Con Law - LAW REViEW

Constitutional Law

 Introduction

o Marbury v. Madison

 This comes from a political dispute of Adams and Marshall trying to pack the

court to thwart Jefferson and the Democratic-Republicans.

 Marshall creates judicial review power but never used it again b/c Jefferson

tried to get one of the justices impeached

 Marshall said that is emphatically the job of the judicial department to say what

the law is

o Dred Scott

 Decided by Taney

 Enforced states rights

o Plessy v. Ferguson

 Upheld separate but equal

 Interpreted 14th amendment as trying to give political and legal equality, not

social equality

 Civil Rights: to contract, own property, legal process

 Political Rights: voting

 Social Rights: association, transport, school

 Argued property interests in his whiteness

o On the way to Brown—trying to prove separate isn’t equal

 Gaines

 Wanted to go to Missouri law school

 They would pay for him to go elsewhere

 No separate school for blacks

 Sweatt v. Painter

 Wanted to go to UT law school

 They construct some rented rooms and get 2 teachers to give a separate

law school

 Found separate is inherently unequal in law school

 Paved the way for Brown

 Companion cases: Briggs v. Elliot, Davis v. Prince Edward, Bolling v. Sharpe,

Belton-Bulah v. Gebhar

o Brown v. Board of Education

 Black girl had to walk a mile to school

 Orders reargument on original intent

 Warren court gets reargument found orig intent inconclusive

 Arguments

 Inferiority complex/psychological consequences: use of doll test

 Separate is inherently unequal

 Part of reason orig intent fails is there were no public schools then



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 Integrate with all deliberate speed

o 20th Century Supreme Court Issues

 Economic Regulation

 Civil Liberties

 Structural Concerns or Separation of Powers

o Theories of Interpretation

 Originalism

 Elements

o Original intent

o Framers

o Time period

 Clarence Thomas, Scalia, and Bork: famous ones

 Basically contract theorists: what the people consented to was the

original intent

 Evidentiary deficiencies

 Value liberty over everything

 Textualism

 Critical, actual language

 Limiting b/c words are ambiguous

 Purposivism

 Advocated by Bork

 Purpose of the framers

 Borkean Dilemna: can make it very broad and fit your goal

 Legal Process

 Based on structure, not values

 If the process worked, then leave it alone

 Theoretically no limits

 Evolutivism

 Originalist argument for this: framers made it ambiguous on purpose to

evolve

 Deal what is supposed to be for the good of all

 Premises

o Originalism is stupid

o Not what framers intended anyway

 Interpret laws to meet modern needs

 Critical Theorists

 Change the unconscious boxes that are efficient, natural, and

unchangeable

 Value equality over everything

 Necessary and Proper Clause

o McCulloch v. Maryland



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 Taxing the national bank

 Power to tax is power to destroy

 The test of necessary and proper:

 The end is legitimate

 If it is in the scope of the Constitution—not expressly forbidden

 Within the spirit of the Constitution

o US Term Limits v. Thornton

 States changing Congressional term limits

 4 Reasons Overruled

 States possessed general policing power at original Constitution

 Nothing prohibits states from limiting terms

 States didn’t relinquish power to Congress

 No Congress when general policing power was given so they had no

power to limit terms

 Commerce Clause: Art. I, Sec. 8: Congress shall have the power to regulate commerce among

the several states.

o Gibbons v. Ogden (1824)

 Steamboat case

 Opening of the clause that extends to navigation as commerce until the river

stops.

o E. C. Knight (1895)

 Trying to break the sugar trust

 Manufacturing is not commerce

o Champion v. Ames (1905)

 Lottery case of shipping tickets across state lines

 Can regulate outlaws of commerce

o Swift & Co. (1905)

 Meat packing regulation

 Can regulate stream of commerce

o Shrevport Rate (1914)

 Different railroad rates between in state customers and out of state customers

 Can regulate things that have a “close and substantial relationship”

o Hammer (1918)

 Child labor case

 Can’t make it illegal to ship materials made by children because it is

manufacturing

o Railroad Retirement (1935)

 Mandatory retirement of workers

 Congress can’t pass social welfare and not regulation

o Schrecter Poultry (1935)

 Minimum wage





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 Can’t regulate end of stream

o Carter v. Carter Coal (1936)

 Safety violations

 Can’t regulate beginning of stream

o West Coast Hotel v. Parrish (1937)

 Minimum wage

 Abolishes liberty of contract

 When Roberts switched sides and allowed regulation

o NLRB v. Jones and Laughlin Steel Corp (1937)

