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Table of Contents
1. Durational Residency Requirements.......................................................................................................................................................... 6 A. Federal Judicial Power ............................................................................................................................................................................... 6 B. Federal Legislative Power ........................................................................................................................................................... 6 E. Separation of Powers............................................................................................................................................................................ 7 4. Dormant Commerce Clause/Negative Aspects of the Commerce Clause .................................................................... 7

A. CONSTITUTIONAL SOURCES ................................................................................................................ 12

Due Process seems to prevent state from taking away substantive rights granted elsewhere The Court has deemed some rights as so fundamental that the government cannot infringe upon them unless strict scrutiny is overcome, meaning that the government must justify its interference by proving that its action is necessary to achieve a compelling governmental purpose. If the right is not fundamental, only rational basis is required. Almost none of these are mentioned in the Constitution, but the Court’s authority stems from the Due Process Clause of the Fourteenth Amendment and it’s protection of “liberty.” Carolene Products Footnote 4 Cannot be pronounced unconstitutional unless a RB there is a presumption that the legislative judgment on economic legislation is valid. The footnote distinguishes cases in which greater judicial scrutiny might be possible. With less political process there is more judicial scrutiny. Should discrimination against minorities via political process that is supposed to protect them be subject to greater scrutiny? ........................................................................................................................................................................................ 12 Other Analysis – Procedural DP and EP. Sometimes these are analyzed under procedural due process as well as equal protection, both of which are located in the Fourteenth Amendment, as well. Under any of these approaches, the Court must decide whether a claimed liberty is sufficiently important to be regarded as fundamental, even though not mentioned in the text of the Constitution. If presented under DP, the constitutional issue is whether the government’s interference is justified by a sufficient purpose. But if it is presented under EP, the issues is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose. Thus, if the law denies the right to everyone, then DP would be the grounds for analysis; if the law denies the right to some, while allowing it for others, the discrimination can be challenged under EP and the violation of the right under DP. ............................................. 12

B. PROCESS FOR ANALYZING FUNDAMENTAL RIGHTS .............................................................. 13 C. THE INCORPORATION DEBATE .......................................................................................................... 13 D. THE FUNDAMENTAL RIGHT OF FAMILY AUTONOMY ............................................................ 14 E. THE FUNDAMENTAL RIGHT TO CONTRACEPTION .................................................................. 17
Apparent limitations on the opinion 1) Douglas points out that this is a law prohibiting the use of contraception, not manufacture or sale. Does this mean that a law prohibiting sale or manufacture would be constitutional? No, later cases said right to use means a right to buy (and sell) 2) Is it limited to married couples? Later case expanded right to privacy beyond marriage (Eisenstadt v. Baird). But not until Lawrence, last summer, did there appear to be a right to sex for single people. ............................................. 17 Relationship to the Incorporation Debate ..................................................................................................................................... 18  Douglas has committed himself (along with dissenting Justice Black) to saying that there is nothing in the 14th Amendment except the first 8 amendments. So he has to look at the Bill of Rights itself to decide the case, not to the broader concept of “liberty” under the 14 th. Black had said repeatedly, with Douglas, that the 14th Amendment incorporates the first 8 amendments. Douglas slipped away, by adding more to those first 8 amendments than they apparently contain. ................................................................................................................... 18  Goldberg Concurrence invokes the 9th Amendment to say that concept of liberty protects personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. Ninth Amendment says that the enumeration of rights in the Constitution does not deny or disparage other rights retained by the people. Black argues that the 9th Amendment argument opens the door for the Court to strike down any law it wants. Raises a big question: did the Constitution replace everything that came before it, or does it build on what came before it, leaving all rights that it does not explicitly contradict. ........................................ 18  Harlan Concurrence states that the proper constitutional inquiry is whether Connecticut statute infringes the DP Clause of the 14th Amendment because the enactment violates basic values “implicit in the concept of ordered liberty.” 14th Amendment is broader than the specific provisions of the Bill of Rights. Word “liberty” includes a freedom from all substantial arbitrary impositions and purposeless restraints.18  White Concurrence argues that this case does not even meet a rational basis test and finds the answer to this case in word “liberty” in the 14th, not in any specific provision of the Bill of Rights. White says that the

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statute does not work for its purpose—if aim is to stop adultery, law forbidding married people from using contraception is inappropriate. Field says this is a usurpation – judges should not say whether legislation is effective. ............................................................................................................................................................................. 18  Black Dissent (and Stewart Dissent) Government has a right to invade privacy unless prohibited by some specific constitutional provision. Argues that the Court is following Lochner. Stewart: “We are not asking in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the Constitution.” ..................................................................................................................................................................... 18

G. THE FUNDAMENTAL RIGHT TO ABORTION ................................................................................. 20 III. EQUAL PROTECTION.............................................................................................................................. 28 B. ANALYSIS ........................................................................................................................................................ 28
How does the Court choose the correct standard of review? 1) The court has emphasized that immutable characteristics like race, national origin, gender and the marital status of one’s parents warrant heightened scrutiny because it is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change. 2) The court also considers the ability of the group to protect itself via the political process. Women, for example, are more than half the population but traditionally have been severely underrepresented in political offices. Aliens do not have the ability to vote, and thus the political process cannot be trusted to represent their interests. 3) The history of discrimination against the group is also relevant and relatedly, the likelihood that the classification reflects prejudice as opposed to a permissible government interest. For example, the Court uses SS for racial classification because judgment based on race is virtually never an acceptable justification, whereas, intermediate scrutiny is used for gender classifications because biological differences between men and women mean that there are instances where gender might be a justifiable basis. 4) Note that the court has shown little willingness in the past two decades to add more categories to intermediate and strict scrutiny........................................................................................................................................................................................................... 29 C. Rational Basis Test ............................................................................................................................................................................... 31 d. Proving Discrimination in the Northern School Context There was no problem proving discrimination in state where segregation was written into the laws, but in Northern school systems, where segregated schools were not the product of state laws, the issue arose as to what had to be proved in order to demonstrate an EP violation and justify a court remedy. . ................................................................................................... 38 E. Gender Classifications ........................................................................................................................................................................ 46 3. Gender Classifications Benefiting Women ............................................................................................................................... 49 F. Discrimination Against NonMarital Children.......................................................................................................................... 51 F. Constitutional Protection for Voting ........................................................................................................................................... 55 1. Restrictions on the Ability to Vote ............................................................................................................................................... 55 g. Dilution of the Right to Vote Malapportionment in many areas prior to the 1960s was a result of population shifts to urban areas. Districts often were not redrawn after urban migration, causing cities to be underrepresented compared with more rural. .................................................................................................................... 59 h. Gerrymandering Practice of a political party of drawing election districts to benefit itself and harm its opponent........................................................................................................................................................................................................ 62 G. Constitutional Protection for Access to Courts............................................................................................................................. 63 H. Wealth Discrimination ............................................................................................................................................................................. 65

H. Constitutional Protection of the Right to Travel ................................................................................................ 68
Edwards v. California (1941) Invalidated law making it misdemeanor to bring into California “any indigent person who is not a resident of the State, knowing him to be an indigent person.” – invalidated law making it misdemeanor to bring into California “any indigent person who is not a resident of the State, knowing him to be an indigent person.” Majority opinion relied solely on commerce clause and did not address the right to travel. Four justices in concurrence stated that the right was to travel an incident of national citizenship protected by federal p&I of 14th amend. ............................................................................................................................................... 68 Saenz v. Roe (1999) In 1992, CA limited new state residents for the first year of residence to same level of welfare benefits they would have received in their prior states of residence. In 1996, Congress enacted Personal Responsibility Act which expressly authorized states to do programs like CA. CA argued their program imposed no penalty on interstate migration under Shapiro. Travelers who become permanent residents have right to be treated like other citizen of that State. Using combination of federal P&I clause and citizenship clause of 14th. Citizenship= residence, Clause does not allow for degrees of citizenship based on length of residence. Congress was wrong – don’t care that Congress approved it. ........................................................ 69 Rehnquist Dissent notes that the State’s argument is similar to rationale of abortion funding cases – this isn’t “penalty,” as you can’t lose what you never actually had. Court engaging in rare exegesis of Slaughter-House cases and federal P&I clause. ...................................................................................................................................................................... 69

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1. Durational Residency Requirements ................................................................................................................................................. 69 Shapiro v. Thompson (1969) Court relied on EPC to invalidate law denying welfare benefits to new state residents until they had resided in state for a year. Brennan applied SS. Effect of waiting period is to create 2 classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year. All citizens free to travel throughout the length and breadth of our land uninhibited by statutes, rules, regs that unreasonably burden this movement. State has valid interest in preserving fiscal integrity of programs, but may not accomplish such purpose by invidious discrimination between classes of its citizens. Also, it is just as impermissible to want to keep out a particular type of migrants, indigent ones, as migrants as a whoel. .............................................................................................................................................................................................. 69 Warren Dissent argues hat Congress could had have authorized such discrimination. Harlan Dissent objecting to Court’s fundamental interest EP methodology. Statute affects only matters not mentioned in Constitution. ... 69

I. THE REQUIREMENT OF STATE ACTION .......................................................................................... 71

Civil Rights Cases (1883) In 1879, soon after the ratification of the 14th Amendment, the Court declared that the provisions of the 14th Amendment have reference to State action exclusively and not to any action of private individuals. §1 of CRA of 1875 states “all persons shall be entitled to full and equal enjoyment of accommodation..inns, public conveyances on land or water, theatres..” The law specifically prohibited discrimination based on race and color or on the basis of any previous condition of servitude – prohibited private race discrimination and provided both criminal and civil penalties. The Court, with only Harlan dissenting, declared it unconstitutional because Congress lacks the authority - Can’t punish private action. 14th Amendment only has power over states. Private action governed by state law and not covered by the federal Constitution. Congress under §5 of the 14th Amendment could not regulate private conduct but can only legislate against wrongs by state governments. The Court also ruled that Congress could not adopt the law pursuant to its authority under §2 of the 13th Amendment because the refusal to serve a person was no more than an ordinary civil injury and not a badge of slavery. ................................................................................................. 71 When Does the Constitution Apply to Private Action? 1) The 13th Amendment is the one provision that directly regulates private conduct as it forbids slavery. 2) There are exceptions where private action needs to comply with the Constitution – a conceptual diaster area. These exceptions focus on the public functions exception (involves a task that has been traditionally, exclusively done by government as well as the entanglement exception (the government affirmatively authorizes, encourages, or facilitates unconstitutional conduct. 3) Federal and state statutes can apply to private conduct – state action is only about constitutional requirements. .................................................................................................................................................. 71 Costs of a State Action Requirement 1) Private infringements can be just as harmful as government violations. 2) Does the government’s failure ot stop private infringement of rights become itself a constitutional violation? Because the state has the power to do so, its failure to do so constitutes a state decision to permit violations; however, it is analytically possible to conceptualize any private infringement of constitutional values as a result of government inaction. 3) The freedom of the violator and the person who was violated are both at stake. 4) If states are not doing an adequate job, should the federal government still preserve their sovereignty? ............................................................................................................. 71 a. Public Functions Exception .............................................................................................................................................................. 72 Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) Found that a private entity regulating high school athletics was a state actor based on the government’s entwinement wit hits activities. Based on the entanglement exception. 84% of the members of the private entity were public schools, the state traditionally had delegated regulating interscholastic athletics to the entity, most of the funds came from public schools, and most of its meetings were held on government property. Distinguished Tarkanian because the NCAA worked in all states and couldn’t be a surrogate for one state. .......................................................................................... 74 A. Federal Judicial Power ............................................................................................................................................................................. 78 Was Marshall justified in giving judicial supremacy? Since the Court found it lacked jurisdiction, the subsequent arguments were arguable improper. Textual arguments that were helpful: Even if the judicial power extends to things arising under the Constitution and has to be able to interpret the Constitution, but so could the other branches. Judicial review did exist in some states but in some places they didn’t, so it’s not inherent. Go over his textual argument. ........................................................................................................................ 80 2. Justiciability Doctrines ....................................................................................................................................................................... 81 a. Standing ..................................................................................................................................................................................................... 81 The determination of whether a specific person is the proper party to bring a matter to the court for adjudication. Frequently identified as one of the most confusing areas of the law. There have been many changes in the last twenty-five years. The extensive attention reflects its importance in defining the role of the federal courts in American society. ..................................................................................................................................... 81 Lujan v. Defenders of Wildlife (1992) Considered a challenge to a revision of a federal regulation that provided that the Endangered Species Act does not apply to United States government activities outside the United States or the high seas. Plaintiffs lacked standing because they could not show a sufficient likelihood that they would

........................................ it doesn’t say either....................................................................................................................... 86 B..................................... ................................. 88 e................................. Subject to P & I even though it discriminates within the state and out of state. 84 c................................................................................... 86 Congressional Self-Governance .................................................................... 85 Republican Form of Government and Reapportionment ......................... If it is valid................................................................................ 100 Are these decisions desirable? Appropriate protection of state sovereign immunity and a proper limit in Congress’s §5 powers........... Ripeness .................................................. 108 4..................... rather than the state legislature.............. 96 6. ......... 84 d................ War Power .......................... Some disagree that sovereign immunity is an inherent part of the Constitution’s design and that it undermines government accountability.......................... What would be the argument that they could even though Congress could not – the states ratified the Constitution and when the Constitution is silent there is no bar to action by the states and the people....................................................................................................... The Majority argues instead that it is a national body representing everyone and so the rules should be the same for everyone............................................................. 86 Foreign Affairs ... Thornton (1995) Here the states are trying to add to the qualifications for federal legislators via term limits......................................................................................................................................................................................... Separation of Powers ....................................... 86 Impeachment ........ 94 4...................................... 95 5........ 117 United Building & Construction Trades Council v................. 101 Guest Speaker on Iraq ............................................ Federal Legislative Power .................................................................................................................................. Spending Power ................................... There is not a clear distinctions between regulating and acting as a market participant........................................................................... So any changes whether enacted by the Congress (Powell) or the state is not permitted..... Less coercive than regulatory programs............. Since each state controls and sends the representatives they should be able to decide who they want to send from their state........................ 87 2......................................................................... Reading the qualifications clause to be exclusive.......... The desire to use or observe an animal species.......................................................... The economy is better off if state and local laws impeding interstate commerce are invalidated.................................................... Political Question ......................................................................................................... 92 3..........................................Constitutional Law Page 4 of 122 be injured in the future by a destruction of endangered species abroad.... vote in the representatives.............................................................................. Allows citizens to recoup benefits of the taxes they pay.................................................................... even for purely aesthetic purposes.......................................... Since Congress is given commerce power only it should be able to invalidate state laws on this ground....................... 111 Should there be a dormant commerce clause? The crucial question is whether the judiciary in the absence of congressional action should invalidate state and local laws because they place an undue burden on interstate commerce........... There is an obvious and crucial interrelationship of these two cases – in deciding whether a state can be sued under a federal statute the court must decide whether the law is a valid exercise of §5 powers.............................................. but does not work here because the plaintiffs had no real plans to go to foreign countries again.................................................. 101 C................. Civil Rights ............................................... 108 D........................................................................................................................ 100 City of Boerne narrowed the scope of §5 powers............... Not inherently less coercive............................................................................ but we are interpreting it to be the excusive list of any and all qualifications........................................................................................................................ 111 Should There Be a Market Participant Exception? The dormant commerce clause is meant to stop protectionist actions by state governments and it should not be allowed regardless of whether the state is acting in a proprietary or regulatory capacity.................................................................... Congress can’t handle all of these regulations by itself............................................................................ Engaged because it discriminates out of state against a certain subsect of state residents............................................................................... Contemporary Cases ............................................... Relevance to State Sovereign Immunity ..... Historical argument that the framers intended to prevent state laws that interfered with interstate commerce as a key impetus for the Constitutional Convention in 1787 was the absence of any federal commerce power................................................................. ........................................ Dormant Commerce Clause/Negative Aspects of the Commerce Clause ............................................................................................................. STATE AUTONOMY LIMITS ON CONGRESSIONAL POWER .. P&I applies equally to municipal ordinances as state laws and the ... 82 b................. Commerce Clause Power ... the state must be possible to sue or else the litigation against the state cannot continue.............................................................................................. Question is whether the states can add to the qualifications in the Constitution..... Mootness ........................... 86 US Term Limits v........... States and their citizens should not be harmed by laws in other states where they lack political representation................................................................. ............ Shouldn’t protect benefits for in-staters because of P&I and EP.......................................................................................................................................................................................................................................................................................................................................... Privileges and Immunities of State Citizenship .......................... Camden (1984) Challenge to an ordinance requiring contractors working on city construction projects have a certain percentage of municipal residents........................ also now the people.............................................. The drafter should have and could have included a provisions prohibiting states from interfering with interstate commerce as it included the privileges and immunities clause and Article I §10 includes many limits on state power......... 117 E....................... is undeniably a cognizable interest for purposes of standing........

... Race and National Origin 1.... When it is discrimination? .. Gender Classifications 1.. Analysis C....... Permissible Means E..... 119 F....... Racial Classifications Benefiting Minorities a... How is Discriminatory Purpose Proven? 4........... Facial Discrimination 3........... 120 Hines v. Medical Decisions J..... Procreate G...........Constitutional Law Page 5 of 122 pursuit of a common calling is one of the most fundamental privileges................ Permissible Purposes b... Lochner Era 2...... Incorporation Debate D... ...................... Family Autonomy E.............. Rational Basis D....... Preemption of State and Local Laws .... Demise of Lochner II............. Constitutional Sources B... Davidowitz (1941) Pennsylvania law required aliens to register with the state..... Economic Liberties A.............. Consider whether it is integral to interstate commerce... Lochnerism 1.. Facially Neutral Laws With a Discriminatory Impact or With Discriminatory Administration a.. Equal Protection A...... The Requirement for Proof of a Discriminatory Purpose b............................................................. carry a state issued registration card and pay a small registration fee. Constitutional Sources B... Noteworthy because the Court found preemption of a state law that complemented the federal law and found it even in the absence of express preemptive language in the statute........ The Court stressed extensive federal regulation in the area........... Control of Information III. Abortion H. Reason 2.................................. Process for Analyzing C.................. Constitutional Sources B................................ 120 I.......... Is Proof of Discriminatory Effect Also Required? c....... .................. Sex I..... Developing a Standard 2..... Thee Supreme Court deemed this law preempted by emphasizing that alien registration is in a field which affects international relations that has been most generally conceded imperatively to demand broad national security... Fundamental Rights Under Due Process A................... Contraception F....

Durational Residency Requirements K. Early Cases b. and Federalism A. Federal Judicial Power 1. Biological Differences c. Laws Denying Benefits to All Nonmarital Children G. Gerrymandering I. Introduction: Enumerated Powers. Federal Legislative Power 1.Constitutional Law Page 6 of 122 3. the Necessary and Proper Clause. Ripeness c. Other Costs J. Filing Fees 3. Prisoners’ and Felons’ Right to Vote f. Constitutional Protection for Voting 1. Between the 19th Century and 1937 . The Requirement of State Action 1. Age 2. Gender Classifications Benefiting Women as a Remedy F. Durational Residency Requirements d. Limiting Voting in Primaries Based on Party Affiliation g. Justiciability Doctrines a. Disability 3. Constitutional Protection for Access to Courts 1. Political Question B. Restrictions on the Ability to Vote a. The Right to Appeal 2. Gender Classifications Benefiting Women a. Mootness d. Sexual Orientation H. Constitutional Protection of the Right to Travel 1. Governmental Structure: the Three Federal Branches. Separation of Powers. The Scope of Congressional Power 2. Other Types of Discrimination: Only RB Review 1. Poll Taxes c. Dilution of the Right to Vote h. Standing b. Commerce Clause Power a. Are Elections Constitutionally Required? b. Gender Classifications Based on Stereotypes b. Entanglement Exception IV. Discrimination Against NonMarital Children 1. Public Functions Exception b. Judicial Review 2. Exceptions to the State Action Doctrine a. and Inferred Limits on States a. Literacy Tests e.

May Congress Regulate Private Conduct? b. The 10th Amendment Between 1937 and the 1990s d. Civil Rights a. The 10th Amendment from the Late Nineteenth Century Through 1937 c. Contemporary Cases f. Field Preemption a. Dormant Commerce Clause Before 1938 b. Executive Privilege 4. CONSTITUTIONAL SOURCES . Foreign Policy and Immigration b. The 10th Amendment in the Nineteenth Century b. Executive Agreement E. For What Purposes May Congress Tax and Spend? 4. Spending Power a. Privileges and Immunities of State Citizenship G. Preemption of State and Local Laws 1. War Power 5. State Limits on Federal Power a. Reaction to Lochner (1937-1995) e. ECONOMIC LIBERTIES A. Facially Discriminatory Laws d. The Legislative Veto 2. Dormant Commerce Clause/Negative Aspects of the Commerce Clause a. Inherent Powers? 2. Confining Congressional Power to ―Proportional‖ and ―Congruent‖ Remedies C. State Laws that Impede Achievement of Federal Objectives I. The 10th Amendment in the 1990s and Beyond D.Constitutional Law Page 7 of 122 c. Federal Regulations c. Dormant Commerce Clause Before 1938 3. Conflicts Between State and Federal Laws d. Removal Power a. Facially Neutral Laws 1) Balancing Test: When the State is Not Discriminating 2) Analysis When the State is Discriminating e. Lochner through 1937 d. Exceptions F. Separation of Powers 1. Shift to the Balancing Approach c. Federal Common Law 3. Federal Executive Power 1. What is the Scope of Congress’s Power? c.

FURTHER HELD THAT THE GOVERNMENT COULD NEITHER VIOLATED THE PROVISIONS OF THE CONSTITUTION NOR INFRINGE RIGHTS THAT ARE A PART OF NATURAL LAW. COURT TAKES A HISTORICAL VIEW. RESPECTIVELY. AT TIMES. PRIVILEGES AND IMMUNITIES OF US CITIZENS ARE LIMITED. . PROVIDE THAT NEITHER THE FEDERAL NOR STATE GOVERNMENTS CAN TAKE A PERSON’S PROPERTY (OR LIFE OR LIBERTY) WITHOUT DUE PROCESS OF LAW. THE COURT’S OPINION THROUGHOUT THE EARLY NINETEENTH CENTURY WAS THAT NATURAL RIGHTS CONCERNING PROPERTY LIMITED GOVERNMENT ACTIONS. BULL (1798) CT LAW THAT SET ASIDE THE DECISION OF A PROBATE COURT THAT HAD DENIED INHERITANCE TO HOSE DESIGNATED AS BENEFICIARIES UNDER A WILL. BRADLEY SAYS IT WAS INTENTION OF 14TH AMENDMENT TO PROVIDE NATIONAL SECURITY AGAINST VIOLATION BY THE STATES OF THE FUNDAMENTAL RIGHTS OF CITIZENS. LOUISIANA GRANTED A MONOPOLY TO ONE CORPORATION TO OPERATE SLAUGHTER HOUSES. NOTE THAT IREDELL’S CONCURRENCE AGREED WITH THE RESULT BUT ARGUED THAT COURTS SHOULD NOT RELY ON NATURAL LAW. IN THE EARLY NINETEENTH CENTURY. IN VIOLATION OF 13TH AMENDMENT (INVOLUNTARY SERVITUDE) AND 14TH AMENDMENT (PRIVILEGES AND IMMUNITIES. EQUAL PROTECTION). THE COURT UPHELD THE CONSTITUTIONALITY OF THE LAW. PRIVILEGES AND IMMUNITIES ARE THOSE THAT OF RIGHT BELONG TO THE CITIZENS OF ALL FREE GOVERNMENTS. ETC. THROUGHOUT THE NINETEENTH CENTURY. FREEDOM TO PURSUE A LIVELIHOOD. INTERPRETED “LIBERTY” AND “PROPERTY” TO INCLUDE A RIGHT TO PRACTICE A TRADE OR PROFESSION. THE COURT AGGRESSIVELY USED THE CONTRACTS CLAUSE TO LIMIT THE ABILITY OF STATES TO INTERFERE WITH EXISTING CONTRACTUAL OBLIGATIONS. §10 5TH AMENDMENT’S TAKINGS CLAUSE 5TH AND 14TH AMENDMENTS. AS DISTINCT FROM CITIZENS OF A STATE. EVEN THOUGH PART OF THE MAJORITY. DUE PROCESS. FIELD AND BRADLEY DISSENT ARGUED THAT 14TH AMENDMENT PROTECTS CITIZENS OF THE US AGAINST THE DEPRIVATION OF ANY RIGHTS ARBITRARILY BY STATE LEGISLATION. THE COURT HAS ALSO USED DP TO PROTECT OTHER ECONOMIC LIBERTIES SUCH AS FREEDOM OF CONTRACT. THIS ESSENTIALLY KILLED THE PRIVILEGES AND IMMUNITIES CLAUSE. AND FREEDOM TO PRACTICE A TRADE OR PROFESSION. AND ENUMERATED ELSEWHERE IN THE CONSTITUTION: RIGHT TO PEACEABLY ASSEMBLE. ARGUING THAT THE 13TH AND 14TH AMENDMENTS WERE LIMITED TO THE PURPOSE FOR WHICH THEY WERE ADOPTED (AFTER THE CIVIL WAR). THE COURT INVOKED NATURAL LAW PRINCIPLES TO PROTECT PROPERTY RIGHTS. NEVERTHELESS. CHASE.Constitutional Law Page 8 of 122 CONTRACTS CLAUSE IN ARTICLE I. AFTER A NEW LAW WAS ADOPTED THE PROBATE COURT CHANGED ITS RULING AND ALLOWED INHERITANCE. THIS LATER BECAME THE MAJORITY VIEW OF THE COURT. COURT SAYS THAT 14TH ONLY GUARANTEES PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES. THE SLAUGHTERHOUSE CASES (1873) COURT’S FIRST ATTEMPT TO INTERPRET THE 14TH AMENDMENT. INDEPENDENT BUTCHERS ARGUE THAT THIS LAW VIOLATES THE 14TH AMENDMENT BY DENYING THEM OF RIGHT TO EXERCISE THEIR TRADE. CALDER V.

THE COURT AGGRESSIVELY PROTECTED ECONOMIC RIGHTS UNDER THE DP CLAUSE. WHICH IS WHERE ANY SUBSTANTIVE RIGHTS SHOULD BE. THEY WERE IN PRIVILEGES AND IMMUNITIES. THERE ARE SOME TOPICS FOR STATE POLICE POWER: HEALTH. WHERE THEY DON’T BELONG. THE CONTRACTS CLAUSE WAS NOT USED OFTEN DURING THIS ERA AS THE PROTECTION OF FREEDOM OF CONTRACTS UNDER THE DP CLAUSE MADE THE CONTRACTS CLAUSE SUPERFLUOUS. FREEDOM OF CONTRACTS UNDER THE DP CLAUSE LIMITED THE GOVERNMENT’S ABILITY TO IMPAIR EXISTING AND FUTURE CONTRACTS . MANY STATE LAWS WERE DECLARED UNCONSTITUTIONAL. THE RISE AND FALL OF LOCHNERISM (ECONOMIC SUBSTANTIVE DUE PROCESS) BEGINNING IN THE LATE NINETEENTH CENTURY AND CONTINUING UNTIL 1937. STATE POLICE POWER = THE POWER OF THE STATE TO REGULATE EXCEPT AS THE FEDERAL CONSTITUTION PROHIBITS IT DIRECTLY OR AS EXERCISED BY THE FEDERAL GOVERNMENT . INITIALLY. THAT IS UNCONSTITUTIONAL.Constitutional Law Page 9 of 122 DUE PROCESS AND EQUAL PROTECTION WERE BASICALLY AN AFTERTHOUGHT IN THIS CASE. FIELD THINKS THE SLAUGHTERHOUSE VIEWPOINT WAS WRONG AND THIS ONE IS RIGHT BUT THAT THEY FOUND A FUNNY PLACE TO LOCATE THE RIGHT OF THE FEDERAL GOVERNMENT TO REGULATE THE STATE – IN AREAS THAT THEY ARE CONCERNED ABOUT (LISTED BELOW). WHEN STATES START REGULATING PRIVATE PROPERTY LIKE MAXIMUM HOURS OR SALE PRICES. EVERYTHING AFTER TRIED TO GET SUBSTANTIVE RIGHTS OUT OF DUE PROCESS. BY THE END OF THE 19TH CENTURY. AND GENERAL WELFARE (AS EXPLAINED IN LOCHNER). SAFETY. B. BUT IF NOTHING IN THE PRIVILEGES AND IMMUNITIES THEN THERE IS NOT MUCH THE FEDS CAN DO. WITH SOME DUE PROCESS HOLDINGS STRIKING DOWN ECONOMIC LEGISLATION (THAT HAD NOTHING TO DO WITH THE CIVIL RIGHTS PURPOSES FOR WHICH THE 14TH AMENDMENT WAS ADOPTED). WORRIED THAT STATE REGULATION MAY BE DISGUISED IN ONE OF ITS STATE POWER ROLES. DUE PROCESS. WHAT IN THE 14TH AMENDMENT COULD THE LOUISIANA LAW VIOLATE? PRIVILEGES AND IMMUNITIES: RIGHT TO WORK. OVER TIME. BUT ALSO THE ECONOMIC REGULATIONS (NOT FOLLOWING ADAM SMITH) AND ITS EFFECT ON PROPERTY RIGHTS APPLYING 5TH AMENDMENT VIA 14TH OR “SHOCKS THE CONSCIENCE. IDEA COMING IN WAS THAT IF THERE SUBSTANTIVE RIGHTS. LIBERTY DOES NOT MEAN ONLY FREEDOM FROM PHYSICAL RESTRAINT BUT ALSO USE OF FACULTIES. BEGAN TO GET INCORPORATION OF TAKINGS.” THERE IS SOME PROPERTY THAT IS IN THE PUBLIC INTEREST (MONOPOLIES) AND REALLY CAN FIDDLE WITH THE RATES A BIT IN THESE CIRCUMSTANCES. NATURAL RIGHTS. FIELD SAYS THAT THE SLAUGHTERHOUSE CASES FORECLOSED PRIVILEGES AND IMMUNITIES. THE COURT FOUND THAT FREEDOM OF CONTRACT WAS A BASIC RIGHT UNDER THE LIBERTY AND PROPERTY PROVISIONS OF THE DP CLAUSE. THEREFORE. RATE REGULATION MUST HAVE DP. MORALS. THE FEDERAL COURTS IN THE SLAUGHTERHOUSE CASES DETERMINED THAT PRIVILEGES AND IMMUNITIES NEVER INCLUDED CIVIL RIGHTS WHICH SHOULD STILL BE IN THE STATES. HOLD CORPORATIONS AS PERSONS WITHIN THE MEANING OF THE 14TH AMENDMENT. THESE ARE VERY BROAD AND COULD BE CONSTRUED TO INCLUDE NEARLY ANYTHING. THE SUPREME COURT WAS APPALLED NOT ONLY BY THE CIVIL RIGHTS TREATMENT.

3) IT WAS THE JUDICIAL ROLE TO CAREFULLY SCRUTINIZE LEGISLATION INTERFERING WITH FREEDOM OF CONTRACT TO MAKE SURE THAT IT SERVED A POLICE PURPOSE. Common sense shows that there is a relationship. Holmes Opinion Constitution should not be determined by economic theory. AND INDIVIDUAL RIGHTS LEGISLATION. IF DO THIS FOR BAKERS. 1) IN THINKING ABOUT DP AND WHAT SHOULD BE THE COURT’S RELATION TO THE LEGISLATURE WE ARE PHILOSOPHICALLY AT A DIFFERENT PLACE THAN THE COURT. COURT TAKING UP THE ISSUE OF WHETHER THIS REGULATION GOES BEYOND THE GENERAL POLICE POWERS OF THE STATE. Does it need to be rational for just bakers or for larger group? WHAT IS WRONG WITH THIS SYSTEM? IT IS HARD TO KNOW HOW TO JUDGE THIS CASE – MANY PEOPLE DUMP ON IT. NOTE AS WELL THAT GOVERNMENT REGULATION SIGNIFICANTLY INCREASED DURING THIS TIME PERIOD AS INDUSTRIALIZATION CHANGED THE NATURE OF THE ECONOMY. Harlan Dissent Majority assumes that there is equal bargaining power and thus actually undermines liberty. NOTE THOUGH. 2) THE SUPREME COURT.Constitutional Law Page 10 of 122 WHILE THE CONTRACTS CLAUSE ALWAYS HAS BEEN CONFINED TO THE FORMER. THAT IF STATES ENACTED A LAW IT WOULD VIOLATE THIS CLAUSE AND DURING THE SAME ERA THE COURT WOULD FIND A FEDERAL GOVERNMENT’S EXERCISE OF THE SAME TO BE VIOLATING THE STATES’ ROLE – SO THERE WAS MINIMAL POSSIBILITY OF ECONOMIC REGULATIONS. BUT THROUGH ARGUMENTS OF PRINCIPLE. SOCIAL. Even if bakers do not stand out more than anyone else this might be a reasonable first installment of a larger plan. 1) FREEDOM OF CONTRACT IS A BASIC RIGHT PROTECTED AS LIBERTY AND PROPERTY RIGHTS UNDER THE DP CLAUSE OF THE 14TH AMENDMENT. 1. . THE REAL MOTIVATION WAS TO BRING INCOMES CLOSER TOGETHER AND TO GIVE WORKERS A FAIR BARGAINING POSITION – NOT ACCEPTED THEN BUT IT IS A REASONABLE JUSTIFICATION TODAY IF A MAJORITY IN THE LEGISLATURE ACCEPTS IT. NOT THROUGH POLITICAL PRESSURE. BAKERS ARE AS INTELLIGENT AS OTHER GROUPS AND CAN MAKE THEIR OWN DECISION (DISTINGUISHING THAT THIS IS NOT LIKE THE MINERS WHO WORK IN EXTREMELY HAZARDOUS CONDITIONS AND ARE THUS IN A CLASS BY THEMSELVES). IN JUSTIFYING MODERN DP. 2) THE GOVERNMENT COULD INTERFERE WITH FREEDOM OF CONTRACT ONLY TO SERVE A VALID POLICE PURPOSE. MUST EXPLAIN WHY WE CAN DO IT IN ONE INSTANCE BUT NOT ANOTHER AND NOTE THAT IT IS HARD TO DISTINGUISH AMONG ECONOMIC. WILL HAVE TO DO IT FOR EVERYONE ELSE. ALSO NEED TO FIGURE OUT WHETHER IT IS LEGITIMATE TO HAVE DUMPED AS MUCH AS WE HAVE ON SUBSTANTIVE DP. NOT A LEGITIMATE END TO HAVE BREAD HEALTH BECAUSE THERE IS NO EVIDENCE THAT WORKING HOURS AFFECTS THE BREAD. FIND NO COMPELLING REASONS – DOES NOT HAVE MUCH TO DO WITH HEALTH FOR THE BAKERS AND THE PUBLIC AS THERE IS NO DIRECT RELATIONSHIP TO HEALTHY BREAD AND HEALTHY BAKERS. WILL HOLD UP THE UNDERDOGS. BUT WE WILL LATER ALSO SEE A MIX OF EVALUATING THE ENDS AND THE MEANS. CONCERNED ABOUT SOCIALISM MOTIVE AT THE TIME. LOCHNER ERA (1905-1936) NY PASSED A LAW LIMITING WORKING HOURS IN THE BAKERY TRADE. IT IS THE OPINION OF THE COURT THAT IT DID SO. THE TEST IS WHETHER IT IS FAIR AND REASONABLE IN PURSUIT OF A LEGITIMATE END OR WHETHER IT IS ARBITRARY AND CAPRICIOUS. The legitimate end is the health of the bakers and we should give deference to the state legislature. NOT A REASONABLE MEANS FOR PROTECTING THE HEALTH OF THE BAKER.

