with it. [Expert information was used in Adkins and denied in Lochner. Total break from the history. A sense of inferiority affects the motivation of the child to learn. is a denial of the due process of law guaranteed by the 5th Amendment to the Constitution. in preparing for later professional training and in helping him adjust normally to his environment. · Racial segregation generates a feeling of inferiority as to their status in the community that may affect their hearts in mind. 680 1 . · (1) Racial classification embodies racial hate · (2) racial classifications usually are unrelated to legitimate purpose · (3) to allow racial classification in American society leaves open the possibility of treatment of politically disfavored groups. · Cites Korematsu strict scrutiny. Brown II: (1955) 49 Ct held that federal district courts were to supervise desegregation because of their proximity to local conditions. It is a principle instrument in awakening the child to cultural values. · Liberty cannot be restricted except for a proper governmental purpose. Segregation in the public schools is not reasonably related to any proper governmental objective. · It would be unthinkable that the same Constitution that prohibits segregation in state schools. Those courts were directed to use general equitable principles nothing more specific was said and to avoid 48 49 XEROX I p.C.] · Court did not look at the legislative history of the 14th Amendment itself [ignore facts like Casey and Lochner]. · Even if all-black and all white schools are equal in terms of tangible factors intangible factors necessarily prevent children who were restricted to all black schools from receiving equal educational opportunities. Bolling v. · Government is not entitled to make decisions on basis of race. · Ct held that racial segregation in the public schools of D. Sharpe: (1954) 48 Challenge to the validity of segregation in the public schools of D. · Education is the most important function of the state. would impose a lesser duty on the federal government. 2. 3. It therefore retards the educational and mental development of Negro children and deprives them of some of the benefits they would receive in a racially integrated school system. · Ct held that in the field of public education. Πs argue that segregated schools are not equal and cannot be made equal and hence they are deprived of the equal protection of the law.

but Government cannot sanction and give effect to societal discrimination. they must be shown to be necessary to the accomplishment of some permissible state objective. · Ct says “best interests” test is substantial and important government interest. obligation to fix the school system. equal protection demands that racial classifications. · Ct held that the effects of racial prejudice. Sidoti (1984) 51: Petitioner and Respondent [White] were divorced in May 1980. Race as a suspect class: (1) strict scrutiny. · If Brown I is rooted in just Bolling. be subjected to the most rigid scrutiny and it they are ever upheld. Do it in an effective manner with all deliberate speed. no matter how real.CONSTITUTIONAL LAW Page 35 of 84 chaos. since it was in the best interests of the child to avoid environmental pressures not of her own choice. especially suspect in criminal statutes. 667 XEROX I 1 . · Burger requires (1) compelling state interest and (2) necessary for accomplishment of their legitimate purpose. · If Brown I is more psychologically based. 50 51 p. · At the very least. Custody of their 3 year old daughter was given to Petitioner. There they were convicted of violating VA’s miscegenation law. 6. put it in the position it would have been in before the damage was done. 5. and returned to Virginia. September 1981 after the Petitioner invited her fiancée [Black man] to move in with her. (3) justified only by legitimate government interest that can be achieved in no other manner. (2) constitutionally suspect. Parental Rights Palmore v.C. There is a constitutional obligation not to operate school system that has this sort of impact. cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.C. independent of the racial discrimination which it was the object of the 14th Amendment to eliminate. · Court must be proactive. 4. · Ct held that restricting the freedom to marry solely because of racial classifications violates the central meaning of equal protection. · Court wrestles through the 60s and 70s as to whether or not the impact of Brown is racial classification or desegregation. Virginia: (1967) 50 Appellants [Black woman and White man] were married in D. TC suspended their 1 year sentence if they left VA to not return together for 25 years. the statute that says we won’t take race into account is the appropriate remedy. · Stewart A law cannot be valid if it makes the criminality of an act depend on the race of the actor. · Protecting racial integrity is not a permissible state objective. then more is required. Petitioner appeals to S. the Respondent filed for modification of custody award. Custody was awarded to Respondent. immediate relief was not ordered. Freedom of marriage Loving v.

it is not unconstitutional. Must evaluate the degree of disparity. but motivated by bureaucratic indifference. they move towards exclusion of minorities from mainstream of society. Yet. U. but can be inferred 1. · Ct held that on its face.CONSTITUTIONAL LAW Page 36 of 84 C. · Guinn too coincidental · Hunter singling out ordinance was tainted by desire to affect race relations · Lau maybe not malintent. degree of exclusion. a) Guinn and Beal v. they must take race into account [violating the colorblindness of the Const]. (3) evaluation of importance of goal would run into Lochner problems. Πs were charged with violating a federal statute making it an offense to deprive citizens of constitutionally guaranteed rights [right to vote]. adopt disparate impact approach. impact is facially unconstitutional. the grandfather clause invalidates the statute. and degree to which alternative is available. It is all inclusive. Πs made literacy a requirement for voting. the true purpose is clear. the statute contained a grandfather clause to exempt all illiterate white men. EFFECT THEORY: · Decision to maintain such practices were tainted by racial hostility even if not proven.S. · Impact may embody or gives effect to prior explicit discrimination · Guinn Even if time was random. level of justification. · Lau Not hostile concerns. · Since the statute was framed around the 15th Amendment. (1915) 52: Guinn and Beal = election officers. PURPOSE OR EFFECT? THE RISE OF THE IMPACT APPROACH ·2 ways to deal with race: (1) EFFECT THEORY comes from Strauder/Brown · Impact of the law · could increase litigation · could be easiest to find (2) PURPOSE THEORY comes from Yick Wo/Bolling · Problematic character of racial classifications themselves · Treat people as individual citizens rather than as group of races. but gatekeeping enterprise that prevents advancement. · Less chance of slippery slope · Van be very difficult to discern. yet if a set of exclusion are duplicated throughout social systems. (2) every governmental action would end up in court. (4) possibility of invalidation of legislation that serves some public interest. (5) where cts. but the amendment says nothing about race. · PROBLEMS (1) Not every racially disprop. action · Even if no racial hostility nor embodiment of prior problematic racial practices. it does in effect incorporate racial discrimination · Apparently neutral law can give effect to unconst. 52 XEROX I 1 . · Motivation was racist and impact was to deprive blacks the vote. Yet.

Petitioner addressed a complaint to the Commission asserting that a real estate agent had refused to show her a piece of property because she is Black. Court establishes a 3-part test to determine if there is discrimination: (1) Title VII looks to the consequences of employment practices not simply the motivation. Erickson: (1969)55 Akron City Council enacted a fair housing ordinance to assure equal opportunities to all persons regardless of race. ·Absence of discriminatory intent does not redeem employment procedures that operate as built-in headwinds for minority groups and are unrelated to measuring job capabilities.000 were given a supplemental class in English.856 Chinese students. but there was no bad intent here. Therefore. · Ct held that there is no equality of treatment merely by providing students with the same facilities. textbooks and teachers and curriculum for students who do not understand English are effectively foreclosed from any meaningful education. ·By picking out something that is of particular advantage to minorities and placing it so that it is more difficult to attain is a denial of equal protection. b) Lau v. It is simply a burden on racial minorities. (2) Justification (Rational relation) Test was unrelated to measuring job capability (3) Strength of the interest. but no one but the Blacks need the policy. substantial and invidious denial of the equal protections of the laws. Π sued under the Civil Rights Act of 1964. d) Hunter v. ·It is true that all racial and religious groups are treated the same.CONSTITUTIONAL LAW Page 37 of 84 · · Court looks at effect of the amendment 1866 is the cut off date = passage of the 15th Amendment. Central purpose of the 14th is to protect from invidious discrimination. c) Griggs v. DISSENT (White) Key is not the effect but the purpose. ·Ct held that the City ordinance discriminates against minorities and constitutes a real. had traditionally educated Whites better. Suit was brought by non-English speaking students against the school officials for violation of their equal protection. School had 2.800 were not. ·N. 53 54 XEROX II Notes 1(2) 55 XEROX II 1 . Of these. Nichols: (1974) 53 SF school system was integrated in 1971. 1. Here there are discriminatory consequences so it violates the Act. it only hurts Blacks. Δ had discriminated in the past. · Violation of Title VI because the school was receiving federal funds and was discriminating because discrimination is barred even when it has the effect though no purposeful design is present. It therefore discriminates against them. Duke Power: (1971) 54: Employment test kept out most Blacks. About 1. ·The majority need no protection against discrimination.C.

The test is neutral and rationally serves the purpose the government is empowered to pursue. 56 57 XEROX II XEROX II 1 . (2) intent approach limits the scope of judicial intervention. ·The Test is administered to all government employees. (3) in order to strike statute. yet. Appellees claim that the provisions have a racially discriminatory impact. a neutral statute which serves ends otherwise within the powers of the government is not invalid under the EPC simply because it may affect a greater proportion of one race than another. Underwood: (1985) 57 Appellees [Edwards. ·Necessary discriminatory racial purpose need not be express. Π need not show it’s the only purpose. (5) inequality can result out of indifference and not necessarily hostility. Black and Underwood. how many are excluded and how great is the justification. Davis: (1976) 56 2 Negro police officers filed suit claiming that the promotion policies of the Department are racially discriminatory since the recruitment procedures excluded a disproportionately high number of Negro applicants. a) Washington v. Only time court goes beyond rationality is when invidious purpose interferes. ·Problem They have been running the test for a while. (3) avoids 2nd guessing value guesses of leg. they know the results.CONSTITUTIONAL LAW Page 38 of 84 ·Evaluate how disparate the impact is. ·BENEFITS OF APPROACH (1) state has obligation to treat individuals on own merits and not as members of a racial group. PURPOSE THEORY ·TEST: (1) Is the statute an overt racial classification? and (2) Sufficient indication from which the TC can find that the statute was infected with a racially discriminatory purpose? If YES. (1) Intent is hard to discern and easily hidden (2) questions of constitutionality turns on issues of fact and not subject to intrusive review. VIII of the Alabama Constitution of 1901 which disenfranchises persons convicted of any crime involving moral turpitude. ·Ct held that invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. 2. but it is not dispositive. ·PROBLEMS arise in intermediate. Burden shifts to Δ to claim that statute would have been adopted even without this purpose. It is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative skills of its employees.. non-Yick Wo cases. (4) provides guide for government officials. A neutral statute can be applied in a discriminatory manner. b) Hunter v. Disproportionate impact is not irrelevant. White] have been blocked from the voter rolls pursuant to §182 of Art. ct must call the actor a racist (4) normative problems like in McClesky. Respondents claimed that this was a violation of the due process clause of the 5th Amendment and sought declaratory judgment and injunction. Appellees’ crime = presenting bad check.

·There was clear invidious motive here [speeches made] and there is a discriminatory effect therefore it is an invalid law. D. Appellees. ·At large voting schemes tend to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district. ·SC will find a facially neutral statute unconstitutional. sued in the DC on behalf of all Black citizens alleging that the county’s system of at-large elections violates appellees’ constitutional rights by diluting the voting power of the Black citizens. PURPOSE AND PROOF IN SPECIFIC CONTEXTS 1. · Ct held that when a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionately adverse. · Because of is invalid. Burke County Board of Commissioners governs the county. They are not facially unconstitutional. · The State did not intentionally incorporate into its public employment policies the panoply of sex-based and assertedly discriminatory federal laws that have prevented 58 59 p. Feeney (1979) 59: Court rejected a sex discrimination attack on Mass’s law granting absolute lifetime preference to veterans for state civil service positions. yet the voting population is 38% Black. they violate the 14th Amendment if conceived or operated as purposeful devices to further racial discrimination by minimizing or canceling out the voting strength of racial elements in the voting population. ·All historical sources indicate that the Alabama Constitutional Convention of 1901 was part of a movement to disenfranchise Blacks. 764 p. Commissioners are elected by a majority vote. Once racial discrimination is shown to have been a substantial of motivating factor behind the enactment of the law. It is a distinction between veterans and nonveterans. even though the preference operated to the advantage of males.CONSTITUTIONAL LAW Page 39 of 84 ·Ct held that a neutral state law that produces disproportionate effects along racial lines must be subject to the scrutiny of Arlington Heights. ·All court is saying is that the DC was not clearly erroneous in finding that it was invidiously motivated. must ask whether the law was passed because of the negative impact or in spite of the negative impact. In spite of is valid. No Black has ever been elected to the Board. Yet. · Distinction between veterans and nonveterans is not a pre-text for gender discrimination. 2. Veteran status is not uniquely male. In spite of v. 759 1 . Thus. Lodge (1982) 58: Burke County is 53% Black. Voting Schemes Rogers v. the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor. ·Ct held that the decision not to change had a discriminatory purpose. the intent of §182 was to disenfranchise Blacks and establish White supremacy in the South. because of  Mass v. 8 Black citizens.

the burden shifts back to Δ. DISSENT  Although neutral in form. 5. Use of statistics to prove intent McClesky v. Evidence of intent Arlington Heights v. ·Ct holds that Π must show that he was discriminated against in his case. black man convicted in GA of armed robbery and murder wants to use statistics to prove that the GA capital sentencing process was administered in a racially discriminatory manner in violation of the 8th and 14th Amendments. ·Intent approach look at impact and justification for Constitutionality. Metro Housing Corp (1977) 60 Challenge to a Chicago suburb’s refusal to grant a request to rezone certain property from a single-family to a multi-family classification. Such a statutory scheme reflects and perpetuates archaic assumptions about women’s roles which have been held invalid. showing discrimination in the aggregate based on statistics is not enough. Ct of Appeals held that the denial was unconstitutional because its ultimate effect was racially discriminate. A nonprofit developer planned to build federally subsidized townhouse units in largely white suburb. 759 XEROX II 1 . ·Supreme Court REVERSED holding that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Kemp: (1987) 61 Petitioner. ·To do so. SUMMARY OF MODERN APPROACH 60 61 p. CONCURRENCE Number of males disadvantaged by the law is sufficiently large and close to the number of disadvantaged women. ·One must show that a discriminatory purpose has been a motivating factor in the decision. ·Cannot prove that he would have been convicted but for his race. the burden should rest on the State to establish that sex-based considerations played no part in the choice of the particular legislative scheme. 4. one must look at the circumstantial and direct evidence of intent: · historical background · specific sequence of events · departures from the normal procedural sequence · substantive departures · legislative and administrative history · members · Unless there is a pattern as clear as the one in Yick Wo.CONSTITUTIONAL LAW Page 40 of 84 · · all but a handful of women from becoming veterans. Where the foreseeable impact of a facially neutral policy is so disproportionate. ·Ct says there is no invidious intent and there is no limiting principle to this type of challenge. it is not neutral in application. 3. ·Law was properly applied. concerns with the law should be taken up with Legislature. No intent to exclude women from work. · After finding invidious intent.

