I. HOW is the Constitution to be interpreted? Keeping Political Processes Open A. Freedom of Communication
1. The Structural Role of the 1st Amendment - Self-Government - Search for truth/Marketplace of ideas - Autonomy
Two-level Theory of 1st A Analysis  Speech is either protected or unprotected by the 1st A. o Protected high value speech receives the highest standard of protection. o Unprotected low value speech gets deferential scrutiny and often the legislatures win. Low value speech includes all categories of unprotected expression. Pervasive themes in 1st A cases  Robust/Invulnerable institutions – Citizens are thick skinned, able to endure the blow of vehement criticism of gov‘t. Citizens can decide for themselves that our system is good. o e.g., Brenan in NYT and Brandeis in Whitney.  Fragile institutions – Our institution are fragile. Citizens are thin-skinned and weak and need to be protected from bad ideas. e.g., Vinson in Dennis Three 2 Level or Two Track Frameworks for Analyzing the 1st A - Two-Level Theory—high value and low value speech (Chaplinsky) - Content Based Restrictions on expression v. content neutral regulations of conduct that incidentally suppress expression (O’Brien) - Content-Based Restrictions v. time, place, and manner regulations (Cohen) New York Time v. Sullivan, 743-48 Seditious libel against a public official in NYT Libel—1st A may protect some false speech o Need actual malice—against public officials (but not private citizens) Black—underprotective of free speech—want absolute immunity for public officials o vs. overprotective of false speech—too exposed to false criticism


2. Advocacy of Incitement of Unlawful Action
Continuum Tests from Weak to Strong Protection for Freedom of Speech Bad Tendency Test o Whitney Majority Clear and Present Danger Test (weak formulation) o Gravity of evil, Dennis plurality Clear and Present Danger Test (strong formulation) o Brandenburg, Brandeis concurrence in Whitney Absolute Protection Protection—No law means no law o Black dissent in Dennis—see Black concurrence in Sullivan o Douglas concurrence in Brandenburg

Whitney v. California, 751-56 Communist party membership (membership enough for conviction) Bad Tendency Test—overruled by Brandenburg o Gov‘t can punish those who utter phrases that tend to incite a disturbance Clear and Present Danger Test—concurrence of Brandeis o Imminent, substantive evil must be a serious one, remedy is more speech, not forced silence—only emergency can justify repression

Dennis v. United States, 758-65 Leaders of Communist party—crime to advocate, abet, or advise the duty, or necessity of overthrowing government in the United States by force or violence (tending to incite overthrow) Clear and Present Danger—Weak Form o Adopt Hand Formula—gravity of evil test (B<PL) o All about the gravity/seriousness of evil; neglect imminence Epic Frankfurter-Black clash



Brandenburg v. Ohio, 766-70 KKK, overrules Whitney Clear and Present Danger in Strong Form o Imminence—incitement to imminent lawless action  Likely/probable to incite, not merely possible


3. Fighting Words, Offensive Expression, and Harmful Expression
Categories of Unprotected Expression (low value speech) (1) Lewd & obscene (2) Profane (offensive expression) → narrowed by Cohen (3) Libelous → narrowed by NY Times (4) Insulting or ―fighting words‖ → established by Chaplinsky (narrowed by Cohen) (5) Incitement of imminent lawless action → Brandenburg toughens this up (6) Commercial expression (for a time) Chaplinsky v. New Hampshire, 771-73 Jehovah‘s Witness distributing literature (not allowed to distribute literature because fighting words) Fighting words can be regulated o Protects only essential ideas (emotive expression does not count) Deferential scrutiny for low value speech; Strict scrutiny for high-value speech

Cohen v. California, 800-803 ―Fuck the Draft‖—the fact that he had it in a courthouse was the problem, but it is allowed because it was not directed at any specific person Content based restriction v. time, place, and manner Words must be directed to a specific person and likely to provoke a violent response o Narrowed category of fighting words st 1 Amendment‘s protection of the exposition of ideas embraces the ―emotive force‖ as well as the cognitive content of expression o ―One man‘s vulgarity is another man‘s lyric‖

American Booksellers Association, Inc. v. Hudnut, 805-10 Pornography (restricted) v. Obscenity (traditionally unprotected) (can‘t restrict porn based on it discriminating against women) 7th Cir. Case—Easterbrook—Market-place of ideas Viewpoint discrimination—gov‘t should be neutral in political/economic marketplace, otherwise this is thought control (Barnette)


4. Defamation of Groups
Two Standards of Judicial Scrutiny in First Amendment Analysis Deferential scrutiny (or ―rational basis‖ review) (e.g., Beauharnais) Court presumes that the legislation is constitutional, deferential to legislature judgment that the law is constitutional Scrutiny of end—does the statute further a legitimate governmental interest? o Legitimate governmental interest fit between means and end—rationally related Scrutiny of fit between means and end—is the statute rationally related to furthering that interest? (Or, did the legislature have a rational basis for concluding that it was related to furthering that interest?)

Strict Scrutiny (e.g., R.A.V.) Court presumes that the legislation is unconstitutional Scrutiny of end—does the statute further a compelling governmental interest? o Compelling governmental interest fit between means and end—necessary, or no less restrictive alternative o Legitimate but not sufficient need to be compelling Scrutiny of fit between means and end—is the statute necessary to (or narrowly tailored to) furthering that interest? o Or, are there less restrictive alternatives, i.e. alternative means to furthering that interest that are less restrictive of freedom of speech?


Beauharnais v. Illinois, 775-78 White supremacy group—convicted of group libel o Unprotected low value speech (Chaplinsky) Extends libel to embrace group libel Deferential scrutiny Beauharnais is no longer authoritative

R.A.V. v. St. Paul, 781-98 Burn cross in yard of black family (can burn cross because statute unconstitutional—law is viewpoint discriminatory) Content based regulations are presumptively invalid o Trigger strict scrutiny  Must promote a compelling interest, must be necessary to serve that interest, are the content neutral alternatives that are less restrictive of expression Three Exceptions to principle that content-based restrictions are presumptively invalid o 1. When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists  Threats against the president


Barnette. When the content-based distinctions are ―aimed only at the ‗secondary effects‘ of the speech ―so that the regulation is ―justified without reference to the content of the speech‖  Where gov‘t doesn‘t prohibit certain speech for its content but rather for its secondary effects of speech o 3. courts defer to political process but there are exceptions that may warrant more searching judicial scrutiny o Specific prohibitions of the court o Restrictions on political processes o Prejudice against discrete and insular minorities West Virginia v.5 o 2. 1323-32 Jehovah‘s witness refused to salute flag in school (do have to salute) Frankfurter extremely deferential to the political process o Won‘t question the legislature Stone dissents—1 and 3 from Carolene products apply here and he wants strict scrutiny Carolene Products In general. 1333-39 Flag saluting—similar facts (do not have to salute) Overrules Gobitis FF dissent—says deference to the political process—legislature does not have to be neutral Jackson majority—Protecting fundamental rights (the right not to speak) (strict scrutiny) . When the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot  Where nature of content-based restriction excludes the possibility that suppression of free speech is happening Scalia‘s two types of impermissible content-based regulation o Discrimination against disfavored subjects o Discrimination against disfavored viewpoints - 5. Gobitis. The Right Not to Speak Minersville School District v.

813-16 Burn the draft card (not allowed to burn draft card and does not infringe on his speech) Intermediate scrutiny applies Four Part Test for content-neutral regulations of conduct that incidentally restrict expression o 1. United States v. o 2.6 6. Symbolic Expression United States v. If the governmental interest is unrelated to the suppression of free expression. O’Brien. If the regulation is within the Constitutional power of the Government. and o 4. Eichman. 819-24 Burning flag (flag burning not analogous to fighting words) Content-based restriction on expression o Strict scrutiny  Does not survive strict scrutiny . If the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest (narrowly tailored). o 3. If it furthers an important or substantial governmental interest.

The Right to Vote and Have One’s Vote Counted Equally Constitution does not protect the right to vote—but leaves it up to the states o Unenumerated constitutional right—not an independently protected fundamental right to vote conferred by 14th A EPC o Once you give the right to vote. 852-60 Apportionment of seats that had not been changed Right to vote and have one‘s vote counted equally o One person. 243-48 Poll tax (invalid) Fundamental rights interest o Implicated both strands of the EP analysis o Right to vote in state elections may not be infringed by voter qualifications like a poll tax Suspect classification o Wealth is NOT a suspect classification o Rational basis scrutiny  But wealth is not rationally related to one‘s ability to vote - Bush v. Political Participation 1.7 B. not the court should decide . 1657-75 Recount but don‘t get it Consistent with Reynolds—votes in FL counted unequally—so should not count them at all Consistent with Harper—equal protection issues—different counting systems in different counties Two Competing Views: Judicial Coup d‘etat versus Triumph for the Rule of Law o Political question doctrine—courts should defer to legislature when there is an essentially political issue that courts are incompetent to decide  Dissent—Legislature. one vote o Inalienable right to full and effective participation Harper v. Gore. Virginia State Board of Elections. then you are subject to all the restrictions—must do so to all on equal terms absent a compelling justification for drawing lines/distinctions Reynolds v. Sims.