 Regulate unions

 Overrules Knight case

 Can regulate manufacturing

o Carolene Products Footnote 4 (1938)

 Court says we’re out of economic regulation business

 Job is to monitor and protect insular and discrete minorities

o United States v. Darby (1941)

 Regulation of hours for child labor

 Overrules Hammer

 Can regulate if it substantially affects intrastate commerce

o Wickard v. Filburn (1942)

 Quotas on amounts of products you can make and Wickard was growing wheat

for his own production

 Aggregate theory of commerce can justify regulation

o Heart of Atlanta Motel (1964)

 Discrimination of blacks in motel

 Aggregate theory of commerce

 Can regulate private discriminatory acts

o Katzenbach v. McClung (1964)

 Restaurant discrimination

 Overrules Schrecter

 Can regulate end of stream

o Perez v. U.S. (1971)

 Prohibition of extortionate credit transactions

 Aggregate theory

 Can regulate crime

o Hodel v. Virginia Surface Mining (1981)

 Environmental laws

 Pollution moves and the aggregate

 Can regulate environment

o U.S. v. Lopez (1995)

 Gun free zone

 Collapses aggregate theory



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 Can only regulate commerce if

 Channels of interstate commerce

 Instrumentalities, persons, or things in interstate commerce

 Activities having substantial relationship to interstate commerce but

must have underlying economic purpose

o Gonzales v. Raich (2005)

 Medical marijuana growth

 Can regulate local activities when they are part of a “class of activities” that

substantially affect interstate commerce

 Congressional Authority to Enforce Civil Rights—Use of Reconstruction Amendments

(Protecting discrete and insular minorities from Carolene)

o Civil Rights Cases (1883)

 Blacks being denied access in public places

 The 14th amendment only applies to state laws and discriminated people

should seek redress for the discrimination at the state level. Not all

discrimination is from the badge of inferiority of slavery. Individual wrongs are

private and not under the authority of Congress.

o Jones v. Mayer (1968)

 Blacks being denied right to purchase real estate

 Upheld act because it was a badge of slavery prohibited by 13th amendment

o S.C. v. Katzenbach (1966)

 Preclearance of voting changes

 Upheld because of Necessary and Proper plus § 5 of the 15th amendment right

to vote

o Katzenbach v. Morgan (1966)

 Puerto Ricans were being denied right to vote in NY

 Stopped allowing proof of literacy tests

 Congress can add to judicially established civil rights, but cannot take away ones

established by the Court.

 Responding to Lassiter that said literacy tests were inherently

unconstitutional

 Substantive theory

 If the enactment is “plainly adapted to the end of enforcing the equal protection

clause” and is not prohibited, but is “consistent with the letter and spirit of the

Constitution, the legislation will be upheld.

o Remedial v. Substantive Theories of Rights

 Remedial means that Congress can only pass legislation for 14th amendment

rights interpreted by the Court.

 Substantive means that Congress can add new rights to the 14th amendment

with the Court’s approval

o Oregon v. Mitchell (1970)





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 Upheld a national ban on literacy tests

 Rejected lowering of voting age from 21 to 18

 Affirmation of Substantive Theory

o City of Rome (1980)

 Redistricting plan was denied

 15th amendment implies intent and impact

 Even in no discriminatory intent, if discriminatory effects, it is unconstitutional

 Substantive theory

o City of Boerne v. Flores (1997)

 Church expansion under RFRA

 End of substantive theory of rights

 Remedial theory means that there must be an actual violation of rights

 11th Amendment: The judicial power of the US shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the States by citizens of another State,

or by citizens or subjects of any Foreign State.

o Chisolm v. Georgia (1793)—Pre-amendment

 State could be P or D

 Rich people who loaned the States money in the revolution started suing them

 11th amendment came as a response to this

o Hans v. Louisiana (1890)

 Citizen sues his own state

 Court says no under 11 even though not expressly forbidden

o Ex Parte Young (1908)

 If you’re trying to get the state to stop doing unconstitutional things, you can

sue the state officer

 Can only sue for equitable relief, like injunction

o Fitzpatrick v. Bitzer (1976)

 14th amendment sec 5 came after the 11th amendment and limits state

immunity

o Penn v. Union Gas Co. (1989)

 Can limit immunity under the commerce clause

o Seminole Tribe of Florida v. Florida (1996)

 Indian tribe tried to negotiate over the casinos and state refused

 Court ruled that the provision allowing Tribes to sue states was unconstitutional