Justice Dept. · Obligation not to draw districts which dilute access to representation and ensures that the number of min. 880 supra 1 . politicians can jockey for political advantage. 3. history of preferences. · DISSENT (Marshall) When a fundamental right is violated. ·Also works with races: AA are more likely to vote for AAs and whites are more likely to vote for whites. · Method of election is prohibited if the electoral system is not open to all. showing that the system affords minorities less opportunities is enough to invalidate the law. race etc. the EPC requires that: · · · · (1) There must be an invidious intent (2) It can be inferred (3) It is a matter of fact—clearly erroneous standard (4) Δ must prove that he would have made the same decision absent the intent The but for test E. ·2 sets of facts provide basis for racial gerrymandering: · (1) most representation is done on a geographic basis · (2) certain predictable political outcomes bloc voting. Bolden (1980)62: At large voting district was challenged as unconstitutional because it retains a system in which blacks are never elected. in the population. BENIGN CLASSIFICATIONS AND GERRYMANDERING ·By drawing boundaries creatively. districts is % to the number of min. Ct held you must show more than just an all white result to show violation of equal protection. Rogers v. Union members are demo. 62 63 p. · Necessary to take race into account and racial composition in the district. 2. Lodge (1982) 63: Ct held that an at large system was invalid. must adopt the gerrymander. since the court found it was retained for invidious.CONSTITUTIONAL LAW Page 41 of 84 ·In the absence of explicit classification. · Amended after Mobile violation is established if based upon totality it is shown that participation in political process is not open to a particular class. the district will be subject to strict scrutiny. Bankers are republicans. discriminatory purposes. ·EPC CLAIMS under Racial Gerrymandering: · (1) Dilution of voting strength · (2) Π can show that the use of race was the predominant factor in drawing district lines. Mobile v. which calls for strict scrutiny. 1. Voting Rights Act of 1964 Precludes acts designed to deny right to vote on color. There is an inference of intentional discrimination.

education. share the same political interests and will prefer the same candidates at the polls. Gomillion v. Equal Protection Clause and 15th Amendment. · APPEARANCES MATTER!!! 5. General Assembly of NC enacted a reapportionment plan that included one majority-black congressional district. The district was hookshaped. · Political apartheid Such a plan reinforces perceptions that members of the same racial group regardless of their age. The result would deprive them discriminatorily of the benefits of residence including the right to vote. · Ct held that if Π can show that the districting scheme was so irrational on its face that it can only be understood as an effort to segregate voters into separate voting districts because of their race. Facially Irrational Theory: Shaw v. it violates the 15th Amendment. Not per se impermissible to take race into account and bizarreness of district shouldn’t be matter of Const. Petitioners claim that the measure which transform a square district into a 28sided object would violate the Due Process Clause. lose right to be in Tuskegee. 880 1 . challenge the redistricting measure of the City of Tuskegee. · Dissenters say that no one was hurt and therefore is consistent with the 14th Amendment. constitutes an unconstitutional racial gerrymander. Not for racial classifications. elected officials are more likely to believe that their primary obligation is to represent only the members of that group rather than their constituency as a whole. Lightfoot (1960) 64: Petitioners. · Improper message When a district is created solely to effectuate the perceived common interests of one racial group. Negro citizens. · District lines may be drawn to provide for compact districts of contiguous territory or to maintain the integrity of political subdivisions. economic status or community in which they live—think alike. = colorblind provision. · The legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote. excludes people for the purpose of segregation. · Reapportionment is one area in which appearances do matter. · Inevitable effect of the redefinition is to remove for the city all but 4 of its 400 Negro voters.CONSTITUTIONAL LAW Page 42 of 84 4. · Who was harmed? Voting power was diluted in other counties. · Violates the Const. scrutiny. · Ct held that when a legislature singles out a readily isolated segment of a racial minority for special discriminatory treatment. · Did not resolve the issue of whether or not it is the shape or the policy that is suspect. which is dramatically irregular. 64 65 XEROX II p. then strict scrutiny will be triggered and the districting will be struck unless it can be shown to be narrowly tailored to further a compelling governmental interest. Reno I (1993) 65: North Carolina was entitled to a 12th seat in the House. Appellants urge that the revised plan.

was the legislature’s dominant and controlling rationale in drawing district lines. Π must show that the legislature subordinated traditional race-neutral districting principles. Equal Protection is not violated when the majority acts to facilitate the election of a member of a group that lacks such power because it remains underrepresented in the state legislature. State can pursue this compelling interest via a racially drawn district only if its necessary that is determined by: · no minorities elected · polarized voting · no other system would solve the problem · Racially drawn district must be narrowly tailored to solve problem no bizarrely shaped districts. ·Stevens creation of a racial district with no attempt to subordinate a group is not per se unconstitutional. Johnson: (1995) 66: Ct held that the existence of a bizarrely shaped district is not a prerequisite for a finding of unconstitutionality. 890 1 . ·Ct held that shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof. 6. ·Race must be the predominant factor. but because it may be persuasive circumstantial evidence that race for its own sake and not other districting principles. ·Π’s burden is to show that race was the predominant motivating factor for the decision to district. Anytime race plays a role. then SS applies. then that’s it. ·O’Connor with herself Government may take race into account so long as it does not subordinate a group. Bush v. a court must find that legitimate districting principles were subordinated to race. 897 p. ·Although race-based decisionmaking is inherently suspect. The difference between constitutional and unconstitutional gerrymanders has nothing to do with whether they are based on assumptions about the groups they affect. Equal protection is violated when the State creates the kind of uncouth district boundaries seen in Gomillion and this case for the sole purpose of making it more difficult for members of a minority group to win an election. until a claimant makes a showing sufficient to support that allegation the good faith of a state legislature must be presumed. Vera: (1996) 67: Ct held that for strict scrutiny to apply. 7. but whether their purpose is to enhance the power of the group in control of the districting process at the expense of any minority group. and thereby to strengthen the unequal distribution of electoral power. VRA is a legitimate exercise of the gov’s 15th Am power prohibiting minorities from having less influence is a compelling state interest. Predominant factor test Miller v.CONSTITUTIONAL LAW Page 43 of 84 · DISSENT (Stevens) There is no independent constitutional requirement of compactness or contiguity. ·Thomas/Scalia if its an intentional creation of a racial district. 66 67 p.

Blackmun] believed that the Davis plan was completely constitutional. · Damages: Back pay [4 years] · Promotion Palmore says but for my wrongful discrimination.C. 68 p.C. · Held: UC Davis could not meet the burden and the SC orders that Bakke be admitted. · SUMMARY: The less formal and specific the admissions program is. They would permit the explicit reservation of places in the class for disadvantaged minority students. ·Fact that other factors were considered also won’t save a districting plan if race was truly the largest factor. · Bakke can show only that he is being denied access to 16 of the 100 places. v. Bakke claimed that the admissions process denied him equal protection and violated Title VI of the 1964 Civil Rights Act. a state must show that (1) its purpose or interest is both constitutionally permissible and substantial and (2) its use of the classification is necessary to the accomplishment of its purpose and the safeguarding of its interest. etc. who was rejected even though applicants had lower MCAT scores. but UC is not issued an injunction preventing them from ever taking race into account. · Ct holds that when classifications touch upon an individual’s race or ethnic background. SUMMARY OF MODERN APPROACH ·States are not prevented from being race conscious when they draw lines as long as race does not become the predominant factor. a white applicant. who is white is hired. Bakke: (1978) 68: Davis Medical School reserved 16 out of 100 places in its entering class for members of minority groups. he claims that since he was subject to unconstitutional action. I would be ahead and should get the job [DENIED] 1. Marshall. White. Palmore goes to Duke and wants job. Palmore comes back and is hired. Regents of U. you’re Black. Title VII says no exclusions. Abe Lincoln. · Bakke cannot show that but for the discrimination he would have been the one to get in. he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. 795 1 . a) Liberals: Allow quota 4 justices [Brennan. to prove that he would not have gotten in but for the program. He only has access to 84. Bakke. GPA. F. ·Πs will have to show that the state relied on race in substantial disregard of customary and traditional districting principles.CONSTITUTIONAL LAW Page 44 of 84 8. burden should shift to the Univ. Duke says NO. Other individuals are hired. AFFIRMATIVE ACTION PART I ·HYPO: 1964 Duke Power plant located in N. has policy that it won’t hire African Americans. · TEST: In order to justify the use of a suspect classification. the more likely it will be constitutional. In 1968. Therefore.

but denied that prior cases had ever insisted on this as a prerequisite to the application of strict scrutiny. White majority is composed of many different ethnic groups. Agreed with Brennan. itself had discriminated could suffice] Powell would have accepted the Harvard Plan where the race is only a plus which would help only if all else was equal. is subject to strict scrutiny. (2) White males do not have any of the traditional indicia of suspectness [history.CONSTITUTIONAL LAW Page 45 of 84 b) Conservatives: Statutory Grounds 4 Justices [Stevens. · · · · · POWELL Any racial classification. Burger. regardless of the class against which it is addressed or the reason for it. They believed that the Univ. are not irrelevant. Any program that takes race into account must pass strict scrutiny. Brennan advocated intermediate scrutiny analogous to that used in sex discrimination cases:. c) Powell deciding vote. AA cannot be used to redress broad societal discrimination. or administrative findings had been made of specific constitutional or statutory violations. discrete and insular]. (5) not adopted out of hostility.’s program was unlawful on statutory grounds [Title VI of 1964 Civil Rights Act] which expressly bars racial discrimination by any federally-assisted institution. consideration is paramount. not merely to persons by virtue of membership in a group. Powell likes this plan since it treats indiv. SS TEST: (1) objective must be permissible and substantial [compelling] and (2) necessary to accomplish that objective. Mexican-Americans in Hernandez]. [Hinted that only findings that the Univ. White males are not a discrete or insular minority. Struck down the mechanical application of the Davis program. SS guarantees equal protection to individuals as such. BRENNAN SS is not appropriate. REJECTED · Need to increase # of docs who will practice in ghettos REJECTED · Obtain educational benefits that flow from an ethnically diverse student body ACCEPTED as legitimate goal. (4) No stigma involved. SS has not just been applied to AA [Chinese in Yick Wo. · Was the Davis plan necessary to accomplish goal NO. docs  REJECTED · Need to cure the result of past societal discrim. Stewart. legislative. Therefore. It was not necessary to use a quota system like Davis’ where certain seats were reserved exclusively for members of particular races. Japanese in Korematsu. (3) racial consider. Right to indiv. as indivs. · Need to reduce historic shortage of min. If we treated all to strict scrutiny. Davis plan could avoid SS since: (1) it was not a fundamental right. Racial classification used for remedial or benign purposes 1 . but he believed that a racial quota system was unconstitutional. only majority left would be minority of WASPS. Rehnquist] did not reach the constitutional issue at all. but could be used only where explicit judicial. et al that a university should be permitted to take race into account. we must treat any racial or ethnic classification as calling for strict review. Brennan rejected mere rationality test since there was a danger of misuse and unfairness and risk of stereotyping minorities as inferior.