885-89 Asking NAACP to turn over membership list (not allowed) Freedom of association o Unenumerated right but implicit in 1st A Liberty under the DPC and 1st A Strict scrutiny—fundamental right violating freedom of expression (association) o Infringement derives from deterrent/chilling effect Roberts v.8 2. sex. race. sexual orientation and the like - Boy Scouts of America v. but more deference to the group here Give deference of an association‘s view of what would impair its expression .‖ Distinguish 2 conceptions of diversity and pluralism: o Every association is a microcosm of the larger diverse society  No association should be allowed to discriminate on the basis of sex. United States Jaycees. sexual orientation. not within every group. The Right to Associate NAACP v. [3] that cannot be achieved through means significantly less restrictive of associational freedoms. 900-09 Homosexual BS (not forced to include homosexuals) Same as Roberts. Alabama. Freedom of intimate association (what Jaycees argue) Test for ―right to associate for expressive purposes o Standard ―Infringements on the right may be justified by regulations adopted: [1] to serve compelling state interests. and the like o Diversity and pluralism among groups.  Radical contrast to (1)  Genuine diversity and pluralism require that an association be free from prohibitions to discrimination on race. [2] unrelated to the suppression of ideas. Dale. 891-99 Freedom not to associate with women (require club to admit women) Freedom of expressive association (what it is here) v.

The Problems of Equal Protection: Suspect Classification - Preview of the Equal Protection (EP) Framework o Two strands of EP analysis: suspect classifications & fundamental rights or interest—both are said to trigger strict scrutiny—compelling/necessary o Generic framework of strict scrutiny  End—statute must further a compelling governmental interest  Fit between means & end—statute must be necessary to further that interest 1. national origin. sexuality. HOW? Treating Equals Equally A. etc. West Virginia. Sandford. Historical Background Dred Scott v. politically disastrous Dangers of Lochner-ing—using personal predilection in interpretation of word liberty Dangers of protecting fundamental rights under DPC o Protecting the fundamental right to own property as liberty in the DPC but the property here is a person  Originalists say that substantive due process goes wrong here Strauder v. very specific Broad—gender. Principle of racial neutrality o Care about race consciousness—If conscious or race. that is unconstitutional EPC Protects Narrow—Race. . blue-eyed people. 217-27—really bad Black man not considered a citizen Overruled by the opening phrase of 14th A which was added in 1868 Shows problems with narrow Originalism—morally callous.9 II. 957-60 Blacks not allowed on jury o Unconstitutional pursuant to anti-caste conception of the 14th A Strict scrutiny o Facially discriminatory Types of discrimination forbidden by the EPC o Exemption from legal discrimination implying inferiority in civil society o Lessening security in enjoyment of rights which others enjoy o Discriminations which are steps toward reducing them to the condition of a subject race Two Competing Understandings of EP Clause 1. Anti-caste principle o Whether or not they reduce persons to or maintain them in the status of an inferior race or caste or status –Is unconstitutional 2.

court really applied a very deferential scrutiny to the military  Compelling interest in this case was need to prevent sabotage in time of war . 961-63 Law about requiring permission to run wooden laundries (discriminated against Chinese) Discrimination on the basis of national origin/alienage o Conceive of it broadly because not citizens Not facially discriminatory but unconstitutional as applied o Aspires to a gov‘t of laws and not of men (as they apply it) Plessy v. 1645-52 & 121-22 Internment of Japanese-Americans—infamous Suspect classifications trigger more rigid scrutiny aka strict scrutiny o One of the few situations where statute passes strict scrutiny  However. Ferguson. United States. Lee Optical Co. Deferential Scrutiny Deferential ―rational basis‖ scrutiny End: legitimate governmental interest Fit between means and end: rationally related to furthering that interests o Or. everyone else gets  Have same rights. to ride. there is a ―rational basis‖ for thinking it is rationally related… Williamson v.. not social equality o Status of being a white man constitutes the baseline for deciding that equal protection requires—whatever a white man can get. Suspect Classifications: Race and Ethnicity Korematsu v. Hopkins. 964-68 Separate but equal is ok—not good law Racial neutrality to the extreme EP applies only to political equality. but not how they ride it Rejects anti-caste principle Reasonable basis scrutiny Harlan‘s famous dissent—anti-caste and racial neutrality - 2. 970-71 Uphold statute against opticians Does not deprive them of EPC or DPC Ultimate deferential rational basis scrutiny o Applies to deference of economic regulation 3.10 Yick Wo v.

1009-28 Affirmative action for MI Law School Upholds MI program even after subjecting it to strict scrutiny—not fatal in fact o Rather deferential in this case Affirmative Action is limited in time—temporary o Can‘t have quotas . 979-80 Brown for DC EPC of 14th applied to the 5th DPC Clearly conceives tradition as aspirational principle rather than historical practice Brown v. 974-77 Overrules and specifically rejects Plessy—Separate is not equal (in education) o Even though holding specific. Pena. 986-89 Interracial marriage should be allowed otherwise it violates EPC and DPC Strict scrutiny o Race is a suspect classification DP o It is a vital personal right (who you marry) Anti-caste 4. 994-1007 Affirmative action for general contractors Strict scrutiny. not fatal in fact (not automatic invalidity) (O‘Connor) o Survives strict scrutiny o Racial discrimination. Inc. looked at more generally re: citizenship Education is not a fundamental right Anti-caste principle of equal citizenship Bolling v. Bollinger. Board of Education II.11 Brown v. de facto (in fact/practice) segregation o De jure is unconstitutional but de facto is constitutional Loving v. Board of Education I. Sharpe. and the gov‘t is not disqualified from acting in response— some might survive strict scrutiny Debate between EPC as anti-caste v. v. Affirmative Action Adarand Constructors. 981-83 Remedy must be deteremed with all deliberate speed De jure (by law) v. Virginia. racial neutrality Imply that Korematsu was wrongly decided (it was very deferential) - Grutter v.

1029-53 Seattle racial balancing school planning Strict scrutiny that is fatal in fact o Fails 1st prong of compelling gov‘t interest o Racial diversity/neutrality is not a compelling interest  Doesn‘t overrule Grutter. Richardson. 1082-97 Exclusion of women from VMI (not allowed) o Intermediate scrutiny for gender classifications o But Scalia argues it is strict o Gender is a Quasi-suspect classification Ginsburg embracing aspirations principles that are critical of our longstanding historical practices and Scalia embraces historical practices - . ―racial balancing‖ - B. The Problems of Equal Protection: Somewhat Suspicious Classifications and Fundamental Rights 1. Remedying ―identified‖ discrimination v. Attainment of a diverse student body v. Seattle School District No. 1076-80 OK Beer case Intermediate scrutiny for gender based classification o Must serve an important government objective o Must be substantially related to achieving that objective o Gender is a Quasi-suspect classification Stevens argues ―There is only on EPC‖ o Wants a continuum rather than the tiered analysis - (VMI) United States v.12 Parents Involved in Community Schools v. Boren. 1. Somewhat Suspicious Classifications: Gender Frontiero v. but limits it to institutions of higher education Compelling governmental Interests o 1. 1071-75 Plurality—military wives‘ husbands denied benefits Sex based classifications should be subjected to strict scrutiny here because they are inherently suspect/invidious o Actually applied intermediate o Sex-based classifications are subjected to intermediate scrutiny after this case The Constitution outside the courts—matter for the legislature/executive and not the judicial branch to interpret the Constitution - Craig v. Virginia Military Institute. ―societal‖ discrimination o 2.

dissenting) ↑ Deferential scrutiny with bite o Cleburne coming up 2. which is not invidious discrimination - . Other Suspect or Somewhat Suspicious Classifications? San Antonio School District v. and fundamental interests are not independently protected but if the gov‘t undertakes to provide them it must do so for all on equal terms (Brown. and here it is just failure to supply at a certain level. Constitution is a charter of negative liberties o Distinguished from Harper because that was for invidious discrimination. 1099-1108 TX schools funded by taxes—disparities in school systems as a result (not deprived of C rights here) Involves both strands of EP analysis o Suspect classifications  Wealth is not a suspect classification  Deferential scrutiny o Fundamental rights and interests  Education is not a fundamental right  Implies that EPC does protect a right to a minimally adequate education even if not an equal education  Powell acknowledges fundamental rights while ignoring fundamental interests The EPC does not require absolute equality or precisely equal advantages in regards to wealth Marshall—fundamental rights are protected independently of the EPC. Harper) o Argues for a spectrum of standards.not fatal in fact o Adarand.13 The Scrutinies Strict Scrutiny o Compelling o Necessary Intermediate Scrutiny o Important o Substantially Related Deferential Scrutiny o Legitimate o Rationally Related Intermediate Scrutiny ↓ Strict…. Grutter ↑ Exceedingly persuasive justification o VMI (according to Scalia. Rodriguez.