 Overruled Union Gas and said that commerce clause can’t limit immunity

because it was written before the 11th amendment, but can limit under

Reconstruction Amends because they came after

o Alden v. Maine (1999)

 State officers sued under a fed act in state court

 Fed cause of action is allowed in state court

o Post-Boerne Cases

 Florida Prepaid (1999)



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 Invalidated portion of patent law that allowed suing states because

under the commerce clause

 Kimel (2000)

 Age Discrimination Employment Act using 14 § 5

 Under remedial theory must show violation

 Since couldn’t show, can’t sue states under statute

 Garrett (2001)

 American Disabilities Act using 14 § 5

 Still remedial theory

 Didn’t show enough evidence of violation, can’t sue states

 Nevada DHS v. Hibbs (2003)

 Family Medical Leave Act

 Sort of remedial theory: showed discrimination in several states

 Flexible with rule and could sue states

 O’Connor switched sides

 Tennessee v. Lane (2004)

 ADA Title II

 Man couldn’t get to court up the stairs in a wheelchair

 Showed denial of equal protection

 Still looser remedial theory because O’Connor still on other side

 Tax and Spending Power: “Congress shall have the power to lay and collect taxes,…to pay the

debts, and provide for the defense and general welfare of the U.S.” Art. I § 8

o Bailey v. Drexel Furniture Co. (1927)

 Tax on child labor materials

 Ruled a penalty and not a tax and not a legitimate way of raising revenue

o McCray v. US (1904)

 Tax on oleomargarine ruled constitutional

 Overruled by Drexel

o US v. Doremus (1919)

 Tax on opium ruled constitutional

 Overruled by Drexel

o US v. Kahriger (1953)

 Imposed heavy tax on bookies taking bets

 Challenged Drexel ruling

 Okayed as a tax and not a penalty

o US v. Butler (1936)

 Subsidies for curtailing production

 Unconstitutional to incentivize b/c it’s not supposed to affect policies

o Steward Machine Co. v. Davis (1937)

 Unemployment compensation credits established in SSA

 Okayed if not “coercive” but inducement only



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o South Dakota v. Dole (1987)

 Drinking age case

 Limitations to spending (Butler test):

 Must be in pursuit of general welfare

 States must still have a meaningful choice between 2 alternatives

 Some identifiable connection between legislation condition and money

 Incentive is okay, but direct regulation is prohibited by the 21st amendment

 Treaty Power: The President shall have the power by and with the advice and consent of the

Senate, to make treaties, provided 2/3 of senators present concur

o Missouri v. Holland (1920)

 Permits allowing people to hunt which goes against the treaty

 Power only prohibited by something strictly forbidden in the Constitution

 10th Amendment Rights: “The powers not delegated to the US by the Constitution, nor

prohibited by it to the states are reserved to the states respectively or to the people.”

o Maryland v. Wirtz (1969)

 FLSA amended it to apply to states as well as private businesses

 Upheld as constitutional

o National League of Cities v. Usery (1976)

 Same statute as Maryland with more regulation

 Ruled in favor of states

o Hodel v. Virginia Surface Mining and Reclamation Ass’n (1981)

 Test of Constitutionality

 Statute regulates states directly

 Must address matters that are indisputably attributes of state

sovereignty

 Impair state ability to structure integral operations in areas of

traditional governmental functions

 Garcia v. San Antonio Metropolitan Transit Authority (1985)

 Minimum wage and overtime hours

 Overrule Hodel test and National League of Cities

 10th amendment is a political ?

 Big Legal Process Theory Case

o Intergovernmental Tax Immunities—state taxation of fed things was not allowed; feds

couldn’t tax state directly

o South Carolina v. Baker (1988)

 Remove fed tax exemption on state and local bonds, eliminated bearer bonds

 No process defect, so constitutional

 National Commandeering

o New York v. US (1992)

 Radioactive waste

 States came up with solution with 3 stages





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 Sites could charge more

 States miss deadline could be denied access

 Take title provision that states not cooperating would own the waste—

ruled unconstitutional

 Shows the shift from legal process theory to originalism

 Congress can’t use states to implement their legislation even if states consent

because they can’t consent to things beyond Congress’s authority

o Printz v. US (1997)

 Brady Bill provision commandeering state officials to do background checks

 Constitution intended Congress to regulate individuals and not states:

therefore, they can’t commandeer state official as agents to implement their

legislation.