Parrish (1937) State minimum wage law for women upheld. enormous pressures were mounting for the Court to abandon the laissez-faire philosophy of the Lochner era as the depression created a wide spread perception that government economic regulations were essential. 5) Unelected judges were unduly substituting their values for those of popularly elected legislatures to protect rights that were not expressly stated in the Constitution. Demise of Locher In the mid-1930s. Justice Robert ―The switch in time that saved nine. 2. Moreover. Stressed the need for judicial deference. West Coast Hotel (1934) State had established price of milk. dairy farmers would be more likely to sell contaminated milk. the Court would defer to the government and uphold laws so long as they were reasonable. and that the judiciary would defer to the legislature’s choices so long as they were reasonable. West Coast Hotel v.Constitutional Law Page 11 of 122 3) The Court was wrong in protecting freedom of contract as a fundamental right and that it erred in concluding that the government could only interfere with this right to enhance health. the Court articulated a double standard of review: Generally. It would no longer protect freedom of contract as a fundamental right. On one hand. In the famous footnote. Freedom of contract came to be seen as an illusion. If not guaranteed a certain price. Williamson v. public health. Notes that freedom of contract is not mentioned in the Constitution like liberty and property. safety or morals. deference to legislative choices. Since 1937.‖ Reaffirmed in Caroline Products stating that economic regulations should be upheld so long as they are supported by a conceivable rational basis. Nebbia v. government could regulate to serve any legitimate purpose. . or public morals. The language shows us that times are changing. The government should be able to regulate to achieve many other goals. Lochner rested on the assumption that freedom of contract and related property rights were part of the natural liberties possessed by individuals and legal realists began to argue that therse were political choices. Lee Optical (1955) Law prohibiting opticians from fitting glasses unless they had a prescription by optometrist or opthamalogist upheld because a possible rational basis existed. can view it as a narrow decision based on strong evidence of the importance of milk and a legislative finding that the market could not correct it. 4) Inconsistent application in later cases. as well. is sufficient. Emphatic that the government was not limited to regulating only to advance the public safety. But this deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities. the court packing plan. rather than the actual one. Clear that they will be upheld when challenged under DP so long as they are rationally related to serve a legitimate government purpose. Any conceivable purpose. Consider. Court seemed to question the basic premise of Lochner – property and contract rights are not absolute. seven if it cannot be proved that it was the legislature’s actual intent. not one state or federal economic regulation has been found unconstitutional as infringing liberty of contract as protected by the DP clauses of the 5th and 14th Amendments. Made it clear that the Court was abandoning the principles of Lochner. or it could be seen as a business in the public interest.

but this one likely has a bad motive II. Do we treat individual liberties and economic liberties the same? No.Constitutional Law Page 12 of 122 Could analyze the means or look at the real motive. both of which are located in the Fourteenth Amendment. Should discrimination against minorities via political process that is supposed to protect them be subject to greater scrutiny? Other Analysis – Procedural DP and EP. The footnote distinguishes cases in which greater judicial scrutiny might be possible. The purpose of the 14th Amendment was to say that the federal government could protect civil rights. privileges and immunities seems to be where they would come from The Amendment was supposed to change the balance of power between the federal government and the states—for some time the Court refused to recognize such a radical change without more explicit language (Court often asks Congress for more explicit instructions before recognizing a big change). only rational basis is required. meaning that the government must justify its interference by proving that its action is necessary to achieve a compelling governmental purpose. Under any of these approaches. If the right is not fundamental. as well. If the 14th Amendment creates any substantive rights. Almost none of these are mentioned in the Constitution. With less political process there is more judicial scrutiny. Field argues that there is no judicial review here to speak of. but much of this is based on economic theory. the constitutional issue is whether the government’s interference is justified by a sufficient purpose. even though not mentioned in the text of the Constitution. Due Process seems to prevent state from taking away substantive rights granted elsewhere The Court has deemed some rights as so fundamental that the government cannot infringe upon them unless strict scrutiny is overcome. but in a different context—one state cannot deny privileges and immunities to the citizens of another state.‖ Carolene Products Footnote 4 Cannot be pronounced unconstitutional unless a RB there is a presumption that the legislative judgment on economic legislation is valid. If presented under DP. But if it is presented under EP. Fundamental Rights Under Substantive Due Process A. the issues is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose. then DP would be the grounds . Thus. Sometimes these are analyzed under procedural due process as well as equal protection. §2 of the constitution uses this term. if the law denies the right to everyone. are citizens of the United States and of the state wherein they resides (overrules Dred Scot). Constitutional Sources 14th Amendment §1 All persons born or naturalized in the United States and subject to the jurisdiction thereof. the Court must decide whether a claimed liberty is sufficiently important to be regarded as fundamental. but the Court’s authority stems from the Due Process Clause of the Fourteenth Amendment and it’s protection of ―liberty. No state shall make or enforce any law which shall abridge the privileges or immunities if citizens of the United States What are privileges and immunities? Article IV.

the‖ discrete and insular minorities‖. The case is different in discrimination situations because the court will look at what the legislature’s intent was. FIELD THINKS IT IS NOT ENOUGH TO USE THE STRICT SCRUTINY AND COMPELLING INTEREST BOXES – THAT WOULD BE ARBITRARY AND THEY SHOULDN’T SOLVE IT ALONE. 3. if the law denies the right to some. Process for Analyzing Fundamental Rights 1. such as the right to privacy. in their entirety . THE SUPREME COURT HAS NOT GIVEN A VERY GOOD DEFINITION OF FUNDAMENTAL RIGHTS. THE COURT JUST CAN’T SIT WITH A LAW AND A VALUE JUDGMENT IS REALLY GOING ON. the Ninth Amendment is just a justification for the Court safeguarding unenumerated rights which are protected via other Amendments and parts of the Constitution.AS IN LAWRENCE WHERE IT WAS ONLY RATIONAL BASIS. Sunday closing and abortion rules could be argued to have originated from religious movements. TALK ABOUT THE WEIGHING OF VALUES IN ADDITION TO RB AND SS. DON’T LET THE FRAMEWORK BE IT AS IT IS NOT – SOMETIMES . Thus. In the gay community. there are no Ninth Amendment rights. this description does not apply according to some scholars. the Court points to the Ninth Amendment: ―The enumeration in the Constitution of certain rights shall not be construed to disparage others retained by the people. C.Constitutional Law Page 13 of 122 for analysis. 2. Is there a fundamental right? Is the Constitutional Right Infringed? Is there a sufficient justification for the government’s infringement of a right? Is the means sufficiently related to the purpose?" Look at text of legislation. the paradigmatic description of subject classifications . ON THE EXAMS THERE WILL BE HARD QUESTIONS AND YOU HAVE TO THINK ABOUT THE FACTUAL SITUATION AND THE REAL REASONS THE STATE AND PARTIES WOULD WANT CERTAIN CHOICES. the discrimination can be challenged under EP and the violation of the right under DP. Very much used and relevant today. the 14th Amendment incorporate the first 8eightamendments. Possibly overused. Rather. The courts are not looking at what the legislature thought and whether it is legitimate but whether the legislature could have or might have come up with a legitimate reason. but the courts are not interested.as EP grows. The Incorporation Debate Black and Douglas—total incorporation. the Ninth Amendment is used to provide a textual justification for the Court to protect nontextual rights. For example. we look for this description and sometimes it is not the best descriptor.‖ The Ninth Amendment is generally not seen as the source of the rights in that rights are not protected under it. B. 4. Field would always start with the text – don’t overrule the text with something that some Senator says – go to the others when it is not clearly stated or if there is not a clear implication starting with legislative history. Most often. while allowing it for others. statements before the Court and legislative history.

Constitutional Law Page 14 of 122 Frankfurter, Cardozo, Harlan—fundamental fairness; ―shocks the conscience.‖ Court should look at individual cases to determine whether fundamental fairness was violated. Do not incorporate whole amendments for all cases.Black argued that this approach was too subjective, giving the judges too much power Murphy and Rutledge—incorporation meant the first eight amendments, plus other fundamentals. This is pretty close to what we got. Most of the first eight amendments are incorporated (with exceptions like grand jury and 6th Amendment jury provisions—did not require unanimous verdicts or 12 person jury in the states)—selective incorporation. Court basically said that when rights apply to the states, they apply in exactly the same way that they apply to the federal government. This meant that once an amendment was incorporated, there was a whole body of doctrine that already accompanied it. Bradwell v. Illinois like Calder v. Bull raises the question of whether the constitution completely erased everything before it or built off of it. What are the natural laws it was based on? Remember that federal law trumps state law – Article VI of the Constitution’s Supremacy Clause. The whole provision in the constitution that is responsible for stating that there is a trump says that state judges shall be bound by the federal constitution (which includes federal statutes because they apply via the Constitution) and any state law to the contrary notwithstanding. It all works through state judges rather than all the branches.

D. The Fundamental Right of Family Autonomy
Origins in Meyer v. Nebraska (1923) Reversed the conviction of a teacher for teaching German and thus violating a state law prohibiting the teaching of foreign languages to young children (right after WWI). McReynolds’s broad view of liberty denotes not merely freedom from bodily restraint but also to contract, engage in any of the common occupations of life, acquire useful knowledge, marry, worship God, bring up children, etc. as recognized as essential to the orderly pursuit of happiness by free men. Since Meyer, the Court has expressly held that certain aspects of family autonomy are fundamental rights and that government interference will be allowed only if strict scrutiny is met. Pierce v. Society of Sisters (1925) OR law requiring children to attend public schools. McReynolds found to peculiar circumstances or present emergencies which demand extraordinary measures. Interferes with parents ability to direct upbringing and education of their children. If this case were arisen today… Assume that in Massachusetts there is a private school culture and want to give a better education structure to the public schools. Seems to be a good state purpose. Certain things are private as in Griswold, etc., may be encompassing how to raise children. Privacy zones can slop over into other things. Could easily be unconstitutional because of the government, albeit state, taking so much control. Field says it shows that this is a weighing of values and we have to question who will weigh them – the court or the legislature?

Constitutional Law Page 15 of 122 They were written by McReynolds – the hayday of the substantive due process era and were throwing out everything they think is unreasonable - the fact that these cases also cover privacy zones is not fully developed in this cases and hence, the cases were discredited. Eperson v. Arkansas (1968) Teacher wanted to keep teaching in AK public schools but a law stated that no one could teach anything about Darwinism. Her textbook had a chapter on Darwinism and brought a DJ. The Supreme Court wanted to hold it unconstitutional, not on the basis of educational freedom, but based on the religious purpose. No one ever followed the approach again. Zablocki v. Redhail (1978) Any minor having a minor not within their custody and a financial obligation to them had to get court approval that they were caring for the child and were not likely to become public support in order to get married. Primary purpose to ensure that fathers with child support obligations are meeting those obligations. Evidentiary problems with showing that kids will not become public charges – if you’ve paid your child support you’ve met your public obligation. Court argues it would be unusual to recognize the right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation for family in our society. Court holds it is not constitutional because under the heightened scrutiny of the marriage privacy interest. State interest deemed legitimate but unnecessarily inhibited one’s ability to enter into marriage as there were less intrusive means to meet this interest (criminal law, garnish wages, etc). Note that the majority opinion found the right to marry to be a fundamental right protected under the liberty of the due process clause, but the concurring opinion by Powell used an EP approach. In Linda S. Woman sues the prosecutor for man’s backpayments. Supreme Court holds no standing because no proof that he would still pay without going to jail. So much for criminal penalties options. DP v. EP Analysis If the court characterized the π’s injury as a denial of EP because of discrimination against mothers of illegitimate children, this injury would be remedied by a favorable court decision regardless of whether more money would be forthcoming as a result of the suit. Turner v. Safley (1987) Constitutionally protected marital relationship in the prison context. Unlike the usual strict scrutiny for fundamental rights, the government may interfere with prisoner’s rights if the action is reasonably related to a legitimate penal interest, but here it was not. Prison could regulate the time and circumstances of the ceremony as well as cohabitation. Since he can’t have conjugal visits, can he artificially inseminate? Racakport v. Katz Ready to get married and the guideline stated that they had to have proper attire to get married. Marriage is like abortion – a fundamental right but with lots of restrictions allowable. Probably wouldn’t have been struck down as not an undue burden. Also really are looking for how these matters affect most people. Befurt. v. Adrian Wanted to name a combination of mother’s and father’s name. State interest in administrative records. Court finds a fundamental CL right to give a name under rational basis test – prohibits from arbitrary state action. The attitude here is that the administration, rather than the s are being stubborn.

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Grandparents Rights Troxel v. Gainville (2000) A father committed suicide. For the first year after his death the girls continued to regularly visit with their paternal grandparents then the mother largely ended this visitation. A statute from WA which said that anyone could get visiting rights to any child by proving that it was in the child’s best interest – could be more than grandparents and could even be the babysitter. The Washington trial court ruled in favor of the grandparents and ordered extensive visitation but the Washington Supreme Court declared this unconstitutional as violating the mother’s right to control the upbringing of her children. There was no majority opinion for the Court but the plurality found that the Washington law as applied in this case was unconstitutional as infringing on the fundamental right. Read broadly, the case can be read to affirm parental rights but read narrowly it may only apply to this specific case, especially since O’Connor stressed that they were not evaluating grandparents rights statutes in general and that the mother allows some visitation. Field thinks it makes life as a single mother impossible and discourages boyfriends and other close relationships with the child. Some think it’s good for lesbian relationships – but Field says make a contract. Supreme Court felt that it was alright for WA to find it unconstitutional. Troxel and Michael H. (and Kelley below) are not constitutional rules but rather possibilities for what states can do Rights of Unmarried Fathers The Supreme Court has recognized that parents have a fundamental right to custody of their children. Michael H. v. Gerald D. (1989) held that even an unmarried father who participated actively in the child’s life is not entitled to DP if the mother was married to someone else. The state may create an irrebuttable presumption that a married woman’s husband is the father of the child even though it negates all of the biological father’s rights. No tradition of protecting unmarried father’s rights (Rehnquist and Scalia only). Stevens, the fifth vote, wrote separately to say that he would not foreclose the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married and cohabitating with another man at the time of the child’s conception and birth. He only joined the opinion because the state offered a procedure whereby the biological father could have established paternity and preserved his rights. Field is against having a rule that an unwed father can come in and say that the child is his. If the unwed father can challenge the presumption rather than the Husband or Wife, then he is the one coming to ask for the blood test. It means that anyone can come off the street and disrupt the nuclear family. Most of the cases would not be from the guy who was sure he was the biological father as blood tests had not happened yet, so would have t require blood tests to prove it. CA’s law was at least constitutionally valid. Note though that the only time a woman is protected in this type of situation is if she is a married woman, not if she is single or a lesbian woman and has to welcome him in on the theory that anyone is better off with the father. Lost two votes in getting footnote – the way that we look at natural fathers in general does not apply in this case because he is an adulterous natural father so it is a more specific case. Do biological fathers have a right to get to know their child? Scalia narrows from biological fathers to adulterous natural fathers. Whichever level you describe it at can change the result.

‖ and something else (intimate details of marital relationship). Instead. did there appear to be a right to sex for single people. Fourth.Constitutional Law Page 17 of 122 But then to say that there is a rule that you start at the lowest level does not work as you don’t. Connecticut (1965) Douglas Majority Opinion holds that guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees. Found that the right to privacy was a fundamental right. Field thinks his test does not work. later cases said right to use means a right to buy (and sell) 2) Is it limited to married couples? Later case expanded right to privacy beyond marriage (Eisenstadt v. Think about miscengenation. Declined invitation to follow Lochner and thus avoided substantive DP. it focuses on the privacy of the bedroom. Various guarantees create zones of privacy. but it was not protected under the liberty of the DP clause. the right to privacy is implicit in many of the specific provisions of the Bill of Rights (First.. The right to privacy was violated by the CT law prohibiting married couples from using contraceptives. The right to privacy is an emanation of these guarantees which help give them life and substance. Douglas tries to draw a line between economic and social policy. E. Does not focus on the right to avoid procreation or make reproductive choices. Does this mean that a law prohibiting sale or manufacture would be constitutional? No. Apparent limitations on the opinion 1) Douglas points out that this is a law prohibiting the use of contraception. Third. where the Court will not sit as a ―super-legislature. but more generally. O’Connor says that it was struck down not because there was a tradition of blacks and whites marrying. Baird). The Fundamental Right to Contraception Griswold v. a right to marry who you choose. But not until Lawrence. not manufacture or sale. . and Fifth Amendments). last summer.

So Court had to find some way to say that this. Field says this is a usurpation – judges should not say whether legislation is effective. What does the 14th Amendment Due Process Clause have to do with a law preventing married people from using contraception? Most important idea here—Court could not stand to turn their back on a statute outlawing contraception. not in any specific provision of the Bill of Rights. not to the broader concept of ―liberty‖ under the 14th. Ninth Amendment says that the enumeration of rights in the Constitution does not deny or disparage other rights retained by the people. it is an important case in right of privacy law. even though there wasn’t a thing in the constitution about it. Stewart: ―We are not asking in this case to say whether we think this law is unwise. with Douglas.  Goldberg Concurrence invokes the 9th Amendment to say that concept of liberty protects personal rights that are fundamental.‖ Should the Court or the legislature be making decisions like this? Under our constitution. by adding more to those first 8 amendments than they apparently contain. and is not confined to the specific terms of the Bill of Rights. Black had said repeatedly. the case has not been followed by subsequent cases and is heavily criticized. Expands on Griswold by granting a right to sex to unmarried individuals as well as establishing the right of control over reproductive choices as a fundamental right. Douglas slipped away. We are asked to hold that it violates the Constitution.  White Concurrence argues that this case does not even meet a rational basis test and finds the answer to this case in word “liberty” in the 14th. Raises a big question: did the Constitution replace everything that came before it. Eisenstadt v. Black argues that the 9th Amendment argument opens the door for the Court to strike down any law it wants.  Black Dissent (and Stewart Dissent) Government has a right to invade privacy unless prohibited by some specific constitutional provision.Constitutional Law Page 18 of 122 Relationship to the Incorporation Debate  Douglas has committed himself (along with dissenting Justice Black) to saying that there is nothing in the 14th Amendment except the first 8 amendments. that the 14th Amendment incorporates the first 8 amendments. Although it makes little sense. Argues that the Court is following Lochner. Word ―liberty‖ includes a freedom from all substantial arbitrary impositions and purposeless restraints. It also does not achieve the goal of avoiding substantive DP because the Bill of Rights applies to the states via the Fourteenth Amendment and hence the penumbral approach is ultimately a DP one. Court can only strike laws down if they violate the constitution. or even asinine. The Court found that MA had violated EP by discriminating against unmarried individuals. Baird (1972) Declared a Massachusetts law that forbade distributing contraception to unmarried individuals unconstitutional.‖ 14th Amendment is broader than the specific provisions of the Bill of Rights. leaving all rights that it does not explicitly contradict.  Harlan Concurrence states that the proper constitutional inquiry is whether Connecticut statute infringes the DP Clause of the 14th Amendment because the enactment violates basic values ―implicit in the concept of ordered liberty. So he has to look at the Bill of Rights itself to decide the case. or does it build on what came before it. Because Douglas avoided substantive DP. White says that the statute does not work for its purpose—if aim is to stop adultery. . law forbidding married people from using contraception is inappropriate.

etc. Can’t think that deterrence means 100% deterrence – without contraception there will still be sex but there probably will be less sex. Most of the time although states had fornication laws they only enforced them in statutory rapelike situations. Doe v. 1993) Couldn’t criminally prosecute because they were fornicating. F. unnatural.C. children (Levy). Takes the statute seriously and the goal to reduce sex outside of marriage. the state cannot deny access to contraception (try to figure out that reasoning!). The substantive DP right not to be sterilized. But is deterrence less because than in crime because crime is not natural but sex is natural. Conflicts with Parental Control Why do we allow parents full control over their child’s education but not over contraception. the individual has. the Chief Justice. living together. It made a difference in an AIDS/Herpes situation where someone does not tell the other partner. Although it is legitimate to want to reduce fornication. The holding is important. which probably is not legitimate considering Supreme Court jurisprudence. Right to contraception but no right to sex.Constitutional Law Page 19 of 122 Whatever rights the married person has. MA 1972) Held unconstitutional. 26-year old rule HLS woman has three woman already and is pursuing a clerkship and ready to have voluntary sterilization. THE FUNDAMENTAL RIGHT TO PROCREATE . In Valerie N. Roe (D. Steriliziation CA passed statute that no one could be sterilized unless they personally consented. If the state really had an interest in preventing fornication. The sentence is not that great and having a child is greater punishment (MA didn’t intend the child to be the punishment). Stevens’ explanation in a separate opinion in Carey is that a reason for requiring. Suppose you are a Jehovah’s Witness and do not want your child to be vaccinated for school. Couldn’t do it by the 120 rule (age x number of children). you will still need to have a vaccination. we are going to run into the fact that even when you have a fundamental DP right. Curiously. Powell and Rehnquist were not present – Brennan received four votes. Marriage used to be the place for sex with a low risk of children if desired (Griswold and extended to singles via Eisenstadt). Anthony v. but so too are the reasons that Massachusetts put forward for its statute.D. Worcester Hospital (D. the fundamental rights are not absolute. sharing property (considered prostitution at first and no longer under Marvin. wrote a dissent discussing things that are natural v. the punishment would be much stronger for the fornication rather than helping along the act (distributing contraception). and the cases only address the legal side. A single person has the right to decide whether to bear or beget a child – the holding is that a single person has the right to access for contraception. (1985) when parents wanted a retarded daughter to be sterilized the CA Supreme Court approved of it. economic factors make a huge difference in these decisions.? What is the parent does not want sex education in the schools? Do we ask what the child wants? If the student can decide to get contraception shouldn’t he be allowed to determine if he wants sex education? Even if parents have a DP right to direct upbringing of their children. No marriage anymore. This case is bigger than Griswold in making zones of privacy as that case dealt with married couples’ right to sex only. Rose Bird.

A Texas abortion law that only under the purpose of saving a life of the mother can one have an abortion. Bell (1927) Initially the Court rejected the position that the right to procreate was fundamental by upholding the ability of the government to involuntarily sterilize the mentally retarded. It is not absolute – the woman does not have the choice up until the moment of birth. Blackmun holds that the right to an abortion is a fundamental right as the right to privacy is a fundamental right under Griswold and are extending it here. no regulation and left to medical judgment because abortion is safer than childbirth at this time and are therefore making it even safer. but instead as part of the liberty protected under DP. in the penumbra of the Bill of Rights. The court rejected an OK statute allowing courts to order sterilization of those convicted of two or more crimes involving moral turpitude. Not protecting a person here. Douglas finds an equal protection argument that both or neither should be sterilized. The lawyer for Carrie Bell knew that she was not retarded. The individual interest in a distressful life and future. A set up case. Fetus is not a person. Regulation after viability which is in the third semester (much medical terminology – could be independent life outside the womb with or without artificial means). huge question that the Supreme Court will decide at some point perhaps in partial birth abortion decisions is what is health). Wade (1973) The structure of 14th Amendment decisions is that you have a DP right to determine whether to beget a child or not but that right is trumped in the third semester by the state’s interest in preserving life. Fetus not a person under the Fourteenth Amendment (when life begins is a different question). Comes up with the three trimester model. Embezzlement = working and entrusted with the goods (more a white collar crime). the state can regulate in ways relative to maternal health. . Oklahoma (1942) Marriage and procreation are fundamental for the very existence for the survival of the race. Larceny = entering the property to take the stuff. as Douglas did in Griswold. forbid abortion except for preservation of the life or health of the mother (TX statute only referred to life. Did Holmes know that she was not retarded Skinner v. Up until this moment there as movement on the right of privacy and contraception front. G. Also a DP argument that could have been brought up that people have a right not to be sterilized. Douglas was always good at throwing in language that could be used for future generation. Citing Jacobsen. The Fundamental Right to Abortion Roe v. Only under compelling state interests can the state infringe upon that right.Constitutional Law Page 20 of 122 Buck v. The court did not find privacy. Cannot show that it is discrimination through the links – larceny = poor people. In the first trimester. but potential life and the state’s legitimate interest in protecting it as well as the health of the mother and maintaining certain medical standards along with a disposition against fornication. Use strict scrutiny because the right to abortion is fundamental. The embezzlers weren’t going to get sterilized. 521. After viability the state can. Blackmun finds the fundamental right from something that is serious not only to this particular woman but to women in this position in general. In the second trimester. only the larcenists. but is not required to. it must be balanced and qualified against important state interests. The Situation at the Time Field thinks the methodology is clearly laid out in the bottom of p. This case has the language that says sterilization is a DP right.

It seemed that abortion would not fit into this mold – for example. Blackmun determines that the right to privacy includes the right to decide to have an abortion.Constitutional Law Page 21 of 122 What it looked like it was going to develop into was that the government had no right to intervene when there was two consenting adults with no tangible harm. These regulations were held one after another unconstitutional as they were not bona fide regulations but rather to burden the woman getting an abortion and discourage her from doing so. What if the legislature required a state of viability? Could it force it and/or redefine the lines of the presumption of viability? Medical community has unequivocally stated that it cannot keep a baby alive much earlier. Individuals want interest in potential life to begin at birth. Problems with this framework: 1) State may have interest in potential life from Day 1 (Blackmun says that the woman’s interest trumps it at this point). What if we held that the fetus was a person? Citizenship? EP? FAS The writers didn’t mean for this to be included in the Fourteenth Amendment. viability is moved two weeks earlier. Also. The detriment that the state would impose on the woman. Casey moved viability forward a bit and Webster. So for the first two weeks you are pregnant you really are not and hence have only 11 weeks in the first trimester. 5) Some argue that this is not constitutional law at all. found ways around viability. 3) Things done in early trimesters can affect maternal health and viability in later trimesters. NY was offering abortion on demand open to residents of other states. Essentially became regulated abortion. Not treated as an equal under the Fourteenth Amendment. Under Casey. Second trimester abortion are people who didn’t know they were pregnant. Also may not know you are pregnant until the second trimester. Many people think Burger voted with the majority because he would have gotten to assign who writes the opinion and if not the senior justice would assign it to himself and Douglas would have assigned it to himself. Rich folks going to Puerto Rico and Mexico. 2) Viability could occur later or earlier than the start of the third trimester. 5) Prohibiting abortion which applies exclusively to women should be declared unconstitutional as gender discrimination under EP. rather it is the end of your last period. then does it have an interest in maternal alcoholism in the first trimester when the effects are not until after birth when the state has a viability interest? Field thinks that these systems are not the same. if it did things would get all mixed up. Field doesn’t think this opinion is as bad as everyone says that it is. What won Blackmun over was the plight of the women before him. although still on a trimester system. Note though that person under the Fourteenth Amendment did not include women nor did it intend liberty to extend to abortion. Could not require seatbelts or motorcycle helmets or regulate consensual sex between adults. Third trimester abortions are . 4) When you go to the doctor to determine date of conception but that is not considered the beginning. Many states created all sorts of ―health‖ regulations to make it harder to have an abortion like informed consents and double physician approval. are eliminating the husband’s right to know. Burger thought Blackmun would never gotten around to writing it. States were liberalizing it a little bit and many considered health or life of the mother as an exception but the health of the mother was broadened to include things like mental distress. If state has no interest in the first trimester.

What if the government paid for high school teen mothers to have norplant with a stipend on top of it and regular check ups? Concerns about the state promoting abortion and contraception. Reporting of abortion information allowed because of medical knowledge. Does not require spousal notification (but men do not have to notify of vasectomy). Roe (1977) CT regulation that did not give health care coverage for elective abortion but did for childbirth.Constitutional Law Page 22 of 122 life changes or receiving amnio late and get the results in the third trimester. The big attack on American Laws is that we go for abortion on demand via Roe v. Requiring a 24 hour rule not deemed an undue burden even though some women would need to make substantial trips. but rather the state always has an interest but it is just tempered by women’s rights. Regulations do come in the second trimester. O’Connor seems to think that women have to go begging to their husband. Rehnquist and Scalia. but wouldn’t be related to her making an informed decision. We don’t have to give a reason. For minors. Blackmun and Stevens (2) Concurrence would have reaffirmed the trimester distinctions and the use of strict scrutiny. which Field thinks is important to our system. What about notification after the abortion? Would be less of a burden. have judicial bypass or parental consent. Would give him knowledge about what his marriage was all about. Consider Mayer. Thus. Unequal treatment of childbirth and . Field thinks that provisions allowing abortions for fetal deformity are unconstitutional. Claims to have stayed with core of Roe v. O’Connor. Wade making it constitutional and subject to Casey regulations. Kennedy. plus White and Thomas stated that Roe should be overruled. but it is not really this way (but are then asking people to lie which is a burden). the plurality said that government regulation of abortions prior to viability should be allowed unless there is an undue burden on access to abortion. Wade (women have a choice about whether to terminate a pregnancy for their own reasons). Many European countries take quite a different approach in which there is a short period to receive an abortion and after that have to receive permission with specified allowable reasons. Souter (3) overruled the trimester distinctions used in Roe and also the use of strict scrutiny for evaluating government regulations of abortions. Funding Restrictions Permitted Maher v. Planned Parenthood (1992) Eradicates the trimester system. Oddly enough the Court reconsidered Roe even though the law before the court did not prohibit abortions. Casey v. Extra health regulations make it much more expensive to have an abortion in the second trimester. Start using the word liberty rather than privacy. No undue burden on the woman seeking the abortion for the purpose or effect of a substantial obstacle. Perhaps are trying to move it closer to the Constitutional language. With specified reasons. Rather. Moved line up two weeks for viability – line is viability not trimester. they would have struck down all elements of the Pennsylvania law. these are reasons that Congress thinks are important but there are also extremely important reasons.

Danforth Court declared unconstitutional a state law that required a husband’s written consent before a married woman could received an abortion unless a physician certified that the abortion was necessary to protect a woman’s life. Field thinks the clincher here is that they are spending money to discriminate against abortion than to fund childbirth – funding argument doesn’t work because abortions are cheaper than childbirth. Baird Struck down a similar law that also allowed an abortion if the cort authorized the abortion for good cause. Sullivan (1991) Upholds law stating that governmentally funded clinics cannot say the word ―abortion. Don’t want people relying on abortion as a means of contraception – background fear to forbidding public funding of abortion.‖ When spending money can do what the government wants. Bellotti v. Just because it cannot prohibit abortion does not mean that the government cannot encourage a certain option. The Court upheld a state law establishing that even if the woman is paying for the abortion herself. but only if it created a bypass procedure where a minor could obtain an abortion by persuading a judge that it would be in her best interests or that she is mature enough to decide for herself. Woman has at least the same range of choices as if the government did not fund any health care costs. What if the government paid people not to vote? Are these rights different from each other – impact on society and/or impact on democracy? Wouldn’t do this for first amendment rights. Government can choose how to spend its limited resources. What about equality for men? Are we going to move into notifying the boyfriend and the one night stand? . Parental Notification Allowed if Judicial Bypass Planned Parenthood of Central Missouri v. Spousal Notification Not Permitted Planned Parenthood of Central Missouri v. The Court said that this law was indistinguishable from earlier cases allowing the government to deny funding of abortions. one spouse’s view has to prevail. Danforth Court invalidated a state law that prevented an unmarried woman under age 18 from receiving an abortion unless her parents consented or a physician certified that the abortion was necessary to protect the woman’s life. A feeling on the part of the US government that they do not want a single penny of tax money to go to any type of abortion. Free abortions means a lot of them.Constitutional Law Page 23 of 122 abortion does not interfere with fundamental right in Roe. Reproductive Health Services (1989) One step further than Harris. Court found that this did not place an obstacle in the pregnant woman’s choice to have an abortion – although indigency may make it difficult but is neither created or in any way affected by the CT regulation. public employees and facilities could not be used to perform or assist the performance of abortions except where necessary to save the mother’s life. McCray (1980) Regulation would not give health care coverage for a medically necessary abortion – still the state can spend money where it wants to. Harris v. Webster v. This case fits in with Casey and the language about substantial obstacles. Russ v. Even though a husband may have a strong opinion. if there is a difference. A state could require parental consent for unmarried minors’ abortions.

e an exception for the life and health of the mother). NOT PROTECTED AS PART OF FAMILY LIFE OR HINTS OF PROTECTION FOR SEX/CONTRACEPTION BECAUSE THE COURT ADOPTS A MORE NARROW VIEW LOOKING AT JUST AT HOMOSEXUALS AND SODOMY AND FINDS NO LINK TO THE FAMILY. The law lacked any exception for the life of the mother and also imposes an undue burden on a woman’s ability to choose the type of abortion. COURT HAD HELD THAT SINGLE PEOPLE HAD A RIGHT TO CONTRACEPTION ALTHOUGH UNCLEAR WHAT THEY COULD DO WITH IT ALONG WITH ABORTION RIGHTS . not to make abortion criminal for the woman or the doctor. it is in a fluid state and could expand beyond abortion and contraception. O’Connor’s concurrence clearly signaled that she would be much more likely to uphold a narrower partial birth abortion ban (i. FUNDAMENTAL RIGHT TO CONSENSUAL SEXUAL ACTIVITY AMONG CONSENTING ADULTS (FOR HETEROSEXUAL AND HOMOSEXUAL) BOWERS V. THE COURT ONLY APPLIES ITS RULING TO HOMOSEXUAL SODOMY AND DO NOT EXPRESS ANY OPINION ON HETEROSEXUAL SODOMY. BEGINS WITH A COURT CREATED DISCRIMINATION SITUATION. Can have some regulations that are not undue burdens. HARDWICK OUTLAWED HETEROSEXUAL AND HOMOSEXUAL SODOMY (NOTE THAT THE DEFINITION OF SODOMY VARIES). Carhart (2000) Majority held that a partial birth abortion ban was an impermissible undue burden on a woman’s right to abortion.Constitutional Law Page 24 of 122 Stenber v. The real core of all of this is the right. THERE ARE OTHER SEXUAL CRIMES THAT ARE COMMITTED IN THE HOME AND THE COURT DOES NOT WANT TO OPEN UP ANOTHER FLOOD GATE OF GAY MARRIAGE.\ . The state funds amnio but does not fund abortion. When does life begin? Blackmun avoids the question. ARRESTED IN THE PRIVATE HOME. ETC. THUS. A CASE CAME UP THROUGH MI OF A WIFE TRYING TO GET HUSBAND PROSECUTED FOR IT AND DENIED CERT – DIDN’T WANT TO TOUCH HUSBAND AND WIFE RELATIONS. Field thinks this is discrimination against handicapped people. WHITE SAYS THAT IT IS ENOUGH RB THAT IT IS BASED ON MORALITY AS THERE ARE MANY LAWS BASED ON MORALITY AND FINDING IT INADEQUATE WOULD INVOLVE STRIKING DOWN MANY LAWS. thereby unduly burdening the right to choose abortion itself. Does making it discrimination make it a person? Couldn’t give more time to abort a female because viability determined later? What about discrimination against the mother and women as a whole? Also discrimination to the whole population of handicapped persons. Some argue that the states should be left open to decide the abortion question because many people differ on this issue. the states can have anything they want unless it is unconstitutional – basic constitutional law. up until the time of viability. Note that there is a movement to allow abortion of a handicapped child to be one of the exceptions in the third trimester. AND PROCREATION. H. MARRIAGE.WANTED AN EXTENSION OF THE RIGHT OF PRIVACY TO ENCOMPASS ANY CONSENSUAL SEXUAL ACT BY ADULTS IN THE HOME. If reasonable people could disagree about something . Even though the Supreme Court does not want to churn out new areas of the right to privacy.

O’Connor Concurrence wanted to go on EP (and that way don’t have to overturn Bowers). Very hard to strike down these types of cases (refer to Criminal Procedure class). A YEAR EARLIER HE HAD COME UP OUT AGAINST DISCRIMINATION OF MENTALLY CHALLENGED PEOPLE EVEN THOUGH HE FOUND THAT THEY WERE ONLY SUBJECT TO MINIMAL SCRUTINY AS RETARDED PEOPLE WERE A POWERFUL POLITICAL FORCE. Scalia’s stare decisis argument is odd – where is the reliance interest? Granted. Will likely only enforce against homosexuals. homosexuals are not a protected class under EP. I. The Right to Refuse Treatment Generally there is a constitutional right of individuals to refuse medical treatment but it certainly is not absolute and can be regulated by the state. Asked for some sort of rehab instead of just a food and bed and being chained. Moreover. Texas (2003) Private. Plus. Whalen NY law that required patients to be recorded by the state when getting certain types of prescriptions . The Court used a rational basis test to find that a Colorado initiative repealing laws protecting LGBT from discrimination and precluding new laws to achieve this goal. There are obviously some limits (like S&M and an infliction of harm). the state is under no constitutional duty to provide substantive services.Constitutional Law Page 25 of 122 FIELD DID NOT TEACH THE CASE IN THE PAST AS A DP CASE BECAUSE IT SEEMS LIKE AN EP CASE – CAN DISCRIMINATE AGAINST HOMOSEXUALS ALL YOU WANT TO. Involuntarily committed retarded man had interest in safety from undue restraint. violated equal protection. Romeo (1982) As a general matter. intimate sexual conduct between two consenting adults is protected. reasonably nonrestrictive confinement conditions. dream on. so then it would open things up for allowing a law that banned sodomy for both groups. Although a FL case upheld an anti-gay adoption case. The problem would be that the TX law focused on homosexuals. when a person is institutionalized and wholly dependent on the state a duty to provide certain services and care does exists although even then a State has considerable discretion in determining the nature and scope of its responsibilities. Note that this does not necessarily apply to the military and prisons. Romer v. and such training as may be required by these interests. Lawrence v. Evans (1996) A much more pro-gay opinion written by Kennedy. Didn’t tell us about Bowers. Patients enjoy constitutionally protected interests in conditions of reasonable care and safety. And after that everyone knew Bowers would be overturned. The gay marriage case was decided before this so there should be some ripple effects. She thinks that a neutral law would not stand. CONSTITUTIONAL PROTECTION FOR MEDICAL CARE DECISIONS A Right to Medical Care Youngburg v. it will stand and only be enforced against homosexuals. why refuse to decide the issue when it basically discriminated against homosexuals. which works well for retarded people but not the mentally ill. however. To make it reasonable meant more expense and the states have moved them out into the community. might appear as if the Court is responding to political pressure. INTERESTINGLY.

there is not exercise of the right. maybe they can’t. but it does not follow that they are automatically approved to do so. . When this case was coming up Field was worried that the Supreme Court would overlook the latter and there would be less protections for all of us in that type of situation. that someone can make the decision for them. 2) It did not use the label fundamental to describe the right suggesting a lower level of scrutiny than HS is appropriate. the right to die and substituted judgment.Constitutional Law Page 26 of 122 Cruzan v. 3) Did not resolve what is sufficient to constitute clear and convincing proof of a person’s desire to terminate treatment. there was nothing except for refusing medical treatment although had a hard time applying to pregnant women and mothers (who would take care of the children? Did not apply to fathers). does not mean that if the individuals are incompetent. Eight justices held that there is a right to refuse treatment under the liberty of the DP clause and five expressly said this includes a right to refuse food and water to bring about death. Before Cruzan. Implied a written living will would be enough. And a state may prevent family members from terminating treatment for another. Perhaps a non-terminally ill person in extreme pain has more need than those who have a short time left (of course the downward spiral could be terrible as well in the final months if terminally ill)?If it is hard to draw a line with all these regulations. a CL right. that if ruled incompetent and no substituted judgment. Just because there is a Constitutional right that individuals have. Right to refuse medical treatment. 4) Does not address the situation where a competent person designates a guardian to make the decision concerning terminating life saving treatment. What if someone is paralyzed and cannot administer the medication themselves? Make an EP argument. The line right now allows a substantive due process right to a right to refuse treatment and the right to withdraw life sustaining equipment. Field thinks that we should allow the Congress to determine these situations just like they draw semi-pointless lines like taxes. Missouri Supreme Court came back saying that there was not clear and convincing evidence of her wishes to have that done. Parenting Conflicts Is it odd that a mother can abort a child but cannot decide how a mentally retarded person will marry or if she is sterilized? Isn’t abortion of a mentally retarded child saying that it is substituted judgment that the child would rather be dead – allowed for a while to kill down syndrome baby after birth Baby Doe. Supreme Court finds that the woman had the liberty to do that. Forced cesarean or forced blood transfusion? Forcing brain dead woman to stay on life support until baby is born? These would probably be overruled after Cruzan. Director. A state may require clear and convincing evidence that a person wanted treatment terminated because of the state’s important interest in protecting life. Missouri Department of Health (1990) Parents wanted to remove tubal feeding. There are two issues here. What if equally retarded later in life? Are medical costs a factor? . Note. Supreme Court then replied that the scheme was permitted to require clear and convincing evidence to allow anyone to exercise the decision for the person in the vegetative state. is a substantive DP right of the individual in Cruzan Remaining Questions: 1) It did not articulate a level of scrutiny to be used in evaluating government regulation of personal decisions concerning medical treatment. Maybe they can.