Cleburne Living Center. so had to use it under EP fundamental rights and interests strand Shapiro v. 1147-54 No welfare until after 1 year of residence (can‘t do this) o The Right to Travel Freedom of interstate travel is a fundamental right o Nature of our federal union of states. but says that you can‘t have a bare desire to harm a politically unpopular group because it is not a legitimate governmental objective o Deferential scrutiny with bite (animus) Scalia is mad because they gave homosexuals special rights—thinks they are getting special treatment by being protected—culture war - 3. 1111-23 CO Amendment against protected status based on sexual orientation (can‘t do that because it violates the constitution in leaving a very narrow group as unprotected) Doesn‘t say whether homosexuality is a suspect classification. 1142-45 Sterilization case (unconstitutional) Statute unconstitutional because it treat 2 classes of people convicted of similar crimes differently and thereby violates the EPC o Either sterilize all criminals or no criminals First case to intimate that EPC guards against violation of fundamental rights (the right to procreate) and interests as well as certain kinds of classifications Court declined to address SDP and procedural DP o Could have used SDP by saying there is a fundamental right to procreate under liberty. Oklahoma. not rigid tiers or rules - Romer v. Fundamental Rights and Interests Skinner v. but can‘t use that because of Lochner. Concepts of personal liberty Strict Scrutiny and declare statute unconstitutional Fundamental right to the means of subsistence (dashed in Dandridge) o Food and shelter are a necessity of life hints Brennan o No fundamental right to welfare .14 Cleburne v. Thompson. Evans. 1184-94 Home for the mentally retarded denied permit for zoning ordinance Constitutional ordinance but unconstitutional as applied Mental retardation—not a suspect classification nor quasi-suspect classification o Deferential scrutiny with bite o Must be rationally related to a legitimate governmental purpose  But here not legitimate—with bite—because it is not a legitimate gov‘t purpose to have a bare desire to harm a politically unpopular group Stevens/Marshall concurrence—advocating a spectrum of standards.

Williams. 1155-63 Same facts as Shapiro—12 months in CA before you get welfare. Doe. 1164-68 MD max limit/cap on welfare (upheld) Fundamental right to welfare rejected—not a fundamental right o Deferential scrutiny a la Williamson v. and get same welfare as you did in the other state (unconstitutional and violates PIC) Used PIC as the basis for a right to travel o Does not overrule Slaughterhouse cases but suggests that PIC can protect the right to travel Standard must be no less strict than Shapiro o Strict scrutiny . 1177-83 Statute withheld funding to schools which had illegal immigrants o Aliens are considered persons guaranteed DP of law by 5th and 14th A Illegal aliens are not a suspect class and education is not a fundamental right.15 Dandridge v. The Privileges or Immunities Clause Saenz v. but Court does not apply traditional deferential scrutiny o Deferential scrutiny with bite Must be justified by a showing that it furthers some substantial state interest (does not) 4. not of positive benefits that imposes affirmative obligations upon government to provide for people‘s basic needs or services Plyler v. Roe. Lee Optical (economic welfare) Lochner is the reason not to apply strict scrutiny because it is economic o Constitution is the Charter of negative liberties protecting people from government.

Constitutional democracy—C protects fundamental rights against the majority o Constitution protects substantive fundamental rights that place limitations upon what majorities may do to persons even if the political processes are working properly o Liberty. Scalia. What (is the constitution)? o The Constitution is a code of detailed concrete historical rules  e. Objections (to each theory)? - - . are anomalous in our constitutional scheme o See Constitution as a mechanism setting up majority rule 2. not anomalous - 1. Justification for judicial review? o Classical justification/interpretation of the framers o It says that courts should interpret and preserve the higher fundamental law of the Constitution against encroachment by the ordinary law of legislation. Interpretivism/Originalism Scalia.g. Majoritarian representative democracy—majority rules o The constitution sets up processes for majority rule without placing substantive limitations on what majorities can to do persons o Limitations on majoritarian representative democracy o Substantive fundamental rights limiting majorities like liberty. Robert Bork. Originalism: The Lesser Evil. WHAT is the Constitution and HOW is it to be interpreted? General Theories Two conceptions of our form of government: What form of democracy does the theory establish? 1. How (is the constitution to be interpreted)? o Courts should enforce relatively specific original meaning of the framers and ratifiers (narrowly conceived) 3.16 III. o It conceives the higher fundamental law of the Constitution as being limited to the relatively specific original understanding (or meaning) of the Constitution. 4. autonomy are critical to our constitutional scheme. and under that view the Constitution places no limitations on what majorities may do to persons 5. the only rights are those expressly enumerated in the constitutional text. privacy. so.. o It insists that constitutional interpretation should remain within the ―four corners‖ of the written document/text. How does theory respond to ―counter-majoritarian difficulty‖ proposition? o Dissolves it by deferring to the majority o Adopts the representative democracy conception of American democracy. autonomy. 249-54 Five Questions for Originalism: 1. 2. privacy.

The Constitution of the U. Protecting Fundamental Rights Brennan. or a dose of constitutional perfection (e. 4. o But it conceives the higher fundamental law of the Constitution as embodying majestic generalities or abstract aspirational (moral and political) principles. How (is the constitution to be interpreted)? o Courts should protect substantive fundamental rights essential to that scheme o Interpretation must account for the transformative purpose of the text o Charter of abstract aspirational principles o Interpreters must elaborate the meaning of our commitments to abstract ideals or equality.g.g. if they believed chopping off hands was not cruel and unusual punishment.  If a legislature passed a law in 2005 that allowed a state to brand a person‘s hand for stealing. equality.: Contemporary Ratification. - - - . like liberty. What (is the constitution)? o The Constitution is a scheme of abstract aspirational principles for our constitutional democracy o The moral reading of the Constitution 2. 255-61 Five Questions for Protecting Fundamental Rights: 1. not a majoritarian democracy.17 o Undemocratic—Dead hand of the past controls contemporary majorities (or ―arrogance cloaked as humility‖ (Brennan) o Impossibility—the Constitution. so be it). o Or it says that it is not a difficulty because we have a constitutional democracy. Brown) o ―Strong Medicine‖ or ―Bitter Pill‖ – (Bork)  If research on originalism leads to evil.S. in the 9th Amendment.  Bitter Pill originalists believe Brown was wrongly decided. tells us not to be originalist o Revisionist—not faithful to the Constitution (conceived as a charter of abstract aspirational principles) 2 types of originalists: o ―Faint Hearted‖ or ―Moderate Originalists‖ – (Scalia) originalism with a dose of evolutionary intent. because that was common practice in 1791. so be it (e. o It entails that constitutional interpretation requires elaboration of those abstract principles (not just ―studying historical facts‖ as Scalia puts it).  Scalia says this is too bitter a pill for him to swallow. How does theory respond to ―counter-majoritarian difficulty‖ proposition? o Dissolves it. the bitter pill originalist would have to approve of such a punishment. 2. Justification for judicial review? o It also says that courts should interpret the fundamental law of the Constitution and preserve it against encroachment by the ordinary law of legislation. and dignity. decency. not just enforce the original conceptions of those ideas or the meanings of those works at time of ratification/drafting 3.