 Originalist Theory explains the change from Garcia

o Reno v. Condon (2000)

 States’ DMV were selling people’s information

 Congress passed statute forbidding above

 Exception to the Printz line of analysis for harmful practices

 Dormant Commerce Clause

o Gibbons v. Ogden (1824)

 Arguing about whether the NY monopoly is constitutional

 Marshall doesn’t answer the ? about whether commerce clause is exclusive or

concurrent

 The state must yield to Congress when feds are bestowing privileges based on

their authority. The Supremacy Clause makes fed law trump state law when the

law is constitutionally grounded.

o Cooley v. Warden of Port of Philadelphia (1851)

 Statute saying state will be regulating pilots of ships

 Clearly a commerce clause power, but gave power to the state: allowed

concurrent jurisdiction of the commerce clause

 Makes identifying what is interstate commerce irrelevant

 National/Local Test: many times a pragmatic test, but if mostly a local issue then

Congress will allow states to regulate

o Dormant Commerce Clause Rules

 Overt state discrimination against interstate commerce will be struck down

unless there is a substantial state interest the states

 If obvious state protectionism, then it will be overruled

 Covert state action that burdens commerce will be struck down if burden is

clearly excessive compared to the local benefit

o Types of Commerce Clause Cases

 Favor in state business against out of state competition

 Impose costs or restrictions on out-of-staters





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 Dean Milk Co. v. City of Madison (1951)

o Couldn’t sell milk that wasn’t pasteurized w/in 5 miles of city to

protect local farmers (Overt Type 1 Action)

o Unconstitutional

 Keeping good things in the state

 Hughes v. Oklahoma (1979)

o Conserve natural minnows (Overt Type 2 Action)

o Unconstitutional

 Keeping bad things out of the state

 Quarantine laws are an exception

o Strict Scrutiny Test for Overt Acts of Discrimination: Statute must be absolutely

necessary to achieve a compelling end to justify an overt discrimination against out-of-

staters

o City of Philadelphia v. New Jersey (1978)

 Importation of solid waste (Overt Type 3 Action)

 Didn’t pass the strict scrutiny b/c it wasn’t absolutely necessary to achieve a

compelling end

o C & A Carbone, Inc. v. Town of Clarkstown (1994)

 To finance building of waste disposal by mandating all waste to go through that

plant (Overt Type 1)

 Favors local business and burdens interstate commerce

 Doesn’t pass strict scrutiny

o Jinks v. Richland County (2003)

 Rule is to get fed jurisdiction is to have at least 1 fed ?, but if it gets dropped in

the case it gets moved back to state court

 Statute of limitations was running out by the time the fed court decided

 Congress’s statute stopped the clock on the state’s statute of limitations when

fed court was deciding

 Offends state sovereignty but they allow it b/c the functioning of the fed

judiciary and fairness is more important

o Granholm v. Heald (2005)

 Sell wine directly if you’re in-state, but out-of-state have to sell through vendors

 Overt discrimination type 1 fails strict scrutiny

o United Haulers v. Oneida-Herkimer Solid Waste (2007)

 Very similar to Carbone except that the preference goes to a state-run company

 In-state and out-of-state private businesses are discriminated against

 Covert act

o Pike Balancing Test for Covert Acts of Discrimination

 Valid unless burdens on interstate commerce outweigh local benefits

 Benefits can’t include protectionism of local industry

o Kassel v. Consolidated Freightways Corp (1981)





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 Iowa was excluding double trucks from in-state and out-of-state

 Covert Discrimination, applied Pike Balancing and found burden on interstate

commerce outweighed benefit

o Limitations on States regulating commerce

 Supremacy Clause—Fed legislation trumps state law

 When Congress is silent, the Court will regulate until Congress speaks (essence

of Dormant Commerce Clause)

o Market Participation Exception to Dormant Commerce Clause

 Hughes v. Alexandria Scrap (1976)

 Maryland passed law giving bounty to abandoned cars that favored

taking them to in-state junkyards (Overt Type 1)

 State created the market, so they can discriminate within it

 West Lynn Creamery, Inc. v. Healy (1994)

 Make 2 statutes to try to avoid discrimination charge: one that taxed

milk and one that gave subsidy to in-state farmers

 Fails

 Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997)

 In-state charities don’t pay real estate taxes, but out-of-state do

 Fails

 Privileges and Immunities Clause: Art IV Sec. 2, “The citizens of each state are entitled to all

Privileges and Immunities of the citizens in the several states.”

o Corfield v. Coryell (1823)

 Shell gathering case that made it illegal for non-NJ residents to get clams,

oysters, or shells

 Before DCC overt discrimination but would be that action now

 Argued that citizens weren’t being allowed privileges to gather clams, etc.