Therefore. it need only meet a RB test. The court did not reject the possibility that the right to privacy might be recognized in the future to include a right to control information. Liberty v. Roe (1977) A NY law that required physicians to provide reports identifying patients receiving prescription drugs that have a potential for abuse. Glucksberg (1997) and Vacco v. The state maintained a central database of this information. 2) Five justices in concurring opinions left open the possibility that laws prohibiting physician-assisted suicide might be declared unconstitutional as applied in specific cases. The Court rejected a privacy argument noting that the law created liability for Health Department employees who failed. Moreover the law did not discriminate against anyone. The switch to liberty is better than privacy as it has more to do with personal choice. Quill (1997) Rejected facial challenges to state laws prohibiting aiding a suicide and the claim that there is a constitutional right to physician-assisted suicide. These cases left open some doors for physician assisted suicide: 1) States may enact statutes protecting such a right. can you cut that off? It is included in treatment that you can withdraw. The state has an important interest in monitoring the use of prescription drugs that might be abused.Constitutional Law Page 27 of 122 Why did courts distinguish between the two for so long? Life sustaining treatment is usually complicated and has to be completed by the doctor and the doctor is supposed to be keeping you alive. Disclosure to doctors and medical personnel is an important part of modern medical practice and should be extended to the state which has a strong interest in the health of the community. It does not discriminate against a suspect class nor violate a fundamental right. Therefore. Whalen v. . a law on this matter need only meet the RB test. In Glucksberg. What if it is only food and hydration. Constitutional Protection for Control Over Information. And yet with the regulations they are talking about here it seems like a very restricted right to choose. Rehnquist noted that a right is protected as fundamental under the DP clause only when supported by history or tradition and here it has long been a crime despite advances in medical technology. Physician-Assisted Suicide Washington v. Legitimate interests in preserving life and the integrity of the medical profession. Perhaps states can experiment with what they want to do. We are in the position of abortion. The court further noted the major difference between refusing treatment and actively assisting in death. In some cases they have required the person to do home to die as a hospital is supposed to keep you alive. Ashcroft suit to not only rule that assisted suicide is not a constitutional right but not at all permissible was thrown out. 3) Is this an important aspect of personhood and autonomy or is it a matter appropriately left for the political process as the Supreme Court deemed? J. In Quill. Privacy A basic aspect of privacy is the ability of people to control information about themselves. Rehnquist explained that there was no EP violation from a ban on physician-assisted suicide. Pointed to elder abuse cases in the Netherlands. to maintain proper security. With both we are talking about the right to choose in private matters. deliberately or negligently.

widespread discrimination against former slaves led to the passage of the 14th Amendment: ―No state shall…deny to any person within its jurisdiction the EP of the laws. The Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial or fender classification. Fundamental Right to Vote and to Access to the Courts Under DP and EP . Under this model. Brown v. the Supreme Court has relied on the EP clause as a key provision for combating invidious discrimination and for safeguarding fundamental rights. 2. One is where the classification exists on the face of the law. However.Constitutional Law Page 28 of 122 Personal Appearance Kelley v. Analysis Theory of EP is that you don’t have to have the right but if you do you need to give it to everyone. Equal Protection A.. in a companion case to Brown the Court held that EP applies to the federal government through the DP clause of the Fifth Amendment. If a law is facially neutral.see below. After the Civil War. Fundamental Rights Protection Under EP Sometimes EP is used if the government discriminates against people for exercising a fundamental right. B. Constitutional Sources The Constitution originally had to EP provision. Sometimes laws are facially neutral but there is a discriminatory impact to the law or discriminatory effects from its administration. if Dayton OH passed a law saying that all residents had to cut hair above the ears because it was economically better as more companies would want to be in this type of city. K. III. Board of Education (1954) ushered in the modern era of EP. What is the classification? There are two basic ways of establishing a classification. demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law. where the law in its very terms draws a distinction among people based on a particular characteristic. 1. Since Brown. that is. Johnson Hair case Not heightened scrutiny for matters of personal appearance as they were not personal liberties. What is the appropriate level of scrutiny? . Holmes referred to it as the last resort of Constitutional arguments.‖ The promise of this provision went unrealized for almost a century as the Supreme Court rarely found any state or local action to violate EP until the mid-1950s. would pass. So have to either show that the classification exists on the face of the law or that a facially neutral law has a discriminatory impact and a discriminatory purpose. Note that there is no provision which says that the federal government cannot deny EP of the laws.

Under strict scrutiny a law is upheld if it is proved necessary to achieve a compelling government purpose. The means chosen only need be a rationally way to accomplish the end. The Supreme Court often evaluates over and under inclusiveness. Being this way. Note. but just something that the government legitimately may do. Under RB review. in fact the court has recognized that perhaps the government wants to proceed one step at a time (Williams v. RB is saying that it is enough for the legislature to have a possible (not necessarily actual) reason. Title VII of the 1964 Civil Rights Act allows employment discrimination to be established by proof of discriminatory impact and the 1982 Amendments to the Voting Rights Act of 1965 permit proof of discriminatory impact to establish a violation of that law. does not automatically make a law unconstitutional. All laws not falling under strict or intermediate scrutiny end up here (i. however. for IS it must be important.e. generally. Lee Optical). it is used to determine the fit between the government’s actions (means) and the ends – for SS a relatively close fit and the least restrictive alternative. Allegation of racially discriminatory effect leads to a burden shift to the employer. a law will be upheld if it is rationally related to a legitimate government purpose. national origin. For example. alleged racial discrimination with only effect but not purpose). b. The government’s objective need not be compelling or important. For SS the end must be deemed compelling for the law to be upheld. Strict scrutiny is virtually always fatal to the challenged law. allow violations to be proved based on discriminatory impact without evidence of a discriminatory purpose. The government must have a truly significant reason for discriminating and it must show that it cannot achieve its objective through any less discriminatory alternative. 1. Rather. Does the government action meet the level of scrutiny? The Court examines both the ends and the means. Rational Basis is the minimum level of scrutiny. Intermediate Scrutiny is used for discrimination based on gender and for discrimination against nonmarital children. 4. gender and the marital status of one’s parents warrant heightened scrutiny because it is unfair to penalize a person for characteristics that the . though. the Court need not find the government’s purpose compelling but it must characterize the objective as important. In other cases. that civil rights statutes can. 3. and often do. Is it government action? How does the Court choose the correct standard of review? 1) The court has emphasized that immutable characteristics like race. Strict Scrutiny Discrimination based on race or national origin is subjected to strict scrutiny as well as aliens. The challenger has the burden of proof under RB review and it is enormously deferential to the government and only rarely have laws been declared unconstitutional for failing to meet this test. Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose. c.Constitutional Law Page 29 of 122 a. The government has the burden of proof under strict scrutiny and the law will be upheld only if the government persuades the court that it is necessary to achieve a compelling purpose. and for RB there must be a legitimate purpose.

Constitutional Law Page 30 of 122 person did not choose and that the individual cannot change. 2) The court also considers the ability of the group to protect itself via the political process. Women, for example, are more than half the population but traditionally have been severely underrepresented in political offices. Aliens do not have the ability to vote, and thus the political process cannot be trusted to represent their interests. 3) The history of discrimination against the group is also relevant and relatedly, the likelihood that the classification reflects prejudice as opposed to a permissible government interest. For example, the Court uses SS for racial classification because judgment based on race is virtually never an acceptable justification, whereas, intermediate scrutiny is used for gender classifications because biological differences between men and women mean that there are instances where gender might be a justifiable basis. 4) Note that the court has shown little willingness in the past two decades to add more categories to intermediate and strict scrutiny.

Marshal and Stevens criticize the rigid application of these standards of review and argue that there should be a sliding scale rather than the three levels. Moreover, they argue that the Court should consider factors like the constitutional and social importance of the interests adversely affected and the invidiousness of the basis on which the classifications are drawn – a more well rounded approach. Some feel that some form of a sliding scale already exists as the Court sometimes claims to be using RB but uses it with more bite, etc (i.e. Romer, Cleburne, Moreno). Moreover, under RB review, is it appropriate deference to the legislative process or undue judicial abdication? Since 1937, the Court has deferred to the government’s economic and social regulations unless they infringe on a fundamental right or discriminate against a group that warrants special judicial protection. Filling in our picture of the two different levels of scrutiny. Saw it in due process. If you get a fundamental right, you are in the heightened scrutiny problem in the sense that the court will look hard at the restrictions. In EP, economic and social is still in RB and suspect classifications are in SS (race). Religion mostly falls under 1st Amendment. Classification has to be rationally related to the purpose of the law (as opposed to DP in which we ask if the entire law is rational). Won’t ask if Congress got it right, but if there was anything at all that could have upheld it. Brennan argues that you should take into account the actual purpose. These classifications totally leave out degree. Consider that courts are more principled than legislatures – legislatures comprise and have other factors going into decisions. Civil libertarians try to get more and more into SS. People start to talk more about real reasons. Start to think about actual purpose (Cleuburn and Lawrence for DP) because it is mere rationality but things still get struck down. For example, overruled Morey v. Dowd which Field thought was correct. In Chicago, they had places to go to cash checks and get money orders. Some were not very high class. Had a rule that you couldn’t operate this kind of business unless you put down a deposit of a certain amount of money in case the orders turned out to be fake there would be a means for recovery. Exception for American Express because it was a clearly established company. Field thought it should have said except or companies that could show x. The whole purpose of EP is that you have to operate in broad categories. Shouldn’t be a closed one – some of the businesses may be able to move up into it.

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Note that there are many different reasons that legislators approve a law so it can be hard to determine the actual purpose. Field though discrete means visible (v. gender and some races). Insular means integrated. There are folks who think this shouldn’t be the litmus for getting a suspect class (i.e. doesn’t work for sexual orientation).

C. Rational Basis Test
At minimum, the government has a legitimate purpose if it advances a traditional police purpose: protecting safety, public health, or public morals. Note that these are not the confines of permissible government objectives, nearly any goal that is not forbidden by the constitution will meet the RB test. Railway Express Agency v. New York (1949) An example of a case where a law was found constitutional for promoting public safety. NY regulation that prohibited advertising on trucks unless the ad related to the business of the truck. Court gave two rationales: when someone sells advertising it is more likely that the advertising will be more outlandish and. Deny of EP claim that some people can advertise and others can’t and there are many other distracting things. Douglas’ answer is that you don’t need to eradicate all evils at once and they are different categories so the legislature can determine a piece meal approach. Deference to the legislature. EP not exercising much of a restraint. Armchair science – what are reasons that the legislature could have come up with and if he can say them with a straight face then it passes. Field thinks Jackson’s opinion is one of the best descriptions of EP – protection for everyone so that the big guys don’t get everything. Williamson v. Lee Optical (1949) An example of public health as a legitimate basis. The law seemed to have a clearly protectionist purpose: helping optometrists and opthalmologists at the expense of opticians, however, Douglas held that law potentially advanced public health. Romer v. Evans (1996) There are situations when moral justifications are not legitimate. There was no legitimate purpose in singling out a particular group and prohibiting it from using the political process. It was born of animosity towards the group affected. Scalia’s Dissent argued that it was a permissible moral judgment by the Colorado voters to preserve traditional sexual mores. New Orleans v. Dukes (1976) Upheld an ordinance that banned all pushcart food vendors in the French Quarter except those who had continuously operate there for eight years or more. The Court found a permissible purpose in maintaining the charm of the historic village and might impact the economy and the younger businesses had less reliance in continued operation. A desire to harm a politically unpopular group is not permissible. US Dept. of Agriculture v. Moreno (1996) Federal law that excluded participation in a food stamp program from any household containing an individual who is unrelated to any other member of the household. The express congressional purpose of discriminating against hippies could not constitute a legitimate

Constitutional Law Page 32 of 122 purpose. Goals to raise nutrition levels and increase agriculture industry – this had nothing to do with the law. Probably could have come up with a possible justifiable reason. Talk in RB but sneak in heightened scrutiny. A conceivable purpose is enough US Railroad Retirement Board v. Fritz (1980) Upheld a federal law designed to prevent retired RR workers from receiving benefits under both the SS system and the railroad retirement system. The law did allow those who were already retired and receiving dual benefits continue to do so but those were still working had to have been working for 25 years; thus, someone who had worked for the RR for ten years and retired received dual benefits but someone still working in his 24th year could not. The Court stated that it is constitutionally irrelevant whether this reasoning actually underlies the legislative decision and is particularly true when the legislature is necessarily engaging in line drawing. Here, Congress could have thought that those with 25 years of service could have a stronger equitable claim to those benefits. The dissent argued that the law could only be rationally related to the achievement of an actual legitimate government purpose. Requirement of a Reasonable Relationship – the court must decide whether the classifications are reasonable in light of its purpose. The Court is deferential, thus, the law will be upheld unless the government’s action is clearly wrong, a display of arbitrary power and not an exercise of judgment. As a result, under and over inclusive laws are allowed. Even substantial underinclusiveness is allowed because the government may want to take one step at a time. (i.e. Railway Express). Also, substantial overinclusiveness is tolerated under rational basis review. New York Transit v. Beazer (1979) The Supreme Court upheld a city’s regulation that prevented those in methadone maintenance programs from holding positions with the Transit Authority. The vas majority of those in methadone programs posed no safety risk. The Supreme Court upheld the law under RB finding that an alternative rule is likely to be less precise and would be more costly than the total ban on those using drugs. Note, as well, that this case was under and over inclusive since it excluded people who posed no safety risk and allowed employment of others who would be a safety threat. Cases where laws are deemed arbitrary and unreasonable (more bite) City of Cleburne v. Cleburne Living Center (1985) a little town in TX is not allowed to permit group homes for all kinds of groups except the feeble minded. A denial of EP. Field likes to think about the town that comes around next arguing that they don’t like any sort of group home and prohibit them all. Is there anything that the retarded people that want to live in a community are able to do? A substantive DP argument without EP – fundamental right to live in a community. Not on our list of fundamental rights because we all assume it. The court found that the listed reasons (property owners would not like and local junior high students would taunt them) were either not legitimate purposes or that there was a more reasonable way of accomplishing these goals. Note that being mentally ill is more temporary than being retarded. When arguments are so bad perhaps it suggests that it is invidious? Can’t use property value would go down argument (consumer preference, like stewardess arguments, are not permissible). White argues that mentally retarded individuals are not suspect because such a diverse group, thus the legislature should handle and define. A flood of other classes could come in.

and race is an immutable trait. but not by race. Gentle paternalism with mentally retarded as opposed to other groups. Constant theme of immigration for work leads to resentment leads to restrictions . Thompson Segregated pools in Mississippi. 2. D. Strauder v. holding that the Fourteenth Amendment was designed to give blacks enjoyment of all the civil rights enjoyed by white persons. a. Interestingly. White also notes that there are benign programs (special education) and it may be hard to distinguish them. Japanese Internment Asian-Americans played an important role in Constitutional law. or even gender. the mother never got the child back as the FL courts just made up another reason. West Virginia (1879) Struck down a law limiting jury service to white males over the age of 21 who were citizens of the state. Palmer v. Classifications Based on Race and National Origin 1. Facially Discriminatory Laws Laws that expressly impose a burden on people because of their race or national origin. Used to say that mentally retarded people couldn’t parent a child. This rule discriminates against black men. age.‖ Court found unconstitutional because although prejudice cannot be ended by the courts the courts should not tolerate it. Now it turns over from education to everything else. Initially the Court recognized that the primary purpose of the 14th Amendment was only to protect blacks. Sidoti (1984) Mother received custody after divorce.Constitutional Law Page 33 of 122 Field says that perhaps the diversity could cut the other way – go by characteristics to define the group. Intellectual stimulation of a child requirement only applied to them when many parents babysit with the TV. Any government action that uses race as a basis for a burden or disadvantage is a classification of this type. It is clearly established that racial classifications will be allowed only if the government can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling government purpose – must be extremely important reason for its action and it must demonstrate that the goals cannot be achieved through any less discriminatory alternative. the white biological father was granted custody ―in the best interests of the child. because these groups tend to be less politically powerful. This law expressly singled out and disadvantaged blacks. It is unconstitutional on its face. Palmore v. State can restrict based on education. Instead of integrating they close them. When she remarried a black man. Allowed because not an essential function of government and there were other reasons besides segregation. The reason for strict scrutiny is that because of the long history of racial discrimination makes it very likely that racial classifications will be based on stereotypes and prejudices.

Constitutional Law Page 34 of 122 The first immigration laws with racial bars has to do with Asian-Americans. Pearl Harbor is bombed. Worries because the same people set up these camps as set up reservations. the FBI arrested 2000 aliens under the ABC list. Japanese then come and this leads to the Gentlemen’s Agreement in 1907 with Japan. relocation even though everyone was already relocated. Average stay was 900 days. Page Act of 1875 had to deal with Asian female prostitutes. Also . Anyone who was a leader in the Japanese American community was arrested. Thind (1923) says that Asian Indians are Caucasians. White agricultural community urging to kick Japanese out. No more notion of family life and parental control diminish. Military leader DeWitt recommends evacuation and FDR in generically worded EO 9066 that they give power to the military to evacuate people as they see fit (no mention of race). Ozawa (1922) says that white means Caucasian. Not a single conviction of a JapaneseAmerican for aiding the enemy.S. The court back pedals. meaning kids). added persons of African descent in 1879. Discriminating because good cause. Early form of strict scrutiny. The standard – distinctions between citizens solely because of ancestry are odious. Following that curfew and freeze orders for Japanese and Italians. After the orders we had a decisive victory at Midway meaning that there is no possibility of overtake of the West coast but continue relocation. This is a Catch 22 because of the Nazi treatment going on at the same time – Frankfurter points this out and notations that since the close of the previous century. Application is quite deferential. Chae Chan Ping (1889) the federal government’s power over immigration is very plenary with minimal judicial review. An agreement rather than a treaty. Forced recitation of pledge of allegiance. Procedure was a segmentation strategy. Accepted racial profiling. Decided only to address the curfew issue even though he was arrested for relocation as well. What the Supreme Court did very carefully was to sharply distinguish among curfew. Later Congress gives criminal sanctions in P. evacuation. Seemed impossible for them to assimilate. Chinese Exclusion Act of 1882 dealt with Chinese laborers. Terrace v. 503. The first alien land law in CA (1914) created an international crisis as in Japan there were calls for gunboat diplomacy. Fears of vast hordes. Treats them differently because they have not declared their intent to naturalize (but aren’t even allowed to naturalize). Then there are specific evacuation orders to report to a certain place. when Japanese began coming over in large numbers. 70% were citizens (mostly because they were born here rather than naturalized. First time that a non-white country beats a white country in modern times. Hrabayashi and Yasui (1943) Hirabayashi was a Quaker and committed civil disobedience to avoid internment. that the Japanese have increased solidarity and have not assimilated. Incapable of democratic forms of government and fears that they will destruct civilization on the west coast. District Court has sentenced him to two concurrent sentences. Roosevelt couldn’t push them around. Congressman Ford (CA) urges internment. mostly Japanese. Thompson says that it is not race discrimination but alienage discrimination which is possible as the Congress has made such differences. Indicated that they had everyone. Forced to sign contracts taking low wages. In 1790 naturalization was only allowed for free white persons. Right after wards. Supreme Court Justice Roberts writes a report that there is fifth column support.

Incrementatalism made possible through segmentation .It’s just curfew and we might lose the war in Hirabayashi to won’t talk about indefinite detention but only about evacuation. Evacuation only v. Virginia (1967) Couple convicted for interracial marriage. No relief because of rescinding the regulations. but the Supreme Court goes off on non-delegation grounds and states that all of this was done by a crazy executive agency which was not given powers by Congress or the President (insulates them). What did the Supreme Court do? Made sure they did not interfere with relocation.Constitutional Law Page 35 of 122 rejected the citizen/non citizen distinction holding that in times of war the government should be able to respond to threat if it has a reasonable ground to believe a threat is present. but do avoid constitutional law issue. War is going very well and FDR has been re-elected. race. Did not address civil rights and constitutional law issues. Under strict scrutiny. Can the United States indefinitely detain a concededly loyal American citizen? Obvious answer is no. . Does the court admit that there is discrimination in this sense or argue that it is not discrimination about race. The Supreme court initially upheld such laws on the ground that they did not discrimination as they treated black and whites equally. Judge suspended sentence on terms that they leave Virginia and not return together for twenty-five years. Hollow victory – this opinion leads to a rescinding of the relocation orders before the decision comes down (evidence that Frankfurter tipped off the agency). Racial Classifications that Burden Whites and Minorities For example. Found it violated the EP clause even though it applied equally to both races. Cannot call it a race discrimination case because it is a military case – confused the issue language. Insulated the political branches of any responsibility. b. 2) Ancestry v. Two models of thinking about this case: 1) Sometimes we trump rights with overriding concerns like war. Segmentation of issues. EP is largely semantics – usually can find a way to say that same rule for both. Detention Endo (1944) same day as Korematsu. No way in terms of procedure that the court cannot address relocation. Korematsu (1944) To do more would go beyond the issues raised there will be time enough to decide. Reasoning still says that the ends are justified via military exigency. There is no record and no real District court trial it was loosey-goosey judicial notice. Incremental increase of burden but not one that creates a novel question of fact. This is race discrimination but there is an overriding state interest. the 14th Amendment prohibits racial discrimination and these classifications are based solely on race and have criminal consequences. Was there a better means? Perhaps individualized review? Why treat Germans better? They didn’t actually bomb us and we had concerns about the west coast. In this case the Japanese Americans win. Classic strict scrutiny standard gives birth to the idea that racial classifications are immediately suspect and must satisfy means-end scrutiny. Loving v. passive virtues. Never officially approved of internment either. Impossible to segregate loyal from disloyal. How do they know this? Japanese-American men were drafted from the camps and prosecutions of draft dodgers. miscegenation laws. Government has a rational reason. War Relocation Agency considered a rogue agency.

If civil and political rights are equal. color. but. In several cases between 1938 and 1954 the Court found that states denied EP by failing to provide educational opportunities for blacks that were available to whites. Harlan Dissent is a little better as it notes that the coaches were not completely equal as was meant to exclude blacks from white cars and not so much whites from black cars. Underlying fallacy of the plaintiff’s argument – he should have the rights because he is white. Courts finds that the assumption that the enforced regulation is derogatory towards blacks is incorrect. What if the statute had said that all can marry their own race only? Or a mixed legislature passed it? Probably would have gone into the fundamental right to marry. Ferguson (1896) 7/8 Caucasian and refused to leave his seat on a train. not social or racial separation and moreover. Anderson v. He argues that he should be considered Caucasian (so it doesn’t seem to be a strong civil rights argument). Hunter v. Interestingly. Cumming v. most of these involved legal education. that required laws regulating real estate transactions on the basis of race. the law had separate but equal facilities. Erickson (1969) which declared unconstitutional an ordinance. Board of Education (1899) expressly approved separate but equal in the realm of education. not because he is a human being. adopted via referendum. Civil War Amendments only referred to political equality. In the 1952-1953 term. Laws only affected white-other race marriages and not otherother. religion. Blacks were obviously harmed by creating obstacles to enactment of open housing laws and thus the Court found the ordinance to violate EP. The court found that it was an explicitly racial classification treating racial housing matters differently from other racial and housing matters. Statutes Requiring Segregation Plessy v. asking the parties to brief several questions that primarily focused on the intent of the framers of . national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before the ordinance shall become effective. one group cannot be inferior to the other. finding that the vice lies not in the resulting injury but in the placing of the power of the state behind a racial classification that induces racial prejudice at the polls. c.Constitutional Law Page 36 of 122 but this one has racial overtones. Only one of them can. Brown rules that it is not any more unreasonable than segregated schools. he has similar sentiments that the white race will always be the dominant race. Basically a racial supremacy statute. so it may not have worked. Martin (1964) Struck down a law requiring the listing of the candidates’ race on the ballot. Does say that the Constitution is colorblind. The judges could not agree on a decision and the cases were set for re-argument for the following year. the Supreme Court granted review in five cases that challenged the doctrine of separate but equal in the context of elementary and high school education. Consider EP argument that a white man and a black man wanted to marry a white woman. But this logic also applies to cousins and gays.

Opinion began by explaining that the constitutionality of segregation in education could not be resolved based on the framers’ intent because the sources are inconclusive and there have been many changes in education since that time. Everybody agreed it was havoc and the Board had acted in good faith and other agencies. Don’t care if there are reasons for it. What if new studies came out? Was this case just about education? What about golf courses? Not on the basis of Brown as it only applied to education. Snuck in anti-discrimination under education (which has since been declared not a fundamental right). Even Bork admitted that this is consistent with original intent of the founders. Brown v. Aaron (1958) The Little Rock school system was ordered desegregated but the governor called out the Arkansas National Guard to keep blacks out and black students only were able to attend after Eisenhower used federal troops to protect them. Total havoc and want to put it off. the Governor. It is the birth of stricter scrutiny. the Court focused on the effect of segregation itself on public education – it created an inherent stamp of inferiority on black children and impairs their educational opportunities. AK had not been a party in Brown. Separate is inherently unequal. It is substantive EP because usually in heightened scrutiny cases is announcing a substantive value judgment in addition to making a comparison between the two groups.Constitutional Law Page 37 of 122 the 14th Amendment. there is something fundamentally wrong about it. Board of Education (1954) Could have reasoned that kids will fight or the race relations will distract from learning. Ferguson? Could say that transportation is really important. In some cases. We’ve seen a few different theories. Substantive DP dated from Griwsold. Harlan’s colorblind constitution in Plessy – don’t want a caste. In the area of school segregation this was particularly hard because of the logistics involved and massive resistance. had got in the way. Cooper v. Substantive EP. the remedy is simply invalidating the discriminatory law but in others the Court must go further and fashion and injunction prohibiting the offending conduct. Court finds . The Court did not focus on the obvious inequalities between black and white schools because there are findings that these schools have been or are being equalized. This does not get people moving either. How then did it apply to Plessy v. Field says that Warren shouldn’t have focused on the psychological impact and instead said that we just shouldn’t make these kind of distinctions and that when it is the majority doing it to the minority group it is like saying that we don’t want them around. So their first line of defense was that they did not need to follow it. The real enforcement of integration was 1964-1973 because of the Civil Rights Act. Supreme Court only decides things for parties in front of it. Brown don’t want to discriminate against the minority. Another way to look at it is that it is discriminating against everybody. about ten years after this. Inbetween terms a justice died and was replaced by Earl Warren who convinced the Court to develop a unanimous opinion. Nothing happens for a year until Brown II which argues all deliberate speed and remands cases to lower courts to use traditional equity principles to fashion remedies. thus. The Little Rock school system then asked for a stay on the injunction.

Constitutional rights should not be subjugated to these problems. A school system in rural Virginia adopted a desegregation plan where students could choose which school to attend. Frustration that there had been too much deliberation and not enough speed. More reasonable rules allowed because means are not as important as the end result. no white student was attending a black school and only 15% of blacks were attending white schools. Idea was that where blacks were the majority they could transfer. Keyes v. Allowed moving to another school if you are in the majority. If there are no laws on the books requiring segregation. d. Up to state agencies to diminish the havoc. Board of Education (1963) Invalidated a Knoxville. but in Northern school systems. plaintiffs must prove intentional segregative acts affecting a . The court found it incumbent upon the school board to establish meaningful and immediate progress.Constitutional Law Page 38 of 122 that havoc is not a compelling state interest. It would be better to say if you were a minority. Griffin v. Tennessee law that allowed students who were assigned to new schools as part of desegregation to transfer from schools where they were a racial minority to ones where they would be in the racial majority. The Court declared this system unconstitutional because it is readily apparent that the transfer system lends itself to perpetuation of segregation. A law allowing people who were minorities move to other schools struck down as promoting segregation. County School Board (1969) Declared unconstitutional a freedom of choice plan that was a common approach used to frustrate desegregation. Look at results and if it doesn’t look like integration has worked. where segregated schools were not the product of state laws. Until you have that you are under an injunction. For nearly a decade the Court didn’t hear any other desegregation cases but eventually had to respond to all of the ways schools were finding around desegregation. The availability of other more promising courses of action may indicate a lack of good faith and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. 1 Denver. Colorado (1973) Even though the schools were not segregated by statute. County School Board (1964) Unconstitutional to close rather than desegregate. Does not matter that they were not a party to the dispute. Goss v. Proving Discrimination in the Northern School Context There was no problem proving discrimination in state where segregation was written into the laws. On its face it look is good. the issue arose as to what had to be proved in order to demonstrate an EP violation and justify a court remedy. Also list the names of all nine judges at the beginning to make it more forceful. the Court found that school authorities have carried out a systematic program of segregation and common sense would find a dual school system. Whatever nonracial grounds might support a state’s allowing a county to abandon public schools the object must be a constitutional one and grounds of race and opposition to desegregation do not qualify as constitutional. . your job is not to have a neutral system but a system that works. School District No. Green v. Three years after implementation.

Penick (1979) The District Court had found that as of 1954. Such proof shifts the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. Charlotte-Mecklenburg Board of Education (1971) A NC case. Judicial Power to Impose Remedies in School Desegregation Cases Want the school board. comes forward with a desegregation plan. Columbus had maintained an enclave of separate black schools on the near east side of the city. Brinkman (1979) Again there was a lower court finding that at the time of Brown the city was intentionally operating a dual school system. or whoever else is designated in the state. Courts could redraw attendance zones and order bussing. Dayton Board of Education v. Comparisons to the general population are useful starting points. the school board takes over all the logistics. then the court starts coming up with court orders on what to do. 1954 BenchmarkHad a law in 1954 and now you have the remnants of it or had remnants in 1954 of prior law. Powell’s Concurrence in Keyes called for an end of the jure/facto distinction and mandate all schools to act to end discrimination. The court explained that the Board had to do more than abandon its prior discriminatory purpose and has an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices are not used and do not serve to perpetuate or reestablish the dual school system. If that plan is done well. Had implemented a plan in which half the black students were the minorities in some schools and the other half were in all black schools.Constitutional Law Page 39 of 122 substantial part of the school system. Rehnquist has a huge problem with this – why pick 1954. If the school board’s plan don’t work and the courts can’t get the school board to come up with something good. it is fine. Schools may not always end up this way and there may unavoidable clear majority or all race schools but in those cases close judicial review of it is necessary if it was once segregated by law. De facto discrimination requires proof of intent which is consistent with the Supreme Court’s holdings that when laws are facially neutral. The Court has drawn a distinction between de jure segregation in the South and de facto segregation in the North. Order to find the most effective plan which could include bussing. redrawing school districts.. Moving de facto and de jure too close together. Columbus Board of Education v. Note that requiring proof of intent in the North created an obstacle to desegregation as it was a product of a myriad of discriminatory policies. d. Supreme Court found that district courts have broad authority in formulating remedies in desegregation cases. Swann v. Taking things that show original intentional system it gets treated the same way as present de jure. Response that kids feel the same. then. The Supreme Court said that this triggered a duty to desegregate. proof of a discriminatory impact is not sufficient to show an EP violation – there must also be proof of discriminatory purpose. . Goal to have the same mix as the general population. The Supreme Court held that this finding was sufficient to establish an EP violation because proof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system itself is prima facie proof of a dual school system and supports a finding to this effect absent sufficient contrary proof by the Board. Supreme Court said that it was not enough. a presumption is created that other segregated schooling within the system is not adventitious.

Dowell (1991) Schools had been segregated under a state law but a federal court order was successful in desegregating the schools. Spangler (1976) The school system had been segregated by law and a federal court order succeeded in desegregation. In the 1990s.Constitutional Law Page 40 of 122 Milliken v. nevertheless the Supreme Court held that once a unitary school system had been achieved a federal court’s desegregation order should end even if it would mean resegregation. the Supreme Court hastened the end of federal court desegregation orders. The act also authorized the US Attorney General to intervene in desegregation suits. Part of the desegregation order had been met but the order concerning assignment of teachers had not . Evidence proved that ending the desegregation order would result in resegregation. Pitts (1992) A federal court desegregation order should end when it is complied with even if other desegregation orders for the same school system remain in place. Important federal laws had much to do with ending desegregation. The Supreme Court ruled this impermissible because before the boundaries of separate and autonomous school districts may be changed it must first be shows that there has been a constitutional violation within one district that produces a significant segregative effect in another district. The Supreme Court found this to be improper considering that residential shifts would inevitably lead to some racial imbalance. Having once implemented a racially neutral attendance pattern to remedy the perceived constitutional violations the District court had fully performed its duty. Freeman v. f. Bradley (1974) Supreme Court imposed a substantial limit on the courts’ remedial powers in desegregation cases. Civil Rights Act of 1964 Title VI prohibited discrimination by schools receiving federal funds. San Antonio Independent School District v. The Court did not define unitary. An order for a school system in Georgia that had previously been segregated by law was still in place. A federal district court had imposed a multidistrict remedy for de jure segregation in one of the districts. Rodriguez (1973) which held that disparities in school funding do not violate EP result in separate and unequal schools. saying only that the desegregation decree should be ended if the board has complied in good faith and the vestiges of past discrimination have been eliminated to the extent practicable. The case can be defended on the traditional principle that a court has authority to impose a remedy only after it is proved that the person or entity violated the law and on the tradition of local control over public education. When Should Federal Desegregation Remedies End? Pasadena City Board of Education v. In 1970 no schools were racially imbalanced but by 1974 five of the thirty-two schools were over half black and a federal district court ordered that attendance lines be redrawn on an annual basis so that no school had a majority of black students. Without an interdistrict violation and interdistrict effect there is no constitutional wrong calling for an interdistrict remedy. This case made desegregation in metro areas very hard – the inner city schools district would be primarily black but the surrounding suburbs would have mostly white schools. Board of Education of Oklahoma City v. Also. the District court should look not only at student assignments but every aspect of school operation.

although Field. the order’s requirement to attract nonminority students from outside the district was impermissible because there was no evidence of an interdistrict violation. allow violations to be proved based on discriminatory impact without evidence of a discriminatory purpose. if a judge. not in bringing about equal results. that civil rights statutes can. however. Now suppose that the top two schools in terms of standardized tests have a small percentage of minorities. Rehnquist held in favor of the state on every issue.Constitutional Law Page 41 of 122 been and the school planned to construct a facility that likely would benefit whites more than blacks. This is different from affirmative action. And there is concern that countless laws might have some discriminatory impact and be struck down.reckless. Neutral test. Second. What if a school determines which school you are in by your test score? Easily constitutional. On the other hand. negligence. The Constitution mandates equal opportunity and not equal result. Jenkins (1995) Ordered an end to a school desegregation order. Suppose the questions were like the old IQ tests asking what is pretty with a blonde and a black woman? If the court buys the neighborhood schools then it is okay under Washington v. the Supreme Court held that the facilities desegregation order had already been met and thus the federal court could not review the discriminatory effect of the new construction. the continued disparity in student test scores did not justify continuance. providing discriminatory purpose is very difficult and rarely will such motivation be . Appears that the Supreme Court is declaring victory in desegregation and ordering withdrawl. For example. knowledge okay and all after . Let’s say the school system wants to create a neighborhood school system after injunction has been lifted (have got ridden of all past vestigages of discrimination). indeed. increasing teacher salaries was not necessary as a remedy and hence impermissible. Note. Title VII of the 1964 Civil Rights Act allows employment discrimination to be established by proof of discriminatory impact and the 1982 Amendments to the Voting Rights Act of 1965 permit proof of discriminatory impact to establish a violation of that law. need do no more than meet a RB test. It should remain involved only in the areas that have not been met. Two different groups on the court have developed it. 2. Still. The Requirement for Proof of a Discriminatory Purpose Current law means that the government need not offer a racially neutral explanation for these effects and. strict liability). and often do. Davis. Missouri law had order segregation and a district court order did not come in until 1977 and substantial progress had been made. Probably can’t do it. Missouri v. Is this de facto? Can’t prove intent and have shed 1954 discrimination. would argue that were are in degrees of intent (like criminal law (purpose no. Last. No racial animus. a. The present social reality is that many urban schools are mostly minority. This can be justified by the view that the EP clause is concerned with stopping discriminatory acts by the government. First. Now times indicated that states can’t correct voluntarily and must get court approval. Facially Neutral Laws With a Discriminatory Impact or With Discriminatory Administration Allegation of racially discriminatory effect leads to a burden shift to the employer.

it appears that both are required . b. A challenge to a city’s refusal to rezone a parcel of land to allow construction of low and moderate income housing. The plaintiffs alleged that this had a discriminatory effect in excluding blacks from the city. Consider as well unconscious racism. Massachusetts v. Allege unrelated to job performance and exclusion a disproportionate number of minorities. The Court’s adoption of this narrow standard of intent can be questioned because it does not comport with the tort definition of intent as acting with knowledge of foreseeable consequences and instead adopted a criminal law definition of intent meaning the desire to cause those results.Constitutional Law Page 42 of 122 expressed especially since benign purposes can be given for most laws.C. Proof of discriminatory impact is insufficient. Otherwise. The court noted that in no case has the Court held that a legislative act violates EP solely because of the motivations of the men who voted for it. the burden shifts to employer to demonstrate that the tests are alright and do accord with job performance. to show the existence of a racial classification. Yick Woo a statistical pattern than can be explained only by a discriminatory purpose. Palmer v. facially neutral laws will receive more than RB review only if there is proof of a discriminatory purpose. A second method is through the history surrounding the government’s action. but such instances are rare). Washington v. a whole host of laws would be considered unconstitutional. D. c. were required to take a test and statistics revealed that blacks failed the exam much more often than whites. by itself. Metropolitan Housing Development (1977) Explained the different ways in which discriminatory purpose can be proved. Some argue that a showing of significant disproportionate disadvantage without more gives rise to an inference of bad motive and should oblige that government to come forward with a credible explanation showing that the action was or would have been taken apart from prejudice. Thompson (1971) EP not violated when a city closedown its previously segregated swimming pool rather than have it integrated. but only in extraordinary circumstances the legislators might be called to testify.e. A third way is through the legislative history of the law. . Some believe that EP should be in line with equal results. . particularly if it reveals a series of official actions taken for invidious purposes. Remember of course that the employer often is the one with the statistics in the first place. Davis (1976) Applicants for the police force in Washington. Feeney (1979) See below. Is Proof of Discriminatory Effect Also Required? Although the court has never expressly addressed the question. Once you show this. How is Discriminatory Purpose Proven? The requirement is proof that the government desired to discriminate and it is not enough to prove that the government took an action with knowledge that it would have discriminatory consequences. The impact of a law may be so clearly discriminatory as to allow no other explanation that that it was adopted for impermissible purposes (i. Arlington Heights v. Thus.