BURGER/REHNQUIST Considerations of race are never legitimate. merit. Diff. and available only to those who had been discriminated against. · REMEDY important govt. and 16 seats for Anglos would not be o. What races would qualify for special protection? Race does not reflect choices of indiv. G. Congress cannot privilege birth. related to the achievement of an important and congressionally articulated goal of remedying the present effects of past discrim. Use of race is only illegitimate if it leads to illegitimate outcomes. treatment but this is not the case in reality.k. chronic underrep in med school] · 75% would not be o. Did not stamp Bakke as inferior. Congress is more removed and less homogeneous. · No stigma involved. program than local one in Bakke. · Roughly prop. because it raises too many questions. · CON: MARSHALL Racial class are subst.k. · MAJ: BURGER Ct held that the program was constitutional. Only AA have been subject to discrimination. · DISS: STEVENS This is not a narrowly tailored class. Fullilove v. · No distinction here with the Harvard Plan. opinion to fed. Differentiation by race results in divisions and hurt the body politic. · CON: POWELL Applied Bakke test and found that the provision was justified as a remedy that serves the compelling governmental interest in eradicating the continuing effects of past discrim. The govt. AFFIRMATIVE ACTION PART II 1. There the plan is adjusted to number they want to admit. Because race is an immutable characteristic. Klutznick: (1980) 69: Congress passed a statute whereby 10% of federal funds granted for local public works projects must be used by state or local grantee to procure services from businesses controlled by members of specified minority groups.CONSTITUTIONAL LAW Page 46 of 84 · · · · · must serve: (1) important governmental objectives and (2) must be substantially related to achievement of those purposes. 812 1 . When Congress creates a special preference for a class of persons. it should 69 p. do deserve ind. there is a history of racism and people should be treated as indivs. but not the public necessity!! Colorblindness can lead to myopia. should be colorblind to teach citizens to be colorblind. · DISS: STEWART EP prohibits invidious discrimination by government. discrim. identified by Congress. [Won’t accumulate underclass of Bakkes. Privileges and benefits cannot be legit. · Deference given to Congressional choice Congress need not be colorblind. no stigma] Indiv. · It was within Congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities. on race. SC rejected facial constitutional challenge. Need stricter standard than Carolene. Non-minority contractors brought challenge on an equal protection challenge. objective [history of discrim.


identify the characteristics that justify that treatment. Since it is not narrowly tailored, it is not impartial. 2. RICHMOND v. J.A. CROSON: (1989)70: Richmond City Council adopted a plan modeled on Fullilove where prime contractors on city projects were required to subcontract 30% of the dollar amount of the contract to one or more Minority Business Enterprise [MBE]. Claim was brought by a contractor whose low bid on a city project was not accepted because of failure to comply with the Plan’s requirements. · Ct held that the program was unconstitutional. · There was no direct evidence that Richmond had discriminated in any way. There was evidence that although 50% of Richmond was black, only .67% of the city’s prime contracts went to Blacks [maybe there are not that many Black gen cons.] · Program: 30% [Fullilove was 10%]; time limitation, less flexible than Fullilove. · Any governmental action that is explicitly race-based must be necessary to achieve a compelling governmental interest. Presumption of unconstitutionality. · Race based affirmative action plans must be subject to SS: (1) no way to tell what is benign, (2) class. based on race carry a danger of stigma, so group benefited might in the long run be harmed because society will think of them as less competent; (3) these programs hamper the goal of being race neutral. · SCALIA Dist. based on race are inconsistent with equal protection—never permissible, unless the entity itself discriminates and seeks to remedy its own discrimination. · KENNEDY Similar concern, yet no need to overrule Fullilove/Bakke; assume that it’s the rare situation where race is o.k. · BRENN/MAR/BLACKMUN Racial class. taken by Richmond should be applauded. Marshall proposed intermediate scrutiny would be more appropriate. · STEVENS Agrees with Maj; yet disagrees that only remedial programs will pass SS. There are some other legitimate public purposes that might be served by race-conscious measures. · Yet, to enable states to use racial classifications merely be reciting a benign or compensatory purpose would be to give them the full power of Congress under §5 of the 14th Amendment and to insulate their actions from judicial scrutiny under §1. However, the objective of the 14th Amendment was to limit the States’ use of race as a criteria for legislative action and to empower the federal courts to enforce those limitations.


Distinguish from Fullilove? Fed. govt is different than the state; 14th Amend. applies to Fed govt. to control the state; more deference to Congress; Congress can take nationwide set of concerns into account. SUMMARY: A race-conscious affirmative action plan must be adopted for the purpose of furthering some compelling governmental interest and the racial class. must be necessary to achieve that compelling governmental interest. [Only govt. objective that will pass redressing clear past discrimination]


p. 814 1



There must be strong and specific evidence of past discrimination, but it need not be formal. Mere fact that there has been general societal discrimination is not enough to justify race-conscious measures. What could Richmond have done? (1) Lobby Congress; (2) race-neutral measures to help minorities; (3) go get the evidence; (4) change quote to 10% discount system; (5) Holistic measure like Harvard’s plan; (6) geographic preference [might raise racial gerrymandering issues].

3. Metro Broadcasting v. FCC: (1990) 71: Ct upheld 2 minority preference policies of the FCC: (1) program awarding an enhancement for minority ownership on comparative proceedings for new broadcast licenses; (2) Minority distress sale program permitting a limited category of existing radio and television broadcast stations to be transferred only to minority-controlled firms. · Ct applied intermediate scrutiny. It was enough that the means chosen by the FCC were substantially related to the achievement of important governmental objectives. · FCC polices were valid even though they were not designed to remedy past governmental or even societal discrimination. · Enhancing governmental diversity by reducing industry’s 98% white ownership is an important governmental objective. · Mid level scrutiny is appropriate where whites are discriminated against. · Brennan’s TEST for benign classification? (1) Is it rooted in racial hostility; (2) Is there an undue burden on the race against whom there is discrim? · Why did Stevens join the Majority? Stevens ask whether we can believe that an impartial decisionmaker would have adopted this program other than for a reason of harming the minority? Where you are trying to achieve a public goal and not putting one ahead of the other and decision is made by responsible political body Stevens will accept it. There is one EPC and it requires IMPARTIAL judgment, doesn’t like SS. 4. Adarand v. Pena: (1995) 72 DOT awarded a prime contract for a highway construction project in CO to Mountain Gravel. Mountain Gravel solicited bids from subs for the guardrail portion of the contract. Adarand, a CO-based highway construction company, submitted the low bid. Gonzales also submitted a bid. Prime contract had a clause which said that the general would receive additional compensation if it hired a sub certified as small businesses controlled by socially and economically disadvantaged individuals. Gonzales got the bid. Chief Estimator said that it would have accepted Adarand's bid BUT FOR the additional payment it received. Petitioner claims that the practice violated the EPC of the 5th. · Ct holds that all racial classifications, imposed by whatever federal, state, local government actor must be analyzed by a reviewing court under strict scrutiny. Such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.
71 72

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CONSTITUTIONAL LAW Page 49 of 84 · ·




· ·

Metro is overruled in that strict scrutiny is the appropriate test for all racial classifications. Croson which held that race conscious reverse discrimination may be upheld only if necessary to achieve a compelling governmental interest applies to congressional statutes the same as it applied to the actions of state and local governments. EP under the 5th is the same as that under the 14th Metro departed from this congruence. Metro also departed from the presumption of unconstitutionality of all racial classifications; Metro finally departed from theory of consistency of treatment irrespective of the race of the burdened or benefited group. [Skepticism, Congruence, and Consistency, all derive from the 5/14th Amendments protecting persons and not groups.] SS is not strict in theory and fatal in fact if the government is responding to the lingering effects of racial discrimination against a minority group and does so in a way that is narrowly tailored even race conscious methods may survive. REMANDED On remand, the court should consider whether the govt. interest being served was compelling, whether race neutral means might have been effective to achieve that interest; and whether the remedy was appropriately short-lived so as not to last longer than the discriminatory effects it was designed to eliminate. CON: SCALIA/THOMAS race conscious affirmative action plans can never be justified. DISS: STEVENS Rejected the consistency argument: There is no moral or constitutional equivalence between a policy that is deigned to perpetuate a caste system and one that seeks to eradicate racial subordination. Rejected congruence: Congress’ power was enhanced by the §5 of the 14th which gave it power to enforce the 14th; therefore it should get more deference than the state’s plan which the 14th A was directed against. Also, Congress represents the will of the entire nation, whereas state may have impact on nonresident entities. Give more deference to Congress. Test= IMPARTIALITY.

5. SUMMARY OF AFFIRMATIVE ACTION AND RACE · Quantum Theory of Equal Protection: · Bottom level: EP means similar treatment to those is similar circumstances · Standard rational basis to leg. state end · Almost all meet rational relation; almost nothing meets strict scrutiny

Other End: Racial classifications are inherently suspect · Standard strict scrutiny [in furtherance of compelling state interest and necessary to accomplish that interest] · compelling interests (1) imminent invasion in time of war; (2) remediating or identifying racial discrimination; (3) if all other means available fail. · 14th Am · racial class are often result of racial hostility



preserves racial hierarchy unrelated to leg. state interests Middle: Brennan, Marshall and Blackmun try to fill in the middle for benign racial classifications. · Standard important [not compelling] and substantially related [not necessary] · Remediation of societal discrimination is an important interest. · Metro meets this standard!! Only Powell thought that diversity was important interest.
· ·


Stevens: Goes off the spectrum and enunciates an IMPARTIALITY standard. · Standard General notion of impartiality to protect EP. · Playing with race is like playing with fire · Must judge indiv. as indiv. · Easy application, relevant importance of purpose · Difficult to apply consistently world is more complicated than this. POSITION AND CASE POSTURE

JUSTICE Brennan Burger Kennedy Marshall O’Connor Powell Scalia Stevens Thomas White


GENDER DISCRIMINATION AND RACIAL ANALOGY A. SHOULD THE CTS PLAY A ROLE IN SCRUTINIZING THE DISTINCTIONS BASED ON GENDER? · There are physical differences between the sexes. But not all women get pregnant, so maybe we should classify on the basis of pregnancy and not gender. · Women are 52% of the population. [Discrete and insular???] · Sex is a visible immutable characteristic and has been historically stigmatized. · Want to avoid perpetuating stereotypes and status differences. B. SEX AS SUSPECT CLASS: RACE v. GENDER · SIMILARITIES:

197 1 . Privileges and Immunities Bradwell v. Voting Rights 14th Amendment makes no distinction based upon sex. 2. SUSPECT CLASS: (1) Choice is irrelevant morally—to penalize indiv. Petition was accompanied with requisite certificates of good standing and she had the requisite qualifications. create substrata] · Stigma suggests differentiation perpetuating stereotyping individuals. (4) Sex like race is correlated with different eco. CONSTITUTIONAL PROTECTIONS BASED UPON RACE 1. nor was it part of a historical revolution of gender oppression. their representation will be diminished. License was refused because she was 73 p. · There are some physical and social differences between men and women that may be relevant. Available only to male inhabitants of the state. Less likely to oppress the ones we love. · Justification women are not as capable. · 14th Amendment §2 holds that states can’t exclude adult males from representation or right to vote. So there may be a valid reason for treating men and women differently while there is no such reason for whites and blacks. activity in society. If they do. Females are not protected. intelligent to vote. State of Illinois: (1872)73 Myra Bradwell made an application to the judges of the Supreme Court of Illinois for a license to practice law. · · · · · C. · Women are majority of the voting population and not a discrete and insular minority · Women have more influence historically with the wielders of power than Blacks do. statute and eco. for being members of a group is to act in fashion that is irrelevant to capacities (2) Sex is a visible component of identify like race [stigmatizing] · Race up to Dred Scott and Sex up to Bradwell many parallels (3) Combination of visible characteristics and stigmatized identity has 3 effects: · Made is easier for decisionmakers to regard interests of other as other and less valuable · Disadvantaged may accumulate across areas [will pyramid in respect to entrenched judgments. are often unrelated to legitimate public purposes Visible component of identity Linked to a history of exclusion from power History of stigmatization DIFFERENCES: · HISTORY It was not included in original intent of the 14th Amendment.CONSTITUTIONAL LAW Page 51 of 84 · · Both are immutable Class.

(2) stereotypical and archaic assumptions. 681 p. · NO EPC claim since it was 1872. Therefore she makes P/I claim. ·Ct holds that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives 74 75 p. · Family will fall apart of women start working no need for men anymore. Supreme Court. (3) married women cannot make contracts. · Rationale: (1) Divine truth nature has relegated men and women to different spheres. Scrutiny Craig v.CONSTITUTIONAL LAW Page 52 of 84 a married woman and as such she could not make any binding contracts [without husband’s signature]. Ct decided to apply a traditional rationality standard [sustained the discrimination claim] Giving a mandatory preference to members of either sex over members of the other merely to accomplish the elimination of hearings on the merits is to make an arbitrary choice forbidden by equal protection. Bradwell appealed the decision of the Supreme Court of Illinois to the U. Reed: (1971) 74 Court declined to hold that sex is a suspect classification. · Not strict scrutiny. · Problems: (1) failed assumptions. D. · Sex cannot be the sole classification · Invidious discrimination is arbitrary inaccurate stereotypes. Boren: (1976) 75 2 sections of the OK statute prohibit the sale of non-intoxicating 3. reason and experience for the due admission of qualified persons to professions and callings demanding special skills and confidence. · Ct held that the privileges and immunities of the 14th Amendment does not hold that it is a privilege and immunity of women as citizens to engage in any and every profession. (3) there are women that can make contracts. guise Reed v. Interm. 686 1 .S. 2. Heightened scrutiny under a deferential old E.2% beer to males under the age of 21 and to females under the age of 18. it can’t create another level of subordination. (4) if goal is to establish equality in citizenship. but unarticulated heightened scrutiny. INTERMEDIATE SCRUTINY: EMERGENCE OF SEX AS SUSPECT CLASS 1. · Bradley dissented in Slaugherhouse and concurred here since there are inherent differences between men and women which justify different treatment: · Women are timid · We want to protect the harmony of the family · Women can be dealt with as a group · It is the prerogative of the legislature to prescribe regulations founded on nature. (2) common law from England there are no female lawyers there. · Decided the day after the Slaugherhouse Case. occupation or employment in civil life.P.