 Court said that the right to gather clams, etc. is not fundamental

 Test of protected Privileges and Immunities:

 Right to pass through and reside in another state for making money

 Take, hold or sell property

 Exemption from taxes higher than citizens of another state

o United Building v. Mayor & Council of Camden (1984)

 Gives an option to argue if DCC doesn’t work

 NJ city provided that 40 percent of contractors must go city contractors

 Right to work is fundamental P & I

 The Court uses a two-step inquiry to decide if the P & I applies: (1) court must

decide whether the ordinance burdens one of the P & I protected by the clause,

(2) whether an out-of-state resident’s interest in employment on public works

contracts in another state is sufficiently “fundamental” to the promotion of

interstate harmony so as to “fall within the purview of the P & I clause.”

o Differences between P & I and DCC





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 P & I only protects fundamental rights

 Could meet DCC requirements and not P & I

 P & I only protects rights of citizens (not corporations)

 P & I only covers overt discrimination

 P & I has no market participant exception

 P & I standard is based on substantial reason for different treatment

 P & I can’t be overridden by congressional validation

o Level of Review:

 Easiest order of tests to get statute upheld

 Covert—Balancing under DCC

 Overt—Substantial reason under P & I

 Overt—Strict Scrutiny under DCC

 Easiest order of tests to get statute overturned

 Overt—Strict Scrutiny under DCC

 Overt—Substantial under P & I

 Covert—Balancing under DCC

 Supremacy and Preemption: Art VI: Supreme Law of the Land

o State Statutes are preempted when

 Fed statute stipulates that all are non-conformed state statutes are preempted

(Face)

 They are inconsistent with a fed statute (No implicit preemption provision)

 Fed statutes are comprehensive or occupy the field (No room for state statute

on topic)

 Separation of Powers: Is inefficient but avoids tyranny, but the founding principle is federal

inefficiency. This slow moving fed gov not doing much became unworkable as times changed.

Constitution hasn’t been amended to accommodate but the 3 branches have changed anyway.

Most of these cases involve the President reaching into Art I power and taking it from Congress,

but sometimes Congress acquiesces to this.

o Youngstown v. Sawyer (1952)

 Labor unrest in the steel industry during the Korean conflict

 Truman nationalized industry by exec order, which is under Congress’s power

 Three Approaches

 Formalist: Black opinion that says that if Constitution or Congress

doesn’t give power Pres can’t do it

 Constrained Functionalist: Frankfurter says to look at Constitution and

Congress plus customs and traditions of Presidential power, but not

enough evidence in this case

 Functionalist: Vinson opinion that you look at traditions and customs

and since it has been used

 Jackson’s 3 situations:

 Congress gives authority



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 President can claim authority in Art II and Congress hasn’t said anything

(Twilight Zone)

 Congress said Pres couldn’t do this and no power in Art II (Narrow

Scope)

o Foreign Relations: rule is more flexible than on domestic issues and Court has, until this

administration and the war on terrorism generally allowed the Pres to do whatever

 U.S. v. Curtis-Wright Export Corp. (1936)

 US wasn’t allowing private companies to supply munitions to either side

in South America

 Congress passed statute authorizing the embargo

 Type 1 Jackson case

 Court rules that Pres plays a uniquely important role in foreign affairs

and his power over external affairs is inherent and plenary

 U.S. v. Belmont (1937)

 Litinov agreement with the Soviet Union to deal with problems before

WW2 started

 Allowed private property to be determined by the Pres and not

Congress

 Alleviated the tension between US and SU banks

 Ruled that executive agreements trump state laws and not is part of Art

VI’s supremacy clause

 War Powers Resolution

 Purpose to define the separation of powers rules between the

legislative and exec branches

 Constitutional powers are exercised only pursuant to

o Declaration of war

o Specific statutory authorization

o National emergency created by attack

 Pres has to consult with Congress before introducing armed forces into

situations where imminent involvement and must consult regularly until

forces are out of conflict

 Pres must submit w/in 48 hours to Speaker of the House and Pres Pro

Temp an explanation of the circumstances, authority and length of

troops being there in absence of dec of war where armed forces are

introduced

o Into hostilities

o Into territory of foreign nations

o Numbers substantially enlarge

 60 days after initial invasion Pres must withdraw troops

o Declared war

o Extend time by 30 days



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o Physically unable to meet as a result of attack on US

 If none of the above, forces must be removed by Pres by concurrent

resolution of Congress

 Dames & Moore v. Regan (1981)