Education Later O’Connor basically says it is not strict scrutiny but fatal in fact so it looked really bad for affirmative action in employment cases.Constitutional Law Page 43 of 122 4. Regents of the University of California v. We probably have two standards. They did not reach the constitutional issue or discuss the level of scrutiny. Bakke notes that it should be more wholistic rather than rigid – how do we apply to the employment context? Fullilove v. new people get cut first. Again did not produce a majority opinion concerning the appropriate level of scrutiny. Had been a fairly segregated workplace and only recently started hiring minorities so thus they would be the first to go under a seniority only plan. they cut some seniors and kept the minority percentage. Although it has not been overruled. but this decisions was arrived at after struggling with the level of scrutiny for over a decade. Supreme Court found this not constitutional. but also 5-4 that it is permissible for universities to use race as a factor in admissions to increase diversity . Jackson Board of Education (1986) Central issue was minority preference in teacher lay offs: when they have to do layoffs. Layoffs v. Klutznick (1980) Upheld requirement in Congressional procurement that 10% of authorization for local spending project must be for hiring minority businesses. Another group of four Justices concluded that the affirmative action program violated Title VI of the 1964 Civil Rights Act which prohibited discrimination by institutions receiving federal funds. it is unclear whether it survives later rulings and it appears that now the Court would be unlikely to accept such affirmative action efforts in the future where there is neither proof of discrimination by the entity nor proof that the particular recipients’ rights were violated. Four Justices said that intermediate scrutiny was appropriate for racial classifications benefiting minorities. Bakke had higher scores than they did. Also the set percentage was not narrowly tailored. One Justice. . and then the Supreme Court did education cases last year. Bakke (1978) UC Davis had affirmative action program with quota system – set a certain number of spaces for minority students (16 out of 100). the vote was 5 to 4 to invalidate the set-aside. Employment v. Trying to encourage the private companies to do so. There was no majority opinion. Emphasized deference to Congress’ findings of a long history industry and that the affirmative action program was justified as a remedy and it was necessary to prove that they had specifically suffered discrimination. Thus. ―Role models‖ was not a compelling state interest. Five Justices rejected this view and concluded that the analysis under the Constitution and Title VI is identical. not hiring someone. How is this reconciled with Folilove? Public employers have to have compelling interest and narrowly tailored means. said that SS should be used and concluded that the set-aside was unconstitutional but that it was permissible for race to be used as one factor. Powell. Hoping that education would be considered differently because diversity is a goal – argued in the next case and won on it. No evidence of discrimination and remedying general societal discrimination is not a sufficient compelling interest. Racial Classifications Benefiting Minorities It is clearly established that SS is used to evaluate all government affirmative action plans. and need to bring more minorities in so that when they do layoffs they would keep a certain percentage of minority personnel. Wygant v. When layoffs came.

The number might be desirable but might not be practical. Standards Arguments Pro & Con Those who favor SS argue that all racial classifications whether invidious or benign should be subjected to SS. Scalia wrote separately to say that the government could never have a requisite interest. All racial classifications stigmitize and breed racial hostility. The group that adopted it here was the city council who was 5-4 minority. J. Granted. . congruence – 5th and 14th Amendments should be considered to mean the same standard for federal. FCC (1990) FCC had two minority preference policies: awarding enhancement for minority ownership in new broadcast license and a distress sale alliance in which a station could only transfer it to a minority firm. Gratz Can’t have a guaranteed bonus (mechanical formula). to allow people to do it voluntary. How would you argue that this still stands after Adarand? More important to have minority ownership in this case because of first amendment interest in broad speech. state. There is a major difference between a majority discriminating against a minority and discriminating against itself. a huge disparity.Constitutional Law Page 44 of 122 Richmond v. Metro Broadcasting v. but none in the Dissent. resigned. If you were going to allow it. but can have a critical mass or seek diversity as in the case here. Croson Company (1989) Held expressly that SS should be used in evaluating state and local affirmative action programs and invalidated a Richmond. Dissenters joined by Thomas to create a majority to overrule Metro Broadcasting and find SS the standard. v. Also a question of degree. Now any time that you don’t’ like a program. consider first generation college students . Assumes the contractors are around in the first place. Inc. VA plan to set aside 30% of public works monies for minority-owned businesses. Can only do it in response to a statutory or constitutional violation.religion. Brennan says that when the purpose is benign. geography. even educational discrimination. Can’t have a separate track or quota.67% of the contracts. Supporters of affirmative action argue that there is a significant difference between using racial classifications to benefit and to disadvantage minorities and emphasize that social equality requires affirmative action at this point in history. etc. Adarand Constructors. you have to say it’s a quota. The court alludes to quotas and how they aren’t good (perhaps a little more leeway because it’s spending versus hiring numbers). intermediate scrutiny is the standard. and local. Evidence that 30% of the population was black but only received . Gave 20 points for being a minority and needed 100 to be admitted. Not allowed to do it because you think society is discriminatory. Pena (1995) Between this case and Metro Broadcasting four of the justices. University of Michigan Considers race but a much less clear as Bakke. Three principles: skepticism of any situation of racial classifications – necessity of applying strict scrutiny. Also don’t target just race. a persuasive argument is that the majority is burdening itself. Also the FCC is dealing with a limited supply. but it is not narrowly tailored – don’t know how many contractors were qualified. at least early on. if there was broad discrimination they wouldn’t be there in the first place. Think about this again after studying the first amendment material.A. O’Connor’s plurality noted tat it wanted to dispel the theory that SS was strict in theory and fatal in fact. consistency – standard of review is not to depend on the race.

O’Connor’s is really the opinion and notes that strict scrutiny goes both ways. a. It’s pretty clear now that we consider action by any government official to be state action eve n if state law prohibits it or the state court would disapprove of it. but because of First Amendment interests and the case has been overruled at least in its holding that IS should be used. Obviously more freedom when the federal court is reviewing federal laws as they are the final authority.” If you have a law like Bowers (no sodomy for everybody). Permissible Purposes It is clear that affirmative action will be allowed if it is directed at entities that are proven to have engaged in illegal discrimination and if it is limited to providing a remedy to those who are proven victims of that discrimination. Enhancing services provided to minority communities has not been accepted by the Supreme Court.Constitutional Law Page 45 of 122 Strict Scrutiny goes for majority or minority on race issues. DeFunes. Metro Broadcasting noted it was important in the employment context. It is unclear when. Must be strict in theory and fatal in fact. state. Has he been discriminating or is there societal discrimination? Doesn’t want to be lily white company and decides to give preference to minority applicants. A man looks upon his workforce and sees that it is 95% workforce and the neighborhoods around him are 50% Caucasian. or federal de jure discrimination. If the state court interprets it to apply only to homosexuals. Black is the only one who has a separate category of “as construed. The more uncertain area is when the Court will allow affirmative action efforts directed at particular entities or sectors of the economy where discrimination ahs been proved to occur. but where the beneficiaries are not themselves the proved victims of such discrimination. Adarand If there is local. What about EP between minorities? No one really talks about what the standards are anymore so it may be difficult to determine Weber A bad purpose did not include trying to be fair to people who were underrepresented. In Bakke Justices indicated that they would allow affirmative action to achieve this goal. Doesn’t this create a crazy system? Can discriminate for provost’s choice anytime you want or against men. the current Supreme Court will accept enhancing diversity as a justification for affirmative action programs. Fifth Circuit held that it was discrimination and the Supreme Court reversed. People then think that she will find education to be different and will pass this standard. It is also clear that affirmative action will not be allowed if it is based on a desire to remedy the long history of racism throughout society. if at all. Can’t say that he is not allowed to do what other people were forced to do. Certain conditions to satisfy for employment affirmative action. one can make victims become whole again. In Bakke. it is the same as if it was written into the law. rational basis for other issues. Powell rejected this argument and said that there was no proof that training more black doctors would mean that there . No particularly high requirements for the workforce.

and then stated it was a rational basis test. Deviance from Seniority Systems not an acceptable means of affirmative action. if at all. Kahn v. Developing a Standard It was not until 1971 that the Supreme court first invalidated a gender classification. Court declined to treat gender as a suspect classification. noting that the Court should wait and see what happens with the ERA. Gender Classifications 1. If the rule had stated that between two equally qualified persons random selection would occur. Richardson (1973) A federal law allowed a man to automatically claim his wife as a dependent and thereby receive a greater allowance for quarters and medical benefits. Even if prior discrimination has been proven. A woman could only gain these benefits if she could prove that her spouse was dependent on her for over half of his support.). Frontiero v. Articulated as traditional RB and that there was no rational relationship between the ability to administer the estate and gender. Four votes for gender as a suspect classification with at least an additional vote that he is not going to decide. only if needed to remedy clearly proved past discrimination. b. Reed v. but found that whether from overt discrimination or from the socialization process of . The Court did not articulate a level of scrutiny. First indication that not any rational basis would count. but had to have been more involved. There is a ―rational basis‖ and the court went into a value judgment. that would have been permissible so there must be something worse about choosing on the basis of gender. Shevin (1974) Upheld a state law that provided a property tax exemption for widows but not for widowers. Permissible Means The Supreme Court has made it clear that numerical set-asides will be allowed. Claimed it was not reasonable because it was arbitrary.Constitutional Law Page 46 of 122 would be more doctors actually practicing in minority communities and there might be other ways of achieving this goal more directly. typical in the cases after Frontiero. Stewart concurred arguing that he would find the law unconstitutional under the basis of Reed (apparently he thought that SS should apply but also thought the ERA would be passed so this ruling wouldn’t be necessary). Want a sensible reason. E. Rationale was that the same characteristics that justify suspect classification of race apply here: long history of discrimination and immutable. Reed (1971) State law gave preference to men over women in deciding who should be appointed as administrators of an estate when a person died intestate. Follilove allowed it but its precedential value is questionable. The appropriate level of scrutiny is intermediate (IS). On two occasions the Supreme court has indicated that the government may use race as one factor among several in decision making to help minorities and to enhance diversity (Bakke and Metro Broadcasting – the portion of the case discussing this has not been expressly overruled. Three justices wrote that they concurred in the judgment but did not think SS should apply. the layoff provisions was not a constitutionally acceptable means of achieving even the compelling purpose of remedying prior discrimination. Rational reason was administrability so did not have to have a hearing to determine whether a man or a woman would be better administrators – men had more experience with the world.

The separate military college was not of an equivalent standards. Stanton v. then you accept that there’s a meaningful difference between men and women for constitutional purposes. Rostker v. Upheld a law requiring men but not women to register for the draft. and was hence a rational basis for the law. Mississippi University for Women v. Craig v. Goldberg (1981) Man can challenge by saying without women registered. Found to have violated EP. not equal so not an appropriate remedy. the job market is inhospitable to the woman seeking any but the lowest paying job. there’s a higher probability that the man will get drafted. Boren (1976) Agreed on intermediate scrutiny. Is this person’s gender determining how the state treats them? If so. In each area there’s a substantive message (a principle to state through the EP clause). RB Rationally Related Any Leg.Constitutional Law Page 47 of 122 a male-dominated culture. Lawyers structured the case incorrectly – the better challenge is the fact that women are restricted from combat via statute. Hogan (1982) Applied IS to declare unconstitutional a state nursing school that was available only to women. State Interest Women Substantially Related Important State Interest SS Perfect Fit Compelling State Interest In male nurse case. Stanton (1975) The Court declared a Utah law unconstitutional that required parents to support female children until 18 but male children until 21 because the statute was based on old notions about social roles. United States (1996) Did not allow women to be admitted. VMI v. is gender the only reason they’re being treated this way? The state won’t further gender stereotypes. Although prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive basis. The court has said there aren’t any racial differences that make any difference. Exception to the intermediate scrutiny standard when “womanhood” is relevant in and of itself – there are real differences between women and men that have importance. the message is that you’re not supposed to be excluded from anything because of your gender. Women allowed to have a low alcohol percentage drink at 18 while men were not. the court uses ―exceedingly persuasive justification‖ for important state interest. . Scalia says this is close to strict scrutiny. If you accept that women can’t go into combat. Rational basis that men are less mature and statistics that men are arrested more than women for drunk driving in this age group. There have been cases in which gender classifications have been upheld without the Court expressly using IS or mentioning heightened scrutiny. Found not to be congruent enough. In the gender cases. You might call these cases substantive equal protection.

California’s exclusion of pregnancy from coverage would impact not only currently pregnant persons but also all capable of becoming pregnant and women might choose to delay or forgo a pregnancy because of the inability to receive payments. while men under 18 are allowed to have sex. a political majority so not a discrete and insular minority. there’s no exception for rape. then no one will report the crimes How does this discriminate against women? Women under 18 can’t decide to have sex. proving a gender classification requires demonstrating that there is both a discriminatory impact to the law and a discriminatory purpose behind it. MF says this perpetuates gender stereotypes. so they effect both women and men. There’s a burden/deterrence on the women already  pregnancy. MF says this is like excluding blacks from the jury – badge of inferiority. which is only women. Woman bringing this case could cite Strouder. The exclusion of pregnancy met RB review because the state has a legitimate interest in maintaining the fiscal integrity of its program and making choices in allocating its funding. via statute. and those not capable. other ―voluntary‖ conditions were included: still coverage for plastic surgery Coverage for other things that applied to only men. the 14th Amendment was meant to deal with racial discrimination. Yes. has overruled this case. The law thus clearly distinguishes between persons capable of becoming pregnant. When it is discrimination? Geduldig v. makes affirmative action for women more possible. Choice – you choose to get pregnant. Disability – pregnancy is not a disability. Criminal sanction on men equalizes the deterrents for the sexes. Aiello (1974) It was not a denial of EP for a state’s disability insurance system to exclude pregnancy-related disabilities but include disabilities affecting only men.Constitutional Law Page 48 of 122 Does this discriminate against women also? Women can volunteer. The first group is exclusively female but the second includes members of both sexes. Superior Court (1981) upheld a state’s statutory rape law that punished men for having sexual intercourse with a woman under age 18 but did not punish a woman for having sex with a man under age 18. but men will be drafted. Michael M. Congress. which is almost all male. v. Is saving money an important state interest? Arguments in Favor of This Decision: These are family expenses. Administrative convenience/effectiveness of the statute – if statute is gender neutral. But to just pick out women is not a fair way to do it. 2. Women get their share of medical expenses (50% anyway) . Is this substantially related? Field says saving money is a great idea but you have to do it in some fair way. Arguments Against this Decision This reasoning can be criticized because it appears that the court is saying that pregnancy is not a sex based characteristic. The two methods for proving gender classification are identical to the two methods of demonstrating racial classification: first it can exist on the face of the law (refer to all the cases above) or if it is facially gender neutral. long history of discrimination Arguments in favor of IS: biological differences make some distinctions justified. The program divides potential recipients into two groups: pregnant women and nonpregnant persons. Arguments in favor of SS: immutable characteristic.

but because that wasn’t their aim (aim was to help veterans) it doesn’t count as a discriminatory purpose. Orr (1979) Invalidated an Alabama law that allowed women. Not an overtake of the entire civil service system Feeney goes further than Washington v. but permitted men the same benefits only if they proved dependence on their wives’ income. Field says this is a legitimate state interest but to do it in a way that means no women in civil service is too much. Three principles emerge from these decisions: 1) Gender classifications benefiting women based on role stereotypes generally will not be allowed. Field says this is a case where the degree of the impact must be taken into account. They certainly know that this law will result in no women. to receive benefits based on the . Majority says it’s gender neutral on its face and there was no discriminatory purpose. 3) Gender classifications benefiting women can be based on biological differences between men and women. Davis – highlights difference between knowledge and purpose. that when Feeney law was in place.Constitutional Law Page 49 of 122 Feeney v. Gender Classifications Benefiting Women The majority of Court cases concerning gender discrimination have involved laws that benefit women and disadvantage men. there were very few veterans. . Most were old and people preferred younger workers so trying to help them get positions. to receive alimony in case of divorce. Unlike Washington v. State says that it has an interest in giving a preference to veterans. Court is looking to see if there is a discriminatory intent and not just impact. Gender Classifications Based on Stereotypes Many of the laws struck down were based on the assumption that the man was economically independent but the woman was dependent on her husband. 3. The Supreme Court also struck down laws that automatically allowed women economic benefits. but not men. 2) Gender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally are permitted. a. “Veterans” is a closed category from which women have been largely excluded – we can look and see who the veterans. Massachusetts (1979) Mass law granting absolute lifetime preference to veterans for state civil service positions is upheld. Argument that it isfacially neutral: preference for ―veterans‖ means more men will be benefited than women. Individualized hearings at which the parties’ relative financial circumstances were considered already so needy males could be helped with little additional burden to the state. Weinberger v. But Fieldasks why this particular preference? This is 100% lifetime preference over non-veterans in Massachusetts civil service jobs. Orr v. Case says total equality in family law. Field notes that the women really lose in this case. Most were civil war. To give veterans a preference is to give men a preference. but not a widowed father. Wiesenfeld (1975) Declared unconstitutional a provision of the Social Security Act that allowed a widowed mother. Veterans are 98% male and 2% female. Davis (where anyone can take the civil service test). such as when their husbands died. Note though.

Hogan (1982) Declared unconstitutional a state policy of operating a nursing school that excluded men. . The court applied Weinberger in Califano v. b. suffers a few of the consequences of his conduct. Also in Rostker v. allowing laws to be based on perceived physical differences between men and women risks upholding laws that are really based on stereotypes. Women could serve in noncombat roles but congress simply did not consider it worthwhile to have the added burdens of including women in the draft and registration plans and moreover Congress had determined that the staffing of noncombat positions with women would be positively detrimental to the important goal of military flexibility. Wengler v.Constitutional Law Page 50 of 122 earnings of the deceased spouse. To ignore physical differences between men and women leads to absurd results such as in Geduldig where the court essentially said that pregnancy is not a sex-based classification. And combat exclusion was good reason to have only men register for the draft. unlike men. It was based on the presumption that wives are usually dependent and such assumptions do not justify gender-based discrimination in the distribution of employment-related benefits. Yet. are not eligible for combat and Congress and the president had evidenced an intent to retain that policy in the future. Women. The state could attack the problem of teenage pregnancy and sexual activity by regulating and punishment men but not women because virtually all of the significant. but a man would receive such benefits only if he could prove that he received at least half of his support from his wife. harmful. The law was based on the stereotype that males workers’ earnings are vital to the support of the family while the earnings of females workers do not significantly contribute to their family. by nature. Remember that in Michael H. Mississippi University for Women v. and inescapably identifiable consequences of teenage pregnancy fall on the women and a legislature acts well within its authority when it elects to punish only the participant who. Goldberg the Court upheld the draft only applying to men because of a need for healthy deference to the legislative and executive judgments in the area of military affairs. however. upheld a statutory rape law that only penalized males. The Court said that the gender classification was not designed to remedy past discrimination but was based on an occupational stereotype. c. These cases force consideration of when biological differences justify gender discrimination. Gender Classifications Benefiting Women as a Remedy Gender classifications benefiting women will be allowed when they are designed to remedy past discrimination or differences in opportunity. Survivors and Disability Insurance Benefits program whereby a woman automatically would receive benefits based on earnings of her husband. that the Supreme court has upheld laws benefiting women even though they seems to be based on stereotypes. Goldfarb (1977) to hold unconstitutional a provision in the Federal Old-age. Biological Differences Note. Druggists Mutual Insurance Company (1980) The court applied the same principle to rule unconstitutional a state law that automatically allowed widows benefits but only allowed widowers benefits if they proved that they were dependent on their wives’ income or were physically incapacitated.

2) laws that provide a benefit to some nonmarital children. but co-ed and girls might be permissible. Legal burdens should bear some relationship to individual responsibility. while denying the benefit to other nonmarital children. male. Don’t see dejure remedies in sex discrimination (Field not sure why). No one know who is on which side. including what interests justify affirmative action and what techniques are permissible. Ballard (1975) Upheld a navy regulation that required the discharge of male officers who had gone nine years without a promotion but allowed women to remain thirteen years without promotion because men had more opportunities for promotion. are evaluated on a case-by-case basis under intermediate scrutiny. Three principles emerge: 1) laws that provide a benefit to all marital children but not to nonmarital children always are declared unconstitutional. So far the Court has not considered a constitutional challenge to an affirmative action program designed to benefit women. As with other classifications that receive heightened scrutiny there is a long history of discrimination and it is immutable in the sense that there is nothing the individual can do to change his or her status. Webster Upheld a provision in the Social Security Act that calculated benefits for women in a more advantageous way than for men. Discrimination Against NonMarital Children Intermediate scrutiny is applied in evaluating laws that discriminate against nonmarital children. however. F. It operated directly to remedy past economic discrimination.Constitutional Law Page 51 of 122 Califano v. many of the same issues will arise as in the context of race-based affirmative action. It is justified because of the unfairness of penalizing children because their parents were not married. The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons outside of marriage but visiting the condemnation on the head of an infant is illogical and unjust. 3) laws that create statutes of limitations for the time period for evaluating paternity must provide enough time for those with an interest in the child to present his or her rights and must be substantially related to the state’s interest in preventing false claims. Congress could have rationally believed that women had less opportunity for promotion and therefore a longer period of tenure would be consisted with the goal to provide women with fair and equitable career advancement. illegitimacy is different from gender and race because it does not carry an obvious badge nor has is approached the severity and pervasiveness of historic legal and political discrimination against women and racial minorities. . Schlesinger v. Affirmed by lower court’s opinion so no law in terms of the Supreme Court. seem to do everything the way we do de facto discrimination Is separate but equal permissible? Warchimer testing a HS whereby there was a coed. Field doesn’t think you could have just co-ed and boys. and females schools. Still an open question because the Supreme Court affirmed by an equally divided court (then no one writes the opinion). Based not on stereotypes but rather the permissible goal of redressing our society’s longstanding disparate treatment of women. Although intermediate scrutiny is the test for all genderbased classification.

kids. Gordon (1977) Deemed unconstitutional a law that prevented nonmarital children from inheriting from fathers who died intestate. Inequality between married-unmarried women and the unmarried-married dad. discourage probate problems. In per curium held unconstitutional via EP. Gomez v. and across). 2. 18 is probably an allowable limit because legitimate kids get until then and after that parents don’t have to include in their wills. LA (1968) Unacknowledged. Laws Denying Benefits to All Nonmarital Children Clark v. Why should tortfeasors get away because of this? It is a discrete group because it is hard to tell if acknowledged. The state had an important interest in preventing fraud and that requiring paternity to be established during a father’s lifetime was substantially related to that objective. State’s interest in encouraging acknowledgement (but wouldn’t have she have signed the birth certificate?). but instead the Court compared the children. RB test plus special sensitivity – must be because a clear state interest in administrability. Unacknowledgement by mother must mean some legal procedure that she did not follow. What if the statute allowed suing for support within one year? Struck down because of the kids comparison again. Illegitimacy has nothing to do with the wrong to the mother. Six year period was impermissible because financial needs may not emerge until later and because it did not offer the child a sufficient opportunity to present his or her own claims. Lalli v. some nonmarital children could inherit. Don’t want children to suffer because the mother did not get herself together. Therefore. The Court expressly stated that IS is used. Determined on a case by case basis via evaluating whether there is an important interest served and whether the law is substantially related to that goal. Lalli (1978) Upheld a state law that provided that a nonmarital child could inherit from his or her father only if paternity was established during the father’s lifetime. moms. Laws That Provide a Benefit to Some NonMarital Children No similar brightline rule exists when the law provides a benefit to some nonmarital children and denies it to others. Allowed marital children to inherit from either parent but a nonmarital child could only inherit from the mother. . discourage illegitimate children. Perez (1973) Texas rule said unwed dads are not responsible for support of children. illegitimate children should be allowed to sue for wrongful death. so not RB for this group of people and using RB language to increase scrutiny. Although there is a need to establish paternity for unwed fathers this does not justify the complete denial of benefits to all nonmarital children. Jeter (1988) Declared unconstitutional a state law that required a nonmarital child to establish paternity within six years of birth tin order to seek support from the father. Trimble v. State rationale was that it would encourage marriage.Constitutional Law Page 52 of 122 1. Which one you pick can change the outcome. Levy v. Could say married man took on an obligation and married woman relied on husband. Can compare lots of groups (dads.

Usually. Also remember that a parent can choose not to leave any $$$. RB Illegitimacy Gender SS G. Indicate some HS in this area. there was fool proof proof and had relationship with the father. Other Types of Discrimination: Only RB Review The Supreme Court has expressly rejected HS and said that RB is sufficient for classifications based on age. However in City of Cleburne. significant underinclusiveness is tolerated and the government may proceed one step at a time. Since physical ability generally declines with age. thus. retirement homes) but not as much as mentally retarded. but focuses that the father was clearly the father. it does not have the history of purposeful unequal treatment or unique disabilities on the basis of stereotypes that are not indicative of their ability. There is a history of discrimination against the elderly with judgments often based on stereotypes. A grouping that each of us will reach so less insular.Constitutional Law Page 53 of 122 Compare with Trimble In both Trimble and Lalli. but has indicated. and wealth. Field prefers Trimble – only one can be the law. Old age does not define a discrete and insular group in need of extraordinary protection from the political process. 1. A person’s age is immutable in the sense that a person cannot voluntarily change it and it is a characteristic that is visible. under RB the law survives. Each of the city’s justifications were not legitimate or did not used a rational means. no one had sued him to establish paternity. only RB is used. Trimble required several things including marrying the mother. While the treatment of aged has not been free of discrimination. The Supreme Court has not yet ruled. Doe (1993) confirmed that RB should be used when it upheld a state law that mentally retarded individuals could be civilly committed if there was clear and convincing evidence justifying institutionalization but required there was proof beyond a reasonable doubt for the . disability. One could argue that the Court’s review was more rigorous than usual for RB analysis. Now it is so easy to prove that we shouldn’t need all these hurdles. Disability Only RB review should be used for discrimination based on disability. the Supreme Court used RB to declare unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled. However. that RB review will be used for discrimination based on sexual orientation. but it could be different in other situations where it is not clear. In Lalli. which the Court emphasizes as too stringent. Seems the opposite in Lalli where it is a judicial determination (more stringent than in Trimble). 2. The Heller v. Mass Board of Retirement v.e. Murgia (1976) Upheld a state law that required police officers to retire at fifty years of age. Age Somewhat insular (i. but the Court has not done a lot of these types of cases.

etc. Nothing wrong with a referendum as it is the hallmark of democracy and it did not involve race distinctions. Sexual Orientation Discrimination based on sexual orientation has many characteristics that are present where HS is used. Looked pretty hard to figure out a way to strike it down and Bowers suggested there wouldn’t be anybody working very hard to strike down. Observed that the only apparent purpose behind the law was animus. James Exam Q very much like it and asked how it should come out. Constitution to protect all these groups. Taking away extra rights. 3. Lacks a rational relationship to legitimate state standards (but does seem to accord to morals/disagreement with homosexuals – don’t cite Bowers because that case basically states that you can have animus. orientation and criminal v. The Court found that there were reasonable distinctions between mentally retarded and mentally ill.). Laws discriminating on this basis generally reflect prejudices and stereotypes rather than any actual differences. Referendums often apply to various other groups. Irrational because only taking away these special protections from this group and not other non-suspect groups that had special protections (i. they struck it down. Could say that repealing them is invidious. Real RB probably would allow this law to pass unless there was something illegitimate about the goals. No legitimate reason that homosexuals could not use the political process like everyone else. Bowers said that preserving traditional morality is permissible.. Using RB the Court struck it down. Are put in a solitary class via this state action and withdraws from them specific legal protection caused by discrimination. Are they doing more that Railway Express RB? Colorado had chosen to go further than the U. Adopted a state wide referendum – people have voted – no special favors which applies not only on state level but in municipalities as well. a statute. When asking the same case there is a reason – perhaps because a later case (here Washington v. Nonetheless. Overbreadth of those with the orientation who do not act. State interest in protecting the moral heritage along with employer and property owners’ rights and protecting those who disapprove of homosexuals. Allowed to stop bussing . civil). The court applies RB – sexual orientation is not a suspect class and does not require heightened scrutiny. Devoting more resources to combating discrimination against the suspect class. Probably would have been permissible as a statute. Recent research also suggests that sexual orientation is immutable. aged veterans. Evans affects James.e. although could distinguish because of act v. Davis). the pregnant. Constitutional Amendment in CO prohibited any law on any level from protecting homosexuals in the future and repealed any present laws stating as such.Constitutional Law Page 54 of 122 mentally ill. Does it matter that it is an amendment and not a statute? Making it a constitutional amendment makes the political process harder for this group of people v.S. Mental retardation is subject to more objective measures than mental illness and the methods of treatment for the mentally retarded are less invasive. There is a long history of discrimination against homosexuals. Talked about it as a law that says no special favors for gays and lesbians (Scalia’s viewpoint). Romer v. Can’t give a right to be free from discrimination and then take it away (not that you are taking something away but it is what you are taking away – a right).

Also the Court has allowed closed primaries when the restrictions are reasonable. property ownership requirements. It is the preservative of all rights. It really is less democratic. It is fundamental because it is essential in a democratic society. The Supreme Court has declared that the right to vote is a fundamental right protected under EP. It is clearly established that law infringing on the right to vote must meet SS. the court has allowed state and local governments to select their officeholders through means other than elections. and the things that are on ballots are usually those of demagoguery. Couldn’t have made a statute because the CO Supreme Court had ruled it would violate the state constitution? Why make an amendment rather than an amendment? Could still throw out local rules. Also with a referendum it is not exemplary of republican form of government – not as much deliberation. Making it harder for them to get special protections than other groups. Theory of EP is that you don’t have to have the right but if you do you need to give it to everyone. Field happens to agree with Scalia. Generally. through voting the people choose the government and hold it accountable. If it is an EP fundamental right than it will get heightened scrutiny because it touches a fundamental right. Field says this creates a problem though because then no one will want to do more than the federal Constitution. It is clearly established that once there is an election. less give and take. Seen as a critical part of our democracy and somehow get it out of the Constitution.Constitutional Law Page 55 of 122 because didn’t have to do it to begin with. The ability of a state to have its legislature choose its governor when no candidate received a majority of popular votes has been recognized by the . Court does make something of the fact that at the statewide level you are prohibiting local ordinances – some suggestion that this is wrong but Scalia notes this is just crazy. Are Elections Constitutionally Required? Similar as with appeals – have to give to all when give to one person. Restrictions on the Ability to Vote a. But. An example of judicial creativity. There have been some areas where the Court did not use SS and upheld restrictions on voting in areas like literacy tests and laws preventing felons from voting. 1. Constitutional Protection for Voting The right to vote is bootstrapped – the inherent right is not located in the Constitution. The problem with voting is that once you say this EP comes into play – that is fine but you already have to give it to one person. residency duration requirements). Also can probably repeal it if didn’t have to do it to begin with. then via EP you have to give the right to everyone. Now are not in the same position as they were before but are in a worse off position – this is a point of disagreement between Scalia and Kennedy. F. under voting. any laws that deny or limit the ability of citizens to vote must meet SS (poll taxes. have to give one person the right to vote as opposed to appeals. If you say white male property owners have the right to vote.

The times. City of Houma (1969) – law that only property owners could vote on whether a municipal utility could issue municipal bonds – and City of Phoenix v.50 poll tax as a precondition to voting. The Supreme Court has consistently held that cases brought under this clause pose a nonjusticiable political question. §2. Really trying to disenfranchise blacks who tended to be poor. Kramer v. Kolodziejski . Also. Once the franchise is granted to the electorate. Women can vote. US guarantees a republican form of government. § 3. Can vote regardless of race. 15th Amendment. the Court’s record in dealing with such requirements is mixed. Apply SS and show that it doesn’t match the intentions. place. and manner of election shall be decided by the state. § 1. No poll tax. Article II. In follow-up cases Cipriano v. There are cities when the elected city council chooses a city manager rather than holding elections for the executive official. §4. Poll Taxes The 24th Amendment prohibits poll taxes in elections for federal offices. Virginia (1966) Held poll taxes unconstitutional as a denial of EP for all other elections.Constitutional Law Page 56 of 122 Supreme Court. Again there probably is RB but using more plus language. Harper v. 24th Amendment. Article I. yet. Article I. §4. Changed by 17th Amendment. The Senate shall have two senators from each state chosen by the legislators thereof. lines may not be drawn which are inconsistent with the PE clause. State interest in collecting revenue and paying for the administration of elections. The electors for federal elections will have the same qualifications as required for the state legislators. An annual $1. Article IV. The degree of discrimination is irrelevant. Can vote over eighteen. Property Ownership Requirements Laws requiring property ownership as a requirement for voting seem to run afoul of Harper’s forceful declaration that wealth cannot be a basis for denying individuals the ability to vote. The court rejected the state’s argument that it was minimal and not a significant burden. 19th Amendment. b. In theory there is an election limited to certain people but can almost always find a way through SS to strike it down. The Court found that it was not permissible for the government to measure interest by property ownership or the presence of children in the school system and thus the requirement is not sufficiently tailored. Too fundamental a right to be burdened or conditioned. The state’s primary justification for the restrictions was to limit participation to those who were primarily interested in school affairs. Sued to have it declared unconstitutional and it was rejected by three court judge below and goes right to the Supreme Court. Over and under broad. Not per se bad but is SS because the law kept some citizens from voting in school elections. Each state shall appoint electors equal to house and senate members. Article I. 26th Amendment. Voter wealth qualifications deemed irrelevant – have no basis in participating intelligently in the electoral process. it weeds out people who don’t really care that much about voting. Union Free School District (1969) Limited school board elections to parents and property owners.

Subject to SS b/c they curtained fundamental interest in voting and burdened right to travel. v. Court says you can’t presume that they aren’t residents (that gov’t dragged them there) – you have to allow them to prove they are bona fide residents. but the Court invalidated a grandfather clause that exempted from the literacy test anyone or their lineal descendants who could have voted on January 1. rather. Particular concerns for students. decisions by the government body had a wide impact. Literacy Tests The Supreme Court has concluded that literacy tests are permissible as a qualification for voting although they have been outlawed by federal statutes. 18656. Dunn v. Durational Residency Requirements Waiting periods for new residents have been sharply limited by the Supreme Court. James (1981) applied Salyer and also a water district election. the Court found that property ownership requirements for voting were justified. Landowners as a class were to bear the entire burden of the district’s costs. d. and service personnel. While Kramer suggests that all citizens regardless of whether they own property have an interest in the conduct of their government.Constitutional Law Page 57 of 122 – state law limiting vote to real property owners in elections to approve the issuance of general obligation bonds – the Court emphasized that all citizens had an interest in the availability of municipal services. Votes were allocated based on property ownership – once acre. Kramer does not mean that all property ownership requirements for voting are invalid. the question was whether the effect of the entity’s operations on them was disproportionately greater than the effect on those seeking to vote. one vote. Blumstein (1972) Invalidated TN’s one-year in-state residency requirement for voting. Ball v. The water district cases suggest that property ownership can be required as a condition for voting if some are more directly affected and if the governing body has limited authority. nonetheless. there was an argument that property owners and parents are more directly affected by school district decisions and that a school board has a limited governing authority. The . Tulare Lake Basin Water Storage District (1973) upheld state laws that limited voting in water storage district elections to property owners and that apportioned votes according to assessed valuation of land within the districts because landowners had a far greater interest in the outcome of the lection than other citizens. Salyer Land Co. Challengers need not prove that one-year waiting requirement actually deterred interstate travel. Unlike Salyer. Can’t discriminate against them as a group.‖ Where else could you vote? Nowhere because you already claimed ―residence‖ of your new state which automatically extinguishes your residency elsewhere. But note that in Kramer. United States (1915) Upheld the ability of states to require passing a literacy test as a condition for voting. c. The court did not deny that others had an interest in and were affect by the decisions of the district but the Court noted that Salyer did not say that the selected class of voters for a special public entity must be the only parties at all affect by the operation of the entity. Only landowners were subject to the acreage-based taxing power. Guinn v. as SS was triggered by ―any classification which serves to penalize the exercise.