‖ 5. The Origin and Scope of the American Doctrine of Con Law. o Confuses our system with the British system of parliamentary supremacy. How does theory respond to ―counter-majoritarian difficulty‖ proposition? o By minimizing the occasions for judicial review—it is justified only in situations of a ―clear mistake. 711-18 Five Questions for each general theory: 1. Objections (to each theory)? o Judicial deference. Objections (to each theory)? o Undemocratic—has courts elaborate substantive fundamental rights o Indeterminate—requires courts to make abstract philosophic/moral choices o Revisionist—not faithful to the Constitution (Conceived as a code of concrete detailed historical rules) 3. o Representative (democratic) process may not always be trustworthy. o Concern that judicial review weakens the representative process.18 5. and competent to govern. virtuous. How (is the constitution to be interpreted)? o Courts should defer to the decisions of legislatures and executives absent a clear mistake 3. o Respect that is due to the coordinate branches of government. ―it is a postulate that the people are wise. Justification for judicial review? o In a majoritarian representative democracy (self-governing representative democracy). Ditto. - . What (is the constitution)? o The Constitution establishes a scheme of representative democracy  FF and Thayer 2.‖  That entails judicial deference. Deferring to the Representative Process Thayer. 4. Ditto. absent a clear mistake. may become judicial abdication.

o Indeterminate—requires courts to make judgments about what process-oriented rights are essential to representative democracy  Conceives our form of government as representative democracy instead of constitutional democracy - - . o But 3 exceptions where a more searching judicial scrutiny is warranted (those situations where the representative process is not worthy of trust – in those situations. 5.  1. 4. representative process o Incomplete—Constitution also protects substantive fundamental rights. reinforcing representative processes rather than protecting substantive fundamental rights. How (is the constitution to be interpreted)? o Courts should reinforce that scheme by stringently protecting process-oriented rights essential to it o Generally judicial deference. How does theory respond to ―counter-majoritarian difficulty‖ proposition? o Entirely consistent with representative democracy because judicial review reinforces the representative process—so. What (is the constitution)? o Constitution establishes a scheme of representative democracy  E. not just process-oriented rights essential to representative democracy  A flight from substantive liberties—it recasts or neglects them.g.19 4. Objections (to each theory)? o Undemocratic—courts should defer to.. 718-26 Five Questions for each general theory: 1. Carolene Products Co. not reinforce.  The Carolene Products approach answers the counter-majoritarian difficulty by arguing that it is merely trying to protect the majoritarian political processes o Relative institutional capacities of courts as compared with legislatures and executives—it assigns judges a role they are well situated to fill. Justification for judicial review? 4. Reinforcing the Representative Process United States v. minimizes the c-m difficulty. Specific prohibitions of the Constitution (¶1)  2. or presumption of constitutionality. Prejudice against discrete and insular minorities (¶3) o ¶2 and 3 are situations where the representative process is not worthy of trust 3. Restrictions on political processes (¶2)  3.. Carolene Products n. 2. a more searching judicial inquiry is warranted).

313-14. Madison. but not with the broad understanding of it. Departmentalism—the Constitution outside the courts o SC as Ultimate interpreter  SC is the ultimate and final interpreter of all the other interpreters in that it has the last word/final say o SC as Exclusive/Only interpreter  May be inappropriate/presumptuous to assume other people can interpret  SC is the ONLY interpreter o Departmentalism  Each branch has individual authority to interpret the Constitution  Should take the Constitution seriously outside the court  Institutions besides courts have responsibility to take action Constitution says nothing about who may authoritatively interpret it - Marbury v. they are validating what ―we the people‖ say Two competing understandings of Marbury’s justification of Judicial Review o Narrow. hubristic interpretation—special province of the courts to guard that Constitution against legislative and executive encroachment - - The Presidents’ Conceptions of Who: Departmentalism versus Judicial Supremacy .20 IV. traditional interpretation (accepted)—judicial review is the incidental by-product of the ordinary judicial function in deciding lawsuits o Broad. SC as exclusive interpreter—only v.Each presidential argument (in ACI) supports a version of coordinate review or departmentalism – each coordinate branch of the national government shares authority independently to interpret the Constitution – as opposed to judicial supremacy concerning authority to interpret the Constitution. Competing Conceptions of ―WHO‖ for the National Government . o Bottom line: it seems possible to reconcile every presidential claim of authority independently to interpret the Const with the narrow understanding of Marbury.SC as ultimate interpreter—final v. interpretive justification for judicial review o SC is the final reviewer of executive action Constitutional scheme is dualist o Fundamental law of ―we the people‖ o Ordinary law of people enacted in legislation Supposes constitutional supremacy Not c-m because when SC says law is unconstitutional. Who may authoritatively interpret the Constitution? 1. 322-38 Marbury is a judge who not appointed but supposed to be o Courts can decide if certain acts of legislature are unconstitutional—judicial review o Congress can‘t grant SC original jurisdiction where the Constitution does not Classical. .

337-341 People are the ultimate interpreters o Judicial supremacy is unjustifiable and undemocratic Consistent with Marbury narrow view Franklin D. Sees Constitution as charter of abstract principles. 291-93. 367-72 Some think it is departmentalism—ok for President to do this Some think it is executive supremacy—he is trying to get the last word in o There is not final judgment on this Reconcilable with narrow conception of judicial review of Marbury . - The Legal Significance of Presidential Signing Statements.21 Andrew Jackson’s Veto of the Bank Bill. So FDR is for broad constitution. Roosevelt’s Speech on Reorganizing the Federal Judiciary. 342-46 3 horse team with the people as the driver o Echoed predecessors‘ idea of coordinate review in which the people are the ultimate interpreters but also advocates departmentalism (3 horse team). 336-37 Departmentalism/Coordinate View o The 3 branches have equal power and should be coordinate/independent of each other Turning oath argument against Marbury (Marshall‘s decision) o Rejects the broad view of Marbury - Abraham Lincoln’s First Inaugural Address.

1657-75 (again) Example of the court having the last word . Aaron. the Court had a flawed interpretation of Marbury – that S.22 2. o Who?  States have authority in the last resort to interpret the Constitution and decide whether the compact has been violated. Aaron. 391-94 States assert authority to nullify a decision of the SC interpreting the Constitution because states have authority to interpret the federal Constitution . o What? A compact among the several states—each state being co-equal OVERRULED in Cooper - Cooper v. The Presidential Election Controversy Bush v. not just the court o Calls for revival of constitution outside the courts In Cooper. SR1 Departmentalism o Interpretation is the business of all branches of gov‘t. Board of Education. Gore.Ct is exclusive interpreter—should have been the narrow view - 3. Competing Conceptions of ―WHO‖ for the National System Nullifying and Reaffirming Brown v. 394-98 REJECTS nullification of SC interpretation by the states SC is the supreme interpreter o Not necessarily exclusive o But SC has the last word Extends Marbury—accepts very broad interpretation rather than narrow - Remarks of Attorney General Meese on Cooper v.

Bull. Section 10: ―No State shall pass any law impairing the obligation of contracts. 143-47 CT statute allows a hearing for probate court to approve and record a will as an ex post facto law (deny ex post facto so invalidate the economic law) (Lochner-ing) DPC of 5th & 14th Amendments (Substantive Due Process) Many interpret Chase as saying that the Constitution embodies principles of natural law or natural justice (fundamental principles inherent in the structure of free republican gov‘t. Economic Liberties Economic Liberties . Such liberties are understood properly as judicial under-enforced norms..‖ 1. but right to protect substantive personal liberties in Roe o A Variation—Economic liberties. (Roe) o Protecting Fundamental Rights—Not that the Court protected substantive fundamental rights through the DPC. 1248-53 NY limited the # of hours a baker could work per week to 60 (SC invalidates law as unconstitutional under contracts clause of the DPC) o WRONG—right to freedom of Ktt is an unenumerated right Majority claims to be applying deferential scrutiny.e. Economic Substantive Due Process Calder v. The Court was wrong to protect substantive economic liberties in Lochner. economic liberties as distinguished from personal liberties. not principles of natural law/justice inherent in the moral order of the universe). i. & Iredell that it includes only specific provisions of the text Lochner v.Historically. but that it protected the wrong substantive fundamental rights.‖ Their fuller enforcement and protection is secure with legislatures and executives in ―the Constitution outside the courts. but right to protect substantive personal liberties in Roe. like personal liberties.‖ ALWAYS WILL BE PROTECTED. but it is actually strict scrutiny What is wrong with Lochner o Deferring to the Representative Processes—Court did not defer to the legislature‘s interpretation of the Constitution as permitting this regulation as an exercise of the police power (Harlan and Holmes in dissent) (Roe) o Originalism—Court protected ―unenumerated‖ fundamental rights through the DPC. economic liberties have been protected through three clauses: o (1) DPC of the 14th and 5th Amendments o (2) Takings clause of the 5th Amendment o (3) Contracts clause of Article I. HOW? Protecting fundamental rights A. Court was wrong to protect substantive economic liberties in Lochner. are such fundamental rights secured by our Constitution that there is no need and no good argument for aggressive judicial protection of them. - .23 V. New York.