 Hostages taken and Pres froze Iranian assets

 Companies who had things seized in Iran wanted their judgment from

frozen US money

 Pres made deal that all US/Iran claims got transferred to International

Law Tribunal

 Ruled Constitutional

 Hamdi v. Rumsfeld (2004)

 20-yr-old US citizen found in enemy combatant zone in Afghanistan

 Was denied habeas corpus

 Gave him due process rights b/c of lack of check on exec branch’s power

 Medellin v. Texas (2008)

 Murderer claimed right to have help from consulate based on int’l

treaty

 Int’l treaty was an exec treaty not ratified by Congress

 Exec treaties do not preempt state law of pleading requirements

 2 Types of Treaties

 Self-executing becomes enforceable b/c it doesn’t require implementing

legislation (rare)

 Non-self-executing only becomes enforceable after Congress passes

implementing legislation

 Executive Privileges and Immunities

o U.S. v. Nixon (1974)

 Claim of executive privilege

 Not releasing evidence would offend due process

 Privilege is compromised to allow an in camera inspection that allows judge to

go over evidence in chambers and only allow in relevant evidence

o Nixon v. Administration of General Services (1977)

 Controversy is over what Nixon has to make public

 Privilege doesn’t exist when he’s no longer president b/c of substantial public

interest

o Nixon v. Fitzgerald (1982)

 Whistleblower in Dep of Defense sued for wrongful discharge

 Nixon says you can’t sue for something Pres does while in office b/c it would be

too distracting

 Fitzgerald absolute immunity extends to all civil lawsuits while in office

o Clinton v. Jones (1997)

 Claims Fitzgerald immunity to the civil lawsuit



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 Claim arose before he was President and thus is a limit on the immunity

 Legislative Overreaching

o Delegation: mostly Constitutional

o Non-Delegation Doctrine says that Congress can only delegate to the exec or jud

branches in very narrow circumstances b/c that is Congress’s job. Schrecter Poultry

argues this as well as violation of CC and wins. Post-1937 doesn’t really stop legislation.

 Mistretta v. US (1989)

 For Congress to delegate they must give some direction

 Only strike law if there is no way to tell if the agency did the will of

Congress

 Essentially abandoned the Non-Delegation Doctrine

 Whitman v. American Trucking (2001)

 No real direction, but Court interpreted it to say more than it did on its

face

 INS v. Chadha (1983)

 Legislative veto by subsection of Congress case

 Congress can’t take back after they have delegated

 Constitution is explicit on how legislation is supposed to work:

bicameral system with signature or veto of the Pres

 Example of severability: only strikes down the legislative veto part of

the act and not the whole act

 Clinton v. City of New York (1998)

 Line item veto case

 Unconstitutional b/c President isn’t given that power in Art. 2

 Presentment clause only gives power to sign or veto

 Racial Classifications

o Strauder v. West Virginia (1879)

 Ruled that excluding black men from juries violated equal protection

o Slaughterhouse Cases (1872)

 Can’t bring equal protection claim against city b/c it applies to race of blacks

 Later extended it to national origin in Yick Wo

o Hirabayashi and Korematsu (1943-4)

 Interning and imposing curfews on Japenese during WW2

 Had to pass SS and found it was necessarycompelling end

o Classification

 If some groups can and other can’t, it classifies.

 Is the classification overt?

 Is the end compelling?

 Is it necessary to that end?

o Overt/Facially Discriminatory Statues

 Anderson v. Martin (1964)



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 Unconstitutional to put race on ballots

 McLaughlin v. Florida (1964)

 Unconstitutional to prohibit an unmarried interracial couple from

cohabitating when non-interracial could

 Loving v. Virginia (1967)

 Law punishes whites and blacks if they marry

 State argues for rational basis to a legitimate end

 Even if it disadvantages both groups, the review is strict scrutiny and

must be necessary to a compelling end.