However. With radio and television news even illiterate voters could be well informed and literacy is not necessarily a prerequisite for handling a ballot because alternatives exist. a state was prevented from permanently denying the right to vote to those convicted of crimes involving moral turpitude. Rodriguez (1973) The Court upheld a New York law that required voters to select a political party thirty days before a general election in order to vote in the next political primary. limiting voting to those who are registered members of the political party denies individuals. of their right to vote and participate in primary elections. Literacy is neutral. Rosario v. The Court explained that the law was designed to prevent raiding. Underwood (1985) Invalidated an Alabama law that denied the right to vote to those who had been convicted of crimes involving moral turpitude. A federal district court found that the provision had been adopted wit the purpose of disenfranchising blacks and that it had that affect. Limiting Voting in Primaries Based on Party Affiliation On the one hand. however. e. There is a fear that members of the opposing party might sabotage a party’s primary. Literacy tests may be used because the ability to read and write is relevant to the ability to exercise the franchise intelligently. Lassiter v. This decisions rests on two assumptions: that literacy tests are race neutral in their purpose and effect and that literacy tests meets SS. But.Constitutional Law Page 58 of 122 effect was to deny the vote to blacks who were ineligible to vote at this time. Congress amended the Voting Rights Act to completely prohibit them and the Court upheld these laws as a valid exercise of Congress’s powers under §5 of the Fourteenth Amendment even though they had the effect of overturning an earlier Court decision. Once a person has been convicted of a felony. a state may permanently disenfranchise the individual. was an exercise by the state of a lawful power vested in it not subject to the Court’s supervision. there is the desire to restrict participation in primaries to those who are members of the party. The literacy test. Northhampton County Board of Elections (1959) The Court upheld a North Carolina statute that conditioned voting on eligibility on a person’s ability to read and write any section of the Constitution in the English language. Although illiterate voters may be intelligent voters in today’s society where printed matters canvass and debate campaign issues. a practice whereby voters in . emphasizing that the States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised absent discrimination which the Constitution condemns. however. a State may conclude that only those who are literate should exercise the franchise. Hunter v. indicates that they generally were motivated to exclude blacks and that was the impact. at least where there was evidence of a racially discriminatory purpose behind the law. Prisoners’ and Felons’ Right to Vote States cannot deny the right to vote to those being held waiting for trial and must provide absentee ballots if they have no other means. especially independents. The history of literacy tests. f.

Tashjian v. Once the geographical unit for which a representative is to be chosen is designated. limited voting in a primary to those registered in that political party. Now hold that it is justiciable. The decision invalidated blanket primaries but it certainly cast doubt on all state laws that force parties to include nonmembers to participate in choosing candidates. Pontikes (1973) Declared unconstitutional a state law that prohibited a person from voting in a political primary if he or she had voted in another party’s primary in the prior 23 months. Is the requirement for requesting a ballot for a specific party and whatever affiliation that conveys enough to distinguish Jones? g. California Democratic Party v. such as increasing participation in the political process. Dilution of the Right to Vote Malapportionment in many areas prior to the 1960s was a result of population shifts to urban areas. An inequality resulted because counties varied widely in population size. The Court emphasized that the party itself wished to open its elections. The Court emphasized that the rationale underlying Rosario – preventing voters from one party from participating in the primary of the other and sabotaging its choices – was inapplicable with regard to independent voters. Connecticut law. voters must request a ballot of a particular party at the time of voting during the primary. Kusper v. Had already held that Republican government was non-justiciable. This is different than California’ blanket primary that allowed a person to vote for any candidate for each office. one vote.Constitutional Law Page 59 of 122 sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary. unlike the party rule. Evidence supports the fear that non-adherents can play a decisive role in choosing a nominee and rejected the various justifications offered by the state for the blanket primary. Jones (2000) Declared unconstitutional a blanket primary and placed in doubt the constitutionality of other forms of open primaries. Sanders (1963) Challenge to the Georgia system of selecting representatives for the Georgia House of the General Assembly on a county basis. Districts often were not redrawn after urban migration. The difference with Rosario was the length of time – but is eighteen months versus 23 months that much of a difference. It impermissibly violated the First Amendment’s protection of political association – right to exclude. One person. causing cities to be underrepresented compared with more rural. California voters adopted an initiative that allowed a voter to case a ballot in either party’s political primary. In some states. all who participate in the election are to have an equal vote as required by the EP Clause of the Fourteenth Amendment. Carr (1962) EP challenges to malapportionment were justiciable. EP requires . Baker v. Gray v. The Connecticut Republican Party adopted a rule that permitted independent voters – those not registered with any political party – to vote in Republican primaries for federal and state offices. Republican Party of Connecticut (1986) Declared unconstitutional a state law that limited voting in a primary to those who were members of that party.

the Alabama legislature had a thirty-five member state senate elected from thirty-five districts that varied in population from 15. Here the state used the numbers of 1900s even though the state constitution states every decade. Sanders (1964) declared unconstitutional districts for the House of Representatives where some districts had twice as many people as others. Warren uses words like undeniability and undoubtedly – used this type of language when not in the Constitution. It may not be possible to draw districts with mathematical precision. but that is no excuse for ignoring the Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goals of the House. Declared malapportionment of a state legislature unconstitutional and ordered its reapportionment. Court stated that geographical area made no sense in drawing districts. A state is not allowed to mirror Congress where they House is apportioned by population and Senate seats are allocated two to each state regardless of population. no one person one vote in the Constitution. House is elected one person one vote and senate has two people from each district. Under then existing law. Legislators represent people not trees or acres. Could have said that it was up to the state and there was no invidious intent. Wesberry was state elections for federal office and had not held it in state elections for state office until this case. Rather sharp dissents. One might have thought that states would have more control over how to establish their own government. No one thought this was an issue until Reynolds when one person one vote arose.000. elections are a bedrock of our system. only population was a permissible basis. Sims (1964) It was a big deal – they had already decided Gray was not binding (which struck down county unit system in statewide primary elections saying that it had to be close to one man one vote and treating apportionment like primaries). Malapportionment inevitably means vote dilution as those voters in the more populous district have proportionately less influence in the political process than those in the small districts. It’s not analagous to the federal government because for the federal government it was a necessary compromise to make the national government happen and states came in under this system. the courts have been careful not to get involved in this type of enforcement. A long term projects of overseeing the state legislatures. Interested in effect here much more than intent. What about the Commonwealth of Massachusetts which came in before the United States existed? People are not a part of the state system by choice but did choose to ratify the Constitution. There is therefore. Wesberry v. Let’s say a state divides its legislature into a house and senate and follow the federal scheme. Since schools.Constitutional Law Page 60 of 122 that all districts be about the same in population size and anything else impermissibly dilutes the voting power of those in the more populous districts. Discussed at length the framers’ theory of representative democracy and again concluded one person. EP requires a state to make an honest and good faith effort to make equally populated districts. . Reynolds v. Can’t use this system even if the people voted for it.000 to 634. one vote. This is institutional – states will have to develop new schemes and if the states do no come up with a satisfactory one the court will do it. As a representative government.

White v. has the Court permitted deviation from one person. Lucas v. by initiative. like the water cases. Reapportionment was very unlikely to occur without judicial action because officeholders were not likely to give up their seats. one vote is a constitutional mandate and voter approval does not justify such a violation any more than voter approval would permit the violation of any other constitutional right. Although they were viewed as extremely controversial in the 1960s. one vote. but the 1990s. An enormous effect on government. any deviation must be justified. Richardson (1966) it held that it is permissible for the government to use the number of registered voters. employ teachers.13% above the mathematical ideal and the least populous was 2. The Court emphasized that the government must make a good-faith effort to achieve precise mathematical equality. In Kirkpatrick v. It had the power to tax.7%. Rejected earlier attempts to distinguish legislative officials from administrative ones. The decisions dramatically changed the composition of state legislatures. one vote to county commissioners who had general government powers over the entire geographic area served by the body. Note that the Court has allowed more deviation in districts for electing state and local officials. though in Burns v. Forty-Fourth General Assembly (1964) Companion case to Reynolds. Junior College District (1970) applied to an elected body with a limited governing authority – a junior college district. Hadley v. one vote. Mahan v. Only relatively small deviations are tolerated. One person. and in turn the laws adopted. Midland County (1968) Extended one person. Daggett (1983) Declared unconstitutional districting for the House where the deviation between them was 0. All elected officials must be done so in a manner that avoids vote dilution. Again in Karcher v. . Weiser (1973) declared unconstitutional even a smaller deviation.6% away from target. Some still criticize the cases as excessive judicial activism because there was not authority in the text or framers’ intent for the rule of one person.8% and the underrepresented districts were 9. especially with regard to elections for federal offices. they are seen as a paradigm instance of the judiciary acting to perfect the political process and reinforce democracy. Preisler (1969) the court invalidated districting for the House where the most populous district was 3. The Court has repeatedly emphasized that. Avery v. had approved the malapportionment.Constitutional Law Page 61 of 122 Can you require a super majority? Yes.84% below. This deviation was impermissible because the state could offer no justification as to why it was needed. Howell (1973) expressly said that broader latitude has been afforded the states under EP in state legislative districting and allowed deviations where the overrepresented districts exceeded the ideal by 6. It is not unconstitutional under the one person. Only in unique and limited circumstances. Who counts? All persons legally within the area? Registered voters? Those who voted in the last election? The Supreme Court has not ruled that one of these approaches must be used. and manage the educational program. It was irrelevant that voters. one vote standard.

Justifications sufficient to meet SS do not include section 5 of the Voting Rights Act which requires that the Justice Department approve changes in election systems in states where there has been a history of race discrimination with regard to voting. Johnson and Bush v. four by finding no constitutional violation and three by concluding that the state was not justiciable. Three would have denied it on justiciability grounds. White’s plurality opinion said that in order for a group to prove a violation of EP it must prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. Cannot show it through one election alone. Compliance with the 1982 amendments to section 2 of the Voting Rights Act which prohibits election systems. Hunt and Bush v. Gaffney v. The use of race in drawing election districts must meet strict scrutiny. such as in distinction. one vote is maintained and there is no discrimination against any racial or other group. but in Bush O’Connor wrote a separate opinion concurring the judgment and holding that it was a compelling state interest – thus she combined with the four dissents would make it a justification. Initially said that challenges to such gerrymandering are justiciable. Politics and political considerations are inseparable from districting and apportionment. Vera). Districts were drawn to create a legislature reflecting the approximate political strength of the Democratic and Republican parties within the state. Hunt)and thus SS is to be applied: if a district has a bizarre shape that in itself makes clear that race was the basis for drawing the lines or if the use of race in districting cannot be inferred from the shape of the district. Gerrymandering Practice of a political party of drawing election districts to benefit itself and harm its opponent. Although the Court recognized that the issue was different than in the malapportionment. Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voters’ or group of voters’ influence on the political process as a whole. Acceptance as long as one person. Vera. The result was a very fragmented opinion: Six justices found that challenges to gerrymandering are justiciable. that have discriminatory effects against racial minorities was avoided in Shaw v. No EP violation.Constitutional Law Page 62 of 122 h. The last three would have found justiciability and the districting in Indiana denied EP. The Court indicated two ways in which it can be demonstrated that race was used in drawing election districts (Shaw v. Cummings (1973) The Court indicated that it would be very reluctant to invalidate districts based on gerrymandering. the Constitution does not require that there be proportional representation in the legislature based on political party strength and the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Davis v. Reno (1993) and its progeny. Bandemer (1986) The Court considered a more difficulty case in which the incumbent party controlling the legislature draws districts to help it remain in control. but the issue is still one of representation. . SS is justified if it is proved that race was a predominant factor in drawing the lines (Miller v. Seven justices voted to uphold the districts used in Indiana. Reno and Shaw v. Views of the Justice Department about the desirability of maximizing minority districts do not constitute a compelling interest sufficient to meet SS. Found no unconstitutional violation here. The use of race in drawing election districts is permissible only if the government can show that it is necessary to achieve a compelling purpose. However. Shaw v.

the Court has held that discrimination among people as to access to the courts is subjected to SS under EP. Racial classifications of any sort reinforce that people should be judged by color of skin and can Balkanize. them mentality. Access to courts is also protected by specific guarantees in the Bill of Rights like the Sixth Amendment’s guarantee of the right to counsel. Must show that could have done through less restrictive means that are comparably consistent with traditional districting principles and that these districting alternatives would have brought about significantly greater racial balance The problem is that rarely with politics and race be separated. Also. A three-judge federal district court held that North Carolina’s legislature had impermissibly used race as a predominant factor in drawing the 12th Congressional District’s boundaries. The government may use race as a factor in districting if the goal is political. challenges to filing fee requirements. Although at times the Court has spoken generally of a right of access to the courts. The Court found that the evidence here showed a political goal to create a majority Democratic district. Field thinks its odd to adjust districts for political considerations but not racial political interests. 1. Racial classifications benefiting minorities arguably disadvantage a white individual who is not hired or admitted because of the affirmative action program. not political. G. 20% of NC population was black but was dispersed and tried to create districts that would have a strong black majority and drew funny looking districts. Constitutional Protection for Access to Courts The Court has long said that the right to be heard in court is an essential aspect of DP. Cromartie Districts for congressional seats in North Carolina. particularly the ultimate finding that the legislature’s motive was predominantly racial. and prisoners’ access to the judiciary. Found to be unconstitutional because it created racial animus and us v. Majority-minority voting districts were encouraged by the Voting Rights Act. The Right to Appeal . Hunt v. the DP and EP areas of the right to appeal. – no good because done to achieve racial result. In this inquiry.Constitutional Law Page 63 of 122 Dissent made a strong argument that affirmative action in voting is different than affirmative action in areas such as employment or education. but in voting every person still gets to vote and every vote is counted equally. African-Americans in North Carolina were Democratic about 95% of the time as much as it would show an affirmative action explanation. such as protecting a safe seat for an incumbent or creating a district which ahs a majority of one political party. The Court reversed and found that the fact-finding was clearly erroneous. Breyer drew a distinction between the use of race for political reasons as opposed to for affirmative action. Case Differs from Shaw which was dealing with race considerations. The main issue was evidentiary and the court stated that it must determine whether there is adequate support for the District Court’s key findings. the burden of proof is on the plaintiff asserting the impermissible use of race and that courts must show deference to legislative choices in districting. Same argument as affirmative action. the decisions have all involved challenges to particular impediments.

Boddie v. . Illinois law created a right to appeal criminal convictions but direct appellate review was available only if the  provided the appellate court with a bill of exceptions or a report of the trial proceedings certified by the trial judge. but Marshall pointed out that the Court did not appreciate the margin of survival of poor people. Not treated like DP. California (1963) Public Defender incompetent and defendants dismissed him. The Court subsequently limited this right to initial appeals that are created as a mattero fright by state law in Ross v. Generally.Constitutional Law Page 64 of 122 Neither the Constitution or the BOR mentions a right to appeal nor has the Supreme Court held that DP requires an appellate review of criminal convictions or civil judgments. But the Supreme Court has ruled that when appeals are made available. the Court has been very inconsistent as to whether the government is constitutionally obligated to waive filing fees for indigent individuals in civil proceedings.Preempting the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so. Under state law these were provided free of charge only to s facing the death penalty. have to give to all. Have to pay $60 to get a divorce – struck down under DP because marriage is a fundamental right. United States v. the government cannot discriminate or create barriers that limit the ability of indigents to exercise this right Griffin v. the Court has refused to find that filing fees impermissibly violate EP or DP. Wanted to appeal but Court didn’t give another lawyer. Lack of equality under the 14th Amendment. Moffitt. Douglas v. The government must provide indigent criminal s free counsel on appeal at least for their initial appeal which state law requires the courts of appeals to hear. Kras (1973) The government was not required to waive filing fees for indigents seeking to file for bankruptcy. It sometimes was impossible to prepare such documents without a stenographic transcript of the trial. No right to appeal in Constitution (but neither is abortion or voting). Exclusing from the only forum effectively empowered to settle their disputes. the state has a monopoly in granting divorces while there are alternative ways to solve the problem of debts. giving the minimal. Tried to follow Gideon by only giving the right to worthwhile cases. Frankfurter’s concurrence added that the right ot appeal from a conviction for crimes is so established that it leads to the easy assumption that it is fundamental to the protection of life and liberty and therefore a necessary ingredient of DP. The Government must provide transcripts on appeal for indigent criminal s. so EP (rather than DP fundamental right). Here the state is trapping you into a marriage (not affirmative right but rather because of this). Connecticut (1971) Goes back to DP. In prison cases. Filing Fees Despite the strong statement of a right of equal access to the courts for rich and poor. Illinois (1956) Inmates wanted to appeal but did not have $$ for transcript. the need for equality comes from the state using all its resources against you. Divorce relates to the constitutional right to marry and the denial of access to the judicial forum touched directly on the marital relationship and bankruptcy does not rise to the same constitutional level and second. The court also found the fee minimal. Once given to one. Not perfect EP because right to one appeal. Counsel not giving total equality. 2.

valid on its face. it is still possible in areas where fundamental rights are at issue and where the state has a monopoly in providing redress. Other Costs Cannot have prison sentences to work off fines. disregard. A cost requirement. Although Kras and Ortwein make it very difficulty to challenge the filing fee requirements. or disrespect. Little v. if extended viabilility mark longer wouldn’t be required via DP but if it chose to go further for some people it would need to go further for all under EP. access fees only have to meet RB review but that there is an exception in that access to judicial processes in cases criminal or quasi-criminal in nature may not turn on ability to pay. SLJ (19696) Declared unconstitutional a state requirement that parents pay a fee (which was in the thousands of dollars) for preparation of the trial record in order to appeal a termination of custody. Streater (1981) The right of an individual to deny paternity. Wealth Discrimination For a time it appeared that the Court would use HS for law discriminating against the poor after Griffin and Harper. like in Boddie. Interestingly. does EP really mean anything? Field thinks. though. A  unable to afford these tests would lack a meaningful opportunity to be heard because there was no other way to refute the allegation. Field criticizes the scope because it only applies to termination and earlier has been an involuntary removal and really need the right. The government must pay for blood tests for indigent s in paternity cases. . Also the other rights are independently explicit or implied.Constitutional Law Page 65 of 122 Ortwein v. But if they were independent explicit and implied DP rights. Schwab (1973) Followed the reasoning in Kras and held that the government was not obligated to waive filing fees for judicial review of adverse welfare decisions. may offend DP because it operates to foreclose a particular party’s opportunity to be heard. H. For example. via EP would have to give it to women as well. in abortion. MLB v. Ginsburg noted that choices about marriage. Also if you extended voting rights to age 16 for men. and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society that are sheltered by the 14th Amendment against the state’s unwarranted usurpation. Still those are strong precedents. the state had a monopoly for resolve disputes. family life. Generally. that there is some relationship. A denial or reduction in welfare benefits did not implicate constitutional rights. 3.

long history of discrimination against the poor in a wide array of areas . Of course there is not constitutional requirement for AFDC so the state doesn’t need to do anything. Court finds this permissible as rational basis applies. Maher v.Constitutional Law Page 66 of 122 Poverty a quasi-suspect class (other rights not deemed fundamental like travel). The Court accepted the state’s interest in allocating scarce public benefits as sufficient to justify the law. even though it was paying for childbirth and other medical care costs. LA violation. Rivas (1973) Expressly held that poverty is not a suspect classification and that discrimination against the poor should only receive RB review. Counter-respond that you should be looking at it by comparing families not by comparing individual children. Also. Considered different because she is in the same position as if they had done nothing at all. Why is funding for abortions different? The state is permitted to give to one and not the other (funding wise). Could argue Levey v. He is talking here about an all the factors test. TX has a law in which it collects local property taxes to fund school districts. Children in larger families therefore received less per person than those in smaller families. Look at degree of the discrimination and the degree of the state’s interest. versus in the EP cases the state is acting against the person.) Dandridge v. as a result poor areas are taxed at high rates for education but still had little to spend while wealthy areas had low rate and could spent a lot. right of unwed fathers to know their children (Michael H. State interest seems to be to prevent people from having extra kids they can’t afford. Other things not treated as fundamental rights are the right not to be sterilized (Skinner). creating differing amounts of funding. they might have some prejudice against them. rather. San Antonio School District v. It has never been held that financial need alone identifies a suspect class for purposes of EP analysis. The poor do share many characteristics with groups that are protected by intermediate and SS: lack political power. or even RB. Marshall Dissent says that the right to food and shelter is fundamental and thus the state should have to provide a compelling argument in addition to that it wants to save money. there was no evidence that it was discrimination against the poor as a group. more like economic and social legislation. Is that an EP unit? Haven’t used families as a unit in the past. Education is important but not a fundamental right. Roe (1977) Rejected the argument that the government violated EP when it refused to fund abortions. Argument against this is that education is important for exercising First Amendment and voting rights. when it is fundamental the state should have an equally compelling reason to deny. RB review was appropriate because the law related to economics and social welfare. because a false dichotomy. Deference to state officials when allocating limited public funds. Not really saying that it should be SS. Punishing parents via the children. Williams (1970) Upheld a state law that put a cap on welfare benefits to families regardless of their size. Notes that this is not at all like business regulations which are the normal economic and social legislation. Court was hesitant because of the need to then monitor schools. Discrimination against the later born children. Not explicit nor implied in the Constitution. So what if a class is not a suspect class.

Now it might consider it a part of legislative deference if Congress enacted it as it is usually in charge of immigration. shelter or medical care. Still getting the same percentage but of the same pot.000 and taxes at 1% (District 9) they get the same amount of money. education is key. the court unanimously upheld a federal statute that denied Medicaid benefits to aliens unless they have been admitted for permanent residence and . Brennan started off by noting that even unlawful aliens have been recognized as persons guaranteed DP by the 5th and 14th Amendments.Constitutional Law Page 67 of 122 throughout society. But the Court also made it clear that it was using more than RB review. food.000 and tax at 5% (District 1) and another district has a property value of 500. Nor is education a fundamental right. Mathews v. it appears the Court was using intermediate scrutiny. Not letting people who choose to spend a little end up with a lot and vice-versa. The basic thing was that there was some state money given to every school district along with federal money. Keep it in districts to preserve interest in local control. Field thinks that a better way to look at the case is not to get caught up in degrees of scrutiny. Not delaying it but creating an absolute bar to education which is an important service. Dissent argued that RB review was appropriate and that the judiciary should defer to the legislature on matters of how to allocate resources for education. Note though that the Constitution recognizes states and not localities so perhaps this would have to apply to the entire state. Another case of punishing kids for the parents. 1 2 3 4 5 6 7 8 9 These are the school districts. 60% of the whole thing. If property value is 100. The Court did not articulate expressly a level of scrutiny but it did say that undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Thus. In comparison. Will get proportionately how much percentage they vote. Could have 1% or 5% taxes on property. Worry though that other rights will start floodgating in. Poverty is not immutable and most discrimination against the poor is a result of the effects of the law rather than a produce of intentional discrimination. Diaz (1976). HS was inappropriate because there was no suspect classification and no fundamental right. The state’s claim of a desire to reserve benefits for its own citizens would likely meet a RB test. Doe (1982) Struck down a Texas law that provided free public education for children of citizens and documented aliens but required undocumented aliens to pay for schooling. One of the reasons poverty is not a suspect class is that you don’t have to be in it forever. Plyer v. and some argue that there should be minimum entitlements under the Constitution. Who is being discriminated against? It is not discrimination against the poor. If we have this as an ideal. State’s interest in local control can still happen with a fair system. Have it all go to a state fund and give 1% $100 and people who voted for 5% to $500. Also wanted to avoid creating a constitutional right to government benefits such as welfare. it is discrimination against those who live in a property poor district (which of course has overlap with poverty).

knowing him to be an indigent person. La Fleur Legislature made a presumption that women who were three months pregnant could not work. Must always distinguish b/w (1) federal P&I clause under 14th amendment and (2) state P&I clause under Art IV. Lindsay v. The relationship between the United States and alien visitors has been committed to the political branches of federal government – deference because decisions in these matters may implicate our relations with foreign powers and since a wide variety of classifications must be defined in light of the changing political and economic circumstances such decisions are frequently of a character more appropriate to either the legislature or the executive than to the judiciary. So important because linked to the commerce clause. Guest ―Although the Articles of Confederation provided that ―the people of each State shall have free ingress and regress to and from any other State.Constitutional Law Page 68 of 122 resided at least five years in the United States. Violative of DP to due that without a hearing. Four justices in concurrence stated that the right was to travel an incident of national citizenship protected by federal p&I of 14th amend. Crandall v. knowing him to be an indigent person. Therefore. that right finds no explicit mention in the Constitution. California (1941) Invalidated law making it misdemeanor to bring into California ―any indigent person who is not a resident of the State.‖ – invalidated law making it misdemeanor to bring into California ―any indigent person who is not a resident of the State. Although the text of the Constitution does not mention a right to travel. it long has been recognized by the Supreme court. Presumably rested on structural inferences since it was rendered before ratification of 14th.‖ Majority opinion relied solely on commerce clause and did not address the right to travel.‖ Edwards v. Normet (1972) The Court rejected a challenge to a state’s summary eviction procedure. . The Constitution does not provide judicial remedies for every social and economic ill and there is nothing in the Constitution about guarantees of access to dwellings of a particular quality. The Court thus drew a distinction between alienage classifications imposed by the federal government and those created by state and local governments HS is used for the later but the Court said that federal law was upheld because it was not wholly irrational and served the legitimate interests of the federal government in preserving the fiscal integrity of the program. §2. laws that prohibit or burden travel within the United States must meet SS. H. Counter view by Stewart in US v. Constitutional Protection of the Right to Travel The Court has held that there is a fundamental right to travel and to interstate migration within the United States. Nevada (1867) – invalidated tax on passengers leaving the state because it imposes a tax upon the passenger for the privilege of leaving the state or passing through it by the ordinary mode of travel.

‖ as you can’t lose what you never actually had. Guest (1966) Expressly declared that there is a fundamental right to interstate travel. Congress was wrong – don’t care that Congress approved it. Statute affects only matters not mentioned in Constitution. rules. Congress enacted Personal Responsibility Act which expressly authorized states to do programs like CA. Three components of right to travel (outlined in Saenz v. IV. as migrants as a whoel. Right to be treated as a welcome visitor rather than an unfriendly alien (Art. Individuals were prosecuted for a conspiracy to interfere with civil rights because of their actions against African-Americans. Section 2 – state privilege and . Warren Dissent argues hat Congress could had have authorized such discrimination. CA limited new state residents for the first year of residence to same level of welfare benefits they would have received in their prior states of residence. Travelers who become permanent residents have right to be treated like other citizen of that State. it is just as impermissible to want to keep out a particular type of migrants. Saenz v. indigent ones. Clause does not allow for degrees of citizenship based on length of residence. Thompson (1969) Court relied on EPC to invalidate law denying welfare benefits to new state residents until they had resided in state for a year. For travelers who become permanent residents. Rehnquist Dissent notes that the State’s argument is similar to rationale of abortion funding cases – this isn’t ―penalty. State has valid interest in preserving fiscal integrity of programs. Durational Residency Requirements Shapiro v. All citizens free to travel throughout the length and breadth of our land uninhibited by statutes. Can state discriminate against out-of-staters? NO . CA argued their program imposed no penalty on interstate migration under Shapiro. Right of citizens of one State to enter and to leave another State (Edwards v. Brennan applied SS. Roe) 1. In 1996. Also. Field says right to travel is misnomer…these are people who were moving there to live there. right to be treated like other citizens of that State (Saenz v. Roe) 1. Roe (1999) In 1992. but may not accomplish such purpose by invidious discrimination between classes of its citizens. it was assumed to exist. Using combination of federal P&I clause and citizenship clause of 14th. It was absent from the text of Constitution because it was so basic.Constitutional Law Page 69 of 122 United States v. Indictment charged that the s had conspired to deprive blacks of their full and equal enjoyment of the right to full and equal utilization on the same terms as white citizens to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce. Citizenship= residence.Article IV. The Court reversed a decision by the district court dismissing the indictment declaring that the constitutional right to travel occupies a position fundamental to the concept of the federal union and is a right that has been firmly established and repeatedly recognized. Effect of waiting period is to create 2 classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year. Court engaging in rare exegesis of Slaughter-House cases and federal P&I clause. regs that unreasonably burden this movement. CA) 2. §2) 3. Harlan Dissent objecting to Court’s fundamental interest EP methodology.

‖ Appellant was not irretrievably foreclosed from obtaining some part of what she sought unlike welfare recipients in Shapiro. Court deemed medical care. Starns v. Rehnquist was sole dissenter. after Shapiro. So basically State has to take their word that they intend to stay. “fundamental” is different. The court rejected the state’s justification that the requirement was necessary for knowledgeable voters. Dunn v. Rehnquist notes that this area of domestic relations ―has long been regarded as a virtually exclusive province of the States. Maricopa County (1974) Court relied on Shapiro in invalidating an AZ requirement of a year’s residence in a county as a condition of an indigent’s receiving free nonemergency hospitalization. Marshall found it subject to SS because they curtained fundamental interest in voting and burdened right to travel. Blumstein (1972) Invalidated TN’s one-year in-state residency requirement for voting. §1). but durational limit is okay.Constitutional Law Page 70 of 122 immunity clause (has been held to protect fundamental rights of non-citizens visiting another state). voters in Blumstein. Iowa (1975) Upheld a requirement that a party reside in state for one year before bringing divorce action against a nonresident. Always have a residence. Also prior justifications were poor. the Court qualified this ruling and allowed residency requirements of up to 50 days to give the government time to check election rolls. Memorial Hospital v. but sophisticated person would know how to establish residency. But question in this case is whether you can distinguish b/w two classes of residents. Also. like welfare ―basic necessity of life to an indigent. Also. How does Saenz change this? Field says not much . prevent fraud. consider that someone could eventually get welfare or medical benefits in the other cases. Malkerson (1971) Requirement OK for college tuition. Fundamental rights under state p&I clause are not the same as fundamental rights under DP or EP. and never have more than one. Doesn’t this infringe on fundamental right to marry? Have to now wait another year to marry someone of your choosing. question is whether this applies to all state services? Court calls this a penalty on new residents because it is a necessity of life. and administer the election. Sosna v.‖ It is clear that the freedom to travel includes the freedom to enter and abide in any state. Thus. Residence = citizenship (14th amend. Can’t make monetary threshold. we aren’t really talking about state privilege and immunity clause.‖ The law penalizes indigents in exercising their right to travel. So. Later. “Test of residence” = (1) presence. Can’t discriminate against new residents. and (2) intent to stay. Court summarily affirmed preferential in-state resident tuition rates at state universities. as SS was triggered by ―any classification which serves to penalize the exercise. Challengers need not prove that one-year waiting requirement actually deterred interstate travel.

3) Federal and state statutes can apply to private conduct – state action is only about constitutional requirements. 2) Does the government’s failure ot stop private infringement of rights become itself a constitutional violation? Because the state has the power to do so. this idea has diminished significantly as some rights are not protected under common law. the Court declared that the provisions of the 14th Amendment have reference to State action exclusively and not to any action of private individuals. public conveyances on land or water. state – Civil Rights Cases provide definition 2. soon after the ratification of the 14th Amendment. 14th Amendment only has power over states.Can’t punish private action. encourages.Constitutional Law Page 71 of 122 I. However. Costs of a State Action Requirement 1) Private infringements can be just as harmful as government violations. it is analytically possible to conceptualize any private infringement of constitutional values as a result of government inaction. 4) If states are not doing an adequate job. Congress under §5 of the 14th Amendment could not regulate private conduct but can only legislate against wrongs by state governments. When Does the Constitution Apply to Private Action? 1) The 13th Amendment is the one provision that directly regulates private conduct as it forbids slavery.inns.‖ Remember Constitution doesn’t place affirmative burdens upon the states. 3) Policy reasons include that it preserves a zone of private autonomy and enhances federalism by retaining an area of state sovereignty. its failure to do so constitutes a state decision to permit violations. theatres. declared it unconstitutional because Congress lacks the authority .. §1 of CRA of 1875 states ―all persons shall be entitled to full and equal enjoyment of accommodation. like freedom of speech. with only Harlan dissenting.. action – Sure lack of enforcement of public accommodation is discrimination. 2) There are exceptions where private action needs to comply with the Constitution – a conceptual diaster area. . The Court. These exceptions focus on the public functions exception (involves a task that has been traditionally. But drawing the line between action and inaction isn’t that easy in these cases. Private action governed by state law and not covered by the federal Constitution. 2) Common law protects individuals from private discrimination. should the federal government still preserve their sovereignty? Justifications for State Action Doctrine 1) The text of the Constitution seems to limits its application to just the government. but it is ―non-action. however. Two elements/problems of “state action” cases: 1. The Court also ruled that Congress could not adopt the law pursuant to its authority under §2 of the 13th Amendment because the refusal to serve a person was no more than an ordinary civil injury and not a badge of slavery. 3) The freedom of the violator and the person who was violated are both at stake. or facilitates unconstitutional conduct.‖ The law specifically prohibited discrimination based on race and color or on the basis of any previous condition of servitude – prohibited private race discrimination and provided both criminal and civil penalties. exclusively done by government as well as the entanglement exception (the government affirmatively authorizes. The Requirement of State Action Civil Rights Cases (1883) In 1879.

It terminates a woman’s electric service without procedural DP. Suppose they cut off her electricity because she was a single mother? What about little league discriminating? Advertise in schools and use public parks. a. regulated by federal law. But why should it depend on the nature of the claim? . Public Functions Exception The rationale for the exception is that the government should not be able to avoid the Constitution by delegating its tasks to a private actor and that there are some acts that seem inherently governmental in nature and a private entity performing them therefore also should be limited by the Constitution. Exceptions to the State Action Doctrine There are two exceptions to the state action doctrine – public functions and entanglement. (1974) Held that there is state action in the exercise by a private entity of powers traditionally exclusively reserved to the state. . Explanations include that it reflects the inherent problems with state action as the government always has the power to regulate private behavior and so there can never be a clear line for when the failure to do so constitutes state action and hence a constitutional violation. Not deemed state action because regulation and monopoly status is not enough. the government is involved to some extent in almost every activity and it is hard to draw a meaningful line as to the point where the involvement is great enough to require private action to comply with the Constitution. Private electric company and is the only one. and the CRA of 1964 made state action inquiry unnecessary in many aspects because the statute already covered it. v. Inc. Seems to mean something different for gender and race. Metropolitan Electric Co. Note that these cases seem very inconsistent.S. Olympic Committee was not a part of the government and was not thus required to comply with the Constitution though it was charged by Congress. Jackson v. nor is government regulation or government funding. US Olympic Committee (1987) Held that the U. 1. Note that the Court is often not clear about what exception it is applying The Court has been much more likely to apply the exceptions in cases involving race discrimination than in cases involving other constitutional claims. many early decisions were written with broad principles that would apply to much activity and have been narrowed but not overruled by later decisions.Constitutional Law Page 72 of 122 San Francisco Arts and Athletics. What we see through these examples is not only are they pulling back from Burton but that they are applying state action in a rather irrational way and are using more of a sliding scale depending on the level of state action and the level of the wrong rather than an either/or system. also in the 1940s through 1960s the Court expansively defined such action in order to combat discrimination. and partially federally funded A corporate charter granted by Congress does not make it a government actor. Public utilities are natural monopolies (Field thinks this is ridiculous).

So not just the general function of the park but also in this specific case a desire to discriminate. There are three major areas. Newton (1966) A whole series of cases like this. intent to delegate and avoid constitutional limitations. Marsh v. Then the City was the agent forbidding blacks which was obvious state action. NAACP wrote a great brief and got cert but the only issue was whether they had resigned as a trustee and hard to get a federal issue out of that but Douglas did. This suggests that the determination of state action of a balancing test where the court weighs the interests of the private property owners and the constitutional rights involved and from this perspective any state failure to prohibit serious violations of constitutional rights by private entities is actionable under the Constitution. The park is still serving a public function. The Court has not gone this far in applications and in Jackson cited Marsh for the limited proposition that a private entity performs a public function when it exercises power that has been traditionally exclusively reserved to the state. The city then resigned as a trustee. and the running or regulation of schools. When balancing the rights of property owners against those of the people to enjoy the freedom of press and religion. Evans v. the only reason the city resigned as trustee is because it wanted to segregate. social workers had make reports about the abuse. Alabama (1946) Company owned the entire town and Jehovah’s Witness wanted to exercise First Amendment rights and distribute literature. The reason was likely that the agency is underfunded and overworked and for that reason suits to sue these type of agencies usually fail because otherwise they would get into equal funding. and nature of the rights. The more an owner for his advantage opens up his property for use by the public in general the more his rights become circumscribed by the constitutional and statutory rights of those who use it. in addition to Jackson. where the Court has considered the public functions exception: management of private property. A man in GA left a park to be open only to white people and made the mistake of having the city as one of the administrators of the park. the latter occupy a preferred position. control of the electoral process. if there had not been a state system that was supposedly taking care of this there might have been other people who would have rise to the occasion but instead they thought that the report to the government was enough. even though it is not in the record.Constitutional Law Page 73 of 122 How should this test be formulated? Which of the following should be considered? Frequency. One thing we’ve learned from Yick Woo is that state action can take place at any level down to city agencies. Even in our CL . Douglas claims. DeShaney State inaction. The language here is much broader but has never been overruled. Could the state criminally prosecute her She was able to because of the First Amendment. You could make the argument that it was state action by getting involved in the process of custody (doesn’t know how moving to a different state changes this). Because the company town is serving a public function they still need to allow Constitutional rights. The company town was performing nearly every function and as you move back into the shopping center it is more of a gray area.