Yet. ·Penalizes members of a group. opportunity. · Even if predictable that women will act in a certain way. Univ. J. Hogan.Hogan: (1982)76 Ct held that defenders of gender-classifying law must carry the burden of showing an exceedingly persuasive justification. ·State objectives that have survived scrutiny: administrative ease and convenience. Alabama ex rel: (1994) 77 Court held that gender based peremptory challenges to jurors were unconstitutional. was denied admission to the school. the state is not entitled to act on that perception. he was told that he could audit classes. · Powell’s Dissent heightened standard was inappropriate here. · When states exercise peremptory challenges in reliance on gender stereotypes they ratify and reinforce prejudicial views of the relative abilities of men and women. even if accurate shouldn’t govern indiv. 3. ·Stereotypes. · MUW policy will perpetuate stereotypes of nursing as women’s job only. 76 77 p. Exceedingly Persuasive Justification Miss.CONSTITUTIONAL LAW Page 53 of 84 ·INTERMEDIATE SCRUTINY ·State was worried about drunk driving [committed by . for Women v.B. 698 p. outdated misconceptions. 698 1 . financial position of servicewomen. ·Appellees’ statistics cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge. State used all of its peremptory challenges to strike male jurors. · No previous discrimination necessary.B. 4. for the classification. all women panel. male. taint of legal imposed hierarchy. As a result. · Sustained a male applicant’s challenge to the State’s policy of excluding men from the Mississippi University for Women School of Nursing. · Equal protection prohibits discrimination in jury selection on the basis of gender or on the assumption that an individual will be biased in a particular case for no reason other than the fact that she is women. · State end itself must be legitimate. v.E. ·Proving broad sociological propositions by statistics is dubious. · Burden is met only by showing that the classification serves important objectives and that the discriminatory means are substantially related to the achievement of those objectives. · Failed No important objective here they even let males in to audit classes. Alabama sued JEB to establish paternity and award child support of behalf of T.18% of females and 2% of males] ·Men are 10x more likely to engage in activity. Exceedingly persuasive justification standard was used. Objectives that have failed: archaic and overbroad generalizations.

The U. Under inter. Court of Appeals reversed and remanded with instructions to: (1) admit women to VMI. It does not match the resources. · VMI claims that important educational benefits are accrued from single sex education. social. govt. 5. scrutiny. v. history. 1990 complaint was filed by female high school student seeking admission to VMI. it will also eliminate the ability of litigants to act on an accurate gender-based assumption about juror attitudes. · Ct held that the standard is exceedingly persuasive justification. not hypothesized. prestige.S.S sued alleging that VMI’s exclusive male admissions policy violated equal protection. Virginia (1996)78: VMI is the sole single-sex school among Virginia’s 15 schools of higher learning. 704 1 . or alumni connections that VMI does. the method could not be used. Assumption that women would destroy the program isn’t a legitimate interest. this is enough. 78 p. or invented post hoc in response to litigation.CONSTITUTIONAL LAW Page 54 of 84 · · · O’Connor individuals are not expected to ignore as jurors what they know as men or women. The decision will eliminate the potential discriminatory use of the peremptory. educational opportunities within the state. · Justification must be genuine. and economic inferiority of women. · Sexual classifications may not be used as they once were to create. State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Rehnquist’s Dissent use of peremptory challenges on the basis of sex is generally not the sort of derogatory and invidious act which peremptory challenges directed at black jurors might be. if it perpetuates a legal or social inferiority of women then it is illegal. VA has not shown that the VMI was established or has been maintained with a view to diversifying by its exclusion of women. · VMI claims that adversative method of training provides educational benefits that cannot be made available unmodified to women. (2) establish parallel institutions or programs or (3) abandon state support leaving VMI free to pursue its policies as private institutions. · VMIL is not an adequate remedy. (3) if unique resource to exclude women is not allowed unless exceedingly persuasive justification. · Majority responds: (1) Maybe side constraint even if imp. Rejection of strict scrutiny U. or perpetuate the legal. Yet. DC ruled in favor of the VMI. Yet. interest. If women are admitted. State actors controlling gates to opportunity may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females. · DISSENT (Scalia) There is evidence that the adversarial system is legitimate. (2) notion that women would destroy the program is unsupported. If fails to afford women the benefits of the full educational experience.

1. Women are already receiving more than men. 2. Insurance system is supported by contributions from the employees wages. then that’s the end of story. · Must show discriminatory purpose. · No evidence of invidious intent to discriminate against women. Davis which held that intent is what’s important. · Legitimate state interest keep the price down [would have increased by 33%]. you run into problem. · Congress then passed the Pregnancy Discrimination Act of 1978 which provided that for the purpose of Title VII. Feeney: There is not a violation of equal protection because the decision was in spite of not because of. 690 1 . · Legitimate purpose [low premiums] and law is rationally related to that purpose [excludes coverage of premiums]. discrimination on the basis of sex included discrimination on the basis of pregnancy. · Pregnancy is treated like any other facially neutral characteristic.CONSTITUTIONAL LAW Page 55 of 84 E. · If you look at discrimination of women as group. then rationality test will apply. Superior Ct. There may have not been any conscious discriminatory intent. then it is invalid. · Similar to the rationale of Mass. Aiello: (1974)79: CA has administered a disability insurance system that pays benefits to persons in private employment who are temporarily unable to work because of disability not covered by workman’s comp. Appellees brought action to challenge the constitutionality of a provision of the CA program that in defining disability excluded from coverage certain disabilities resulting from pregnancy. v. is deemed facially neutral. Differentiation when the sexes are not similarly situated Michael M v. childbirth. If the intent was to get at women qua women. · Lot of social implications if pregnancy can be adversely affected. but against pregnancy. Biological Factors Geduldig v. therefore mere rationality standard applied. hierarchies that exclusively exclude women. Participation is mandatory unless voluntary private plan approved by the state. or related medical conditions. · Ct held that absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against members of one sex over the other. · Case was decided before Washington v. Once class. just like any other physical condition. the legislature is free to include or exclude pregnancy from the coverage of legislation on any reasonable basis. REAL DIFFERENCES: WHAT DO THEY MEAN? · There is a sense that treating the sexes differently because of physical differences is different than passing a moral judgment. If no attempt. there’s the potential to est.: (1981) 80: Court upheld California’s statutory rape law which 79 80 XEROX II p. yet the rule was passed by men so perhaps discrimination was unconscious. · This is not a discrimination against women. not just discriminatory effect. · Bray reiterates that the issue is one of intent.

does not rest on the baggage of sexual stereotypes. (2) Greater risk of harm for females is a reason for applying the prohibition to her. · EPC does not require that different things must be treated alike. (3) man in jail can’t pay child support. Scrutiny] · Ct held that the legislature may not make overbroad generalizations based on sex which are entirely unrelated to any difference between men and women or which demean the ability or social status of the affected class. · Can be harmful for women as well: (1) paternalistic. yet. not a case of administrative convenience. · Statute places a burden on men that does not exist on women. (4) men are more likely to threaten women not to tell · DISS: BRENNAN (1) There is no rational relationship between the classification and the goal. Gender classifications are o. Goldberg: (1981) 81 Court rejected a claim under the equal protection of the 5th Amendment due process clause that the Military Selective Service Act was unconstitutional in authorizing the President to require the registration of males and not females. (4) paramount interest in even application of the law. · Court applied a Rationality Test with sharper focus [Interm. · State has strong interest in preventing pregnancies and the prevention of illegitimate pregnancy is one of the purposes of the statute. · Test and limitation apply differently in the military context. not for exempting her. 690 1 .k. men are not in need for any special solicitude. (2) can’t have sex under 18. 81 p. This is because the goal was to protect the special need of protection young women’s chastity. (3) even if the gender neutral was less effective at least 2x as many people would be subjected to the punishment. · All of the harm of teenage pregnancies fall on the women a legislature acts well within its authority when it elects to punish only the participant who by nature suffers all of the consequences of his conduct. 3. · Legislature may provide for the special problems of women. · Court must afford Congress deference in terms of national defense. (3) it is irrational to exempt 50% of the participants. · Purpose of registration is to facilitate any eventual conscription. Differentiation may be due to past discrimination Rostker v. Rule that punishes one of 2 equally wrongdoers violated the essence of the constitutional requirement that the sovereign must govern impartially. A criminal sanction imposed only on the male serves to roughly equalize the deterrents on the sexes. · DISS: STEVENS (1) Impermissible sex discrimination since it applied to only ½ of joint participants in the risk-creating conduct. when they realistically reflect the facts that the sexes are not similarly situated in certain circumstances. (2) Ct did not apply Craig right.CONSTITUTIONAL LAW Page 56 of 84 punished the male and not the female participant in sexual intercourse when the female was under 18 and not the man’s wife. security.

Men and women. [never ratified in US] · Initial goals of ERA were accomplished through SC. was either trivial or justified. EQUAL RIGHTS AMENDMENT · When sex was not included in the 14th Amendment.K. · No federal restrictions of sex discrim. Act. because of combat restrictions on women are not similarly situated for purposes of draft or registration for the draft. · Inclusion of sex within the Civil Rights Act of 1964.k. · Men in women’s room v. · Employment and education Sex discrimination is illegal as to federal law. · Congress prohibited schools receiving fed.S. women in men’s room. 4. recipients of fed funds. OVERVIEW OF SEX DISCRIMINATION 1. · No parallel to Title 2 and 6 of 42 U. in public accommodations. · Adopted by 35 states and incorporated into their own Const. · Late 1960s—early 1970s ERA was proposed stating that equality of rights cannot be abridged by reasons of sex.C. 5.CONSTITUTIONAL LAW Page 57 of 84 · · · Raising and supporting an army is an important governmental interest. §§1981. Federal Level · Series of federal statutory developments prohibiting their use. 2. · Another peak in feminism around passage of 19th Amendment · Between the passage of the 19th and the ERA a lot of sex discrim. female prisons. F. State Level · Cts have acted under ER Amendment to reach further than federal level has. · 1978 Congress passed the Preg.2 3. Degree to which there are residual categories where social reactions make discrimination justified. Disc. funds from discriminating on basis of sex. Continued set of discussion of physical differentiation · Pregnancy!! 1 . contract/property rights. DISSENT Male only registration does not substantially relate to the goal of maintaining an adequate army. · Ginsburg says remediation for prior discrimination is o. state process and end of sex discrimination was accomplished. feminists felt betrayed. · Marriage!! [same sex] Hawaii says O. · Men prisons v. Affirmative action for women: · Ct has upheld AA actions compensating for women. 6.

· System of alleged discrimination and the class it defines has none of the traditional indicia of suspectness: (a) the class in not saddled with disabilities. child is citizen if he can prove actual relationship. (2) differences in treatment may be pernicious in reimposing a gender hierarchy. · Age Rejected · Addition to drugs Rejected · Economic status Rejected A. yet has not reached the strict scrutiny level yet.S. (3) failure to take differences into account is itself a denial of equality. does not completely prohibit sex based distinctions because in some cases the sexes are differently situated. If father is citizen.K. SUMMARY OF MODERN APPROACH · 1981 1997: Ct begins with rational relation. WEALTH AND EDUCATION · San Antonio Indep. Problematic if results in adverse treatment!! 7. v. · Cannot base sex discrimination on overbroad and archaic generalizations about women · Government cannot act on stereotypes that reinforce stereotypical views and perpetuate inferiority · Ct is drawn to idea of similar treatment · Neutral class once classified as neutral. Women are differently situated Rostker and Michael M. rational relation is appropriate test. · Education is not a fundamental right. OTHER LEVELS OF EQUAL PROTECTION ANALYSIS Other areas have seen introduction of strict scrutiny-like tests: · Marital status of parents similar to the sex movement. · Const. · PROBLEMS: (1) different situations may be function of prior invidious discrimination. (b) or subjected to such a history of purposeful unequal treatment. · Ct held that strict scrutiny was not required since there was no suspect classification.CONSTITUTIONAL LAW Page 58 of 84 · · · Miller: If mom is citizen. child is citizen. Rodriguez: (1973) 82: Πs challenge the school financing system of Texas which relies on local real estate taxation and results in radically disparities between the amount of education expenditures in the richest and poorest districts. VII. Virginia]. so differential treatment is O. less demanding then strict scrutiny. [Reed: Distinction is rational] · Ct moves to intermediate scrutiny more demanding than rational relation. School District v. (c) or relegated to such a position 82 · XEROX III 1 . [important interest and substantial interest furthered] · 1997 Ct moves to exceedingly persuasive justification [U.