 Violated equal protection and due process

o Covert/Non-facially neutral

 Yick Wo (1886)

 Ordinance requiring laundry mat owners to get a permit if operating in a

wooden building

 Had a overwhelming disparate impact by only giving 1 Chinese person a

permit and all non-Chinese

 Could find no other reason besides race for this practice and merited

strict scrutiny

 Washington v. Davis (1976)

 Application of a testing requirement had a disparate impact

 For non-facial discrimination require disparate impact + legislative

intent=strict scrutiny

 No intent in this case

 Affirmative Action/Benign Discrimination

o Regents of Univ. of Cali v. Bakke (1978)

 Reserved 16 of 100 med school spots for minorities

 Bakke won but no consensus on level of review

 Powell wanted strict scrutiny

 Brennan Four wanted intermediate scrutiny

 Substantially relatedImportant end

o Fullilove v. Klutznick (1950)

 Fed statute requires 10 % of funds go to Minority Business Enterprises

 Statute survived, but still no level of review

o Wygant v. Board of Education (1986)

 Last hired, first fired unless it would change the percentage of minority teachers

on staff

 Said this was to give students role models and this wasn’t found to be a

compelling end

 If it has a legitimate remedial purpose and it’s to correct something you’ve

done.

o City of Richmond v. Crosson (1989)



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 Subcontracting resolution that required any contractor hired by the city to

subcontract 30% to minority businesses

 Ends aren’t compelling b/c they aren’t redressing specific discrimination

 Means argument was administrative convenience and failed

 Solved level of review as strict scrutiny

o Metro Broadcasting v. FCC (1990)

 Minority ownership of radio and tv broadcasts

 5 dissenters take the intermediate scrutiny level of review

 Substantially related to an important end

 Overturned by Adarand

o Adarand Constructors, Inc. v. Pena (1995)

 Adarand submitted lowest bid and didn’t get b/c of AA

 Agree that strict scrutiny should be level of review b/c of

 Skepticism: not sure it works, actually stigmatizes

 Consistency: same between benign and adverse discrimination

 Congruence: fed and state govs should have the same level of review

o Grutter v. Bollinger (2003)

 Law school considered race as part of other factors in application

 End was creating a diverse educational environment

 Upheld as constitutional

o Gratz v. Bollinger (2003)

 Undergrad points system for admission that gave minorities points for race

 End is creating diverse education experience

 Means isn’t necessary b/c it makes race dispositive and seemed too much like a

quota system

o Two accepted compelling ends

 Remedying past discrimination

 Diverse higher educational experience

o Parents Involved in Comm Schools v. Seattle School District (2007)

 End is mirroring the proportion of race in community to schools (racial balance)

 End is not compelling

o Two rejected compelling ends

 Administrative convenience

 Racial balance

o Shaw v. Reno

 Redistricting plan weirdly drawn to include most minorities and give them

representation b/c the DOJ turned down their old plan

 It classified, but not facially on race.

 Disparate impact is disenfranchising non-minority voters in district

 Intent is obvious like in Yick Wo

 Rational Basis: rationally related to a legitimate end





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o Can be underinclusive: doesn’t include enough

o Can be overinclusive: includes too much

o Railway Express v. New York (1949)

 Prohibits advertising on vehicles unless they are your own

 End is preventing distracting drivers

 The legislature can work incrementally

o Lindsey v. National Carbonic Gas (1911)

 Classifications against equal protection will be struck down if totally arbitrarly

w/out any reasonable basis

o Royster-Guano Co. v. Virginia (1920)

 Rational Basis with Teeth

 Classification must be reasonable and not arbitrary

 Must rest upon difference w/fair and substantial to relation of object of

legislation

o FCC v. Beach Comm (1993)

 Example of rollover rational basis

 Classification must have a reasonable conceived state of facts or any

plausible reason

o Heightened Scrutiny to Non-Racial Classification

 Alienage:

 Strict Scrutiny for states passing laws about aliens

 Rational basis for federal government laws

 Essential government function will pass SS for states

 Illegitimacy: Intermediate Scrutiny

 Age: Rational basis

o USDA v. Morena (1973)

 No food stamps if you were living w/non-related person

 Level of review is rational basis

 P argues that end is to assure minimal nutrition and alleviate hunger, as well as

distribution of agriculture surpluses

 Brennan believed that they were trying to break up “hippie communes”

 Unconstitutional b/c they were targeting a politically unpopular group—way to

win on rational basis

 Sex and Gender Based Discrimination

o End of 19th Century allowed gender-based laws that were meant to protect women

o Muller v. Oregon(1908): hours for women were constitutional

o Adkins v. Children’s Hospital (1923): minimum wages for women were unconstitutional

o Reed v. Reed (1971)

 Relied on Royster’s Rational Basis with Teeth

 Idaho statute concerning who would be the executor of an estate automatically

go to the male relative





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 Overruled

o Frontiero v. Richardson

 Federal statute that allowed male armed services member to claim dependency

for their wives, but made females prove that their husbands were dependent

 4 people wanted ss, but the other 5 felt uncomfortable picking that when the

ERA whose purpose was to get a level of review was being voted on in the state

legislatures

 ERA: Equality of rights under the law shall not be denied or abridged by the US

or by any state on account of sex.