- Williamson v.24 o Status Quo Neutrality—Has nothing to do with protecting ―unenumerated‖ fundamental rights: it was that the Court took the status quo of existing distributions of wealth and political power as neutral and presumptively justified. 970-71 (again) Deferential scrutiny under the DPC is just as deferential as it is under the EPC o Under deferential scrutiny. such that any governmental regulation of them was presumptively partisan and unconstitutional.‖ o He is not so much making a concrete originalist argument as making an abstract appeal to the (supposed) wisdom of the founders - . Parrish. but it speaks of liberty and prohibits deprivation of liberty without DP of law Reflects DeShaney debate/conception of the Constitution as providing only negative liberties (liberties against government). 1270-71 Debt adjusting statute upheld) o Black calls for a form of scrutiny that is even more deferential (to legislatures with respect to economic liberties) than conventional deferential scrutiny—for he refused to countenance scrutiny of either the permissibility of the end or the fit between means and end o In concurrence. matching up means to ends is very. Roe is tantamount to a Brown for women. very loose  Legislature doesn‘t have to have chosen the best means to the end. Skrupa.. - West Coast Hotel v. Lee Optical Co. Not applicable to Roe.‖ Question of which economic theory government may act upon is a question for legislatures rather than courts to decide. just a means Ferguson v. not positive liberties (affirmative rights to governmental aid). 1262-68 Minimum wage is constitutional—the bare cost of living must be met Repudiates aggressive judicial protection of SDP o OVERRULES Adkins and Lochner by implication o Death of economic SDP Applies deferential rational basis scrutiny Hughes says that the Constitution does not say anything about the freedom of contract. Harlan advocates conventional deferential scrutiny Black‘s bow to original understanding—―We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies. Holmes argues that ―a constitution is not intended to embody a particular economic theory.

Nebraska. 1442-45 Statute that forbids teacher to teach German Example of protecting fundamental rights o Survived West Coast Hotels repudiation of Lochner Recognized rights o Parents‘ right to contract with teacher o Teachers‘ right to teach o Parents‘ right and natural duty to control the upbringing of the children Conceives liberty as including those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men o Also includes formulations of the DP inquiry in Palko – implicit in the concept of ordered liberty McReynolds‘ theory of what is protected by the 14th amendment o Not only freedom from bodily restraint but right to contract and engage in common occupations of life.1. Intermediate o As a case about the 1st Amendment and knowledge?  Meyer is about 1st amendment and right to acquire useful information . eminent domain or just compensation clause) of 5th A.25 2. right to marry have a home. not for future Ktts o Gov‘t deference has rarely been used to invalidate laws B.k. have children NOT really using highly deferential rational basis scrutiny Court holds this end to be legitimate but say the means exceed the limitations on the power of the state (Desirable end cannot be achieved by prohibited means) Anti-totalitarian theory of liberty - - - Level of generality in the formulation of rights .2. Personal Liberties: Antecedents from the Era of Lochner v. Court has been more deferential to gov‘t takings o Nor shall private property be taken for public use without just compensation 3. acquire useful knowledge. but has been incorporated in the 14th A to apply to states o Since 1937. New York Meyer v. Quite specific o Case about the German language?  Right to receive education in the German language . The Contracts Clause Contracts Clause – Article 1 §10(1) ―No State shall pass any law impairing the obligation of contracts‖ Applies only to the states o Applies only when the gov‘t interferes with an existing Ktt. which applies to States thru 14th A.a. Personal Liberties 1. o Applied only to federal. The Takings Clause Takings Clause (a.

Society of Sisters. Jaycees) It is a construction of the right to privacy from the letters and penumbras of specific constitutional provisions – and attempts to avoid Lochner o Avoids deriving unenumerated rights from the word liberty and attempts to ground the right to privacy in the 1st. 3rd. Ullman.26 3. Privacy Poe v. 4th and 5th amendments  Protects narrow right – martial privacy Invokes the 9th amendment to justify protecting unenumerated right Harlan concurs and take a straight SDP approach o Frames the DP inquiry as whether the statute violates basic values. Connecticut.Quite abstract o As a case embodying an anti-totalitarian theory of liberty that forbids the state to standardize its citizens  Embodying anti totalitarian theory of liberty that forbids the state to standardize its citizens Pierce v. implicit in the concept of ordered liberty - . 158-66 Statute making it a crime to use contraceptives—Majority dismisses the case Dissent is what is important o The right of privacy emanates from the totality of the constitutional scheme o First 8 amendments are included in the 14th amendment but are not restricted and included in them is a right to privacy Harlan‘s dissent elaborates on conception of the Due Process inquiry o Constitutional interpretation is a rational process of judgment and not a quest for a formula or bright line rule o Liberty is a rational continuum not isolated points o Tradition is a living thing and not historical practices o Invokes Chase‘s opinion from Calder o Invokes Brandeis‘s idea of the right to privacy as the right to be let alone but limits it to the private realm of heterosexual family life o More general conception of liberty  DPC stands on its own bottom - Griswold v. 167-76 Douglas majority opinion claims to eschew Lochner and SDP o Zone of privacy—Right of intimate association (Roberts v. 1447 Law requiring parents to send kids to public school Further sketches Meyer’s fundamental theory of the relation between the individual & the state Forbidding state to standardize its children by crafting ideal visions of citizens Level of generality hereBest described as a case embodying an anti totalitarian theory of liberty that forbids the state to standardize its citizens (quite abstract formulation) 2.

27 Goldberg in concurrence uses the 9th amendment to justify judicial protection of the fundamental right under the 14th amendment o 9th amendment drives originalists like Black. Abortion Roe v. Bork and Scalia crazy Sources of Liberty from specific to abstract o Meyers . The Level of Abstraction in the Characterization of Constitutional Rights Three competing conceptions of tradition as a source of fundamental rights .3.traditional CL o Palko .conscience of people that it is fundamental (Harlan. 1453-62 TX statute prohibiting abortions – said to be unconstitutional Blackmun‘s 7-2 opinion justifies the right of a woman to decide whether to terminate her pregnancy on the basis of a right of privacy Officially revives SDP . Gerald D. Poe) - 3. Concrete Historical practice (Scalia – meaning as 14th was adopted in 1868) o Michael H—liberty includes whatever protected specifically in the statute books or recognized concretely in the Common Law when 14th amendment was adopted in 1868 .. 178-86 Biological father denied rights Scalia proposes (in plurality opinion) a solution to the problem of determining the level of generality in framing rights o Refer to the most specific level based on tradition Applies this to both: o Framing the relevant tradition in the DP inquiry and o Characterizing the right recognized in precedents (construes them narrowly) Scalia‘s conception of tradition is concrete historical practices from 1868 and to determine what our traditions are we look to what they were in 1868 Some argue that Scalia‘s jurisprudence here is a method of damage control o On this view  he would overrule all of the SDP cases if he had the votes - - 4. Abstract aspirational principles (Brennan) o To which we as a people aspire and for which we stand whether or not we have reached them in our statute books and CL . Rational continuum and a living thing (Harlan .orderly pursuit of happiness o Griswold .meaning we might break from practices from 1868 as we evolve over time) o In Poe—rational continuum and traditions from which it broke—tradition is a living thing o We may break from tradition Michael H. v.2.ordered liberty o Loving . Wade.1.

28 Court holds that fetuses/unborn children have never been recognized in the law as persons Does not hold the woman has an absolute right but holds that the right is fundamental and therefore implicates strict scrutiny Trimester framework Rehnquist dissents: o Does not think the statute implicates a right to privacy o Says women have a liberty interest but says this only triggers deferential rational basis scrutiny o Says the decisions should be left to the legislatures o Says the intent of the framers was not to include a woman‘s right to terminate her pregnancy in the word ―liberty‖ Harris v. Casey. 1467-1503 Statute limited abortion control law Reaffirms/upholds Roe’s central holding that abortion prior to viability is a protected liberty interest under DPC Undue burden test—does a state regulation have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus? o Three distinct questions:  Is the right infringed  Is the infringement justified by a sufficient purpose  Are the means sufficiently related to the end sought Stare Decisis—respect previous decisions—4 factors o Whether the precedent/decision proved unworkable o Whether there has been reliance on precedent/decision - . Held  does not violate constitution Prefigures DeShaney’s conception of the constitution as a charter of negative liberties Reaffirmed that poverty/wealth is not a suspect classification under the EPC Deferential scrutiny is used after deciding no infringement on a fundamental right o Amendment does not take the woman‘s opportunity to have an abortion away o Gov‘t cannot forbid you from having an abortion but that does not mean they have to fund them (no affirmative obligation on part of gov‘t) o No obstacle is placed in the way of woman‘s choice o States may encourage child birth and discourage abortion without infringing on the right of a women to decide whether to terminate her pregnancy  ―Take the bitter with the sweet‖—don‘t take the $ if you don‘t want the conditions Brennan dissents and argues that the amendment imposes an unconstitutional condition o Sees the right to be free from state interference with choice o Says this is forcing women to have children then don‘t want to have - Planned Parenthood v. McRae. 1467-74 Amendment to Medicaid program allowing abortion funding only for rape or if life of mother threatened.