ALIEN STATUS · Plyler v. says that this policy fails. DISSENT (Marshall) No need to dichotomize EP. · Pylar has not been vehicle for expansion of equal protection. Not the child’s fault that he has poor parents. Fear of the slippery slope. · Yet. insofar as group wealth discrimination involved wealth over which the disadvantaged person has no significant control. · Not suspect class but more than mere rationality is needed since: · Children are not voluntary aliens 83 XEROX III 1 . · Disability extends into the political arena as well. · Special protection should go to rights not mentioned in the Constitution but on which constitutionally protected rights are dependent. Also. it represents in fact a more serious basis of discrimination than does personal wealth. B. it bears no relationship whatsoever to the interest of the Texas school children in the educational opportunity afforded them by Texas. perhaps the poorest are in the most industrial where the $$ is the highest. · Discrimination on the basis of group wealth may reflect the social stigma frequently attached to personal property. yet. · Education gets more strict scrutiny. the discrimination is not against the poor. The Court has applied a spectrum of standards in reviewing discrimination allegedly violative of the EPC. illegally · Ct held that the statute was unconstitutional since legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of liberty.S. Doe: (1982) 83: Texas statute denying free public education to undocumented children who had immigrated to the U. everyone else. SLIDING SCALE APPROACH · While local district wealth may serve other interest. The wealthy districts have a strong interest in the status quo. There is a rational relationship between the means [geographic distinction] and the end [educational administration] Powell says maybe it’s a poor district since there is no commercial property. but against those who live in districts with low property tax. · Discrimination is no reflection of the individual’s characteristics or his abilities. There is a nexus between education and the ability to function in the political process. Court must evaluate: (1) the constitutional and societal importance of the interest adversely affected. How do cts say what’s equal in terms of education? Education is not a fundamental right!!!!!! There is a rational basis for allowing schools to finance as they wish. Therefore.CONSTITUTIONAL LAW Page 59 of 84 · · · · · · of political powerlessness as to command extraordinary protection from the majoritarian political process. · Rational relation? YES. ct. · Explicit discrimination on face of statute illegal aliens v. Not member of our polity. and (2) the recognized invidiousness of the basis upon which the particular classification is drawn.

· CON: (Stevens) Rationality/Impartially is at the basis of all the standards and should prevail. · Ct held that strict scrutiny is not appropriate here. · Mere fact that people do not like you does not mean you can be excluded. Furthermore. The amendment repealed ordinances to the extent that they 84 85 XEROX III XEROX III 1 . · Why apply more than rational relation? (1) immutable characteristic. (2) history of discrimination. MENTAL RETARDATION · City of Cleburne v. Brennan.” CLC applied for the permit and was denied. D. underclass w/o access to opp. Conscious effort NOT to do what was done in Plessy. · · C. Could an impartial lawmaker logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class? · Not much generative power. applies to all not just citizens. while in Rodriguez they received some. · CON: (Marshall. Blackmun) Level of scrutiny should vary with the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. Ct is worried about the creation of a perm. (3) perpetuates ignorance or irrational fears. HOMOSEXUALITY · Romer v. There must be a substantial state interest. Petitioner told then that they would have to apply for a special permit since the home was “a hospital for the feebleminded. to enter mainstream of American society. Preservation of state’s $$ is not a sufficient reason.CONSTITUTIONAL LAW Page 60 of 84 · · · · · Education is important Denying education would render them illiterate and thus prevent their integration into the mainstream · Penalizing children for the crimes of their parents. Rational relation is the test. CLC sued the city claiming that the zoning ordinance on its face and as applied violated the equal protection rights of CLC and its potential residents. Cleburne Living Center: (1985) 84: CLC wanted to lease a certain building for a home for mentally handicapped persons. Evans: (1996)85: Colorado amended its state constitution by a 1992 statewide referendum. Distinguish from Rodriguez? Here they receive no education. · Would it pass under rational relation test? YES. · Marshall in DISSENT says that the court is applying more than rational relation. Then why does court come out other way. [Sounds like evil that the 14th Amendment was trying to avoid] 14th Am. they find that there is no rational relation here.

HYPO: Ed Rendell wants to give seats to friends at Mummers Parade. get to drink 3. go to certain school ·Craig: If female. What kind of “Xs” call for special attention? With the “C” there is the rigid 2-tier test. HYPO: Ed Rendell wants to limit people at the polls to his friends. EQUATION: If C then X ·If an individual has a classifying trait. doesn’t overrule Bowers · (2) Equal protection turns on the thing being Const. Yet. Homosexuality cannot be singled out for disfavorable treatment. It also prohibits legislative. anytime any political body embodies its preferences in Const. it has problems · (3) Broad disability on single-named group. then they should be subject to strict scrutiny.2 beers at 18. · Ct held that a state cannot classify a group of individuals to make them unequal to everyone else. OK? YES. Nothing but animus · Problem: unprecedented theory. · Doctrinally unstable claiming that antidiscrim are required and not overruling Bowers. [invidious motivation. State Supreme Court held that the amendment was subject to strict scrutiny under the 14th Amendment since it infringed the fundamental right of gays and lesbians to participate in the political process. then they get the benefit or the burden. OK? NO. precedent is weak. FUNDAMENTAL INTERESTS Fundamental Right (1) rights which are independently and explicitly guaranteed by the Constitution and (2) Rights which are not independently and explicitly guaranteed but are important and implicitly granted by the Constitution. amended · Problems: Not what the court says. they get special seat ·Brown: If black. · (4) Crucial question is that there can not be any other possible interpretation than animus · Problem: One man’s animus is another man’s family values. Nature of classifying trait can trigger equal protection. 1 · · · · · · · · · · · . Kennedy creates a tension. discrete and insular] · Problems: Not group historically protected by 14th.CONSTITUTIONAL LAW Page 61 of 84 prohibit discrimination on the basis of homosexual orientation. yet the X is important too. Here we are concerned with the X Is the right to vote worthier of protection than the right to beer? Level of scrutiny arises with the importance of the X. VIII. executive or judicial action at any state level designed to protect homosexuals. if they are distributed unequally. ·Plessy: If white. · Interpretations: · (1) First step in overruling Bowers. They are not positive rights. Fundamental interests are not necessary within the Constitution. Fundamental interest standard allowed the SC to put some flexibility into the otherwise rigid 2tier test.

does not give you an affirmative right to vote in state elections. · Hint of class stratification like Hunter v. left it entirely to the states to determine the qualifications of voters for both national and state elections. RIGHT TO HAVE OFFSPRING · Skinner v. and · politically if everyone must live with it. · Not absolute prohibition on sterilization. · 1920 19th Amendment forbid denial of right based on sex · 1964 24th Amendment forbids denial of right based upon failure to pay taxes. Petitioner was convicted of stealing chickens. · 1868 14th Amendment then provided for reduction in representation in proportion to the number of males who were 21 who weren’t permitted to vote. · Art. 3rd Conviction robbery with firearms. · Original Const. · timing coming during the Nazi era. yet only felons fall under the rule. A. He was also convicted of crime of robbery with firearms. color or previous condition of servitude. opportunity to be heard and the right to a jury trial are provided. but if you have the vote. but the court won’t intervene if the state decided to deprive all of them. it calls for strict scrutiny. revenue acts. · Not argued under due process claim since Buck v. · morally there must be a good basis for distinguishing among people when important things are on the line. the courts must strictly scrutinize it. · 1971 26th Amendment forbids denial of right to anyone 18 or over. · Embezzlers would be just as guilty as felons. B. · NOTE Const. RIGHT TO VOTE · Carolene FN4 There may be a narrower scope for operation of the presumption of constitutionality when legislation restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation. Sims: Ct held that the right to suffrage is a fundamental matter in a free and democratic society.e. I §2 of the Constitution right to vote in federal elections. Offenses such as violation of prohibitory laws. Any alleged infringement of the right of citizen to vote must be carefully and meticulously scrutinized. when it is applied to only some. potential for evil abuse of a right that is fundamental to the survival of a race. persons convicted of 2 or more crimes of moral turpitude]. Underwood. the government will be more careful. it must be given equally.CONSTITUTIONAL LAW Page 62 of 84 · · Right protected in and of itself Interest important. embezzlement or political offenses are not covered by the act. 86 XEROX III 1 . · 1964 Reynolds v. Notice. · Ct holds that the statute is invalid because it deals with a fundamental right. · Until 1960s Ct deferred to the states in determining voter qualifications. · 1870 15th Amendment forbid anyone from being denied the right to vote on account of race. so if it applies to only some. Oklahoma: (1942) 86 OK has a statute that permits sterilization of habitual criminals [i. Bell was out there.

to subordinate those who cannot. race are disfavored. 860 1 . Paying a poll tax promotes civic responsibility. · Ct holds that if a challenged law grants the right to vote to some bona fide residents of requisite age and citizenship and denied the franchise to others. · Voting is symbolic of our democracy. · Excludes those who are interested and included those who were not. Challenged by 31 year old bachelor living with parents who was denied. · Making property the gateway to political equality is problematic. Here it was not precise enough. State made payment of the poll tax a precondition for voting. units SS was inapplicable to a cote on water storage districts where only landowners could vote b/c of the special limited purpose and the disproportionate effect on its activities on landowners as a group. the Court must determine whether the conclusions are necessary to promote a compelling state interest. · Residence? Ignores commuters!!! C. 2. Union Free School District: (1969) 88 NY Education law provides that in certain NY school districts residents may vote in the school district election only if they (1) own or lease taxable property within the district or (2) are parents of children enrolled in local public schools. · Limitations: (1) limited purpose govt. · The right to vote is fundamental. while others can’t. 14th] 3. but still held unconstitutional. · Right to free vote is preservative of rights in other spheres. · There are rational relations. 858 p. One Vote contributes to the idea that we are all equal. (3) disenfranchising felons Framers showed that felons were suppose to be denied the vote [§2. ACCESS TO COURTS 87 88 p. property. · DISSENT (Stewart) Rational relation is the test.50 poll tax on all residents over 21. · Lines drawn on the basis of $$$. · One Man. Voting cannot be conditioned on wealth Harper v. West Virginia: (1966) 87 VA imposed an annual $1. · If one can vote. · Classification must be narrowly tailored.CONSTITUTIONAL LAW Page 63 of 84 1. Kramer v. · State violates Equal Protection whenever it makes the affluence of the voter of payment of any fee an electoral standard. · Ct held that the poll tax was unconstitutional. there is an opp. PROBLEMS: · Age? No compelling state interest. Maj does SS test. Yet. (2) Durational residency requirements a state can limit the vote to bone fide residents as long as the limitation is necessary to promote a compelling governmental interest. · DISSENT (Harlan) There is a rational relation between the tax and a state interest. Π could vote in state elections and therefore has the power to vote for people who will change the law.

· Unconstitutional line has been drawn between the rich and the poor. No invidious purpose. · Due Process and EP call for procedures in criminal trials which allows no invidious discrimination.L. · State is not required to provide appellate courts or a right to appellate review at all. · Govt. 3. cannot bolt the doors of justice for those who cannot pay. 4. · Divorce NO. v. Charging for transcript is not invidious. Yet.B sought to appeal. SUMMARY 89 90 p. S.L. Since she could not pay. access to the courts who seek judicial dissolution of their marriage.L. A state cannot deny a record of sufficient completeness when a fundamental right is at issue in a civil case.: (1996) 90: MISS Court ordered that the parental rights of Petitioner be forever terminated. but MISS required her to pay in advance record preparation fees estimated at over $2000. when a state does it can not do so in a way that discriminates against some convicted Δs on account of their poverty. 895 Supp. Griffin v. · Ct held that this was unconstitutional. California Ct held that a state must appoint counsel for an indigent Δ for the first appeal granted as a matter of statutory right from a criminal conviction. · DISSENT Say that Washington v. D. due process prohibits a State from denying. · Bankruptcy and appeal from denial of welfarefees are O. Douglas v. Illinois: (1956) 89: Ct held that a state must provide a trial transcript or its equivalent to an indigent criminal Δ appealing a conviction on nonfederal grounds.p does not impose on the States an affirmative duty to lift the handicaps flowing from differences in economic circumstances.K. her case was dismissed. Only due process guarantee is the right not to be denied an appeal for arbitrary and capricious reasons. M. · Ability to pay bears no rational relationship to a Δ’s guilt or innocence and cannot be used as an excuse to deprive a Δ of a fair trial. · DISSENT Laws such as these do not deny equal protection since e. 2. but no concomitant legal obligation. M.B.J. · DISSENT not required.CONSTITUTIONAL LAW Page 64 of 84 1. Davis is the paradigm case and that is as far as we go. May have moral obligation. Boddie Ct held that given the basic position of the marriage relationship in society’s hierarchy of values and the concomitant state monopolization of the means of legally dissolving the relationship. 48 1 . solely because of inability to pay.

theatres. Court has severely limited the fundamental interest doctrine to limited classifications. Involved 5 states—KS. CA. or other places of public enjoyment. Distinction cannot be based upon importance. ·States are the primary guarantors of the rights of their citizens and that the federal government may protect those rights only if the state fails to do so. No party can violates X’s right to Equal Protection except the state. AUTONOMY all get strict scrutiny. · (2) Grant to Congress in §5 of the 14th Amendment of the power to enforce these guarantees did not authorize Congress to regulate solely private conduct. · · · · STATE ACTION State action requirement defines an area that must be remain beyond the reach of federal power to preserve indiv. WELFARE/HOUSING/EDUCATION only get rational basis VOTING/ACCESS TO COURTS/REPRO. TN · Ct held: · (1) Guarantees of the equal protection and due process clauses governed by the §1 of the 14th Amendment apply by their own terms to state action only. IX. Modern court State action is a prerequisite to the assertion of rights in the first eight and 14th Amendment. 91 p. (2) Equality is slippier in former context. 14th Amendment speaks directly to the states: §5(14) Congress shall have the power to enforce the provisions of this article. (4) symbolic goals. public conveyances. (3) voting. advantages. 921 1 . the courts will not find conduct that is exclusively private to be violative of the 14th Amendment guarantees. Numerical equality is attractive. theatres and railroads. facilities and privileges of inns. voting and reproductive autonomy. Why? (1) Easier to see what’s fair in one case.CONSTITUTIONAL LAW Page 65 of 84 · · · · · · · · · Court is unwilling to extend heightened scrutiny outside access to courts. ·The statute was meant to deal with fundamental interests at the core of fundamental freedom none were examples of fundamental freedoms. etc are all free. NY. Amendment bars only slavery and involuntary servitude and does not reach badges of slavery. · (3) Statute could not be held as an exercise of the 13th Amendment. Decision grew out exclusions of blacks from hotels. EARLY INTERPRETATION OF STATE ACTION · Civil Rights Cases: (1883) 91 Civil Rights Act of 1875 provided that all persons within the jurisdiction of the US are entitled to the full and equal enjoyment of the accommodations. ·Requirement wasn’t used until after the CWA were passed. In the absence of congressional legislation. MS. freedom. but ironic!! What is equality in education or welfare? Who knows?!! Maybe reaction to problems with desegregation. access. A.