Rendell-Baker v. most of the funds came from public schools. 84% of the members of the private entity were public schools. Adams (1953) A challenge to the exclusion of black from participating in preprimaries held by the Jaybird Democratic Association. Hypo: Driving along in my car on Mass Pike and am speeding a little bit and get stopped. the Democrat was always going to win so the primaries were important.Constitutional Law Page 74 of 122 rule. Part of it is because of the place of the primary in the election scheme made it clear that is was delegation. the Court has refused to apply the public functions exception in this area. Tennessee Secondary School Athletic Association (2001) Found that a private entity regulating high school athletics was a state actor based on the government’s entwinement wit hits activities. Tarkanian (1988) The NCAA is a private entity and that it therefore did not have to provide DP before it suspended the basketball coach at a state university. c. Not surprisingly. Perhaps these cases are most useful as a precedent if the government ever would choose to stop performing a traditional task so as to avoid the Constitution. Terry v. Providing special education was an important social function. Based on the entanglement exception. National Collegiate Athletic Association v. The Jaybirds contended that they were a private club and not a politically party or an electoral body. Kohn (1982) No state action when a private school that received almost all of it’s funding from the government fired a teacher because of her speech. Effectively was eliminating black folks from any choice at all. it basically took blacks out of the system entirely. but said that there was not state action because such private schools have long existed. Election Cases/ White Primary Cases Holding an election for government office is a public function that must meet the constitutional requirement for EP. the state traditionally had delegated regulating interscholastic athletics to the entity. Two children are in the backseat and truck hits the car killing them. SF Arts and Athletics noted that regulation of amateur sports has not been a public function. And because of the nature of Texas. Smith v. Because the same group kept winning the primary elections. Leave car slightly to the side of Mass Pike. Deemed state action. Is there state action for killing the kids? 7th Circuit held that it was not state action. a Texas political organization. Can’t find registration because car is messy and there is a rule that if you can’t find it they are supposed to take you in. if you start something you have to finish on the grounds that people were relying on the action. Allright It is a delegation of a state function and are violating the 15th Amendment right to vote. Running and Regulating Schools Because Jackson narrowly defines public function it seems impossible to say that running or regulating schools is a task that has traditionally been done exclusively by the government. and most of its . Brentwood Academy v.

b. Kramer (1948) Petitioners were African Americans who purchased homes from white owners despite racially restrictive covenants.Constitutional Law Page 75 of 122 meetings were held on government property. In almost every area of entanglement. facilitating constitutional violations. encourages. albeit the common law. government licensing and regulation. but it is not discriminatory. Later. there is a Warren Court decision expansively defining the exception to find that private race discrimination violates the Constitution. to enforce racial discrimination by enforcing the discriminatory covenant. Entanglement Exception The Constitution applies if the government affirmatively authorizes. the case is controversial because ultimately everything can be made state action under it if any decision (even dismissal) by a state court represents state action. The entanglement cases have arisen primarily in four areas: judicial and law enforcement. Definitely state action in saving the club. was enforcing the law of the state. causing friction. Should a fire department save a burning white supremacist club? Yes. Overall it is possible to say that the Court is most likely to find state action based on entanglement if it can be shown that the government’s purpose was to undermine protection of rights or if the government is facilitating private conduct that otherwise would not occur. encouraging. the judiciary. What degree of government involvement is sufficient to make the Constitution applicable? These cases are more confusing than the pubic function exception. Thomas Dissent noted that never before has the Court found state action based on entwinement rather than entanglement. in each area. To find state action based on entanglement there must be some government action that can be identified as affirmatively authorizing. It is a service that they . and voter initiatives permitting discrimination. Distinguished Tarkanian because the NCAA worked in all states and couldn’t be a surrogate for one state. Interestingly rationale was that using the state court to enforce a racially restrictive covenant makes the state a party. The argument was that private contractual agreements need not comply with the Constitution and that court enforcement was simply implementing private choices. Still. Here though we have a willing buyer and seller. The neighborhood association went to court trying to enforce the contract and lost. The state action is coming between these two willing parties. But wouldn’t these be like enforcing neutral trespass statutes at the Woolworth counters? Court never said it wasn’t state action but never said it was either. Either the government must cease its involvement with the private action or the private entity must comply with the Constitution. government subsidies. Shelly v. there are Burger and Rehnquist Court decisions greatly narrowing the scope of the exception without overruling the earlier cases with arbitrary distinctions. This case is uncontroversial in the sense that a branch of the government. or facilities private conduct that violates the Constitution.

and thus DP was not required prior to the sale of belongings. The warehouse demanded that she pay the storage fees or it would sell her property. the Court emphasized that the involvement of the government in jury selection from subpoenaing individuals for jury service to compelling completion of questionnaires to judicial supervision of the voir dire process. too. And as to the second prong. unless there is other government encouraging or facilitating of unconstitutional conduct. and hence DP. in the former case while the latter was entirely private self help. the involvement of the sheriff was unnecessary precisely because the state’s law allowed the repossession action without assistance of the sheriff Edmonson v. or a rule of conduct imposed by the state. Lugar v. because he has acted together with or has obtained significant aid from state officials. it is state and federal laws that authorize peremptory challenges in state and federal courts. resolving disputes. (1991) Held that Batson (EP prohibits prosecutors from using peremptory challenges in a discriminatory fashion in criminal cases) applied to private civil litigation The Court applied the Lugar two part tests and found that there is state action where private parties exercise peremptory challenges in a civil case in a racially discriminatory manner. (1982) Found that there was state action when a creditor obtained a writ of prejudgment attachment from a court. or by a person for whom the state is responsible and second the party charged with the deprivation must be a person who may fairly said to be a state action because he is a state official. There are many ways in which a dispute of this kind could be resolved. The Court has not taken Shelley this far and only rarely has applied it as a basis for state action. government licensing or regulating is insufficient for a finding of state action. the sheriff. in the second case. There are two other areas where the Court has found the involvement of courts as a basis for state action: the use of courts for prejudgment attachment and the use of peremptory challenges at trials. Still. Edmonson Oil Co. the Constitution. did not apply. the sheriff arranged for storage of her possessions at a warehouse. In the present case. the difference in state involvement seems to be more a matter of degree than one of kind as the Court tried to make it seem. Flagg Brothers v. Moreover. Leesville Concrete Co. In fact. Articulated a two part test: first the deprivation must be caused by the exercise of some right or privilege created by the state. With respect to the first prong. Brooks (1978) Held that a private creditor’s self-help repossession did not constitute state action. The key difference between the two above cases was the direct involvement of a state officer. traditionally and exclusively reserved to the state The Supreme Court held that since the warehouse company was privately owned. state law provided for prejudgment attachment. . The customer’s primary contention was that the state delegated a power.Constitutional Law Page 76 of 122 apply to everyone. or because his conduct is otherwise chargeable to the state. meeting the first prong and the sheriff carried out the attachment meeting the second requirement. juries function as a traditional and important government decision-making body Government Licensing and Regulation In general. though the cases are not easily reconciled. After an individual was evicted from her home. Here.

and prestige behind the admitted discrimination as the state has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in a challenged activity.Constitutional Law Page 77 of 122 The high point of state action is the Burton v. Found that the government was so entangled with the restaurant that there was a symbiotic relationship sufficient to create state action. its decision clearly was responsible for the transfer decisions. Delaware operated a parking authority that leased space to a private restaurant. Because the state paid over 90% of the medical expenses for the patients. State policy required that private facilities receiving Medicaid funding create utilization review committees to determine the level of care needed. Wilmington Parking Authority (1961) Government licensing and regulation deemed sufficient for stat action. By this reasoning virtually everything is a state action – all corporations. Notion that they don’t want to interfere with private life – don’t want to start telling people who they can have over for dinner. Douglas Dissent talks about the value of the license and the state putting the weight of its license against the liquor license. the Eagle Coffee Shoppe. The state must actively involve itself in the discrimination. for example. The state could have prevented discrimination by making that a condition of the liquor license and the state was conferring a substantial benefit on the private club by granting it a license. that denied a person service solely because he was black. After a decision from a utilization committee the state would terminate its Medicaid payments for patients unless they were transferred from skilled nursing facilities to health related facilities. State financial incentives for the transfers were not sufficient to constitute state action as the state normally can be held responsible for a private decision only when it has exercised such significant . The Liquor Control Board played no role in establishing or enforcing the membership or guest policies. The Court ruled that there was no state action because it was the decision of the private nursing home to transfer the patients. The state placed its power. and this was done with public funds. can’t help those who discriminate even on a commercial basis. still this was insufficient for state action. Perhaps a distinguishing factor is that the parking garage was raised through public funds and has the flag flying above it. The patients argued that they should be given DP with regard to their transfer. property. Wilmington. Government Subsidies Blum v. Moose Lodge v. Irvis (1972) Moose Lodge restricted membership to whites and refused to allow guests to bring blacks into the dining room and bar. The parking facility was used by the restaurant’s customers and the government benefited from revenues from the restaurant and its customers. Found neither the extent of state regulation nor the size of state funding to be a basis for finding state action. The Court has not applied it as strictly and has virtually always found that government licensing or regulation is not sufficient to create state action. Nothing approaching the symbiotic relationship of Burton. Not a state actor because a liquor license is not enough to make it state action. Implies that government contractors can’t discriminate but later held that they can (Burton has not been carried out to its fullest extent). are chartered by the state This is the most far reaching. Yaretsky (1982) Strong argument that the government’s funding of Medicaid patients caused their transfer to other less-equipped facilities. Moose Lodge was not a regular commercial interaction. The government had responsibility for upkeep and maintenance of the building.

either overt or covert. In contemporary practice.: 1) Created a federal judicial system.Constitutional Law Page 78 of 122 encouragement. 3) Assures the independence of the federal judiciary by according all federal judges life tenure. Governmental Structure: the Three Federal Branches. Separation of Powers. Others express distrust in the ability and willingness of state courts to uphold federal law as state judges are likely to be biased against federal law in times when it conflicted with state law. that the choice must in law be deemed to be that of the state. . The number of appeals would exceed the Supreme Court’s capacity without lower courts. and laws of the United States) and federal courts have authority to hear all cases in which the United States is a party (all cases affecting ambassadors and other public ministers and consuls. and those in which a state shall be a party. subject to review by the Supreme Court. 2) Vests judicial power in one supreme court and in inferior courts as Congress may from time to time ordain and establish. The Supreme Court has original jurisdiction over cases affecting ambassadors. 5) Allocation of judicial power between the Supreme Court and lower federal courts. Judicial Review The Constitutional Convention recognized the need for a federal judiciary and Article II covers seven important topics concerning the federal judiciary. A second set authorizes the federal courts to serve an interstate umpiring function. between a state and citizens of another state which was essentially overturned by the 11th Amendment. cases between a state or its citizens and a foreign country or its citizens). treaties. both as to law and face. and between citizens of the same state claiming land in other states). 4) Defines federal judicial power in terms of nine categories of cases and controversies: one set authorizes the federal courts to vindicate and enforce the powers of the federal government (cases arising under the Constitution. the Supreme Court’s original jurisdiction is limited to disputes between two or more states. The Supreme Court has held that Congress can give the lower federal courts concurrent jurisdiction even over those matters where the Constitution specifies that the Supreme Court has original jurisdiction. A major dispute at the convention was whether lower federal courts should exist as some argued that state courts. resolving disputes between states and their citizens (controversies between two or more states. subject to exception and under regulations as Congress may make. In all other cases. between citizens of different states. the Supreme Court is granted appellate jurisdiction. other public ministers and counsels. all cases of admiralty and maritime jurisdiction. Federal Judicial Power 1. were sufficient to protect the interests of the national government and lower courts would be an unnecessary expense and an infringement on the sovereignty of lower courts. and Federalism A. IV.

he has to hold the statute is unconstitutional because it was placed in original jurisdiction which is contrary to Article III. refuses to deliver commissions. the judiciary can find . Short of impeachment there is also the possibility that the President won’t follow any orders. Requires that the trial shall occur in the state where the crime was committed. Shouldn’t Marshall have excused himself? Jefferson administration comes into power and Madison. Lots of politics in this situation.Constitutional Law Page 79 of 122 6) Prescribes that the trial of all crimes. Perhaps reflects the shared understanding that courts possess the authority for constitutional review and it was thought unnecessary to enumerate this. Madison (1803) Established the authority for the judiciary to review the constitutionality of executive and legislative acts even though the Constitution is silent about this authority. Marbury v. John Adams appointed several justices in the District of Columbia which were approved by the senate and commissions were signed and sealed. The Supreme Court springs into being from the Constitution and the lower federal courts are optional. Many judges had been impeached and the situation was very contentious. Thus. shall be by jury. Appointed individuals sue for a write of mandamus ordering deliverance of the commissions. Perhaps the silence reflects a failure to consider the issue or the assumption that courts do not have this authority. The Court cannot hear the case. This in essence says that the Court has power over the legislature which some would argue is not even at issue here. if they are optional then couldn’t anything be in the Supreme Court? Everything starts in the Supreme Court unless Congress changes it. Secretary of State Marhsall did not have time to deliver them before the close of the administration. States that there is not a right without a remedy. Is this true? Could have read this to mean at minimum it is in original jurisdiction but Congress can add others. so the statute giving it power for writ of mandamus is unconstitutional because it does not follow this procedure. except in cases of impeachment. Federal courts are courts of limited jurisdiction with two primary restrictions: Article III defines the scope of federal court authority (and judicial interpretation has created crucial doctrines that restrict access) and Congress plays an important role in limiting federal court jurisdiction as the Supreme Court has held that a federal court may hear a matter only when there is both constitutional and statutory authorization and thus statutes limit jurisdiction along with the Article III notation that congress has the power to create exceptions and regulations to the Supreme Court’s appellate jurisdiction (the extent of this provision is unknown). 7) Provides requirements for the crime of treason. Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions. Sec. Almost as if it is the Court versus the President. He wants to tell the President what to do and does so but does not issue a specific order to the President to do so and rules they do not have jurisdiction for a writ of mandamus – it has appellate jurisdiction here rather than original jurisdiction. 1 says that the judicial power shall be vested in one Supreme Court and lower courts that Congress can establish. The statutory provision declared unconstitutional was the one that enlarged judicial power so the Jefferson administration obviously welcomed the result In order to duck everything here. A unique opportunity to claim the power of judicial review in a context least likely to draw opposition. In the closing days of his administration. the new Secretary of State.

Can’t enforce unconstitutional congressional statute because every branch has to decide for itself whether it can enact something and the judiciary can’t be made to do something that they know is unconstitutional whether or not all the legislative modes were followed. Aaron brings this out. 5) The least dangerous branch because no power of the purse (legislature) and no power of enforcement (executive). Aaron (1958) The Supreme Court is not limited to reviewing state court decisions as federal courts also have the authority to review the constitutionality of state laws and the actions of state officials. Was Marshall justified in giving judicial supremacy? Since the Court found it lacked jurisdiction. but so could the other branches. 3) They could just as easily ignore the Constitution – any branch as the final say could. 3) Legislature doesn’t think as much about the Constitution. Textual arguments that were helpful: Even if the judicial power extends to things arising under the Constitution and has to be able to interpret the Constitution. Go over his textual argument. The state disobeyed the order. based on a professed concern that compliance would lead to violence and. Of course. Judicial review did exist in some states but in some places they didn’t. 2) They really aren’t that separated from politics. based on a claim that it was not bound to comply with judicial desegregation decrees. but not when it is a political matter left to executive discretion. 2) Check on majority rule (which is inherent in the Congress). Cooper v. appointed. 4) They aren’t as connected to politics (life term. the subsequent arguments were arguable improper. If it is necessary to have one branch have the final word should it be the judiciary? What does judicial review mean? Two alternative ways to look at Marbury: Clean hands theory (non activist theory) and the Watchdog Theory (more activist). A federal district court ordered the desegregation of the Little Rock. etc). Or. The judiciary could provide remedies against the executive when there is a specific duty to a particular person. Ministerial acts where the executive had a duty to perform are different than political acts within the discretion of the executive and judicial review was only appropriate in the former category. Reasons not to have the Court have the final say: 1) Different branches have been more protective at different times (Court wasn’t helpful in Dred Scot). in part. many of them are lawyers. The Court rejected this position and declared that Article VI of the Constitution makes the Constitution the Supreme Law of the Land and Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law. in part. That . so it’s not inherent. Is judicial supremacy a good idea? Is it necessary to have one branch be the one with the final word? Cooper v. this government needs somebody to put everybody in line and bring forth the right answer. Arkansas public schools. Reasons to have the Supreme Court be the final say: 1) They are infallible.Constitutional Law Page 80 of 122 legislative actions unconstitutional under the Article III authority to decide cases arising under the Constitution The case establishes the power of the judiciary to review the constitutionality of executive action where the executive ahs the duty to act or refrain from acting.

Values served by limiting standing 1) Promotes separation of powers by restricting the availability of judicial review (but concern for separation of powers also must include preserving . conserve judicial resources allowing federal courts to focus on cases most deserving of federal attention. Richardson CIA budget is secret and a man sues to make it public. prevent federal courts from adjudicating the rights of those who are not parties to a lawsuit. the Court has decided that in certain instances wise policy militates against judicial review. There have been many changes in the last twenty-five years. a. a number of circumstances identified by the court in which federal courts should abstain even though it is justiciable and all jurisdictions requirements are met.Constitutional Law Page 81 of 122 principle has ever since been respect by the Court and the Country as a permanent and indispensable feature of our constitutional system. . or where the federal issue is not properly presented. These doctrines must be balanced with the need for judicial review. improve judicial decision making by providing federal courts with concerte controversies best suited for judicial resolution. where the record is inadequate to permit effective review. The Court has declared that some of the doctrine are a result of an interpretation of Article III §2 in that the requirements for cases and controversies imposes substantial constitutional limits on federal judicial power. The extensive attention reflects its importance in defining the role of the federal courts in American society. Other limits include the 11th Amendment which prevents federal court relief against state governments. Should these doctrines be flexible or clear? Rationales for justiciability doctrines: separation of powers (when it should defer to other branches). The problem is that the right is being violated but his objection is an objection shared by everybody. Court has stated it will avoid deciding constitutional issues where there are nonconstitutional grounds for decision. Frequently identified as one of the most confusing areas of the law. Standing The determination of whether a specific person is the proper party to bring a matter to the court for adjudication. mootness (some think that these are all standing) and the political question doctrine. 2. prohibition against advisory opinions. standing. Court finds that it is too generalized. There are some hard core constitutional issues and some that are prudential which are more discretionary and this actually helps explain why the cases have been all over the place – standing is really hard to understand. Congress may override prudential but not constitutional restrictions. All of these doctrines were created by the Supreme Court and neither the text of the Constitution nor the framers in drafting the document expressly mentioned any of these limitations. The Court has also said that the powers stem from prudent judicial administration – although the Constitution permits federal court adjudication. Justiciability Doctrines Perhaps the most important limit on the federal judicial power is imposed by these doctrines which determine which matters federal courts can hear and decide – specifically. ripeness.

but did not prosecute father of illegitimate children.S. to enforce child support. even for purely aesthetic purposes. 5) Helps ensure that cases will be presented to the Court in terms of specific disputes. 4) Ensure the value of fairness by requiring that persons will raise only their own rights and concerns and that people cannot be intermeddlers. Like selective enforcement. Plaintiffs lacked standing because they could not show a sufficient likelihood that they would be injured in the future by a destruction of endangered species abroad. Richard D. 4)Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature. Could take it or leave it. Why aren’t advisory opinions a good thing? 1) The Supreme Court can’t make a decision unless it is going to be final. not as hypothetical issues. Importance of causation and redressability doctrines Linda R. v. . Defenders of Wildlife (1992) Considered a challenge to a revision of a federal regulation that provided that the Endangered Species Act does not apply to United States government activities outside the United States or the high seas. The desire to use or observe an animal species.. 3) Improve judicial decision making by ensuing that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter (but the need for specificity is likely to vary as some cases present pure questions of law in which the factual context is largely irrelevant and the insistence on a personal stake is very uncertain for the best advocacy as the best litigator could not raise the issue without a claimant). No standing found because even if it is enforced no showing that he would actually pay as the only definite relief would be that the father would be jailed. 2) Serve judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome (but considering the high cost of litigation one must wonder how large the burden really would be without restrictions). Requirements for standing include constitutional ones arising from the interpretation of Article III which cannot be overridden by statute (has suffered or imminently will suffer an injury. is undeniably a cognizable interest for purposes of standing.Constitutional Law Page 82 of 122 the federal judiciary’s role in the system of government).A. Sued D. Lujan v. The State of Texas has a policy of prosecuting fathers of legitimate children for not paying required child support. and must raise a claim within the zone of interests protected by the statute in question. 2) Don’t want them prejudging a statute. The plaintiff argued it was unconstitutional discrimination on the basis of the child’s legitimacy. but does not work here because the plaintiffs had no real plans to go to foreign countries again. A unwed mother sought to have the father of her child prosecuted for failure to pay child support. 3) Separation of powers is maintained by keeping the courts out of the legislative process. these cases amount to a rule that you cannot challenge a benefit to someone else only a detriment to yourself. may not sue as a taxpayer who shares a grievance in common with all other taxpayers – recently held that this is constitutional in nature. the injury is fairly traceable to the ’s conduct. must allege that a favorable federal court decision is likely to redress the injury) as well as prudential principles which may be overridden by statute (generally may assert only his or her own rights and cannot raise claims of third parties. Advisory opinions would be reviewable by another branch.

under the new provisions only emergency medical treatment of indigents was required.Constitutional Law Page 83 of 122 Warth v. Wright Parents of black public school children brought a class action suit challenging the failure of the IRS to carry out its statutory obligation to deny tax exempt status to racially discriminatory private schools. Imply that it was wrong in pleading. Neither of them could sue. and fear of a major nuclear accident. Carolina Environmental Study Group The court found the causation and redressability requirements to be satisfied. these lawyers spend lots of time developing pleadings. The Court denied standing concluding that causation and redressability were lacking as it was purely speculative whether the new Revenue Ruling was responsible for the denial of medical services to the plaintiffs and that the complaint suggests no substantial likelihood that victory in this suit would result in respondents receiving the hospital treatment they desire. Duke Power v. They claimed two injuries – that they and their children were stigmatized by government financial aid to schools that discriminate (held too abstract to confer standing) and that their children’s chances to receive and integrated were diminished by the tae breaks. Forty individuals and two organizations challenged the constitutionality of the Price-Anderson Act which limited the liability of utility companies in the event of a nuclear reactor accident. nor could the people who were actually in the town already. Whereas previously tax exempt charitable hospitals had to provide free care for indigents. Seldin Rochester NY zoning ordinances made it hard for low income people to live there. Standing existed because the construction of a nuclear reactor in the plaintiffs’ area subjected them to many injuries. Simon v. but in reality they are just brushing them off. Could not show that absent the ordinances the appropriate housing would be built and the individuals could afford to live there. The Court acknowledge that the latter claim stated an injury but denied standing based on the absence of causation as the injury alleged is not traceable to the government conduct. Defenders argue that it simply implements the prohibition against advisory opinions(if a federal court decision . thermal pollution. The Court still found the Price-Anderson Act constitutional. These plaintiffs claimed that they were denied needed medical care and hence injured by the hospitals receiving tax exempt status. Needed to show injury and causality/redress. Must have shown that absent the laws there was a substantial probability that the housing could be built/people could have afforded to live there. Even though a change in IRS policy might redress the injury that is insufficient for standing because the IRS did not cause the segregation. including exposure to radiation. Haven’t shown that if they win the lawsuit they can live in this area. Allen v. Also the Court accepted the lower court’s conclusion that the causation and redressability tests were met because but for the PriceAnderson Act the reactor would not be built and the plaintiffs would not suffer these harms. Eastern Kentucky Welfare Rights Organization (1976) Challenged an IRS revision of a Revenue Ruling limiting the amount of free medical care that hospital receiving tax exempt status were required to provide. Low income individuals who stated they would like to live there along with developers challenged the law. The causation/redressability standing requirement has been controversial. Argued that the act violated DP because it allowed injuries to occur without compensation.

California Couldn’t discriminate for being an alcoholic. May not actually conserve resources because will be continually litigated at lower levels. Already written opinion and handed it down even though they discovered Robinson was dead. There are two considerations: the hardship to the parties of withholding court consideration and the fitness of the issues for judicial decision. because the injury is speculative and may never occur. b. then it is an advisory opinion). Any change in the facts that ends the controversy renders the case moot. In practice there is overlap with standing as if no injury has occurred the plaintiff might be denied standing or the case might be dismissed as not ripe. Ripeness While standing is concerned who is a proper party to litigate a particular matter. Is this contrary to case or . For ripeness. a good case is the Bush case challenging the war. ripeness and mootness determine when that litigation may occur. Jude Torro in the District Court in Boston said it was a political question. Requirements include that the injury must be of a type likely to happen to the plaintiff again and a type of injury of inherently limited duration so that it is likely to always be moot before litigation is completed. Mootness An actual controversy must exist at all stages of federal court proceedings – standing of time frame. c. Because of these competing interests the Court has spoken of the flexible character of mootness doctrine. It is derived from Article III’s prohibition against federal courts issuing advisory opinions as by definition if a case is moot there is no longer an actual controversy and if the matter has been settled there court decision will have little effect. whereas ripeness centers on whether that injury has occurred yet. Appellate judge said it wasn’t ripe.” Otherwise pregnancy cases wouldn’t be allowed because wouldn’t be pregnant by the time it got appealed. The ripeness doctrine seeks to separate matters that are premature for review. and inherently unprincipled in terms of what constitutes a sufficient likelihood of solution to justify standing. Fuenes the law school said they would let him graduate no matter how the case came out. it is inherently a factual question that should be made at the outset of litigation.Constitutional Law Page 84 of 122 will have little effect and/or will not redress the injuries. Perhaps the distinction between standing and ripeness is that standing focuses on whether the type of injury alleged is qualitatively sufficient to fulfill the requirements of Article III and whether the plaintiff has personally suffered that harm.‖ Robinson v. Some exceptions like abortion cases “capable of repetition yet evading review. Political question keeps it from every being adjudicated whereas ripeness does not. Critics contend that it imposes an unjustified and unprincipled limit on the availability of the federal forum. so Supreme Court found mootness but could have easily been deemed ―capable of repetition yet evading review. All trying to duck it. Seems linked with the requirement for cases or controversies. is inherently unprincipled because it depends entirely upon how a court chooses to characterize the injury.

Criticisms include that it is inappropriate to leave constitutional questions to the political branches of government. the federal courts’ selfinterest disqualifies them from ruling on certain matters. However. on the other hand. Political question might be a rule of law rather than a rule of discretion.Constitutional Law Page 85 of 122 controversy? Could say that thinking he was alive was good enough. or a lack of judicially discoverable and manageable standard for resolving it. the federal courts’ credibility is robust and there is no evidence that particular ruling would diminish it. the Constitution does not mention judicial review much less limit it by creating textually demonstrable commitments. and separation of powers grounds by minimizing judicial intrusion. or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect to due coordinate branches of government. or the potentiality of embarrassment from multiple pronouncements. for example. the doctrine is prudential if it reflects the court’s concerns that preserving judicial credibility and limiting the role of an unelected judiciary in a democracy society Baker v. the Court has defined it very differently over the court of time (from Marbury to now not limiting it to instances in which the president is exercising discretion and there is no claim of unconstitutional conduct). Political Question The Supreme Court has held that certain allegations of unconstitutional government conduct should not be ruled on by the federal courts even though all of the jurisdictional and other justiciability requirements are met as constitutional interpretation in these areas should be left other politically accountable branches. or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion. This doctrine is also confusing because its name is a misnomer as the courts deal with political questions all the time. the process for ratifying constitutional amendments. allocates decisions to the branches of government that have superior expertise in the area. Might be treated as constitutional if it is thought to be based on separation of powers or textual commitments to other branches of government. Congress’s ability to regulate its internal processes. . and the impeachment process. . Arguments in favor the doctrine accords the federal judiciary the ability to avoid controversial constitutional questions and limits the courts’ role in a democratic society. and the Court has not articulated a clear test. it confuses deference with abdication. It is better to look at the specific areas with the Court has invoked it: republic form of government clause and the electoral process. instances where the federal court cannot shape effective equitable relief. or an unusual need for unquestioning adherence to a political decision already made. Carr (1962) Articulated the following criteria: a textually demonstrable commitment of the issue to a coordinate political department. foreign affairs. At moment does it have to be moot? d. Is not derived from Article III’s limitation of judicial power to cases and controversies.

Challenging that the way impeachment was being conducted was not proper (should be full Senate rather than committee). B. Thus. McCormack (19 69) The House refused to seat representative Adam Clayton Powell because a subcommittee found that he had deceived Congress by misappropriation of government funds even though he was properly elected and met all of the requirements in the Constitution. Later seated but the Court took it because backpay still at issue. Federal Legislative Power 1. declaring tht the Court should not enter this political thicket. It is rare that the federal government has police powers. however. The plurality said that this case posed a political question as there were not standards in the Constitution governing rescission of treaties and that the matter was a dispute between co-equal branches of government each of which have resources available to protect and assert its interests. Congressional Self-Governance Powell v. Introduction: Enumerated Powers. Article I §3 demonstrates a textual commitment of impeachment to the Senate. may ct unless the Constitution prohibits the action. Impeachment Nixon v. Green (1946) Declared nonjusticiable a challenge to congressional districting in Illinois. Carter ((1979) Goldwater argued that rescission of a treaty required approval of two-thirds of the Senate. The Court determined that Article I §5 meant that the House may judge the qualifications of its members – only the qualifications in the Constitution. and Inferred Limits on States A basic principle of American government is that Congress may act only if there is express or implied authority to act in the Constitution. Judicial review would be inconsistent with the framers’ view of impeachment as a scheme of checks and balances (the only legislative check on the judiciary). Leaves open whether all questions of impeachment will be deemed a political question. Deemed a political question – for legislature to determine. Noted that at times the Court needed to interpret differently than another branch. United States (1993) Federal district court judge convicted of making false statements and kept pay from prison. The Constitution has provisions for expelling but this was about seating. the Necessary and Proper Clause. Bush v. after 1937 the Court accorded Congress . when evaluating the constitutionality of a state law we only ask if the legislation violates the Constitution as the key difference is that state governments only possess police power. however. If something is committed by the Constitution for another branch to decide then it is a political question (Powell). states. Foreign Affairs Goldwater v. Gore (2000) Gore did not raise justiciability issues in his briefs or oral argument yet it is jurisdictional and the Court can raise it. must ask if the Congress has the authority under the Constitution to legislate and if so does the law violate another constitutional provision or doctrine? In contrast.Constitutional Law Page 86 of 122 Republican Form of Government and Reapportionment Colegrove v.

the spending power. What would be the argument that they could even though Congress could not – . In the last decade. Constitutional for Congress to create the bank because it falls under the necessary and proper clause (isn’t this almost infinite?). 2. Thornton (1995) Here the states are trying to add to the qualifications for federal legislators via term limits. a. Instead of looking at discrimination against the US. Marshall defines necessary more broadly as appropriate not the only means and it is not for the Court to judge whether it is necessary. Maryland (1819) Found that the state had no power by tax or otherwise to impede or control actions by Congress. Marshall goes into a complicated intergoverment immunity argument that only applies one way. The Scope of Congressional Power McCullough v. This doctrine is no longer with respect to judges but it still true that the state cannot tax the United States. It doesn’t really say it. But only where it seems like cheating will the Court step in and find it unconstitutional. Then where do we get it? In Osborn.Constitutional Law Page 87 of 122 broad authority to regulate under constitutional provisions such as the commerce clause. and the Reconstruction Amendments. Remember that this argument and the one Marshall uses only works if the bank is constitutional in the first place. Pretext – cannot just use it in a way that it is perfectly obvious the Congress is doing it for the means and not for the enumerated means. and under n&p the Congress may choose any means not prohibited by the Constitution to carry out its express authority (some say it is instead a limit). This argument was carried to the extent that federal judges did not have to pay state income taxes. it is the Congress’ role – the court will step in only when it is clear that Congress is cheating. Are these powers coming out of the necessary and proper clause as good as the enumerated powers? Enumerated powers are the ends. Where in the Constitution does it say that the states cannot discriminate against the US? Nowhere. The US government could tax Maryland’s banks because Maryland has representatives in the federal government but the federal government has no say in Maryland. Necessary and proper clause powers are possible means – not doing the bank as an end but as a means towards an end set up in the enumerated powers. the Court has sharply changed course and in several important rulings ahs limited the scope of Congress’s power under the commerce clause and under 14th amendment §5. 1. Evaluate whether it is constitutional. but everyone cites the Supremacy Clause (which has to do with the state judges). Question is whether the states can add to the qualifications in the Constitution. Marshall points to the necessary and proper clause. refuted the argument that states retain ultimate sovereignty because they ratified the Constitution as it was the people who ratified. US Term Limits v. Marshall didn’t make this argument but it would have been the easier one. the goals they are allowed to work towards. historical practice established the power of Congress to establish the bank (should this have normative significance?).

So any changes whether enacted by the Congress (Powell) or the state is not permitted. Question is whether the federal law trumps the NY law granting him a monopoly. Also found no limit in the 10th Amendment as Congress has complete authority to regulate all commerce among the states. Ogden (1824) NY Steamboat granted monopoly from NY law.commerce includes all phases of business. are in line with these early cases. The commerce clause powers are the most important and have been the authority for a broad array of federal legislation. State argues that this is navigation. what does among the several states – is it limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient. does the 10th Amendment limit Congress – if Congress is acting within the scope of the commerce power can a law be declared unconstitutional as violating the 19th Amendment? a. ―Among the states‖ not taken for the broadest possible definition but still defined it broadly as restricted to that commerce that concern more states than one and Congress could regulate intrastate commerce if it had an impact on interstate activities. Field thinks that the newer cases. The Majority argues instead that it is a national body representing everyone and so the rules should be the same for everyone. rather than the state legislature. Since each state controls and sends the representatives they should be able to decide who they want to send from their state. Three central questions: what is commerce – is it one stage of business or does it include all aspects of business and even life in the United states. Commerce deemed to be more than just traffic but is intercourse between nations and parts of nations in all is branches and is regulated by prescribing rules for carrying on that intercourse. Can affect other states and be under the commerce clause. Early Cases Gibbons v. Reading the qualifications clause to be exclusive. Someone interferes on it. it doesn’t say either. Are they limiting themselves at the expense of the rest of the country and the bank case was going to their advantage? 2. Between the 19th Century and Lochner . b. but we are interpreting it to be the excusive list of any and all qualifications. vote in the representatives. even though they cut back on commerce power. also now the people.Constitutional Law Page 88 of 122 the states ratified the Constitution and when the Constitution is silent there is no bar to action by the states and the people. Commerce Clause Power Article I §8 contains eighteen clauses enumerating specific powers of Congress and parts of Article IV authorize congressional action as do clauses in the reconstruction amendments. although doesn’t hit anything exclusively internal that does not affect other states. not commerce and Marshall says that commerce includes navigation.

Ames (1903) Federal law prohibited the shipment of a specified item – goods made by child labor or lottery tickets – in interstate commerce. Note that it is hard to distinguish between direct and indirect effects. Isn’t it already permissible to regulate morals? Why go under commerce clause? More willing to allow morality regulations than economic regulations. As part of this view. Interests in morality and stopping pollution of commerce. Shreveport Rate Cases (1914) Rate inside of Texas is much cheaper than to other states even though it is longer. Field considers this to be a big expander of the Commerce Clause. Child labor cases struck down as not within commerce powers.Constitutional Law Page 89 of 122 The Court was controlled by conservative justices deeply committed to laissez-faire economics and strongly opposed to government regulation. the Court made it clear that it was within Congress’s commerce clause power to stop lottery tickets from being a part of interstate commerce. current of commerce. Court allowed the Interstate Commerce Commission to set intrastate railroad rates because of their direct impact on interstate commerce. moral purpose permissible. Although the stockyard was intrastate the Court stressed how it was only a temporary stop for the cattle. Many federal laws were struck down as exceeding commerce clause powers. Was also following a policy of dual federalism which was the view that the federal and state governments were separate sovereign and that each had separate zones of authority – it was the judicial role to protect the zone of activities reserved to the states. Champion v. Terms so far: substantial effect. Does not regulate transportation across states (goods shipped are of themselves harmless) and what they are trying . the Court narrowly defined commerce so as to leave a zone of power to the states (commerce was one stage of business distinct from earlier phases such as mining manufacturing or production). and held that the 10th Amendment reserved a zone of activities to the states and that even federal laws within the scope of the commerce clause were unconstitutional if they violated that sphere. In the lottery case. Rejected that it violated the 10th Amendment and that it would give Congress seemingly limitless authority as the possible abuse of a power is not an argument against its existence. in the former the Court declared the federal law unconstitutional whereas in the latter the Court upheld the federal law. Deemed a part of interstate commerce. It was the first time that the Supreme Court aggressively used its power of judicial review to invalidate federal and state laws. Swift & Co. restrictively defined among the states as allowing Congress to regulate only when there was a substantial effect on interstate commerce. yet. v. The Court did not invalidate another law as exceeding the scope of the commerce clause until 1995 and has generally much deferred to the federal and state economic regulations. Congress was obviously trying to stop intrastate activities. Court finds that selling cattle was within interstate commerce – within the ―current of commerce‖ among the states and the purchase of the cattle is a part and incident of such commerce. United States (1905) Upheld the application of the Sherman Anti-trust Act to an agreement among meat dealers to fix the price at which they would purchase meet from stockyards.