Embraces conceptions: o Reasoned judgment (judicial review)– (from Harlan in dissent in Poe and concurrence in Griswold) o Constitutional interpretation is a rational process of judgment. unnamed and unhinted at rights 5. 1518-30 J.Dissent—Rehnquist.Concurrence—Stevens. Blackmun—Strict scrutiny should have been maintained as issue is contraceptives and family planning (considered fundamental rights) .Doctrinal differences between Casey and Roe o Roe characterizes the right to abortion as a fundamental right and Casey does not o Casey rejects Roe’s trimester framework but maintains the significance of viability o Casey rejects Roe’s strict scrutiny in favor of undue burden test .Casey invokes two lines of cases under DPC o Personal autonomy (broader) o Bodily integrity (more narrow) . and stare decisis  Don‘t always follow 4 factors like this but considered before in most cases. not process o Bill of rights alone – that only provisions of first 8 amendments o Specific practices protected against governmental infringement at the time of ratification of 14th .29 o Whether the precedent proved to be factually outmoded (if time has overtaken the factual assumptions of the precedent)—Doctrinal change or anachronism o Whether evolution of legal principles has made doctrinal footings weaker—Change of facts or understanding  Turns on protecting legitimacy of court. impose waiting periods and regulations so long as it doesn‘t impose significant obstacles or unduly burden her . Scalia. Hardwick. not a quest for a code or bright line rule o Liberty is a rational continuum o Tradition is a living thing o Constitution is a covenant of abstract aspirational principles o Constitution guarantees the promise of liberty .Rejects conceptions of the DP clause—what is the controlling word? o Procedural due process alone – where the controlling word is liberty.White . protecting legitimate interest of court . police went in bedroom—GA statute prohibited sodomy (not just homosexual) (court upholds statute) . Thomas—Roe should be overruled . majority.What‘s at stake is the woman‘s right to make the ultimate decision NOT a right to be insulated from all others in doing so o Still forbid governmental efforts to compel women not to have an abortion o May encourage. Same-Sex Intimate Association Bowers v.Scalia dissents o Likens Roe to Dred Scott and Lochner o References the 9th amendment – says the joint opinion relied on the 9th treating it as a literally boundless source of additional.

and  Equal protection clause does protect homosexuals against animus o (4) both Bowers and Romer are wrong (Colorado). Blackmun dissent—wants the abstract level of generality—right to be left alone Overruled in Lawrence! - Romer v. Romer was right (Lawrence).  Animus against homosexuals and demean it o (3) both Bowers and Romer are right (O‘Connor).  What goes on in the bedroom goes on in the bedroom - Lawrence v.30 Court applies deferential rational basis scrutiny o Because no fundamental rights are implicated Court declined to extend right to autonomy/privacy to engaging in sodomy o Finding that ‗preserving morality‘ is a legitimate government end How does the court characterize the right? o Specifically: as a fundamental right to engage in homosexual sodomy Conception of tradition: o Conceiving tradition as concrete historical practices o Conceives of prior cases (from Meyer through Roe) as specific  Extending only to heterosexuals ―family. adultery. then can have a right to use illegal drugs. Texas. etc. marriage. incest. 1111-23 (again) Proposed amendment to the Colorado constitution—no protected status based on sexual orientation o Amendment to Colorado constitution violated the US Const o Amendment would be leaving unprotected a very narrow group Deferential scrutiny ‗with bite‘ o Scalia (dissent): Thinks YES conferring special rights/preferential treatment Relationship between Bowers and Romer Four available conceptions: o (1) Bowers was right. or procreation‖ White—slippery slope—if we extend the right here. Bowers was unassailable o (2) Bowers was wrong.  Romer was wrong. 1532-51 TX statute only prohibits same sex sodomy (overrules Bowers under the DPC) o Statute violation of EPC! o The special/decisional privacy as applied to heterosexuals extends to homosexuals Characterization of right: o Freedom from unwarranted state intrusion  (tradition as a ‗living thing‘)  Rejection of parts of Michael H. Deferential rational basis scrutiny ‗with bite‘ o Or: ―a more searching form of rational basis review‖ - . Evans. Romer was wrong (Scalia).

State of Vermont.1) Prudence versus unflinching commitment to principle? . Due Process. or Both? Baker v.31 O‘Connor and Scalia in dissent are worried about the implications for same-sex marriage… o HOWEVER majority says:  Not an ‗end to all morals legislation‘  Added a ‗disclaimer‘ for Constitutionality of same-sex marriage Other traditions/places have allowed it. while vigorously ensuring that the means chosen bear a just and reasonable relation to the governmental objective State constitution does confer positive benefits/affirmative rights Apply ‗relatively uniform standard‘ (rather than US SC tiered-analysis) o So need not delineate suspect class State interests: do NOT provide reasonable/just basis for exclusion from benefits incident to a civil marriage license under VT law o Deference to the legislature Court did NOT address remedyleft to state legislature: o Invoke concept of who may interpret o (prudent act of judicial statesmanship) v. Department of Public Health. (condemned for declaring a right without recognizing a remedy a la Brown) - Goodridge v. 1553-76 ∏ says entitled to marriage under state versions of EPC and DPC o Under EPC  Must give same dignity and equality to all citizens  Membership in cherished institutions (marriage) o Under DPC  Protect Individual liberty/equality (very broad) o Holding: YES entitled to full marriage (4-3 decision)  Constitution forbids the creation of second class citizens Court characterizes marriage as a ―wholly secular/social institution‖ Deferential scrutiny ―with bite‖ o Dissent wants traditional deferential scrutiny - A Tale of Two Courts What are the main differences between Baker and Goodridge? . Same-Sex Marriage: Equal Protection. and they have yet to fail—should we look to others or not? - 6. 1125-39 State prohibition on same-sex marriage Common Benefits Clause: cannot exclude same-sex partners from benefits of marriage o State equivalent of the EPC Unanimous opinion in 1999—after Romer but before Lawrence Similar to deferential scrutiny with bite o ―broadly deferential to the legislative prerogative to define and advance governmental ends.

o Consistent with the interpretive method Scalia outlined in Michael H— precedent/tradition Rehnquist finds support for a right to refuse unwanted medical treatment. o State may prevent family members for terminating treatment for another. but Scalia finds no support for a right to commit suicide. - . o If the Court uses the DPC to protect the citizenry from ―irrationality and oppression.‖ he warns.‖ For the ghost of Lochner lurks! - - Washington v. is the established method. 1577-86 Vegetative state—Only allows removal with ―clear and convincing evidence‖ that the person wants to remove feeding tube Competent adults have the right to refuse medical care under liberty interest of DPC. not in general terms of a right to die but in specific terms as a right to refuse lifesaving hydration and nutrition. Euthanasia Cruzan v. instead determining whether constitutional rights have been violated by balancing his liberty interests against the relevant state interest. embraced in Casey. 1598-1607 SC rejected facial challenges to state laws prohibiting physician assisted suicide. Missouri Dept. Rehnquist avoids assuming any fundamental right but instead speaks of a liberty interest. o State may require clear and convincing evidence that a person wanted treatment terminated. ―it will destroy itself. Does not apply strict scrutiny. Scalia frames the relationship between the DPC and the EPC apocalyptically. Rehnquist‘s formulation of the asserted right or liberty interest. o Rehnquist majority: unanimous decision to uphold the law Deferential rational basis scrutiny here Souter argues Harlan‘s Poe dissent. Glucksberg. Director. Left open the possibility for the right from states or future SC decisions. of Health.32 o Baker: left it to VT legislature to devise the remedy (and signaled that civil unions would be sufficient) o Goodridge: rejected civil unions as ―second-class citizenship‖ and ordered the legislature to permit same-sex marriage 2) Who may interpret? o Baker: expresses a conception of courts as ―participants [with legislature] in the system of democratic deliberation‖ o Goodridge: views that ―it is the traditional and settled role of courts to decide constitutional issues‖ 3) Baker: focused on denial of common benefits and protections o Goodridge: focused on denial of membership in the institution of (civil) marriage itself 4) Baker: focuses on common benefitsEPC o Goodridge: EPC arguments but also DPC/liberty arguments (Lawrence in the meantime contributed to this)  Both reject federal EP framework - - 7.