He tries to get the police to remove him. SHELLEY v. Kraemer: (1948) 92: 1911 agreement signed by 30 out of 39 property owners in the area restricted occupancy for 50 years to persons of the Caucasian race and excluded people of the Negro or Mongolian race. ·Similar to Palmore v. Sidoti law cannot prevent private bias [but. Constitutional? YES. · This would effectively end the private/public distinction. ·SUMMARY Narrow view of congressional power and had a devastating effect on Congress’ ability to prevent the emergence of virtual apartheid in the South. Respondents.P.CONSTITUTIONAL LAW Page 66 of 84 ·When a man has emerged from slavery and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state. 92 p. ·State has made available the full coercive power of the government. · Not just use of coercive power otherwise all would be illegal. ·Ct held that actions of state courts are state actions within the meaning of the 14th Amendment. Shelley v. owner of other properties sued to enjoin the black purchasers from occupying property. ·NARROW READING Where the state is asked to affirmatively use its power to enforce a law that requires the state to discriminate. 936 1 . [Social relations might be exempt] ·HYPO: I ask the police to keep all Black men off my lawn. Judicial enforcement of these private racial restrictions constitutes state discrimination contrary to the 14th Amendment and denied Δ equal protection. [Therefore it’s not inaction] ·HYPO: Newt shows up at Kreimer’s house. there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the law. · It is when the state is asked to affirmatively use its coercive power to discriminate against a group. KRAEMER TEST: WHEN PRIVATE BECOMES PUBLIC 1. because there is a right to buy and sell property without interference from the government. State court granted relief. but also the eradictions of the burdens and disabilities suffered by black people because of their race. can’t give them effect either] ·DISSENT (Harlan) Freedom from slavery necessarily entails not only liberation for physical bondage. Petitioners were African Americans who had purchased houses from white owners despite the racially restrictive covenant. ·Judicial involvement bears the clear and unmistakable imprimatur of the state. Unconstitutional since it forces the state to take race into account [state cannot further an invidious purpose] ·BROAD READING anytime a person’s decision to discriminate or an agreement between people to discriminate is enforced or left undisturbed by the state’s legal system. state action exists. B. ·Willing buyer and willing seller interference is a denial of E. · It’s unconstitutional when the state must explicitly take race into account.

4. Marsh v. 93 94 p. · Completely contrary to the dichotomy of private and public acts. 3. 2. Brooks: (1978) 93: Warehouseman wanted to sell goods entrusted to him for storage. · Ct held that the inquiry must be whether there is a sufficiently close NEXUS between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. ·UCC authorizes Petitioner to sell Respondent’s possessions. · Rejected the argument that this is a public function. Alabama: Company town that prohibited union organizer from entering. 1. Lower court dismissed her complaint.CONSTITUTIONAL LAW Page 67 of 84 C. hearing and an opportunity to pay any amounts due and that under the state law she was entitled to reasonably continuous electrical services and that the Company’s termination was state action depriving her of property without procedural due process. Flagg Brothers v. Jackson v. ·NY by enacting the UCC Provision has acted in the most effective an unambiguous way a state can. · Height of Public Function Test. ·Ct held that state action is to be viewed narrowly: A warehouseman’s sale of bailed goods to satisfy a lien under the UCC was not state action. detailing the procedures that he must follow and grants good title. the Constitution must bind them. 954 p. PUBLIC FUNCTIONS TEST · Certain public functions that no matter who does it. Public functions analysis will only apply with functions that have traditionally been exclusively within domain of the government. It has withered since then. · Rejected the argument that it’s state action because State has authorized or encouraged it in enacting the UCC. Adams: Ct invalidated a state electoral apparatus which vests in a political party the power to hold a primary from which blacks are excluded or to determine who shall run in the party primary in which blacks are permitted to participate. · SC held that you are the government here and therefore 1st Amendment prohibits restricting access. · DISSENT (Stevens) If the distinction is retained a state could enact a laws authorizing private citizens to use self-help in countless situations without any possibility of federal challenge. 952 1 . Terry v. Metropolitan Edison: (1974) 94: Petitioner claims that the Respondent terminated her electric service for alleged nonpayment without affording notice.

· If there are extensive contacts between the state and the private party. STATE ACTION. (3) Profits earned from discrimination are elements of the financial success of the government agency. It’s the same. in such a way that each benefits from the other’s conduct. b) West v. · Restaurant was essential to the operation of the overtly public facility. Adkins Function of holding a prisoner for punishment is limited by the Constitution. monopoly provisions does not necessarily subject one to 14th Amendment concerns. NEXUS RELATIONSHIP 95 p. They discriminate as well · What’s the difference? None to the individual. Can’t be tortured by private prisons. has the flag flying over head. Wilmington Parking Authority: (1961) 95: Eagle Coffee Shop was a restaurant located in an automobile parking building. (2) limit the message conveyed by fed. · HYPO: Eagle Coffee Shop won’t accept African Americans. govt when thy are bound up with it. Only 2 examples of acceptable Public Action theory: a) Peremptory Challenges Deciding who gets to sit on a jury is like deciding who is a government official. · Ct held that state action was present · If any state action is involved with private discrimination. 942 1 . ·Why would we want to treat VMI differently from Bryn Mawr? (1) don’t want to give government that much power. 1. Petitioner argues that state action is present because respondent provides an essential public service and here performs a public function REJECTED. Ct holds that they are in violation of the 14th Amendment. 5. The owner refused to serve s Black man. D. E. agent of the state. (2) looks like government is doing it. SYMBIOTIC RELATIONSHIP · Must be a mutually beneficial relationship. (1) Eagle is on state land.CONSTITUTIONAL LAW Page 68 of 84 · · · Mere fat that a business is subject to state regulation does not in itself convert its action into that of the state for purposes of the 14th Amendment. Petitioner argues that state action is present because monopoly status has been given to Metro REJECTED. (4) Vulture the interaction is minimal. the requisite state involvement may be found. (3) private can act as laboratory and try new ideas. Next door the Vulture Coffee Shop obtained a license from the DE Bd. the 14th Amendment’s protections are invoked. Burton v. Parking garage is owned by the Wilmington Parking Authority. Petitioner claims denial of equal protection.

Limited Commerce clause no reaching into private sector Political paralysis Senior member of Congress were from one party South Therefore. · STANDARD: Was the government significantly involved with invidious discrimination? F. either covert or overt. Irvis: (1972) : Private club refuses to serve blacks. · State cannot compel private discriminatory action. ·Making public services available on nondiscriminatory basis does not raise state action concerns. that the choice must in law be deemed to be that of the state. Moose Lodge v. · Yet. 1 · · · · . State action? · Ct says NO.CONSTITUTIONAL LAW Page 69 of 84 ·Encouragement by the state. ·A state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement. the state provision that requires private clubs to follow their own provisions is void id those provisions include discriminatory treatment. DECLINE OF STATE ACTION: THE MODERN RETREAT ·1930s – 1960s Ct expanded the reach of action under the Constitution. state distinction? · (1) Fed govt. CONGRESSIONAL POWER UNDER THE RECONSTRUCTION AMENDMENTS 1930s 1960s the federal government was legally paralyzed. ·Why make the federal v. ·Must ask: What kind of advantage is given? · Imprimatur? · Equal and open to all? · Encouragement? ·Exclusive use would be a problem. The state has granted one of a limited number of liquor licenses to this club. ·Problems arise when special advantage is given. ·After 1960s they contracted this area. granting a license is not state action. ·Ct backed off state action doctrine partially because of the way they read the 13th Amendment. 1. is one of limited and delegated powers · (2) norms are applied by cts which are not directly elected · (3) May be value in and of itself in allowing multiplicity of values · (4) Some acts are particularly dangerous [social violence]—explain both nexus and public function approach · (5) Const. couldn’t carry out the 13 15th Amendment. is something that constitutes government [explains public function theory] · (6) Particularly important to allow private choice—as long as individual chooses [Explains nexus approach] X.

1. [Civil Rights Cases] · Yet.shall exist within the U.S. Ct resurrects congressional action from the past. · Authority to pass §1982? 13th Amendment §2 · How is this legitimate under §2 of 13th? (1) Necessary and proper [McCulloch]. · As long as it is rational. 2. except as punishment for a crime. · Ct held that §1982 bars all racial discrimination private as well as public in the sale or rental of property. THE THIRTEENTH AMENDMENT ·§1 neither slavery nor involuntary servitude. Sought injunctive relief under §1982. (2) attempt to rid the badges and incidents of slavery. · Congress has the power.. (3) legislative history · We all know what being a slave was like. A.CONSTITUTIONAL LAW Page 70 of 84 · · SC said if no one else will act we will. · Early court held that the Amendment and any legislation enforcing it could only deal with slavery and its badges and incidents. Private discrimination even in furnishing hotels. Alfred Mayer Co. Lower court dismissed the complaint concluding that §1982 applies only to state action and does not reach private refusals to sell. · Congress’s definition of those badges and incidents could rationally be a very broad one. CONGRESS’ POWER TO MODIFY CONSTITUTIONAL RIGHTS 96 p. · In enacting §1982 Congress meant exactly what it said: all citizens were to have equal rights to own or lease property and these rights could not be impaired by private discrimination any more than by state discrimination.: (1968) 96: Petitioners filed a complaint that Respondents refused to sell them a home for the sole reason because Petitioner is Black. under the 13th Amendment rationally to determine what are the badges and incidents of slavery. and other accommodations did not constitute a badge of slavery prohibited by the 13th. ·Not explicitly limited to the federal government. transportation. the court has always taken a very narrow view of the type of conduct that the 13th Amendment forbade. 978 1 . B. Modern Approach · Jones v. ·§2 gives Congress the power to enforce this amendment by appropriate legislation. broad enough to encompass private discrimination in real estate transactions. Part of it was inability to hold property and make contracts. Congress can define badges and incidents of slavery in almost any way it wishes.. Early Interpretation · Court has always conceded that Congress could reach purely private conduct under the 13th Amendment.

·In absence of legislative history. ·As a response. Congress passed the Voting Rights Act of 1965 which was desinged to eradicate racial discrimination in voting by dealing with it prophylactically rather than on a case-by-case basis. · §2 reads like the Necessary and Proper Clause let the ends be proper and all means that are reasonably related. 2. Act suspended for 5 years literacy tests and similar voting tests in any state where less than 50% of the jurisdiction’s voting age residents were registered in November 1964. ·BRENNAN’S argument: 97 98 p. there is evidence of federal power to intervene. ·South Carolina v. 3 judge DC granted Π relief. 14th Amendment Katzenbach v. Π claims that the law pro tanto prohibits enforcement of NY election laws based on English proficiency. ·It was to enforce the EPC. Katzenbach. It held that any rational means could be chosen to enforce the Amendment’s ban on racial discrimination in voting. registered voter in NYC. in Strauder court said that states could have educational requirements in jury selection and Guinn and Beal were prosecuted for not allowing people to vote. was not unconstitutional. A way to knock down state laws. Morgan: (1966) 98: Morgan. 998 1 .CONSTITUTIONAL LAW Page 71 of 84 1. Finally. ·Ct holds that the law was a valid exercise by Congress of its powers under §5 of the 14th Amendment. · Yet. 986 p. challenged §4(e) of the Voting Rights Act of 1965 which provides that any person who has successfully completed 6th grade in an accredited school in Puerto Rico cannot be denied the right to vote because of lack of English proficiency. or which had a literacy or other voting test. Lassiter said that literacy test of N. 5 years no literacy tests in covered jurisdictions · Ct held that Congress’ power to enforce the 15th Amendment was broad. ·Enforcement Clause of the 14th Amendment replaces Necessary and Proper Clause as ways to find implied powers. ·Rationale? · (1) Imposition of voting qualifications is problematic under the 14th Amendment · (2) Remedial Congress is making a finding of fact and ct will defer to it.C. the AG appeals. HOW? · Congress’ enforcement power under §2 of the 15th Amendment permits it to outlaw practices which the court would not on its own find to violate §1 of that Amendment as long as these practices are reasonably related to practices that would violate §1. Katzenbach: (1966) 97: Upheld the Voting Rights Act of 1965. 15th Amendment ·During Reconstrution Southern states attempted to return the South to pre-CW days by enacting literacy tests which blocked the Black vote.

hour law. Yet. · (3) Sen. ·DISSENT (Harlan) agrees with prophylactic purpose and remedial purpose.? YES. O.K. just not contracted]. Although we give deference to Congressional decisions and classifications. All would agree that racial disc. can do so under the Commerce Clause. ·FN Congress’ power under §5 is limited to adopting measures to enforce the guarantees of the Amendment. Yet. law. ·Marbury says that the Court decides where there is invidious discrimination. so it could not be regulated by fed.P right is exchanged for another’s. With affirmative action. REMEDIAL · (3) Congress can define something to be violation of 14th Amendment even if the Court has not done so. no Congressional fact-finding and therefore no reason to believe that Congress has done so.? YES. · a) What about O’Connor in Croson? She said that Congress can advance the Equal Protection Clause through affirmative action which is essentially limiting people’s rights. or dilute these guarantees.P. One’s E. neither Congress nor a State can validate a law that denied the rights guaranteed in the 14th Amendment.CONSTITUTIONAL LAW Page 72 of 84 (1) Congress can act to prevent what all believe is a violation of 14th Amendment. [implies that guarantees can be expanded. Helms wants to overturn Virginia on the basis that Congress concluded that admission of women will lead to failure of adversative method. NY did not violate the 14th Amendment. Helmes is interested in expanding the rights on men and by precluding the male bonding experience you are discriminating against them.P. Constitutional? NO. here the court says that Congress can decide in the area of voting rights. · Yet. Constitutional? YES. against AAs. is unconstitutional in places which have statistically discriminatory use of D. Hogan? O’Connor rejects allowing an exemption of single sex schools from prohibitions of sex discrimination. Defer to Congress in e/p because belief that local legislatures are superior to court in fact finding. ·Congress has fact-finding and therefore Court shall defer to it. violates the 14th Amend. b) What about the Majority in Metro and MUW v. FN1 of Katzenbach · (4) Sen.K. this is different. ·Brennan uses the rationality test. [REA] ·HYPOS: · (1) Sen Kennedy wants to reverse McClesky and say that the D. abrogate. · (2) Congress decides that Lochner was right and wants to prohibit any state from passing a minimum wage or max. there is no overall loss. §5 grants Congress no power to restrict. O. ·This case implies that Congress might be better at making factual determinations than Congress. 1 . PROPHYLACTIC · (2) Congress may provide remedy for something that all would believe is wrong if we could all be omniscient observer.