The steel business was a part of the stream of commerce and labor relations within it had a direct effect on commerce. Could be squared with previous cases but the Court signaled a clear change United States v. child labor. The distinctions which were important in the earlier era. Plan did not have to happened because of Roberts vote in NLRB. cows. or having led or tending to lead to a labor dispute burdening or obstructing commerce. Jackson finds that Congress may regulate wheat. Jones & Laughlin Steel Corp (1937) Involved a constitutional challenge to the National Labor Relations Act which created a right of employees to bargain collectively. The fact that employees were engaged in production is not determinative. Roosevelt tried to pack the courts. Darby (1941) A challenge to the constitutionality of the Fair Labor Standards Act of 1938 which prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. or burdening or obstructing commerce or the free flow of commerce. commerce v. Not clear that it is not constitutional but the whole idea just doesn’t sound right . Jones was clearly a part of interstate commerce. The power is plenary and may be exerted to protect interstate commerce no mater what the source of the dangers which threaten it. and established the National Labor Relations Board to enforce the law.more unconstitutional in spirit than in law. prohibited unfair labor practices such as discrimination against union members. FDR won a landslide reelection victory in 1936 and saw this as a strong endorsement for the New Deal programs that the Court had been invalidated. The Court was deeply committed to laissez-faire economics. There were many different forms of pressure: the decisions were intellectually vulnerable because they seemed based on arbitrary distinctions and were frequently inconsistent (chickens v. between commerce and production. The Court departed from all aspects of the pre-1937 commerce clause doctrines. Dagenhart and rejected the view that the 10th Amendment limits Congress’s powers – states but a truism. other forms of business). because look at it in the aggregate. Lochner through 1937 The court’s conservative policy was causing enormous pressure to change the direction of constitutional law. If every farmer home consumed it would still affect the price. Wheat is the single most variable factor in the wheat market and could account for as . Nothing in the Constitution says that there has to be a specified number of justices. The law contained detailed findings on the relationship between labor activity and commerce and applied when there was an effect on commerce and in fact expressly defined affecting commerce as meaning ―in commerce. Filburn (1942) Farmers producing wheat for their own consumption and at the time there were quotas on how much they could produce. and between direct and indirect effects are no longer followed. c. even for private consumption. Try and distinguish because the harm is yet to come in the lottery cases and here it has already happened. Congress may control production by regulating shipments in interstate commerce. Expressly overruled Hammer v.Constitutional Law Page 90 of 122 to do is not regulate the goods but the people who make the goods who are not within commerce. Manufacture itself is not commerce but the shipment is and regulation of it is commerce clause regulation. Wickard v. NLRB v. Recent research suggests that he would have voted this way anyway despite the plan. the economic crisis of the depression made laissez-faire economics seem untenable. lottery v.

was not based on the interstate impact of this particular restaurant as the Court found that Congress rationally had concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. Couldn’t aggregation get us all restaurants? Concurrence tries to limit it to specific restaurants. Congress can regulate purely intrastate activities including all aspects of business if there is a RB for believing that there is an interstate effect. Wanted to do it under §5 of the 14th Amendment but under the Commerce Clause wouldn’t need state action. Heart of Atlanta Motel v. right on the highway. United States (1964) Upheld the constitutionality of title II of the CRA which prohibited discrimination by places of public accommodation. Reaction to Lochner (1937-1995) The court in some cases even deleted the word substantial and declared that Congress could regulated anything under the commerce clause so long as there was a RB for believing that there was an effect on commerce (Hodel v. The court held that Congress can set the terms for anything shipped in interstate commerce. Basic rule of these cases was that Congress could regulated any activity. that interstate travel was obstructed directly by it. and forbids discrimination by places of public accommodation such as hotels and restaurants. Voluminous testimony before congress present overwhelming evidence that discrimination by hotels and motels impedes interstate travel. In evaluating the law and its application the only questions are 1) whether Congress had a RB for finding that racial discrimination by motels affected commerce and 2) if it had such a basis whether the means it selected to eliminate that evil are reasonable and appropriate. Determinative facts are that it was burdening interstate travel. this includes even intangible items like insurance policies. Katzenbach v. individual or in the aggregate. placing it within Congress’ control. or religion. located in downtown Atlanta. It does not matter that Congress’s motive in part was moral because many federal law stretching back to the lottery case had been adopted under the commerce power to remedy moral wrongs. 75% of guests were out of state. gender. It does not matter that the motel was of a purely local character because if interstate commerce feels the pinch it does not matter how local the operate which applies the squeeze. Signs saying white folks only. . Civil Rights cases packaged under commerce clause – would this be the best way to do it? Interstate travel was very difficult for blacks. that business in general suffered and that many new businesses gained from establishing there as a result. Small out of the way place but a substantial portion of food is from out of state. if there was a substantial effect on interstate commerce.Constitutional Law Page 91 of 122 much as 20% of production. The Courts’ decision. but blacks could use a take out window. Congress can also regulate intrastate activities if necessary to protect is regulation of interstate activities. Testimony before Congress afforded ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination. McClung (1964) Upheld the application of CRA to a small business. d. Irving) Regulatory Issues Dramatic increase in the number of federal administrative and regulatory agencies and in the scope of the authority that they possess. however. Civil Rights Laws The 1964 Civil Rights Act in part prohibits private employment discrimination based on race.

Thomas Concurrence urged a narrower view of congressional power as in the 1887-1937 approaches. Court strikes it down saying that it is not regulating commerce as it is only tangential. It was in commerce but not interstate commerce. 2) to regulate and protect the instrumentalities of interstate commerce (includes persons and things in interstate commerce). Congress can place things into categories aggregated if there is a RB to do so. they did not limit it to women who had traveled in interstate commerce or batterers who had. Congress enacted it based on detailed findings of the inadequacy of state laws in protecting women who are victims of domestic violence and sexual assault. Guns are inherently a part of interstate commerce and guns near schools have an economic impact. but Court says that it is not commerce but a creation of a police power. Is the Broad Definition of the Commerce Power Desirable? A core principle of American constitutional law is that the federal government has limited powers with most governance left to the states. which was a moral reason. Rehnquist is big on saying that they need to cut off commerce somewhere. Lopez (1995) Declared unconstitutional the Gun-Free School zones Act of 1990 which made it a federal crime to have a gun within 1000 feet of a school. Challenged the civil damages provision of the federal Violence Against Women Act. Not even proof that this particular gun was ever in interstate commerce. Kennedy and O’Connor Concurrence stressed federalism as well as the lack of necessity for the federal law since many states already had similar provisions. Congress says guns are in commerce. Douglas and Goldberg concurred in the above decisions on the basis of §5 of the 14th Amendment. United States v. Field thinks guns in general would have gone over better or guns that moved in commerce or more findings on the topic. Dissent criticized the majority as activism and abandoning sixty years of precedent. thus the Court returned to the notion that Article I limits Congress’s legislative powers to those that are express or implied in the Constitution. No . Opinion begins by emphasizing that the Constitution creates a national government of enumerated powers. though. Moral purpose is okay but not if it is substantially affecting interstate commerce – has to be within interstate commerce. albeit a moral reason with a commercial impact. that violence against women had a substantial impact on the national economy in the cumulative. More emphasis on substantial and for commercial purposes than the Warren Court. Should the judiciary protect the states or is the only check on Congress through the political process? e. Contemporary Cases United States v. Defended under option three of Lopez.Constitutional Law Page 92 of 122 It wasn’t done for commercial reasons it was done to stop racial discrimination. Morrison (2000) Showing that they are taking Lopez seriously. 3) those activities having such a substantial relation to interstate commerce. As in Lopez. Three types of activities that Congress can regulated under the commerce clause power: 1) the use of the channels of interstate commerce (Heart of Atlanta). RB that an activity affects interstate commerce should be sufficient.

environmental laws.What Field was trying to do was suggest that making health. Could make an aggregation argument. to RICO. Federal statute makes it illegal for all marijuana via interstate commerce because it’s too hard to tell what is interstate. Isn’t saying no buying or selling a commercial regulation. Beating up women is truly local as part of the criminal and family roles of the local government and their traditional roles in health. but not in interstate commerce. That is why Field picked CA because most marijuana comes here. How far can Congress go to protect the channels of interstate commerce? What is Congress’s authority to regulate the instrumentalities of interstate commerce and persons and things in interstate commerce? How is the line between economic and noneconomic activities drawn in Morrison to be defined? Many federal laws from drug laws. No commercial motive that is interstate because home consumption. and welfare are all state purview and cover this topic. Congress was relying on a but-for causal chain from the initial occurrence that would work for any crime. One would think that women travel more in interstate commerce than guns. morals. On reason for deference to Congress is that it is the body that can find out. Other issues included that if you had a certificate of medical necessity then you could have ten plants for home consumption. and civil rights laws are no vulnerable. Is this like the Child Labor Case in that the problem has nothing to do with the interstate commerce aspect of the law.Constitutional Law Page 93 of 122 clear Congressional findings. In the aggregate violence against women has an enormous effect on the economy. This shows that when Congress tries and tries hard. knowing that there is a problem it still can’t do it because the Court may second guess the findings or even if the findings are correct it is not sufficient. But it is for moral reasons. Now with Lopez/Morrison one might look and say if this case would make it to federal regulation. safety. and welfare. People answers substantive DP right to smoke marijuana (Field wasn’t asking a whole question on this). States do the truly local and the federal government is truly national. and welfare. Would VAWA be under Section 5? Champion said it was okay to regulate for noncommercial affairs but there the thing was within interstate commerce. Field’s former exam question: Takes place in CA. Congress knew that the commerce clause no longer meant everything and had all kinds of Congressional hearings. morals. CA Senator defending a statute that had already been passed which stated that you could grow marijuana (everyone could grow two plants) and only allowed to grow it on your land for home consumption. some people said it was a violation of EP to let people in pain have more (not a good answer). safety. Thomas Concurrence again said that restrictions should be tougher and that option three is poor. Health. morals. Dissent stressed the need for deference to Congress and that the Court should review not for soundness but rationality. safety. Could states then authorize their own prescription drugs? .

imposts. The court is supposed to create the law as there is no other law to apply. imposts. v. Madison took the limited view while Hamilton took the broader position. Spending Power Article I. Declared it unconstitutional on the ground that it violated the 10th Amendment because it regulated production. 3. By restricting the supply of agricultural products. and excises. duties. The court decides what Congress meant about the statute of limitations the Court might decide what it is by reference to another federal statute. Affirmed broad spending powers. Helvering v. Congress sought to ensure a fair price and thus to encourage agricultural production. rather than only to carry out other powers specifically enumerated in Article I. When Congress makes a statute and it covers a lot of labor law but has no statute of limitations. The debate over the scope of the taxing and spending power goes back to a dispute between Madison and Hamilton. the discussion of the scope of the taxing and spending power remains good law as it chose that congress has broad authority to tax and spend for the general welfare. Butler (1936) Concerned the constitutionality of the Agricultural Adjustment Act of 1933 which sought to stabilize the production in agriculture by offering subsidies to farmers to limit their crops. This aspect of Butler has never been followed. Field thinks that there is an analogy with executive power. For What Purposes May Congress Tax and Spend? United States v. and excises shall be uniform throughout the United States. a.Constitutional Law Page 94 of 122 f. Can the President go first in an emergency and then go over to Congress? Same thing as federal common law – can you fill in the blank and leave them to change it or do you need to leave it to them to fill in the blank. Davis (1937) Upheld the constitutionality of the Social Security Act’s old age pension program which was supported exclusively by federal taxes.Do the thing that congress wanted or would have wanted. Field’s Fiew of the Cases: Examples of Federal Common Law Disputes between states – whose law is supposed to apply? Whichever state’s is applied. A lot of the issue in these cases is about what the meaning of Congressional silence is. that state wins. however. Davis (1937) The Court upheld the constitutionality of the federal unemployment compensation system created by the Social Security Act. Steward Machine Co. Remarkable in Youngstown that they are getting so much out of silence. The court will decide to use federal common law. The discretion to decide whether taxing and spending advances the general welfare belongs to Congress unless the choice . to pay the debts and provide for the common defence and general welfare of the United States. but all duties. If Congress doesn’t like it they can just pass a statute and overturn the Court’s decision. §8 states that ―Congress shall have power to lay and collect taxes.

The federal government gives a lot of money to the states so can it say that they don’t have to do it but if it does not choose to make reasonable background checks it will take away the money? Refer to South Dakota v. Could make case that this isn’t really related (DUI is within the state and is very indirect) and the 21st Amendment gives the states the ability to regulate liquor. 4. fought a highly unpopular war with great cost and without congressional formal declaration of war. a related condition. Approved this condition on federal money as it was directly related to one of the main purposes behind federal highway money. Dole (1987) A federal law sought to create a 21-year-old drinking age by withholding 5% of federal highway funds from any state government that failed to impose it. Congress adopted the War Powers Resolution to address these two questions and as a response to the Vietnam War in which two presidents. Not just left by the Tenth Amendment but given to the state explicitly. South Dakota v. creating safe interstate travel. Other ways to achieve it by creating taxes or not allowing folks to go over borders. . In discussing congressional authority in the area of war powers there are two distinct questions: What constitutes a declaration of war? When may the president use American troops in hostilities without congressional approval? The Court has not answered these questions. the federal government can get the states to do things that they would otherwise not be able to require the states to do. Dole would show that this isn’t constitutional because couldn’t take away all money. Johnson and Nixon. The Court has rarely discussed war without a formal congressional declaration in part because of the political question doctrine and standing issues. The Court recognized that at some point the financial inducement offered by Congress might be so coercive as to pass this point in which pressure turns into compulsion. Ways Around State Limits on Federal Power It is true that via offering money. Presidents have used this power to send troops to foreign countries without express congressional approval. War Power The Constitution is an invitation to a struggle over control of the power to declare and conduct wars. The concept of general welfare is not static. not barred by another constitutional provision – here the 21st Amendment is at issue. a display of arbitrary power.Constitutional Law Page 95 of 122 is clearly wrong. perhaps could if it was something related to anti-gun federal money. Article II makes the President the Commander in Chief. This spending condition and saying that ―we will not use the federal power if you…‖ (happens with 11th Amendment issues) are the two ways around these restrictions. Four part test: General welfare (Article I Section 8) with substantial deference to Congres. This is important especially because the Court is cutting back on what the federal government is requiring the states to do. but in this case it was mild encouragement. Article I grants Congress the power to declare war and the authority to raise and support the army and navy. or not an excise of judgment. knowing choice – shouldn’t be taking away too much.

May Congress Regulate Private Conduct? Remember the Civil Rights Cases (1883) under the state action section above. 3) a national emergency created by attack upon the United States.Constitutional Law Page 96 of 122 It states that the president as commander in chief may introduce the US Armed Forces into hostilities or situations where hostilities appear imminent only pursuant to 1) a declaration of war 2) specific statutory authorization. Consider how much this is really related to war powers. 1947. in considerable measure. It requires that the president consult with Congress where possible before introducing troops into hostilities and that the president report to Congress within 48 hours after troops are introduced into hostilities or in situations which risk imminent involvement in hostilities. its territories or possessions. The president can extend this by thirty days if he certifies to Congress in writing that unavoidable military necessity respecting the safety of US Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. or its armed forces. The legislative history of the Act made abundantly clear that there had not yet been eliminated the deficit in housing that. the significance will depend on the willingness of Congress to enforce it. was caused by the heavy demobilization of veterans and by the cessation or reduction in residential construction during the period of hostilities. It provides that the president shall withdraw troops after sixty days unless Congress has declared war or authorized a sixty day extension or is physically unable to meet as a result of an armed attack upon the United States. cutting off military funds. The Court held that the war power sustained the legislation. On appeal. Woods v. The Court held the Civil Rights Act of 1875 unconstitutional and adopted a restrictive view as to the power of Congress to use these provisions to regulate private behavior. Presidents repeatedly have expressed that the resolution is unconstitutional and regularly fail to comply with it. the Court has held that Congress may prohibit private racial discrimination under the 13th Amendment. Cloyd W. The injunction was reversed after a hearing. via for example. the landlord demanded of its tenants increases of 40 percent and 60 percent for rental accommodations in a city defense-rental area. A Court decision on its constitutionality is unlikely. (1948) The Housing and Rent Act became effective on July 1. The following day. the Court reversed. Civil Rights a. Advantages of this System Could see it as a limit on the president’s powers as commander in chief or as a constitutional and desirable assurance of checks and balances. however. Under the 13th Amendment. Miller Co. . 5. Congress had the power even after the cessation of hostilities to act to control the forces that a short supply of the needed article created. Thus. This remains good law in implicitly stating that §1 of the 14th Amendment only applies to government action (and the court later suggested that under §5 congress may regulate private conduct). But it held that Congress lacked authority to enact the law under the 14th Amendment as it only applies to government action. The housing expediter thereupon instituted the proceeding under § 206(b) of the Act to enjoin the violations. and a preliminary injunction was issued. That was an admitted violation of the Act and regulations adopted pursuant thereto. Since the war effort contributed heavily to that deficit. the Congress could regulate private.

although not in a single opinion concluded that Congress may outlaw private discrimination pursuant to §5. shall be denied the right to vote because of failing an English literacy test. The Court held that interference with the use of facilities in interstate commerce violated the law. Northhampton Election Board (1959) Upheld the constitutionality of an English language requirement for voting. where instruction was in Spanish. What is the Scope of Congress’s Power? Can it interpret the 14th Amendment? The nationalist perspective is that Congress may use its §5 authority to expand the scope of rights (Katzenbach). Morrison (2000) The Court reaffirmed the Civil Rights Cases and stated that the VAWA civil damages provision is not constitutional as an exercise of Congress’s §5 powers as Congress under this authority may regulate only state and local governments. Congress could find that the literacy test denied EP even though this was contrary to Lassiter – this aspect of ruling is the significant one as it accords Congress the authority to define the meaning of the 14th Amendment. There is a problem because Lassiter upheld a literacy test although the Congress had said that they were not. in United States v. Five Justices. Court says that it is an open question which means more yes than no. via the VRA. Morgan (1966) Indicated that Congress under §5 may independently interpret the Constitution and even overturn the Supreme Court. Talk about it in terms of a person’s rights rather than a prohibition against the state which semantically suggests yes.Constitutional Law Page 97 of 122 United States v. This is the adopted perspective Lassiter v. Guest (1966) Involved a federal law which makes it a crime for two or more persons to go in disguise on the highway with intent to prevent hinder free exercise or enjoyment of any right or privilege. b. Saying that if the Court saw the same impact the Court would find the same way. Congress. Say it can go further than §1 alone. Another view is the federalist perspective is that Congress under §5 cannot create new rights or expand the scope of those rights as Congress can act only to prevent or remedy violations of rights and such laws must be narrowly tailored (City of Boerne). Acquitted of murder of a black man and federal charges were then brought. The opinions in Guest suggesting otherwise were merely dicta. Congress could have concluded that granting Puerto Ricans the right to vote would empower them and help them eliminate discrimination. However. Katzenbach v. sought to partially overturn Lassiter by providing that a literacy test. The dissent raised the concern that if Congress can interpret the Constitution under §5 then it could conceivably use this authority to dilute or even negate constitutional rights. How can Congress overturn the Supreme Court? Literacy didn’t have a really good reason except for discrimination so no RB and used versus minorities allowing them to change the facts for the Supreme Court which isn’t a fact finder. whether or not motivated by racial animus. NY state law required English as primary language. Concerned the constitutionality of §4(4) of the Voting Rights Act of 1965 which provides that no person who has completed sixth grade in a Puerto Rican school. . Upheld this provision as a proper exercise of the powers granted to Congress by §5.

What came out of this was that the 18 year old provision is unconstitutional. and temporarily prohibited the use of literary tests based on a finding by Congress that the tests were to discriminate against voters on account of their color. in the exercise of its power to enforce constitutional amendments. The statute also barred respondents from disqualifying voters in national elections because of state residency requirements.Constitutional Law Page 98 of 122 Oregon v. Although a previous case held that the proof of a discriminatory intent was a prerequisite to finding a constitutional violation. Smith (1990) Significantly lessened the protections of the free exercise clause. Once these findings were made the state could not adopt any new standards without pre-clearance from the attorney general. 4 saying all good with Black saying federal good and state bad. Petitioners argued that Congress lacked the powers to enact the statute. United States (1980) The Court went even further and suggested that Congress has the authority under §2 to interpret the meaning of the 15th Amendment. In response Congress enacts RFRA which requires a compelling purpose and it prohibited the government from substantially burdening a persons’ exercise of religion even if the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. City of Rome v. South Carolina v. Mitchell (1970) Petitioner state governments invoked the court's original jurisdiction to challenge the constitutionality of amendments to the federal Voting Rights Act. A challenge to changes that a city adopted after the VRA was enacted in 1965 as the city had annexed a substantial number of outlying areas and thus altered the racial composition of its electorate and also had adopted an at-large system for selecting city commissioners. Oregon v. Black says that if Congress is trying to prevent racial provisions it could go further. The state can make religiously neutral laws of general applicability that affects religious practices even if not compelling government interest. Katzenbach (1966) Upheld the constitutionality of the VRA of 1965 which empowered the attorney general to suspend literacy tests and other restrictions in voting in those states where less than 50% of the citizens had voted or were registered to vote. the Court concluded that Congress could prohibit changes that have a discriminatory impact. Respondent federal government and supporting amici curiae argued that a constitutional amendment gave Congress authority to enforce the provisions of that amendment by appropriate legislation. Native Americans denied employment after being fired for using peyote. since Congress had the ultimate power to fill its offices under its own law. 4-1-4 decision with Black as the Concurrence. The court also held that Congress. properly determined that the use of literacy tests was discriminatory because statistics showed voter registration and voter participation were consistently greater in states without such tests. Confining Congressional Power to “Proportional” and “Congruent” Remedies . 4 saying all bad. but not in state and local elections. claiming that the statute usurped powers reserved to the states to control their own elections. The narrow reading sees it as simply approving a remedy for a proven history of the denial of voting rights while the broad reading sees it as authorizing Congress independently to interpret he meaning of the 15th Amendment and even adopt a view contrary to the Court. The Supreme Court held that Congress had the power to fix the voting age in national elections. The statute lowered the minimum age of voters from 21 to 18. leading to the 26th Amendment. c. A legitimate exercise of Congress’s power under §2 of the 15th Amendment.

Finds that Congress was attempting to redefine what a constitutional right is and this is not within Congress’ 14th Amendment. . It applied only to the south and there were challenges to it on that ground – didn’t say the South but applied to states that met certain qualifications. Madison in the opinion as it equates a Supreme Court decision failing to find a right in the Constitution with the conclusion that no right can be created by the Congress. But in later cases criticize states for apply to all states when only a few should be included. Field says that this is wanting an exemption for something that has nothing to do with central practices and is applying too broadly. through the 9th Amendment shouldn’t Congress be able to expand rights? Unusual use of Marbury v. Unusual for Congress to do so but it was upheld because neutral criteria. Church denied a building permit and brought a claim under Religious Freedom Restoration Act. ordinary laws would have the same stature as Constitutional provisions. One of the strangest things which comes up in Morrison and Boerne is that they are talking about how the voting rights cases were confined to areas where it had been most flagrant. Counter Arguments to this Opinion Even though the Constitution provides minimum guarantees. Sherbert v. Field thinks that Congress can’t overturn the Court but it should be able to suggest different facts and reconsideration. Is this really a good idea? The Warren Court of the 1960s was concerned with upholding federal civil rights laws and generally expanding the scope of individual rights broadly defined §5 powers. 3) middle ground of sometimes an exemption and sometimes not. There are three basic approaches: 1) Should be exemption when a strong religious practice unless it really messes up the secular program – presumption of exemption. Smith that caused FRRA. Officials aren’t trying to purposefully discriminate against them but often times don’t think about them. The Court expressly held that SS was the appropriate test in evaluating government laws burdening religious freedom. Dissenters didn’t challenge this case but the reasoning of Oregon v. The Court held that the denial of benefits imposed a substantial burden on religion as the woman had to choose between an income and her faith and could find no compelling interest. A need to preserve the Court as the authoritative interpreter of the Constitution. Flores (1997) Expressly rejected Katzenbach and adopted the federalist perspective. yet the former does not necessarily lead to the later.Constitutional Law Page 99 of 122 City of Boerne v. This hurts minority religions. 2) Scalia’s rule in Smith that if it is neutral on its face there is never an exemption. . Here RFRA is not confined as sweeping coverage ensure its intrusion at every level of government and it is even more so than the area of voting power. Verner (1963) Woman unable to work on Saturday because of Seventh Day Adventist and quit her job. as a result the state denied her unemployment compensation. Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court and these must be narrowly tailored – proportionate and congruent – to the constitutional violation. If allowed. Section 5 powers. The Rehnquist Court is concerned with limited federal powers has narrowly interpreted this authority.

Constitutional Law Page 100 of 122 6. devised a system. copied this system for use by FL residents to save money to attend FL schools. Although patents unquestionably are property and the 14th Amendment protects property from being denied by state governments without DP. a NJ company. unless Congress has made a clear statement that it means for the individual to sue the state. The Supreme Court held that this was not a valid exercise of power under §5. Questions started being raised about whether Congress had to power to extend as such as we saw in 10th Amendment cases. So an individual can keep the states from violating the Constitution by getting a ruling that the state can’t do so and if they do so after injunction or DJ can get damages back to the point of the injunction/DJ. College Savings Bank (2001) College Savings Bank. an agency of the state government. the Court found that the . Florida Prepaid Postsecondary Expense Education Board v. In between Wirtz and National League of Cities. The 11th Amendment has to do with individuals suing states and are allowed to do for injunctions and declaratory judgments and because they are allowed to do that you can get a reading on constitutional law. If it is valid. Relevance to State Sovereign Immunity The 11th Amendment States that ―The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. but Congress can do so only if it is doing so under Section 5 of the 14th Amendment. City of Boerne narrowed the scope of §5 powers. which it patented for students to use to save money to later pay for college education. that the federal government can’t regulate the states. This is the reason why Section 5 has been narrowed substantially. In 1992. a case called Employees found that Congress had power to regulate state employees under the commerce clause. There is an obvious and crucial interrelationship of these two cases – in deciding whether a state can be sued under a federal statute the court must decide whether the law is a valid exercise of §5 powers. The Supreme Court has long interpreted this provision as barring suits against state governments without their consent both by their own citizens and by citizens of other states. Congress immediately said that they meant as such and it goes back to the Court. the state must be possible to sue or else the litigation against the state cannot continue. A problem has arisen since the 1960s as wage and hours laws began applying to state employees. Interplay between the 10th and 11th Amendments. Florida Prepaid. Field doesn’t think this will last because it is so much putting the Court above Congress in such a perversion of their normal roles. But now that Garcia has overruled National League of Cities the question is raised again and it must be that Congress clearly states as such until Seminole Tribe in which the Court held that Congress can allow individuals to sue state if it says so absolutely clearly in the body of the statute. In this case it was clear that Congress wanted this to happen but the Court finds that it does not clearly state as such. but even though they have the power to regulate that does not mean there is power for an individual to sue the state to enforce the right. thus distinguishing the 10th Amendment issue about the federal government telling the state what to do from the 11th Amendment which is bout an individual to sue the state via the 11th Amendment. Congress expressly amended the patent laws to authorize suits against state governments for patent infringement. Then the Supreme Court decides National League of Cities.

nor prohibited by it to the States. The Court rejected this argument and stated that the ADA was a substantial expansion of rights compared to the Constitution as normally it only has to pass RB test. The Court determined that the employee could sue the State for money damages in federal court.What is striking about this case is that it involves patent law in which federal courts have exclusive jurisdiction. and could be understood as responsive to.Constitutional Law Page 101 of 122 authorization of suits was impermissible because it was not proportionate or congruent to remedy Constitutional violations. and fostering of. Congress validly exercised its power under § 5 by enacting the prophylactic legislation in order to prevent and deter gender-based discrimination in the workplace. Some disagree that sovereign immunity is an inherent part of the Constitution’s design and that it undermines government accountability. Not congruent or proportionate because no record of irrational state discrimination. Congress had identified no pattern of patent infringement by the states in contrast to the undisputed record of racial discrimination. or to the people. State Autonomy Limits on Congressional Power The 10th Amendment states ―The powers not delegated to the United States by the Constitution.‖ The key question about the 10th Amendment is whether it is judicially enforceable limit on the Congress’s powers? The Court has shifted between two approaches: One approach is that the 10th Amendment is not a separate constraint on Congress. gender-based discrimination in the administration of leave benefits was weighty enough to justify the enactment of prophylactic § 5 legislation and was congruent and proportional to its remedial object. The plaintiff argued that the elaborate legislative history concerning government discrimination against the disabled made this case different. Hibbs (2003) The employee sought leave under the FMLA to care for his ailing wife. unconstitutional behavior. The alternate approach is that the 10th Amendment protects state sovereignty from federal intrusion. Congress acted within its constitutional authority when it sought to abrogate the States' immunity for purposes of the FMLA's family-leave provision. Federal laws intruding into this zone should be declared unconstitutional by the courts. are reserved to the States respectively. Petitioners granted the employee's request but terminated him when he failed to return to work. C. Nevada Dept of Human Resoruces v. Garrett (2001) Considered whether state governments may be sued for violating Title I of the Americans with Disabilities Act which prohibits employment discrimination and requires reasonable accommodation by employers. Are these decisions desirable? Appropriate protection of state sovereign immunity and a proper limit in Congress’s §5 powers. but the law would find many things unlawful that would pass RB. University of Alabama v. . The States' record of unconstitutional participation in. but rather is simply a reminder that Congress only may legislate if it has authority under the Constitution. thus there is now no remedy. or designed to prevent. A federal law never would be found unconstitutional as violating the 10th Amendment but it could be invalidated as exceeding the scope of Congress’s powers under Article I of the Constitution or violating another provision. thus it is not responding to a history of widespread and persisting deprivation of rights.

Argument that there is a need for using states as laboratories should be made by Congress against federal legislation and not the judiciary. In the first third of this century until 1937. it can legislate the same as if there were no states at all. instead it says the feds will have all these powers and what is left will be given to the states. The goal of realizing democratic values to the maximum may be better achieved by the federal polity with greater resources and more attention. Wechsler argues that the interests of states are represented in the national political process and that the nature of that process provides sufficient protection of state sovereignty. mandatory minimums and anti-miscegenation rulings. a. etc. There has been a major shift over time as to how abusive government is best controlled. safety. enhancing democratic rule by providing government that is closer to the people. . but most senatorial elections deal with national issues. From 1937 through the 1990s. but that is changing with. Once Congress is within the scope of its power. We may have originally thought of family and crime as particular state areas. We have grown into much more overlap. Is this still true since Senators are not appointed by the state legislatures? Could argue people vote for who best represents their state. thus making in unnecessary for the courts to enforce federalism as a limit on Congress. Now it is though that if a federal action intrudes upon individual liberties.2) Should it be the role of the judiciary to protect state prerogatives or should this be left to the political process? Consider that there is a greater danger of special interests capturing government at smaller and more local levels. but it is deemed as a truism.Constitutional Law Page 102 of 122 Court Approach Mimics Commerce Clause In the nineteenth century the Court took the former position and held that a federal law was constitutional so long as Congress was acting within the scope of its authority. but in the 1990s the Court has resurrected the 10th Amendment as a limit on Congressional power. the federal judiciary will invalidate it. Our federalism has always been one of overlap. One place we might look to determine if there are some things that have to be left to the states. not as a judicially enforceable limit on legislative power. The 10th Amendment in the Nineteenth Century Gibbons v. The Court rarely speaks of the values of federalism but when it does it points to decreasing the likelihood of federal tyranny. It doesn’t say that the states have power over health. the Court adopted the latter view and found that the 10th Amendment reserved to the states control over production and federal laws attempting to regulate production were unconstitutional. for example. Ogden (1824) adopted the view that the 10th Amendment is simply a reminder that Congress must have authority under the Constitution in order to legislate. The dispute over the meaning of the 10th Amendment concerns two interrelated issues of constitutional policy: 1) How important is the protection of state sovereignty and federalism? Radically limited federal powers seems anachronistic in the face of a modern national market economy and decades of extensive federal regulations. and allowing states to be laboratories for new ideas. the Court shifted back to the former approach.

Constitutional Law Page 103 of 122 b. The Court found that requiring states to pay their employees the minimum wage violated the 10th Amendment because the law operates to directly displace the States freedom to structure integral operations in areas of traditional government functions and are not within the authority granted Congress by Article I. Wirtz (1968) Application of Congressional laws to state hospital workers. Section 8. Although the law was limited to regulating goods in interstate commerce. These things are clearly within the commerce . Darby (1941) A challenge to the constitutionality of the Fair Labor Standards Act of 1938 which prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage or who worked more than the prescribed maximum hours. The 10th Amendment Between 1937 and the 1990s United States v. the Child Labor Case. Hammer v. Harlan’s opinion said that there is nothing in the Constitution which says that when you enact a law you can’t apply it to states. People had been asking was there anything that Congress could not reach under the commerce clause? And if not. c. A federal law prohibited the shipment in interstate commerce of goods produced in factories employing children. Upheld it as a lawful exercise of Congress’s commerce clause authority and flatly rejected the claim that the law violated the 10th Amendment calling it just a ―truism. Douglas saw a problem from the basic structure of the Constitution. The 10th Amendment from the Late Nineteenth Century Through 1937 The Court greatly circumscribed the scope of Congress’s powers. Almost all of these cases involve the Fair Labor Standards Act which imposed minimum wage and maximum hours on state workers. See that there was aggregation and probably had to be something that is commercial. If a few states allowed it goods produced there would be cheaper and pressure other states to allow child labor. and held that the 10th Amendment reserves a zone of activities to the states for their exclusive control. Defenders had argued that the protection of state autonomy was illusory because the national market restricted the ability of the states to choose whether to allow or prohibit child labor. Dagenhart. does this show that something terrible is going on? Is federalism then going awry? Should it be reaching so much under just one power? National League of Cities v. particularly commerce powers. Maryland v. the Court found it unconstitutional as it controlled production. Clause 3 as it would require state and local governments to either raise taxes or cut other services. Overturned Wirtz so it doesn’t turn on the peripheral/integral. Usery (1976) The only case in which a federal law was declared unconstitutional as violating the 10th Amendment and that decision was later expressly overruled. Nothing fell within this test.Declared unconstitutional the application of the Fair Labor Standards Act which required the payment of the minimum wage to state and local employees.‖ The moment at which the following 10th Amendment cases came up was after Wickard. The Court flatly rejected it and said that the local control is important. An unclear holding except for this last sentence as never got another majority and the tenth amendment is not cited is the only one. About 10 cases until Garcia found that they were not within the scope. (1918) was the most significant case to construe the 10th Amendment this way. For example.

San Antonio Metropolitan Transit Authority (1985) Blackmun joined the National League of Cities dissenters to create a majority. Blackmun offered two reasons for overruling National League of Cities: unsound in principle and unworkable in practice and the protection of states should be through the political process. In the first place. Mississippi (1982) Challenge to the Public Utilities Regulatory Policies Act of 1978 which required that state utility commissions consider FERC proposals. Federal Energy Regulatory Commission v. Rather than just fixing the old state . No affirmative thrust from the 10th Amendment. but they don’t pay enough attention to how the changes came about and just thinks changes happened and she should undo them. This is a new argument because at this time the 10th Amendment as a truism was pretty much accepted. In contrast to the dissenters. and thus there was no 10th Amendment violation Garcia v. The Fourteenth Amendment also had a huge role and can’t say it was illegitimate because it was a constitutional amendment. Although writing for the more liberal wing of the Court . integral. This too was done by Constitutional Amendment. There is nothing wrong with a big commerce power and the Congress is better at figuring out what should be done and we will only step in when Congress has gone totally out of bounds. the opinion sounded conservative as it argued for judicial restraint in enforcing the 10th Amendment in terms as he argued that a rule of state immunity that looks to the traditional. Held that a terrible thing was going on and something had to be done but then overruled in Garcia and come up with new approaches for handling Printz. however. That may have been a better theory when senators were elected by state legislatures than by the people because then they were probably looking out more for their state interests then and are now more national. Tribe argued that the true meaning was the Court taking a step towards a Constitutional right of minimal subsistence. Like. Some of the changes came about because of industrialization and now internationalization. or necessary nature of governmental functions inevitably invites and unelected federal judiciary to make decisions about which stae policies it favors and which ones it dislikes. Also the federal income tax which cuts down on how much money the states can receive. National League of Cities it focused on whether the application of the Fair Labor Standards Act to state and local governments violated the 10th Amendment.Constitutional Law Page 104 of 122 clause but the state is saying there should be a different treatment because they are emanating from the state. The Court emphasized that the federal regulation only forced states to consider adopting the federal standards and did not force them to do so. One thing that is argued in these cases is that the proper body to determine the federal-state powers is the Congress rather than the Court because all the states are represented in Congress. O’Connor and Powell said that this was a huge problem of too much federal power and we needed a new doctrine to set everything straight. the framers’ point of view of percentages of how much it should be federal and how much state was not written into the Constitution and was not on purpose. it seems that the changes had taken place not through illegitimate changes – it is a departure from the framers point of view as to what the relationship would be. Field thinks that Garcia is not the demise of federalism and that our system is a perfectly alright example of how to set up a federalist system.

One reason is that they have come up with a different doctrine. United States (1997) Brady Act that requires the chief law enforcement officer of each state act as a federal officer by making background checks on gun purchases. Katt and the Supremacy Clause). Three reasons given against this: political accountability (it is a federal law but state officials are getting the blame). (New York was state legislative officials). but Garcia says that the political process protects them. Try and say that this is different because of express authority in the Supremacy Clause. Supreme Court justices are required to retire at 70 and brought a suit challenging it under the Age Discrimination Act. Perhaps they are respecting precedent. Breyer Dissent tries to argue that it is more dignified to have the feds ask you to carry out then come in and do it themselves. money (the feds should pay for it).Constitutional Law Page 105 of 122 doctrines O’Connor and Powell come up with new theory and don’t think about these legitimate changes. Commandeering state executive officials into bureaucratic armies. Mass. Two problems: (a) de minimis (if there isn’t this exception we are in big trouble and there are all sorts of reporting requirements) and if so perhaps this should be one. there is no constitutional text about this so have to look at jurisprudence and background history. The 10th Amendment in the 1990s and Beyond Printz v. but they could have had both. All of the dissenters here say that this is the most terrible opinion ever and that we will come back and overturn it as soon as they can. . d. (b) what about the judiciary? It is a basic principle that the state judiciary can be conscripted into federal service (Testa v. Held to be unconstitutional because the history of the founders didn’t imply having the states act as federal officials (duty not to obstruct rather than to implement). This wouldn’t pass this test. They have had this opportunity and have not done so. Frankfurter proposed that in order to reduce the clutter in federal courts we should take mickey mouse crimes and give them to the states. Asked for reasonable effort rather than a meaningful effort. One would think that it is something state should decide by doing their own courts (and this would have been covered by National League). Could have overturned Garcia but avoided the issue by saying the act didn’t apply to this situation. The Court revived the 10th Amendment in the 1990s but Garcia has not been overruled ann National League of Cities has not been reinstated. state dignity (feds should not be pushing them around). Violates separation of powers because the Constitution vests all executive power in the president and that Congress impermissibly had given the executive authority to implement the law to state and local law enforcement personnel. One reason the Courts aren’t doing it is because they don’t have a principled reason for doing so and Congress doesn’t need one. Congress actually exercises a tiny fraction of its commerce powers abilities – Congress is making the choice of which ones to exercise rather than the Courts.