there is a duty to save (tort idea) - Scrutiny under the DPC Strict Scrutiny Undue burden test—Casey Balancing test—Cruzan Deferential scrutiny with bite—Lawrence or Romer Deferential rational basis scrutiny—Williamson VI. Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits? DeShaney v. HOW? Inferences from structures and relationships A.e.33 9-0 or 4-5—FLEMING has argued that Rehnquist and Scalia use a whipsaw between specificity and abstraction in formulating the level of generality of asserted rights. Separation and Sharing of Powers within the National Government 1. Hermetic  Textual (formalist)– they claim that they are just reading the text. necessary to life. ―the right to commit suicide which itself includes a right to assistance in doing so.‖  Grounded the right in right to bodily integrity and not letting doctors doing things you don‘t want to do it 8. Blackmun criticizes Rehnquist for not being compassionate in the law Brennan—substantial state action so don‘t have to go on affirmative obligations because states are already liable—once you start. Categorical.  Hermetic – a concern to police the boundaries between the branches. as in Glucksberg: i. liberty. of Social Services.  Categorical – things can be placed in one of the 3 branches. Black in Youngstown and Scalia in dissent in Morrison. o Constitution does not impose affirmative obligations upon government to provide basic services or benefits. or freedom from government rather than a charter of positive benefits. 1608-15 Poor Joshua in dad‘s custody and repeatedly abused. Winnebago County Dept. Formalist.g. Introduction ACI. Burger in Chadha. Balancing Approach (Rehnquist in Morrison) ..  E. or freedom to. until he was brain damaged (suit dismissed) Rehnquist‘s majority opinion conceives the Constitution as a charter of negative liberties. Bowsher. 464-70 Competing Conceptions of Separation of Powers (1) Textualist. and property.—they want to reject the right o Sometimes they reject assertions of rights after framing them highly specifically as in Michael H. such as police protection or protection against domestic violence. o Other times they reject the assertions of right after framing them highly abstractly.

J. He assumes the political processes will do so.‖ –double security of separation of powers o (3) ―extended republic.. Presidential Power US Const. o Seen in Jackson in Youngstown. o analogous to the Casey undue burden standard. 472-75 Liberty is more secure in an extended republic. Some have argued that there are affinities between deriving unenumerated powers as necessary concomitants of nationality or sovereignty and deriving unenumerated rights as of the very essence of a scheme of ordered liberty. Palko. Sutherland too. - Youngstown Sheet & Tube Co.  Functionalist – we have to look for the essential functions of each brand of government. Nixon. Aims or justifications of SOP: o (1) Avoid concentrations of power in one department and o (2) Protects individual liberty. o His approach to SOP is holistic and functionalist - . minority position (2) Structuralist. federal Madison does not argue for any special role for courts to enforce the structure of separated and shared powers. White‘s (almost anytime he opens his mouth) dissent in Chadha and Bowsher and Blackmun‘s opinion in Mistretta. v.‖ –political safeguards o (2) ―compound republic. Flexible  Structuralist – people think about the character of the structures created by the constitution.  Structuralist Explanation. Jackson‘s functionalist concurrence begins with a famous critique of originalism. - 2. Pragmatic. o Proper limits of delegation of power by Congress to President. Madison.S. Clause 1: The executive Power shall be vested in a President of the United States of America United States v. 481-83 Constitution—broad presidential powers over foreign affairs—also in the law of sovereignty (was constitutional) o Much of President‘s power is implied from Article II. Constitution secures SOP and protects liberty: o (1) ―Ambition must be made to counteract ambition. Burger in U. Curtiss-Wright Export Corp. 51.  Flexible – set off against hermetic/categorical. 483-92 Black‘s textualist opinion: o It‘s clear that Congress could authorize this seizure. Federalist No.34  See if there an undue burden on executive power. Art II. Functionalist. but it is clearly a legislative action and therefore outside the President‘s powers. v. Sawyer.‖ –state v.  Pragmatic – realize that governing is a practical art..

 Military. President acts in absence of a congressional grant or denial of authority. 346-50 Watergate—Subpoenas for tapes—Nixon claimed executive privilege Burger majority—functionalist approach—also a balancing test o Resolves the competing claims of the legitimate needs of the judicial process and the presumptive privilege for presidential communications in a manner that preserves the essential function of each branch. costs of litigation during war Traditionally: Foreign Powers with Executive. or National security secrets are exempt Court recognizes a presumptive privilege for presidential communications and holds that such a qualified executive privilege has constitutional underpinning‖ and is constitutionally based in SOP.—Situation here is 3 Jackson argues emergency powers are consistent with free gov‘t if they are given to executive by Congress (like 1) - United States v. individual liberty is at stake. President acts pursuant to an express or implied authorization from Congress. Nixon. 494-502 Congress reasserted itself with respect to sharing war powers with the President Jackson in Youngstown—Sharing powers and Congress taking responsibility is good Each President subject to the WPR has argued that it is an unconstitutional encroachment upon the president‘s powers as Commander-in-Chief Defenders view it as an important assurance of checks and balances in waging war Hamdi v. o 3. o Structuralist reasoning. diplomatic. D has a DPC right to have claim heard (Procedural DP) FUNCTIONALIST o (1) Can Federal gov‘t hold a citizen as an enemy combatant?  YES – Executive has concurrent Authority with Congress – at it maximum level (Youngstown)  Scalia (dissent)– NO. In this case it also happens to be a balancing test. Congress must suspend writ or have criminal trial according to text o (2) Must a citizen held as a combatant be afforded DP?  YES – Procedural Due Process US strikes a balance: gives more process than Executive wanted (have the right to contest facts). o 2. o However. so role for all branches of gov‘t - . 511-35 Detesting Combatant Detention. President takes measures incompatible with express or implied will of Congress. but less than a normal criminal trial (there is a presumption in favor of the Gov‘t) Mathews applied: o Private Interest: freedom from physical detention o Gov‘t Interest: National security.35 Grouping of practical situations for analyzing the powers of Presidents and Congress: o 1. Rumsfeld. - The War Powers Resolution.

Executive Branch has the inherent and exclusive power for national security—the plurality. Ct concludes: single. Unconstitutionality of Independent Regulatory Agencies o 1. violates SOP Formalist o What‘s wrong? – Congress is legislating but it violates bicameralism/presentment Political Question – a legal issue that is not reviewable by courts – WHO may interpret o Veto power fails presentment and bicameralism. Unitary Executive Power (inherent power/prerogatives) C. ‗new procedure‘ that violates SOP FORMALIST o Whats wrong with the law? Executive is legislating Syllogism: o 1. 1-House Legislative Veto. Synar. balanced away the war powers Both Scalia and Thomas invoking Founders but for diametrically opposite positions o Scalia – Founders want us to suspend writ/give trial (not defer to Executive) o Thomas – Founders want us to trust the unitary executive and defer 3. finely wrought procedure‖ Scalia – Formalist. 571 & SR 2 Line Item Veto Act. New York. Allow experiments to help representative Gov‘t - Bowsher v.36 Thomas (dissent)– NO. procedure Dissent/White: Functionalist approach to deciding if a law violates SOP o Test: if law prevents the Executive from accomplishing constitutionally assigned functions. Textualist B. The Act authorizes the President to veto using a different method o 3. Chadha. delegation of Congressional power to CG violates SOP FORMALIST o What‘s wrong with the law? Congress is executing unilaterally Syllogism: . 556-69 Comptroller General review budget. Constitution has exclusive method for reviewing laws o 2. Should be removable at the President‘s pleasure o 2. however. dissents because he believes in the unitary executive Breyer – Functionalist. in balancing. finely wrought and exhaustively considered. Conclusion: The Act is unconstitutional Fleming can be even briefer: not part of a ―single. Congressional Power I Reagan Administration‘s Revolution regarding SOP A. 543-55 Case about the expired immigrant visa. The Idea of ―Quasi-Gov‘tl‖ functions is anathema to formalism Immigration and Naturalization Service v.‖  Idea from Nixon Clinton v.