·SUMMARY Wherever a practice has a discriminatory impact on minorities and might be used for discriminatory purposes. Mitchell: (1970)99: Oregon and other states challenged three provisions of the 1970 Amendments to the Voting Rights Act: the ban on state literacy tests. 3 Judge Panel granted summary judgment to the U. no purpose need be shown. Constitutionality of the act was raised. 991 101 Supp. 53 100 1 . ·Yet. wards reduced from 9 to 3. the ban on residence requirements for voting in presidential elections and the grant to 18 years old of the right to vote. ·Ct holds that the bail out provision is constitutional. Π appeals. Congress may ban that practice. ·DISSENT (Rehnquist/Stewart) Mobile says not prohibition of at large unless invidious intent. Only the 18 year old issue is challenged here. District Court of any voting plan changes made in covered jurisdictions. RFRA was passed as response to Sup Ct. Decision was challenged under the Religious Freedom Restoration Act of 1993. 3.k as well. ·Ct held that Congress has no right to specify the substantive contours of constitutional rights. ·FN 1 suggests that Congress could not take action that would reduce constitutional protection. §2 of the 15th Amendment Oregon v.’s decision in Smith.C. (1980) 100: Voting Rights Act of 1965 required preclearance by the AG or the D. Expansion of the 15th City of Rome v. It is a one way ratchet of §5 powers. ·Any enforcement method that was appropriate could be used. annexations to its territories] The AG declined to preclear and Π sought relief from enforcement of the Act. but can take steps that might enlarge them. Georgia and all its municipalities are covered jurisdictions. Georgia sought to alter its electoral scheme and sought preclearance. 5. Substantive Changes City of Boerne v. ·Ct holds that if Congress finds a discriminatory effect. 1004 p.CONSTITUTIONAL LAW Page 73 of 84 ·SUMMARY: Congress can overrule SC where Congress is not diluting the Equal Protection Clause and Due Process doctrines but extending them. ·Brennan if you can do so for English and Spanish. ·Ct holds that national wide prohibition on literacy tests is constitutionally valid and the grant of franchise to 18 years old was o.S. 99 p. Case to SC on original jurisdiction. you can do so for 18 and 21. ·Discrimination on age in not unconstitutional. franchise was denied at state level because power is limited to REMEDIAL only. 4. [move from majority to plurality. Remedial use was rejected. U.S. Flores: (1997) 101: Local zoning authority voted to deny a church a building permit. Rome. Changes were not violative of §1 of the 15th.

Bull natural law or assumptions of free society 2. ·14th is REMEDIAL. ·SC held that RFRA was unconstitutional. ·Congress has been given the power to enforce not decide what constitutes a constitutional violation. · Holmes’s Dissent Injection of personal philosophy into the Constitution is just a tyrannical imposition of one philosophy for another. · Ct can’t 2nd guess legislative judgment. Morgan only 2 members of Rome court are dissenters. RETURN TO SUBSTANTIVE DUE PROCESS A.CONSTITUTIONAL LAW Page 74 of 84 ·Congress cannot use the 14th Amendment enforcement powers to prevent local governments from unintentionally burdening individuals’ religious freedom in certain ways. but has impact on religious practices is O.] Must be relation between the evil and the statute. New Deal State Holmes was vindicated by reversal of Lochner in New Deal. Or just the fact that congruence and proportionality are the new tests!! ·Modern Approach proportionality and congruence is the test [scope of the statute and likelihood of Constitutional violation. Calder v. · Must be a relation between the legitimate end and the means. 1 . 4. HOW TO ENFORCE EXTRATEXTUAL RIGHTS? 1. To take from A and give to B for the sole reason that you think B should have it is INVALID. ·Maybe death of Katzenbach v. · Ct should evaluate what sort of intervention was in tune with public goals.K. Slaughterhouse Cases Privileges and immunities of citizenship—rejected and limited to rights related to national citizenship. not SUBSTANTIVE ·There must be congruence and proportionality between the injury and the means adopted to that end. Congress adopts RFRA which says that there is a heightened scrutiny requirement. ·This was not specifically tailored it affected all levels. Lochner Ct tries to use the DPC to do what was rejected in Slaughterhouse. ·Smith Ct held that statute which is neutral on face. [inability to vote] · (c) Carolene FN4 Effort/statute which infringes on insular and discrete minorities is a sufficient reason for intervention. 3. · Ct can only intervention of a narrower basis: · (a) Enforce the explicit guarantees of the Constitution [Extend the DPC to the states] · (b) Carolene FN4 Ct has role were political process has failed or is at risk. Must be directed at religious practice. XII. · To interfere with property rights for reallocation illegitimate.

If it is reasonable. Teacher might be prevented from teaching certain things. WHAT’S LEFT OF DUE PROCESS CL. OUTSIDE OF NARROW INTERVENTION? 1. It is a legitimate public goal to have a common national language. Rochin line Some sort of side constraint on degree of stomach churning intervention · Legitimate purpose and rational relations cannot be at odds with settled traditions of American people. Child rearing Pierce v. · Mere public intolerance is a legitimate ground for locking people up!!! 2. · Illegitimate public goal? NO. EARLY NON-ECONOMIC CASES 1. 2. O’Connor v. speak one tongue. · Yuck Test!!! C. Statute prohibits instruction in any other language but English before the 8th grade. to engage in a any of the common occupations of life. · DISSENT (Holmes) Legitimate end all the U. guardian having control or charge over a child 8-16 to send him to a public school. to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness of free men. [During Lochner era] · Ct held that state law requiring attendance at a public school is violative of parents’ liberty to direct the education of their children · Liberty of parents and guardians to direct the upbringing and education of their children was under their control. 102 103 XEROX III XEROX III 1 . [During Lochner era] · Ct held that “liberty” includes more than economic rights. · TEST: mere rationality.S. State SC affirmed the judgment. means are coercive and in conflict with the Constitution. Society of Sisters (1925) 103: Act requires every parent. Act was challenged by private schools which would be out of business if statute was in effect. · Yet. It includes the right of the individual to contract. Donaldson line Government can’t interfere with life. to marry. but still concluded that the statue was without reasonable relation to any end within the competency of the State. to worship God according to the dictates of one’s own conscience. Failure to do so is a misdemeanor. to acquire useful knowledge. · Court is reading TRADITION into the Constitution: Americans have always regarded education as supremely important and should be diligently promoted. establish a home and bring up children.CONSTITUTIONAL LAW Page 75 of 84 B. liberty or property on basis of some citizens as less valuable. then it is not an undue restriction of the liberty of either the scholar or teacher. Nebraska (1923)102: Π was tried and convicted for teaching German to a child who had not passed the 8th Grade. Education Meyer v.

Record is barren with any support for the claim of public welfare or morality. TC rejected the claim. Child is not the creature of the state. nor 8th  just pure SDPC. It offers no protection for the possession in the home of drugs. white male was charged with violating GA’s sodomy law by committing a sexual act with another adult male in his bedroom. Stevens) This is not about a fundamental right to engage in sodomy. not autonomous state that forms our Union. SEXUALITY ·SC has refrained from establishing any general protection of adult consensual sexuality activity. Hardwick: (1986) 104: Respondent. firearms. · CONCURRENCE: (Burger) There is no deep rooted historical tradition. TEST: reasonable relation to some purpose within the competency of the state. 104 p. not vice versa. · Ct held that there was no fundamental right to engage in sodomy. The richness of the relationship comes from the freedom of an individual to choose the form and nature of these intensely personal bonds. Marshall. It is the autonomous individual. D. Democracy is based upon a vision of government controlled by the people. There is no one right way in conducting our intimate relations. Otherwise illegal conduct is not always immunized whenever it occurs in the home. fornication in the home!! · Sodomy was a criminal offense at common law and prohibitions predate even the Bill of Rights. ·Ct takes a highly restrictive view of what substantive due process protection should be given to consensual adult sexual acts. · CONCURRENCE: (Powell) There is no fundamental right 8th Amendment challenge could have been made. · Court is most vulnerable when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. 1. · No EP argument. The fact that all religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. We protect these rights because they form a central part of an individual’s life. Blackmun. Court of Appeals REVERSED holding that the law violated respondent’s fundamental rights because his homosexual activity is a private and intimate association that it beyond the reach of the state regulation. · Stanley is of no help since it was grounded on the 1st Amendment. Prohibition on opportunity of parents to educate their children is at odds with relation of state and its citizens. Respondent sued in federal court to challenge the constitutionality of the law. It is about the right to be left alone. · Not implicit in ordered liberty nor deeply rooted in the Nation’s history or traditions. Homosexual sodomy Bowers v. · Privacy of the home is not an exception! · Afraid of parade of horribles incest in the home. or stolen goods. · DISSENT: (Brennan. 593 1 . Those who nurture him have the right to recognize and prepare him for additional obligations.CONSTITUTIONAL LAW Page 76 of 84 · · · · · · State cannot standardize its children by forcing them to accept only public instruction. Parents must retain a sphere of autonomy.

He gave information. instruction and medical advice to married persons about birth control. Rights protected in the 9th are protected from state interference by the 14th. Court can look outside the text of the Constitution to find rights reserved for the people. Yet. 9th Amendment which provides that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage other retained by the people supported this view since it shows that the framers believed that fundamental rights existed that were not expressly enumerated in the first 8 Amendments. Every free citizen has the same interest in liberty that the members of the majority share. (2) how do you define what’s in and what’s out. Brennan. Right of marital privacy was among the fundamental rights. protects all fundamental rights whether or not they are explicitly listed within the Bill of Rights. [7 – 2] First modern-era case which used a substantive due process approach to protect a fundamental right. (3) problem with traditional relation. Connecticut: (1965) 105: Griswold = Director of Planned Parenthood. Applies to unmarried as well. Marshall) Fact that the majority regard it as immoral is not a sufficient reason for upholding a law prohibiting the practice.CONSTITUTIONAL LAW Page 77 of 84 · DISSENT: (Stevens. REPRODUCTIVE AUTONOMY 1. 2 Connecticut laws prohibited using or anyone assisting in use of birth control. but instead stands on its own bottom to protect those basic values implicit in the concept of ordered liberty. never claimed there is a general right to privacy for sexual relations. Neither history nor tradition could save a law prohibiting miscegenation from attack. · 1st freedom of association. Individual decisions by married persons are a form of liberty protected by the DPC. Contraceptive use Griswold v. Right of married persons to use contraceptives fell within this penumbra. Rejected idea that adultery. · CONCURRENCE: (Goldberg) 14th Am. 518 1 . · Ct holds that the specific guarantees in the Bill of Rights have penumbras or peripheral rights which make the specific rights more secure. · Problems with penumbra: (1) no real penumbra. TC found him guilty State court affirmed. · 3rd quartering of soldiers · 4th unreasonable searches has penumbra which protects privacy interests · 5th no self-incrimination · 9th Ties it all together. fornication and · 105 p. homosexuality. E. · Ct held that the statute was unconstitutional. · Penumbra: Emanations from the explicit textual protections. Proof by contradiction could the state require the sterilization of all women with 2 children? CONCURRENCE: (Harlan) 14th A DPC does not merely incorporate the specific Bill of Rights guarantees. · Rationale: Proof by counter factual distinctions: Would we allow police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? · Idea is repulsive to the notions of privacy surrounding the marriage relationship.