Interstitial Executive Power Douglas argued t hat the president can act without express statutory or constitutional power so long as he is not usurping the powers of another . The president may only act pursuant to express or clearly implied statutory or constitutional authority. He believed the steel strike could endanger the war effort in Korea because it was indispensable for weapons. Want to say to keep Commander powers abroad. Condon (2000) Unlike the other recent cases. a federal law that prohibited states from disclosing personal information gained by departments of motor vehicles.‖ suggesting inherent powers. Field thinks that this is permissible because of FERC (don’t have to adopt regulation but if do not adopt them have to consider them in your agency according to these procedures and reject them – Court found that could have done lesser thing). the language is just to settle that there is one executive. Steel company not deemed to be in the theater of war because considered more domestic. also said that for a federal law to violate the 10th Amendment it needed to regulate ―states as states. or. Black’s majority opinion denied the existence of inherent presidential power.Constitutional Law Page 106 of 122 Printz may make zero difference Federal government says it will either do all gun checking itself on a 30 day uncomputerized system or the chief local law enforcement officer can do it computerized in five days. Also it dealt with private conduct as well as it regulated private entities that possess the information. Interesting that the companies brought the action and not the union. Truman stepped in and kept steel mills in operation. Criticism in that most laws could be descried in either way. Neither was present in this case. the Court rejected a 10th Amendment challenge and upheld a federal law (unanimously). Unlike Article I. Federal Executive Power Article II begins ―The executive power shall be vested in a president of the United States of America‖ and then enumerates specific powers. Virginia Surface Mining and Reclamation Association (1980) which although it state that NLC only applied when Congress was regulating state governments. faithfully execute (executive given more broad executive power whereas the legislature has more specified powers). There has been debate over whether this language was intended to grant the president inherent powers not expressly enumerated. There were seven opinions with four different approaches: No inherent presidential power. but we did have the Civil War. Inherent Powers? Youngstown Steel v. Involved a challenge to the Driver’s Privacy Protection Act. still this war takes place abroad. 1. C. It doesn’t mean that the states can’t fiddle with the states. it’s just that they can’t use them in their positive program. and must not be such that the nature of the federal interest justifies state submission. directly impair the states’ ability to structure integral operations in areas of traditional government functions. turning them over to the Secretary of Commerce. it does not state ―herein granted. Limiting what they can do versus saying what they must do. Sawyer Shortly before a steel strike. Also could find permissible under Hodel v. Reno v. Located his power in Article II: the Commander in Chief powers (need steel for the war). Premised on the idea that inherent authority is inconsistent with a written Constitution. Alright to tell states to tell them they can’t do something but it is not okay to tell them to say that they must do something – an action/inaction distinction.‖ address matters that are indisputably attributes of state sovereignty.

Premised on a belief that there is a need for the President to exercise powers not specifically enumerated but within bounds. Acting against the Congressional intent and the President can only do so if he has constitutional powers that the Congress does not. Jackson places this situation in this category because the silence was an expression of disfavor. Legislative Accountability Frankfurter argued that the president may take any action not prohibited by the Constitution or statute. 2. Note that the scope of Congressional war powers is much broader (i. supported Vietnam War without declaring war). Here the seizure was unconstitutional because the president was forcing the expenditure of federal funds to compensate the steel mill owners and was thus impermissibly usurping Congress’s spending power. Regan (1981) Shortly before leaving office President Carter negotiated an agreement with Iran whereby Iran would free hostages in exchange for lifting a freeze on Iranian assets in the United States and an end to all suits pending against Iran in United States courts and would be resolved in a new Iran-US tribunal. May not have noticed the odd procedure in Youngstown. Warren’s dissent uses this approach.Constitutional Law Page 107 of 122 branch of government or keeping another branch from performing its duties. 3. The court has never declared an agreement unconstitutional as usurping the Senate’s power. The dissenters also seemed to adopt this approach but disagreed as to whether Congress had acted. Have to look at the facts of the situation rather than abstract theories of law. Federal laws restricting the president’s power are unconstitutional. An executive agreement is an agreement between the United States and a foreign county that is effective when signed by the President and the head of the foreign nation. Executive Agreement A treaty is an agreement between the United States and a foreign country that is negotiated by the president and effective when ratified by the Senate. Dames & Moore v. Challenged by Dames & Moore which had filed a lawsuit against Iran for breach of contract. 2. Broad Inherent Authority The President has inherent authority at least in some areas unless such conduct violates the Constitution.e. The problem is having the executive getting us into too many wars and some . Twilight zone – Congressional silence or concurrent authority. can use rent control during WWII). Different because an agreements in foreign affairs which is a much different than war. Was the silence a choice not to act or a choice to allow the President to decide? Congress could break out of it but there is Congressional inertia for various reasons (i. Jackson’s Division into three categories: 1. What can be done by treaty can be done by agreement although agreements aren’t in the Constitution. Congress approves and President follows through executive power is the unquestionably permissible unless the Congressional statute is unconstitutional. No Supreme Court case definitively makes one of these approaches correct and the others wrong.e. Cert before judgment – in exceptional cases the court can look at a case before the Court of Appeals rules on it. Jackson's opinion also argued this (see below). The Court rejected a constitutional challenge emphasizing that a series of federal statutes authorized the president’s actions.

there weren’t actual doctrines. 1. Nondelegation doctrine has demised. 2002 the US and UK got through a resolution 1441 in the security council (unanimous). Guest Speaker on Iraq No peace agreement in first Gulf War. federalism. Additioanlly. Inspectors were able to arrive in Iraq for the first time in four years. D. but when we are attacked we need a much quicker response. Eventually put forward a resolution but it was withdrawn after veto threats. The Legislative Veto In light of the demise of the nondelegration doctrine. it was a cease fire and required disarmament. . In the 1930s. Congress could enact a law overturning an agency’s rule but requiring legislative action obviously limits the circumstances in which Congress can or will exercise its checking functions. the agencies have executive powers of enforcement. The purpose is not just structure – individual rights depend on them as it prevents against tyranny. corresponding to the time of great growth in federal administrative agencies. The framers were more worried about Congressional power getting out of control. Do separation of powers. It is only in the last century that congress has routinely delegated its legislative power to executive agencies and the creation of the Interstate Commerce Commission in 1887 ushered in a new era for the federal government with the creation of federal administrative agencies with broad powers. Yet. The thrust was a final opportunity for Iraq to comply and there would e an enhanced inspection regime and non compliance would result in serious consequences. This seems to conflict with Congress’s legislative powers. the issue arises as to how the power of administrative agencies will be checked and controlled. In Bush’s State of the Union. he highlighted that if Iraq did not comply he would lead a coalition. Note that it also allows Congress to avoid the heat. in many areas the need for complex regulations in better handled in a specialized agency and the sheer quantity surpasses Congress’s ability. A typical form of the legislative veto authorized Congress to overturn an agency’s decisions by a resolution of one house of Congress. Separation of Powers The constitution does not expressly mention agencies and in many ways they are in tension with basic constitutional principles as virtually all of these agencies possess rule-making power and these rules have the force of law. No approval in the resolution for force. Congress included in statutes provisions authorizing Congress or one of its houses or committees to overturn an agency’s action by doing something less than adopting a new law. Refer to Article 51 of the UN Charter – self defense does not arise until there is an armed attack. On November 8.Constitutional Law Page 108 of 122 think that the powers are spread out to prevent this situation . the Court would just point to these terms. or individual rights just describes what is essential to our form of government or do we now have a doctrine developing from these descriptive terms? Before National League of Cities. Congress created the legislative veto as a check on the actions of administrative agencies.

Other checks via purse strings. Again the dissenting view is functional. But could just print them up one by one and send them over individually for the President to sign. Congress delegated powers to the executive branch. Morrison v. Political convenience is not enough to justify being against a constitutional doctrine. appointments. Chadha (1983) Under an immigration act. and investigations. A more formalist argument. Should the proper analysis in separation of powers be functional or formal? Formalism has been adopted over functionalism with the line item veto and the Chaddha situation but this is not true in all of the cases. Doesn’t this interfere with the compromise that Congress goes through? Clinton v. it reserved the right of one house of Congress to veto that decision. Orr in which a statute says that it is permissible for the man to pay alimony but not the woman. however. The principle that has emerged from the cases is that in general the president may remove executive officials unless removal is limited by statute.Constitutional Law Page 109 of 122 Immigration and Naturalization Service v. The dissent needs to come to terms with the Constitutional arguments of the majority. the Supreme Court cannot take out a part and sever it. This is also why line item veto is a problem – the bill the President signs ends up being different than what Congress passes. Also could say that Congress is also taking an adjudicative rule. Anything that is legislative must be approved by both houses and presented to the President. specifically allowing the Attorney General to suspend the deportation of any deportable alien. They could argue that the AG’s role is lawmaking/administrative law. Also. The court finds that the veto is functionally a legislative act. New York found this statutory increase in Presidential power is unconstitutional. The law creating the independent counsel provided that he could be removed by the attorney general only for cause and the attorney general would have to file a report with the panel of judges who made the appointment and the House and Senate . Olson (1988) Upheld the constitutionality of limits on the president’s ability to remove the independent counsel. Congress by statute may limit removal both if it is an office where independence from the president is desirable and if the law does not prohibit removal. 2. but rather limits removal to instances where good cause is shown. Removal Power There is no provision of the constitution concerning the president’s authority to remove executive branch officials. Take for example Orr v. The act of delegating to another branch isn’t explicitly talked about in the Constitution so why can’t they reserve that power? A more functionalist argument. Severability would not work in a state system. Dissent argues that there is a problem in that there is now a large administrative government and some delegation may now be needed. wouldn’t the War Powers Act violate Chaddha? Is the Iraq War unconstitutional? First act whether that unconstitutional part is severable and it probably is so that the rest of the Act would survive.

or the appointments process. The Court found that the president had delegated his authority to the independent counsel. meaning that if there is malice present then he is liable but not if there is good faith. Using Article III judges for nonjudicial tasks. recognized the existence of executive privilege along with the need for it and that even though it does not expressly mention it in the Constitution it derives from the supremacy of each branch within its own assigned area of constitutional duties as certain powers and privileges flow from the nature of the enumerated powers (an inherent presidential power). United States (1989) The Court approved a broad delegation of power to the US Sentencing Commission. The usual argument is that they are free from civil damages under qualified immunity.Constitutional Law Page 110 of 122 Judiciary Committees. 3. Congress may delegate to the judicial branch nonadjudicatory functions that do not trench upon the prerogatives of another branch and that are appropriate to the central mission of the judiciary. United States v. Mistretta v. However. The Court upheld the law and rejected the claims that it was an impermissible delegation of legislative power to the judicial branch. it is established that a president may not be sued for injunctions or for money damages for actions taken while in office. It is the role of the courts to decide when the president has privilege and the scope of it. Executive Privilege Ability of the president to keep secret conversations with or memoranda to or from advisors. The Court made an exception for the President in his powers noting that his office is too broad. Breyer was the equivalent of Marhsall in Marbury (somewhat involved). Seen as necessary in order for presidents to receive candid advice and well as to protect national security. Rejected the contention that the case posed a nonjusticiable political question because it was an intra-branch dispute and that the president alone had authority to control prosecutions. It is clear that a president while in office may be sued for conduct that occurred before taking office. Nixon (1974) Whether President Nixon has to turn over the Watergate tapes and Chief Justice Burger who was appointed by Nixon wrote a unanimous opinion stating that he did. three of which must be federal judges. It is comprised of seven members appointed by the President. not absolute and must yield when there are important countervailing interests. Presidential Immunity It remains unsettled whether a president may be criminally prosecuted while in office or whether the sole remedy is impeachment and removal. Does Marbury preclude a constitutional interpretation which gives final authority to another branch even though it gives the power to review executive actions? 4. Article III. The Court suggested that it should ve separate from the President. . but can only be removed for good cause. Allowable (probably would approve anything confirmed by the sentence). The Constitution does not mention it but many presidents have claimed it. an independent commission treated as officers not judges and removable by the President. It did not violate the President’s authority in separation of powers.

The limiting here. a challenge can be brought under the privileges and immunities clause of Article IV. the state cannot act or cannot act in certain ways as it would unduly interfere with interstate commerce. §8 ―Congress has the power to regulate commerce among the several states. The drafter should have and could have included a provisions prohibiting states from interfering with interstate commerce as it included the privileges and immunities clause and Article I §10 includes many limits on state power.Constitutional Law Page 111 of 122 Clinton v. Since Congress is given commerce power only it should be able to invalidate state laws on this ground. the President maybe would have executive immunity because at some points he was within the scope of his duties (relieving stress. 4. and the federal judiciary? a. makes it dormant or negative. Note that the dormant commerce clause is not the only way of challenging state laws that burden interstate commerce. The purpose is to protect the office holder in his discretion and this was not met here. clearly. Historical argument that the framers intended to prevent state laws that interfered with interstate commerce as a key impetus for the Constitutional Convention in 1787 was the absence of any federal commerce power. the states cannot discriminate versus the other states – super conservatives might want to make this the only rule. Should the courts be aggressive in striking down state and local laws or should the courts adopt a general posture of deference and invalidate only in exceptional and extreme cases? How important is it that state and local laws that interfere with commerce be invalidated? What is the appropriate allocation of power among Congress. All the Justices said that it would not disrupt his Presidency but in reality it did. Congress can’t handle all of these regulations by itself.‖ The negative aspect arises because it is concurrent powers and when the federal government asks in concurrent powers the federal government trumps the state government. the states. Also could be challenged under EP. Asked for immunity while President but it did not work because the incident took place before he was President and the Governor does not have the same privileges. Should there be a dormant commerce clause? The crucial question is whether the judiciary in the absence of congressional action should invalidate state and local laws because they place an undue burden on interstate commerce. Policy arguments about the scope are important. especially if the state or local law discriminates against out of staters. Sometimes we find that even when the federal government has not acted. But could also argue that it was not within his powers. Dormant Commerce Clause Before 1938 . talking to heads of state). If there was a civil suit by Monica Lewinsky. The economy is better off if state and local laws impeding interstate commerce are invalidated. If the state or local government discriminates against out of staters with regard to a fundamental right or important economic activities. §2. Moreover. States and their citizens should not be harmed by laws in other states where they lack political representation. Dormant Commerce Clause/Negative Aspects of the Commerce Clause In Article I. Jones (1997) Clinton is not covered under the immunity. as opposed to allowing Congress to act.

ferries. that the Court has never expressly overrule any of the earlier tests and sometimes invokes them. health laws. Marshall used it as an occasion to broadly definite the scope of Congress’s power under the commerce clause. The balancing test depends on whether there is discrimination. and those which respect turnpike roads. quarantine laws. Wilson v. This argument seems to imply that states cannot regulate any commerce at all without authorization specifically from Congress. Commerce refers to all stages of business and among the states includes matters that affect more than one state and are not purely internal. however. Black-Bird Creek Marsh Co (1829) Considered whether a state could construct a dam that obstructed an interstate waterway. inspection laws.e. Note. Shift to the Balancing Approach The police power/ commerce power test of Gibbons and the local / national subject matter test of Cooley attempted to draw rigid categories of areas where federal law was exclusive and those where states could regulate. There are problems with this test: 1) It allows state regulations no matter how protectionist or how much they interfere with interstate commerce. so long as the subject matter is deemed local (the goal here was protectionist as safety concerns could be met by requiring some sort of test). A Penn law that required all ships entering or leaving the Philadelphia port to use a local pilot or pay a fine that went to support retired pilots. but Marshall drew a distinction between a state’s exercise of police power and a state exercising federal power over commerce (i. If the Court concludes that a state is discriminating against out-of-staters then there is a strong presumption against the law . and the like that are components of the state). Board of Wardens (1851) Court drew a distinction between subject matter that is national in which event state laws are invalidated under the dormant commerce clause and subject matter that is local in which event state laws are allowed. b. Upheld the law and found that the crucial question was whether the subject is of a nature that requires uniform national regulation or diverse local regulation. Here is was a local matter both because of differences among ports and because a federal law adopted in 1789 expressly allowed states to regulate piloting. When a state proceeds to regulate commerce with foreign nations or among the states it si exercising the very power that is granted to Congress. Ogden (1824) Issue was whether New York could grant an exclusive monopoly for operating steamboats in New York waters and thereby prevent a person with a federal license from operating in New York. laws regulating the internal commerce of the state. The Court rejected a challenge by the owners of a federally licensed ship because the construction of the dam was a permissible exercise of state police power. The modern approach is based on balancing the benefits of a law against the burdens it imposes on interstate commerce. 2) There is not a clear distinction between what is national and what is local as no criteria are articulated. It hints the opposite of Gibbons . The commerce clause is an independent limit on state power even where Congress has not acted.Constitutional Law Page 112 of 122 Gibbons v.that there is no negative aspect if Congress has not acted as then states can act. Cooley v.

Being the real reason of health and safety is not enough. Since this is discrimination in effect and not intent. and Thomas have objected to this balancing test and argued in favor of upholding all state laws that are deemed nondiscriminatory unless there is Congressional legislation to the contrary. Court argues that there are other ways to get health concerns taken care of. The Court rejected the state officials' arguments that the purpose of the Act was not to protect its farmers from competition but to . The Court held that the district court properly restrained the enforcement of the Act in its application to sales in the original packages but erred in refusing to grant an injunction with respect to milk in bottles. The real reason was the health and safety because of ease of inspection – can inspect the facilities and not just the milk. The milk dealer bought its milk in Vermont at prices lower than the New York minimum and refused to agree to conform to the New York statute and regulations in the sale of the imported product. A company that is pasteurizing from about sixty-five miles away. Excluded out of state and in state producers which is irrelevant. then the presumption is in favor of upholding the law and it will be invalidated only if it is shown that the law’s burdens on interstate commerce outweigh its benefits. The Court held that there was no way to say that NJ waste was better than anyone else’s. would this fit under the discrimination prong? Baldwin v. If it treats both the same at least some of them are in the political process to influence the law. Scalia. Have to show that when protecting health and safety that the product from outside jeopardizes the health of the people more. v. Remember to first determine if the law affects interstate commerce. Legitimate state concerns with indirect/incidental effects are allowed whereas protectionist ones are not. The interests on both sides are incommensurate and can’t be weighed against each other. like by having inspectors inspect incoming milk. Having a primary intent of health and safety does not insulate from the commerce clause. The purpose does not control. G. c. Anybody could say health and safety.A. New York's attempt to regulate the price to be paid for milk acquired in Vermont had the same unconstitutional effect as a customs duty. If the Supreme Court can think of a better way of doing it – least restrictive alternative – making it the strictest form of review. Dean’s Milk Co. Would be discriminatory if and only if it accords discriminatory treatment to interstate commerce in a respect not required to achieve a lawful state purpose. NJ could perhaps limit the amount but it has to be opened up to everyone in the country. Would you normally think of waste as something in interstate commerce? State Court said the regulation was okay because it was about the environment and health. The form of the packages was immaterial. Rehnquist. WI. If the Court concludes that the law is nondiscriminatory. Facially Discriminatory Laws Philadelphia v. the effect does.Constitutional Law Page 113 of 122 and it will be upheld only if it is necessary to achieve an important purpose. Madison (1951) An ordinance that barred the sale of pasteurized milk unless done so within five mile radius of Madison. Also a balancing test on page 353. The milk dealer was thus unable to obtain a New York business license. (1935) The New York Milk Control Act established a system of minimum prices to be paid by milk dealers to producers in New York. Seelig Inc.F. New Jersey (1978) NJ laws does not allow importation of solid waste from other states. Even though it is designed to protect health and the environment it has facial discrimination.

The Court also generally includes a least restrictive alternative component. and the relation was too indirect to obstruct interstate commerce. Also stated that whether it could be promoted as well with a lesser impact in interstate activities will be considered. Allowing a health exception would have destroyed the rule. (1970) Articulated the balancing test: Where the statute regulated even-handedly to effectuate a legitimate a local public interest. At times the Court has found that proof of a discriminatory impact against out-of-staters is sufficient for a law to be regarded as discriminatory. In sum. but not if it excludes only one group of out-of-staters. of America (1987) Upheld a law seeming to be nondiscriminatory. 1) Balancing Test: When the State is Not Discriminating However. and its effects on interstate commerce are only incidental. Bruce Church. The cases do not disagree as to the legal standard. Although there are no clear criteria. at times it has found discriminated based on the disparate impact of a facially neutral law. 3) If a law is motivated by a protectionist purpose. if the state is not discriminating against out-of-staters then the above does not apply as the Court applies a simple balancing test – the burdens on interstate commerce against benefits. An Indiana law limited corporate takeovers by requiring that a purchaser who acquired control shares in an Indiana corporation would acquire voting rights only if the transaction was approved by a majority vote of the preexisting disinterested shareholders. a law will be found discriminatory either if it facially discriminates against out-of-stares or if it is facially neutral and is deemed to have a discriminatory purpose and/or impact. d. Generally the Court upholds something when it is not discriminatory. CTS Corp v.Constitutional Law Page 114 of 122 ensure an adequate supply of milk and to avoid tempting farmers to save the expense of sanitary precautions. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Dynamics Corp. The benefits outweighed burdens on interstate commerce because the state has an interest in promoting stable . Inc. in other cases the court has found that proof of discriminatory impact is not sufficient. Pike v. 2) If it imposes costs on out-of-staters that in-staters would not have to bear. Very fact specific. several factors seem particularly important: 1) If its effect is to exclude virtually all out-of-staters from a particular state market. The cases turned not on differences about the rule. Facially Neutral Laws The Court has never articulated clear criteria for deciding when proof of a discriminatory purpose and/or effect is sufficient for a state or local law to be deemed discriminatory. The balancing test gives courts enormous discretion because there is no formula or standard for how to compare the burdens on interstate commerce with the benefits to the state or local government.All indicate that proof of discriminatory impact is sufficient for a facially neutral law to be deemed discriminatory. yet the Court has never invalidated a nondiscriminatory state law on the ground that the goal could be achieved through a means that is less burdensome on interstate commerce. The Court determined it was not discriminatory against out-of-staters as it had the same effect on residents. but on the Court’s appraisal of the particular facts and its assessment of whether there was discrimination.

Constitutional Law Page 115 of 122 relationships among parties involved in such corporations have an effective voice in corporate affairs while the Act does not prohibit any entity from offering to purchase or from purchasing. Scalia Concurrence argues to eliminate Pike balancing in favor of only looking at discrimination. Trying to cut down on dormant commerce clause. Scalia does believe on stare decisis ground that states cannot discriminate versus other states. Not clear whether he thinks that states cannot unduly interfere with federal commerce powers. Kassel v. Consolidated Freightways Corp. (1981) Declared unconstitutional an Iowa law banning 63 foot double trailers. The basic principle was that overburdening the safety justification was heavy indeed. Forced trucks to avoid Iowa , the principle route, or detach the trailers and ship them separately, The state failed to present any persuasive evidence that these types of doubles are less safe than other trucks being allowed. Considered it highly relevant that the statute claimed exemptions which weakened the safety justification. Though the end was legitimate, the means towards that end were not as there were other less restrictive means available. The motive behind the statute might have been lacking in good faith. Powell manages to make it easy for himself by finding exceptions in the statute because the exceptions don’t really satisfy the objectives so he doesn’t need to take it as seriously. Suppose those exceptions were not there? He would probably go with the Pike balancing test – balancing the marginal gain in safety against the marginal burden on interstate commerce. Getting safety for your residents at the expense of all others. Might be totally different if you were Hawaii as opposed to a central state. How do you really do the balancing if they are much helping safety and much dumping onto other states? The Court never seems to have a case like this – they always question the evidence of safety or health. Hawaii does not allow brining in many things (state search you on the way in) because of disrupting the balance. On the way out, the Dept of Agriculture searches you because of concerns about fruit flies. Usually do not allow these barriers. 2) Analysis When the State is Discriminating The better way to argue if you want something thrown out is to say that the state discriminates. There is a strong presumption against discriminatory laws and they will be upheld only to achieve an important government purpose. A discriminatory law invokes the strictest scrutiny of any purported legitimate local purpose and of the absences of nondiscriminatory alternatives. Thus, the judicial review involves scrutiny of both the ends served by the law and the means used. As to the ends, in many cases, the Court has said that a law that discriminates will be upheld if it is necessary to achieve a legitimate local purpose – which is very strange because this sounds like RB and the Court usually requires more than this. At the very least, a state law that discriminates against interstate commerce must be justified by a purpose that is unrelated to economic protectionism. Also will not be upheld if the purpose could not be served as well by available nondiscriminatory means (Dean Milk). Occasionally, the Court finds a discriminatory law is necessary to serve an important purpose. Maine v. Taylor (1986) Upheld a Maine law that prohibited the importing of live

Constitutional Law Page 116 of 122 baitfish into the state. The discriminatory law protected Maine’s unique and fragile fisheries from significant threats from parasites that were prevalent in out-of-state baitfish but not common in Maine. Also, non native species of fish that were inadvertently included with baitfish could pose a threat by preying on native species or by disrupting the environment in more subtle ways. There was no less discriminatory way to prevent these threats as there was no satisfactory was to inspect shipments of live baitfish for parasites or commingled species. There is a difference between fish and waste. In NJ case saying that we don’t want to help the whole country. In the fish case, if you allow in the out of state fish you will upset the ecological balance in Maine. Laws that Limit Access to In-State Resources: Philadelphia v. New Jersey Laws that Limit Access to Local Markets by Out-of-Staters: Maine v. Taylor Laws that Require Use of Local Businesses: Dean Milk, Cooley Breard v. Alexandria (1951) Door-to-door salesman was arrested after failing to obtain the prior consent of the owners of the residences solicited as required by ordinance. The Court held the Constitutional protection of property rights did not make a state or city impotent to guard citizens against the annoyances of life because a regulation restricts the manner of doing a legitimate business. Therefore, as the challenged ordinance did exactly that, it was not invalid under the 14th Amendment. Likewise, because the ordinance left open the usual methods of seeking business and did not discriminate against out-of-state solicitors, it was a permissible burden on commerce and did not violate Article I, § 8. Finally, the ordinance did not violate the 1st Amendment, as the wares could be obtained without the annoyances of door-to-door canvassing, and where the government was entitled to control sales methods by ordinance. Suggestion that Breard is inconsistent with Dean Milk. e. Exceptions There are two exceptions where laws that would otherwise violate the dormant commerce lcause will be allowed: if Congress approves the state law (see, e.g., the FCL discussion below) because Congress has the plenary power to regulate commerce or when the state may favor its own citizens in receiving benefits from government programs or in dealing with governmentowned business because the government is a market participant. The state is literally a participant in the market and not a regulator. Note however that they might still be vulnerable to other constitutional challenges like Article IV privileges and immunities or EP. The Court has imposed one important limit on the scope of the market participant exception in that state businesses may favor in-state purchasers but the may not attach conditions to a sale that discriminate against interstate commerce. South-Central Timber Development, Inc. v. Wunnicke (1984) State of Alaska owns land from which it harvests timber and sells it. Declared unconstitutional an Alaska law that required that purchasers of state-owned timber have the timber processed in Alaska before it is shipped out of state. Usually the company that buys it sells the unprocessed logs to Japan and challenges the law as a restriction on purchasing the timber and then sending it out. Usually a market participant exception which says that if you are using your own natural resources, producing goods, or

Constitutional Law Page 117 of 122 subsidizing state entities, you are relieved of the dormant commerce clause. The limit of the market participant doctrine must be that it allows a state to impose burdens on commerce within the market in which it is a participant but allows it to go no further and it cannot have a substantial regulatory effect outside of that particular market. Too broad and there were other means. State could process timber before it sells it. Can’t do something by contract that would violate. Acting more than merely a seller. Obligations are after the contract occurs (payment and delivery exchange). Downstream commitment. Should There Be a Market Participant Exception? The dormant commerce clause is meant to stop protectionist actions by state governments and it should not be allowed regardless of whether the state is acting in a proprietary or regulatory capacity. There is not a clear distinctions between regulating and acting as a market participant. Allows citizens to recoup benefits of the taxes they pay. Less coercive than regulatory programs. Shouldn’t protect benefits for in-staters because of P&I and EP. Not inherently less coercive. The Supreme Court is basically doing federal common law. There was power to act that was not necessary and the Court decided to interpret the meaning of Congressional silence. When Congress decided not to make a decision on pasteurized milk was it because it wanted no law, to allow each state to do as wanted, or some other reason? (In other areas besides dormant commerce clause in FCL, the Court has a third option of just making up a law). The Court looks at the facts of the particular situation and decides what Congress would have wanted. When Congress speaks there is no Congressional silence and Congress can overturn these decisions whenever they want to even when the basis is that states have been discriminating against other states. Congress can change all of these things. The justification for allowing the Court to do so is that if they are wrong the Congress will change it. Scalia, however, thinks that they should not make this determination and just leave it to the states unless it is discrimination. Can’t find FCL from the grant of diversity jurisdiction in Article III, but this is odd because can find from suits between two states in Article III as well as admiralty in that section.

E. Privileges and Immunities of State Citizenship
Article IV §2 states ―The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The Court has interpreted this provision as limiting the ability of a state to discriminate against of-of-staters with regard to fundamental rights or important economic activities. Most cases under P&I clause involve challenges to state and local laws that discriminate against out-of-staters with regard to their ability to earn a livelihood. Such discrimination will be allowed only if it is substantially related to achieve a substantial state interest. Discrimination against citizens of other states is a prerequisite for application of the P&I clause and is limited to citizens of the United States and corporations and aliens cannot thus sue under this clause Relationship to the Dormant Commerce Clause Both can be used to challenge state and local laws that discriminate against out-of-staters and they have a mutually reinforcing relationship.

State universities. if there is sufficient justification for the discrimination? P&I clause is not absolute but it does create a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental rights or important economic activities. Witsell (1948) Declared unconstitutional a South Carolina law that required $20 for residents and $2000 for nonresidents to purchase a license fee for a commercial shrimp boat. Lots of open questions about adoption. And that exception is a commerce clause exception rather than a P&I exception. Corporations and aliens cannot sue under P&I but can under the dormant commerce clause. No reason to believe that residents would know the law better or behave more ethically. and to pursue and obtain happiness and safety. but so far can limit because not fundamental/necessity. Discriminatory laws can be challenged under the dormant commerce clause and EP clause as well as P&I. Supreme Court of NH v. and second. Analysis Under P&I: First. State Privileges and immunities: 1) Is it a privilege/immunities (fundamental/economic) The classic meaning o the phrase P&I includes protection by the government. The practice of law is a P&I protected under the clause as the activities of a lawyer play an important part in commercial intercourse. Things important for national citizenship. Have seen this before in Slaughterhouse and the right to travel. 2) Is there a substantial state interest in different treatment of own residents? Does the discrimination against nonresidents bear a substantial relationship to the interest? Consider if out of state is more evil. access to courts (residency and duration) the state can limit to residents but not finding a job. Piper (1985) Invalidated a NH law which required residence in the state in order to be admitted to the bar. subject to such restraints as the government may prescribe for the general good of the whole. Toomer v. Must give access to parks. If not residents are not paying money that is funding public institutions. Does it matter if it is recreational rather than for a job? This is deemed economic whereas . right to acquire and possess property of every kind. welfare residency (but not duration). Can only limit when the state is directly doing it as a market participant but not if contracted out. has the state discriminated against out-of-staters with regard to P&I it accords its own citizens.‖ The Supreme Court has given this very narrow construction and is rarely used while the P&I clause of Article IV remains an important tool for challenging discriminatory state and local legislation. And because the legal profession has a noncommercial role and duty that reinforces the view that the practice of law falls within the ambit of P&I clause. The two exceptions to the dormant commerce clause do not apply to P&I. Problems with unavailability of nonresident lawyers could be solved by requiring the designation of local counsel. laws that discriminate are much more likely to be invalidated under the dormant commerce clause.Constitutional Law Page 118 of 122 Key differences are: P&I can be used only if there is discrimination against out of staters while the dormant commerce clause can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of-staters. enjoyment of life and liberty. Relationship to Other Constitutional Provisions The 14th Amendment has a P&I clause which states that ―No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. Still.

Point to flight of residents to the suburbs and has deprived the city to the tax base and part of the problem is people living outside the city and community is becoming terrible. Corporations are people State P & I No market participant exception EP No market participant exception. . Also need purpose. Dormant Commerce Permissible because Camden was acting as a market participant. Subject to P & I even though it discriminates within the state and out of state.Constitutional Law Page 119 of 122 something like elk hunting is not economic and just recreational (and for which different prices for licenses have been upheld). Substantial reason for the evidence and close relation – sounds like intermediate scrutiny. and RB. SS. Corporations are people Fundamental rights Would have to argue that non residents are a peculiar source of evil and that the law is carefully tailored. Engaged because it discriminates out of state against a certain subsect of state residents. Camden (1984) Challenge to an ordinance requiring contractors working on city construction projects have a certain percentage of municipal residents. United Building & Construction Trades Council v. Corporations Fundamental Rights Not people Fundamental right to get a job. IS. A justification is that the court’s holdings in dormant commerce clause can be overturned whereas P & I will not be overturned because it is a constitutional exception. Effect is enough for discrimination Balancing when not a discrimination but a burden. P&I applies equally to municipal ordinances as state laws and the pursuit of a common calling is one of the most fundamental privileges. Can sometimes survive intermediate scrutiny of the P & I but can rarely survive SS of dormant commerce clause. Strict Scrutiny when (facial) discrimination and there is no full health explanation. It seems odd the judicially implied SS in dormant commerce clause is tighter than the one for P & I which has direct text in the Constitution. Perhaps use empirical evidence. Field doesn’t know if this would work or not. Pre-emption 40% Camden Residents City project Test Effect is enough for discrimination Intermediate scrutiny – carefully tailored. Consider whether it is integral to interstate commerce.

Problems With Applying the Test for Preemption: Even when it is explicit language. 2) Field preemption where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. Noteworthy because the Court found . Types of Preemption: 1) Explicit language. Foreign Policy and Immigration Hines v. Field Preemption Exists is either the nature of the regulated subject matter permits no other conclusion or that the Congress has unmistakably so ordained. The Court has frequently said that congressional intent must be clear before preemption because of federalism’s respect of state and local laws. Several criteria can be identified that are crucial even though this area of law is unclear: Is it an area of law where the federal government has traditionally played a unique role? Has Congress express an intent in the text of the law or in the legislative history to have federal law be exclusive in the area? Would allowing state and local regulations in the area risk interfering with comprehensive federal regulatory efforts? Is there an important traditional state or loca intereste served by the law? The presence of more than one increases the likelihood of preemption. Also helps to minimizing undermining the objectives of federal laws. implied preemption is often a function of both perceive congressional intent and the language used in the statute. 3) Conflict preemption where compliance with both state and federal law is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Preemption of State and Local Laws Article VI contains the supremacy clause which provides that the Constitution and the laws and treaties made pursuant to it are the supreme law of the land and if there is a conflict with state law the federal law controls. In both cases you have to discern congressional intent.Constitutional Law Page 120 of 122 F. 1. Conversely. There is no clear rule for deciding whether a state or local law should be invalidated on preemption grounds. a. The Court stressed extensive federal regulation in the area. carry a state issued registration card and pay a small registration fee. Either Congress expresses a clear intent that federal law will be exclusive in an area or if comprehensive federal regulation evidences a congressional desire that federal law school completely occupy the field. The difficulty is in deciding when congressional intent is sufficiently specific or federal regulation sufficiently detailed. 4) States generally cannot tax or regulate federal government activities (this one does not depend on congressional intent). Congress rarely is clear about the scope of what is preempted and this inevitably is an inquiry into congressional intent. Davidowitz (1941) Pennsylvania law required aliens to register with the state. Thee Supreme Court deemed this law preempted by emphasizing that alien registration is in a field which affects international relations that has been most generally conceded imperatively to demand broad national security.

Paul (1963) Department of Agriculture adopted regulations for measuring the maturity of avocados. The Court saw the purpose of the federal law as eliminating dual state and federal regulation. v. Conflicts Between State and Federal Laws The difficulty with regard to this type of preemption is in deciding whether there is a conflict as difference doesn’t always mean conflict. The state was choosing how it would spend taxpayer’s money and who it would do business with. b. Pacific Gas & Electric v. The Court concluded that the federal regulation was the floor not the ceiling. Gade v. Congress intended that the federal government have exclusive authority to regulate safety but that the states retain their traditional responsibility in the field of regulating electrical utilities. The Court upheld the law by concluding that Congress’s intent was to ensure safety while the state’s goal was economic. FL avocados which were permissible under the federal law were prohibited under CA law. Many state and local governments had similar laws with respect to South Africa. It could be that the federal government set a minimum standard or it could be the standard. Questionable decision because Congress had not expressed or implied any intent to preempt states from imposing sanctions and the state law was not inconsistent with federal law.Constitutional Law Page 121 of 122 preemption of a state law that complemented the federal law and found it even in the absence of express preemptive language in the statute. The main purpose of the CA law was economics. Inc. State Laws that Impede Achievement of Federal Objectives Characterize the federal law and the state law. On the other hand can see it as following the tradition of having federal laws occupy the field of foreign policy. State Energy Resources Conservation (1983) CA law that imposed a moratorium on the construction of nuclear power plants until the State Energy Commission determine that there was a safe means of disposing of the high-level nuclear wastes. CA adopted a stricter rule. Found to be preempted by state law because Congress had enacted a sanctions law against Burma. Santa Fe Elevator Corporation (1947) The Court concluded that a state regulation of grain elevators licensed by the federal government was preempted even though Congress did nto expressly preclude state regulation. National Solid Wastes Management Association (1992) Whether the federal Occupational Safety and Health Act of 1970 and the federal regulations promulgated pursuant to . National Foreign Trade Council (2000) Massachusetts adopted a law which prohibited the state and its agencies from doing business with Burma because of human rights violations in the state. d. Florida Lime & Avocado Growers. Federal Regulations Rice v. c. Crosby v. Emphasized the traditional role of states in regulating food products as well as the history of the adoption of the regulation.

Constitutional Law Page 122 of 122 it preempted an Illinois law that protected the health and safety of workers who handled solid waste. Point is that the Court can define the objectives in how it wants it to work. refresher courses. a written exam. Seems odd because safety is a traditional state function and also because the law in Pacific Gas & Electric appeared to be inconsistent with the federal objective of encouraging the development of nuclear power while the state law in Gade was consistent with the federal goal of protecting worker health. Held to be preempted because Congress created a system where states could have their regulations approved and then their regulations would replace federal law and thus evidenced the intent to have one set. . and fines for violations. Both regulations required training of hazardous waste operators.

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