SR 4 .Scalia/Dissent – wants Aggressive Judicial Enforcement of SOP o Slippery slope if don‘t enforce! Congress gone wild! . Act vests CG with Executive Power o 2. United States.37 o 1. SR 3 Independent Counsel removable for good cause. Congressional Power II Morrison v.Postmasters removable by President for good cause. Congress executing o This is like Humphrey’s – limiting executive control The Functional Test: o If removal restrictions impede President‘s ability to perform his duty‖ The Balancing Test: o Does the restriction interfere impermissibly – sounds like Casey undue burden Separation of powers and checks and balances o ―Self-executing safeguard against encroachment Scalia/Dissent – Court ignores plain words of the Constitution: ―THE executive power‖ o Remove at will of president o President bears the burden if things go wrong.Federal Trade Commission removable by President for good cause. statute is constitutional . law is unconstitutional violation of SOP . here. they are quasi-executive 4. no violation of SOP or Appointments Clause against President BALANCING o This is not like Bowsher – i.Sentencing Guidelines do not give judiciary undue power under non-delegation doctrine . Olson. Congressional agents cannot exercise such Power (the removal power) o 3.FUNCTIONALIST o Non-delegation Doctrine – requires an ‗intelligible principle‘ to allow delegation (quite broad) o ―Self-executing safeguard against encroachment‖ that lies in the structure of our gov‘t . Conclusion: The Act is unconstitutional What the court does NOT hold: Independent Regulatory Agencies are Unconstitutional Real World – CG has never been removed by Congress o Court: We don‘t care – Fixing the Structure of the Constitution is more important - Meyers . so give him power o Scalia‘s apparent hypocrisy – unenumerated rights of President in THE and not in LIBERTY Mistretta v.e.Taft: Postmaster served at the will of President—President has broad removal power Humphrey's Executor .Evaluating the Judicial Branch (not here) o (1) Unconstitutional accumulation of power in judiciary o (2) Threat to judiciary‘s independence and integrity .Meyers is confined to "purely executive officers".

38 B. Maryland.PIC protected rights that are national in character o Field dissent.Madison is addressing Anti-Federalists (today Dual Federalists) fears o Argues that Constitution creates a mixed system nationalist and DF McCulloch v.this reduces 14th A to a vain and idle enactment . Dual federalism (DF)  Limits Congress to powers enumerated in Constitution o Aggressive judicial enforcement (Scalia. The Basic Structure of Federalism Madison. Sharing of Powers Within the Federal System 1. not a detailed code—Youngstown Limits on Congress‘s power—deferential scrutiny o Ends legitimate. Federalist No. 589-600 NS Allows national bank. O‘Connor) National Supremacy Dual Federalism PENDULUM McCulloch & Gibbons Hammer Darby NLC Garcia Lopez and Morrison NY and Printz 9/11 2. 585-88 . 39. means appropriate and consistent with spirit of Constitution - Slaughter-House Cases. Introduction ACI. 572-83 Federalism. but state/MD can‘t tax bank Marshall— NS—Congress‘s enumerated powers are general and plenary and imply necessary and proper powers to carry out enumerated rights o Constitution as a great outline. 603-16 & 155-58 .State gave monopoly—butchers sued under 13th and 14th A and lost .allocation of powers between national and state Two Frameworks 1. in scope of Constitution.Majority—13th and 14th A don‘t change basic structure of federalism o PIC did not transfer protection of civil rights from the states to the fed gov‘t  This would subordinate state control . National supremacy (NS)Power in Congress/Federal Gov‘t o Political processes enforce— political safeguards of federalism (Marshall) 2.

Holding: Marshall—Congress has power to regulate commerce and if state laws conflicts then Congress triumphs . rather it includes restrictions like those in some of the BOR.CC is battleground for competing conceptions of federalism—Debate: o Reach of Congress power to regulate commerce o Who enforces: Federal courts or Congress .39  Too narrow a view of DPC and EPC Thomas wants to revive PIC to protect personal liberties (Saenz dissent) - Incorporation of the Bill of Rights .Before the 14th A the Court held they did not limit state gov‘t o PIC gutted. can‘t be used to incorporate rights. strict scrutiny) . implicit limits external from structure of federalism .Asymmetry—those who support aggressive judicial protection under DP (Blackmun Stevens) want to defer to political process for federalism and Rehnquist/Scalia want aggressive judicial protection for states‘ rights BUT not for individual rights Gibbons v.The BOR (1st 10 A) of their own force apply only to the fed gov‘t. Ogden. 617-23 . The Commerce Power I Commerce Clause .Dormant commerce clause o Even if Congress silent the commerce clause precludes states from regulating activities that are national in character  NS—strong DCC— state can‘t regulate  DF—weak DCC— state can regulate .NS .NY Boats—state monopoly holder challenges federal license holder . . Regulation discriminatory on its face—more demanding scrutiny (virtually per se unconstitutional.The SC present framework for addressing these questions has two prongs: o 1.  DPC stands on its own bottom (Harlan dissent in Poe) 3.Four Approaches to DP incorporation: o DP incorporates all of the BOR at least all of the 1st 8 Amendments o DP incorporates all the BOR plus some other fundamental rights not listed there o DP selectively incorporates only those parts of BOR that are of the very essence of a scheme of ordered liberty (Palko)  Official view of SC but over time most of BOR are included o DP incorporates none of the BOR as such.Broad conception of what commerce means: o Commerce as INTERCOURSE o Among the states—can regulate intrastate commerce if it impacts interstate .If state and federal powers are concurrent then Congress trumps—Supremacy Clause .Congress‘s power is enforced by political process—deference to political process .10th A doesn‘t limit Congress‘s power. use DPC instead .

Symbolic o Feel-good federalism—not critical law/interest because guns already regulated by states .NS . 665-76 . 676-92 .(Casey. Regulation with incidental discriminatory effects—balancing test.Violence against women law allows civil damages—covering for inadequacy of state law . 624-27 .Thomas—concurrence—rejects substantial effects test . Morrison.DF .40 o 2.DF .Stone rejects 10th A argument—becomes a truism o Gives powers in nature of things .Federal Law—can‘t possess a gun near a school zone o Holding: presence of a gun near school does not affect interstate commerce and therefore exceeds Congress power to regulate interstate commerce—DF view .Federal law that prohibited interstate shipment of goods made in factories where employers didn‘t follow FLSRA/minimum wage and hour laws . to determine whether the law unduly burdens IC.Souter and Breyer dissent—argue court has not learned Lochner lesson o Breyer uphold law if it has a rational basis for regulating IC United States v.Scalia hates this) United States v.Different in Lopez and Morrison o Empirical findings of gender based violence on commerce o 14th A § 5—Congress cannot enact civil remedy as part of power  14th A only covers state not individual action  DeShaney—look to tort/state law NOT Constitution for protection .Congress may regulate three broad categories of activity: Can regulate (1) channels of IC (2) instrumentalities of IC (3) activities that substantially affect IC o (3) further limited to (1) activity that substantial affect IC must be economic (2) regulated activity falls into traditional state regulated activity .Court held ok if Congress regulates intrastate commerce if the intrastate commerce substantially affects interstate commerce—EXPANSIVE/NS o Substantial affect test  Darby to Hammer what West Coast Hotel is for Lochner . Darby Lumber Co.Holds that Congress may not regulate noneconomic violent criminal conduct based solely on that conduct‘s aggregate effect on IC o Easy case decided by holding and framework of Lopez  (1) not econ activity (2) traditional regulation in this area is states . ..Uses deferential rational basis scrutiny when evaluating Congress power to regulate interstate commerce United States v. Lopez.Revolutionary v.Rehnquist—Judicial system needs to limit Congress‘s power o Don‘t want centralized federal gov‘t system.

it can offer the states a choice of regulating that activity according to federal guidelines or having the state law preempted by federal regulation  Analogy. The Commerce Power II National League of Cities v. San Antonio Metropolitan Transit Authority. 651-64 DF Brady Bill required that. for a period.41 o Limit Congress even more Souter and Breyer in dissent—broad congress power. 629-36 NS Overrules NLC Federal law forced a county transit system to abide by federal standards Application of traditional v. but reliance on the political process New York v. personal autonomy Printz v. Usery. United States. judicial difference Some Argue Shift Back to NS after 9/11 - 4. 628 DF Overruled by Garcia Congress required state and local governments to follow the minimum wage and maximum hours requirements of FLSA Test when reviewing federal regulations of states actions: o Whether the activity displaces state policies regarding the manner in which they will structure and deliver those services which their citizens require Rehnquist majority—State‘s rights revolution Garcia v. the chief law enforcement officer (CLEO) help administer the bill . similar. United States. Casey. non-traditional areas of state governance is useless since there is no objective criterion Test for protecting federalism: o Not vigorous judicial enforcement. guidelines Requiring the states that do not comply to take title is unconstitutional because the federal government cannot ―commandeer‖ the states Encouragement of States is fine: Federal government can encourage the states by o Attaching conditions on federal $. or o Where Congress can regulate private activity. 639-50 DF Congress enacted a radioactive fuel waste policy which gave the states incentives to dispose of waste either according to federal guideline or their own.

giving us two sovereigns requires that the federal government not act so as to obliterate that difference Breyer.42 Congress cannot compel the states to enact or enforce federal regulatory policy. but don‘t outright compel. Stevens—political safeguards of federalism argument - . and today hold that Congress cannot circumvent that prohibition by conscripting state officials directly o Commandeering is not part of our historical practice. o Structure of the Constitution. o Current statutes tie federal $ to compliance.

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