DISSENT: (Black/Stewart) Only those rights that are explicitly protected by the Bill of Rights or other constitutional provisions are protected by the 14th Amendment. FAMILY RELATIONS 106 p. F.CONSTITUTIONAL LAW Page 78 of 84 incest were protected by the same right to privacy. it is not prohibited by any specific constitutional provision and therefore must be upheld. 528 1 . Isn’t penumbra theory applicable to property rights? (1) Property rights explicit in Constitution (2) Takings (3) Taxations!! · · · · · · · · · · · 2. Contraceptive Distribution Eisenstadt v. · MARRIAGE and HOME no longer required. · EP as well as substantive due process grounds discriminated against unmarried. it was too broad and wasn’t narrowly tailored to serve this legitimate interest. Yet. (5) Griswold is adopted generations before. Would have upheld the statute had it been reasonably necessary for the effectuation of a legitimate and substantial state interest. it means the right of individuals. All governmental actions should be viewed as arbitrary with eye to types of commitments the Constitution makes and impositions that are invoked by the state. single or married. What is the difference between this and Lochner? (1) Privacy and marriage are less matters of judicial choice than property and contracts (2) Methodology of Lochner was right. There was no right to privacy in the broad and general way that the majority was using that term. but result was wrong. Amendments not judge-made alterations are the correct means of modernizing the Constitution. · If the right of privacy means anything. they are ways to exercise control over others. · Out of home and marriage situation stepping stone to Roe. · CONCURRENCE: (White) Means-ends relationship. (4) Property and contracts are coercive. (3) Pre-political commitments are not subject to governmental action. Baird: (1972) 106: overturned a conviction under a law prohibiting the distribution of contraceptives to unmarried. while Lochner was a statute immediate in the past. while. private rights are efforts to utilize one’s own personality. · Decided on a minimum rationality equal protection ground. to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether or not to bear a child. While the law is offensive.

Implicit in Griswold. Due process cause was used. 584 p. Redhail: (1977) 108Ct invalidated a Wisconsin law which provided that any resident having a minor issue not in his custody and which he is under an obligation to support by any court order could not marry without obtaining court approval. Reasonable regulations re: marriage are o. If they had been brothers. Moore was convicted because she shared her home with her 2 grandsons who were first cousins. There are other less obtrusive ways of intervening. INTERMEDIATE SCRUTINY Stricter scrutiny than deferential review was needed when city undertakes to regulate a family. Redhail failed to apply since he was: (1) paying for illegitimate daughter who (2) was on ADFC act. Claimed that intermediate scrutiny was required. incest and bigamy] Stevens Const. Constitution protects the sanctity of the family because the institution of the family is deeply rooted in this nation’s history and tradition. · Powell invalidated on substantive grounds.k. etc ] Yet. other areas might be affected like [homosexuals. · 2. East Cleveland (1977) 107 Ct invalidates a zoning ordinance limiting the occupancy of a dwelling to members of a single family defined as few categories of related individuals. 584 1 . Must be legitimate. · Powell Too broad a sweep of an area that has been traditionally subject to pervasive state regulation. DISSENT (White) Emphasis on history and tradition unduly broadens substantive due process. Critical examination is required for any law that seeks to interfere with that right. Thus violates equal protection. allows restrictions on the right to marry [incest. · Brennan Reflects cultural myopia. it would have been fine. Maybe legitimate interests. It is common for family members to draw upon one another. Interest is not one implicit in ordered liberty or one of which it could be said that neither liberty nor justice would exist if it were sacrificed.CONSTITUTIONAL LAW Page 79 of 84 1. but the statute served them minimally at best. Otherwise. NO EQUAL PROTECTION. Constitution prevents standardizing the family by forcing them all to live within narrowly defined family patterns. and not subject to SS. Fundamental Right to Marry Zablocki v. Constitution cannot tolerate the imposition of government upon the rest of us of white suburbia’s preference of patterns in family living. · 107 108 p. Lot of black families live like this. · Marshall right to marry is of fundamental importance. Court cannot substantively weigh what the Congress and state has determined are appropriate to respond to a changing economic and social order. Unreasonable restrictions are. substantial and narrowly tailored. Family definition Moore v. here this was a deliberate discrimination against the poor.

G. · Ct affirmed holding that the right to privacy is broad enough to encompass the decision to terminate a pregnancy. ·Roe opens new way of dealing with substantive due process. Fetus is viable and therefore state has compelling interest in preserving fetal life. by regulating the abortion procedure in ways that are reasonably related to her health. There is no protection here for the fetal life. State can’t require individual from refraining from actions that don’t harm others.e. Ex.CONSTITUTIONAL LAW Page 80 of 84 · Rehnquist sole dissenter and found no reason to apply heightened scrutiny. sex discrimination]. childless couple [Does]. Flat ban is not permitted. the mortality rate is higher for pregnancy than for abortions. · Pierce. 109 p. must be in hospital. Wade: (1973) 109: Texas law that made it a crime to get an abortion except for saving the life of the mother. court should have applied traditional presumption of validity. 13th. · 2nd trimesterState may protection its interest in the mother’s health. (3) regulation of private morality is impermissible. Challenged by Jane Roe. · 3rd trimesterState may regulate even proscribe abortions. Instead. · Alternative rationality: (1) Equal protection concern [i. State has no valid interest in protecting mother’s health since at this stage. (2) involuntary servitude [make one use her body for the benefit of another]. and (2) the state statute was narrowly drawn so that it fulfilled only that legitimate state interest. Body of citizen is not at the control of the state. · (2) Body is autonomous from state Physical attributes of pregnancy [bodily integrity—control over one’s body is as essential to Democracy as freedom of thought Rochin. · Right to abortion was divided into 2 trimesters: · 1st trimesterState may not ban or even closely regulate abortions. Loving · Problems: (1) where does he get this from. ABORTION ·Signaled the end of Lochner in the area of substantive due process. Roe v. (2) does involve harm to others. 530 1 . Meyer. but it is not absolute]. Skinner. Exception life or health of mom. physician. No direct physical impact. 1. · 8th. (3) fetus is not a person within 14th Amendment. · Rationale: Right to privacy is fundamental and can only be outweighed if: (1) there was a compelling state interest in barring or restricting abortions. TC granted declaratory relief to Roe finding that the law was unconstitutional under the 9th Amendment. Right to privacy extends throughout the entire pregnancy. · Why strict scrutiny for abortion? · (1) Human dignity is bound with control of reproductive capacity Intimate character of pregnancy [much different from Lee Opticals] · Liberty embodied by Mills.

(c) State has compelling state interest in preserving fetal life. Physical must be permitted to consider all relevant factors. drug testing. narrowly drawn to express the interest. contraception. state may not require the consent of a hospital staff abortion committee or of any physician other than the women’s own personal physician. · Problem: (1) Geduldig—not discrim agn. The trimester model was judicial legislation. Relative weights which should be assigned to these 2 interests should be left to the people and to the political process. conceptual moves of Roe: (a) There is no constitutional issue at all. and the education and upbringing of children. but only at the pint of viability. · · · · · CONCURRENCE: (Stewart) Reversed his position in Griswold and accepted both the Griswold and Roe rationale as substantive due process cases. but discrimination agn. Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment. (3) Effect of imposition on people determined by sex The fact that it affects only women. CONCURRENCE: (Douglas) 14th Amendment protected freedom of choice in the basic decsiions of one’s life respecting marriage. Bolton: (1973) 110: Ct held that a state may not require that abortions be performed only in accredited hospitals. Reed—rational relation. DISSENT: (Rehnquist) Only a mere rationality test should be applied. · No obligation to reach out and protect others [Bad Samaritan] · Bound up with traditional set of women roles and is likely to reinforce women’s roles. persons. Abortion procedures Doe v. Akron Center for Repro Health: Ct struck down a range of abortion regulations enacted by the City of Akron. 110 p. Only subject to regulate where there is a compelling state interest. 2. Could be considered a discrete and insular minority. (2) Reed v. level issue. a strong tradition that large intrusions are only justified by large interests. and justified by reasonable governmental objectives—magnetic detector. small intrusions on person are o. (b) Not only is there a const. DISSENT: (White) Court has imposed its own value scheme.CONSTITUTIONAL LAW Page 81 of 84 · · 3 · · · Problem: Not absolute. From Roe to Casey: Efforts to Overturn Roe · Roe 7 Justices · Akron 6 Justices · Thornburg 5 Justices · Webster 4 Justices a) Akron v. 537 1 . procreation. women. 3. but the initial rights can be counterbalanced by compelling state interest. divorce.k. pregnant. Also.

CONSTITUTIONAL LAW Page 82 of 84 ·Ct affirmed position that they did not err in Roe. c) Webster: Ct upheld provisions to a Missouri law regulating abortions. even with liberty that the government may not otherwise interfere. Indigency is neither created nor attributed to the state. American College of Obst. only a plurality endorsed a restatement of Roe’s trimester scheme. Danforth: Ct struck down a spousal consent requirement. Wade. attacks to federal funding limitations that barred payments for most medically necessary abortions. g) Rust v. ·DPC affords no affirmative right to governmental aid. McRae: Rejected Const. EP analysis: mere deferential rational review was necessary. Previous decisions show that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman’s freedom to choose whether or not to have an abortion. ·Brennan’s dissent seriously erodes the principles of Roe v. b) Thornburgh v. d) Planned Parenthood v. ·White’s dissent There is no authority and Roe was wrong. ·Also struck down the requirement of a female under 18 getting the consent of her parents first. ·Simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. ·Woman is more directly and immediately affected by the pregnancy. Sullivan: Ct extended Maher to a restriction on abortion counseling from any project receiving federal family planning funds. · Roe is on collision course: viability to pushed back to conception while maternal health is closer to birth. ·No obstacle = just can’t have a subsidized abortion. 1 . ·Brennan’s dissent Maj got it wrong. This placed no obstacles in the pregnant woman’s path to an abortion. f) Harris v. ·O’Connor’s dissent advocated moving from trimester model to one that an abortion regulation is not unconstitutional unless it unduly burdens the right to seek an abortion. e) Maher v. & Gyn: Ct reaffirmed Roe by holding that a woman’s right to make that choice freely is fundamental. Roe: Ct sustained a Connecticut regulation granting Medicaid benefits for childbirth but denying them for nontherapeutic medically unnecessary abortions. · Standard would be applied to the entire length of the pregnancy without reference to any trimester.

· (1) recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue influence from the state. Not unworkable factual underpinning is the same. Informed consent upheld 24 hours upheld Spousal notification Rejected Parental consent upheld. and faith in court system. Each provision was challenged as unconstitutional on its face. May proscribe all abortions not needed to protect the life of the mother. Trimester fails since it completely devalues human life in the first 2 trimesters. spousal notification. DC held that all provisions were unconstitutional. inform parent. but to allow state regulation that did not unduly burden the woman’s fundamental right to choose. · · · · · · · · · · · · · · Joint Opinion reaffirmed the essential holding of Roe. and where overturning it would damage reliance interest. Casey: (1992) 111: PA act required informed consent. stare decisis dictates that the decision not be overturned. After viability retain Roe rule. Special nature of abortion dictates that it be left to the woman—it impacts her in a uniquely personal way. 24 hour waiting period. Abortion is no longer a fundamental right and restrictions need not be strictly scrutinized. Where a constitutional provision has not proved unworkable. · Abortion is a fundamental right rejected · Trimester model rejected · Complete inability of the state to restrict 1st trimester abortions rejected · Stevens/Blackmun voted to reaffirm Roe · Rehnquist/White/Scalia/Thomas voted to overturn Roe completely. Reliance people have organized intimate relationships and made choices in reliance on the availability of abortion in the event that contraception should fail. 557 1 . · O’Connor/Souter/Kennedy voted to reaffirm central holding of Roe. Undue Burden = anything that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non viable fetus. 111 p. State may create a structural mechanism by which the state may express profound respect for the life of the unborn and does not place a substantial obstacle in the woman’s path.CONSTITUTIONAL LAW Page 83 of 84 4. · (2) Confirmation of the right of the state to restrict abortions after fetal viability with exception for woman’s life or health · (3) Recognition of the state’s legitimate interest from the outset of pregnancy in protecting health of the woman and life of the fetus. Court of Appeals REVERSED and upheld all except husband notification requirement · SC affirmed holding that the state may restrict abortions so long as they do not place undue burdens on the woman’s right to choose. Planned Parenthood v.

CONSTITUTIONAL LAW Page 84 of 84 · · · · · CONCURRENCE: (Stevens) state has legitimate interest in protecting fetal life. No historical tradition. Rational relation to state interest is the appropriate test. has given no guidance. Roe’s Trimester framework should be maintained. did not even apply stare decisis. Abortion is not a fundamental right. 1 . This is an area not up to the court’s discretion. Maj. Stare decsis was not applied here. Pre-abortion counseling was unconstitutional. Should leave it up to the states. DISSENT: (Scalia) Abortion is not a right protected by the Constitution: (1) no textual support. HYPO: State legislature in Idaho wants to pass 24 hour waiting period—constitutional? Who Knows!!!! Maybe if one can prove that to these poor rural women it discriminated as applied to them—then it’s unconstitutional. DISSENT: (Rehnquist) Roe was wrong. nor ever was. CONCURRENCE: (Blackmun) Strict scrutiny is the only appropriate test. but it cannot coerce a woman’s decision. All provisions are constitutional. State can express the preference for fetal life. All turns on whether a DC can be persuaded by substantial obstacle test. All provisions were unconstitutional. 24 hour period was unconstitutional. Can’t tell whether or not it is an undue burden without reference to state and statute. (3) Maj. (2) history has allowed it to be proscribed.