o Craig v. Boren

 Can sell 3.2 beer to females 18 and older, but males 21 and older

 Classification of sex and age

 Level of review is intermediate scrutiny

 Ends: traffic safety works, but administrative convenience doesn’t

 Means: sale isn’t problem, consumption is and this is over and underinclusive

o 4 Levels of Review

 Strict scrutiny for race and national origin

 Intermediate scrutiny for gender

 Rational basis with teeth for politically unpopular group

 Rational basis for all other classifications

o Califano v. Webster (1977) (p.338):

 The Social Security Act was challenged because the manner in which benefits

were calculated advantaged women.

 The Court found that this favoritism passed intermediate scrutiny in part

because the end (remedying past discrimination) is an important governmental

purpose.

 Laws classifying based on gender pass the ends analysis of Intermediate Scrutiny

if the end is remedying past discrimination by the specific institution writing the

law.

o J.E.B. v. Alabama ex rel T.B. (1994)

 Striking jurors for b/c of sex was violation of equal protection

o Univ of Mississippi for Women v. Hogan

 Affirmative action for women in nursing by only allowing women

 End is really perpetuating a stereotype and isn’t important

o U.S. v. Virginia (1996)

 VMI was male only state school for military prep with lots of hazing

 Argue women missed out on experience and alumni contacts that their

equivalent leadership college couldn’t provide

 State argues end is creating a diverse higher educational system in the state

 State argues that the means is substantially related b/c women couldn’t or

wouldn’t do the adversative/hazing thing and the instructors wouldn’t treat

them the same and purpose wouldn’t be there



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 Both arguments collapse. Ginsburg elevates the means portion by saying that if

even 1 girl wants to go then it fails. She also says that you have to show the

actual end and not the hypothetical they made up the night before

 Scalia is concerned about this approach to the IS

 Real Difference Cases

o Michael M. v. Sup Court of Sonoma County (1981)

 Male of any age couldn’t have sex with female under 18, but the reverse wasn’t

true

 Sex classification that got IS

 End was preventing illegitimate pregnancy

 Means was guy can go to jail and woman won’t was supposed to deter

 Statute ruled unconstitutional

o Parham v. Hughes (1979)

 Only mother could bring a wrongful death suit unless father had proven

paternity in court

 Classification was between legitimate fathers and illegitimate fathers and

mothers; not sex

 Level of review was RB and statute upheld

o Geduldig v. Aiello (1974)

 Classification: Pregnant and Non-Pregnant people

 Level of Review: RB

 Statute upheld

o Rostker v. Goldberg (1981)

 Challenge to the Selective Service Act that only makes men register

 Classification was sex and got IS

 End: raising armies quickly and efficiently in times of war

 Means: ruled substantially related b/c the only time a draft occurs would be

during war and women aren’t allowed in combat

 Interprets the constitution by relying on a policy that is arguably

unconstitutional

o Nguyen v. INS (2001)

 Same classification as Parham

 Passes rational basis

o Personnel Administrator v. Feeney (1979)

 Preference for vets so facially neutral and got RB

 98% of the impact benefited were men

 Washington v. Davis for sex discrimination must show intent

 Other Classifications

o Wealth

 San Antonio Independent School District v. Rodriguez (1973)

 Property taxes in wealthly neighborhoods had better schools

 Wealth or lack of it is not a suspect or quasi-suspect class



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 Not saddled w/disabilities or politically powerless

 US v. Kras (1973)

 Too poor to go bankrupt

 Court says it’s still not suspect, they should just save money to pay filing

 M.L.B. v. S.L.J. (1996)

 Mom lost parental rights and couldn’t afford the appeal

 Fundamental right was at stake

 Got parental rights back, but still didn’t get suspect classification

o Physical or Mental Disability

 City of Cleburne v. Cleburne Living Center (1985)

 Denied permit to allow home to be built for mentally disabled

 Immutable characteristic

 Not a suspect class b/c the disability may be relevant or fair criteria and

they aren’t politically powerlessRB

 City lost b/c end was really to keep the disabled away like in the Moreno

b/c picking on a politically unpopular group

o Sexual Orientation

 Watkins v. US Army (1989)

 Panel ruling was reversed and vacated

 2 of 3 panel judges wanted SS

 Homosexuals in the Army

 They made army reinstate b/c they had let him in several times knowing

his orientation

 Part of the problem is that homosexuals are often wrapped up in the

criminal aspect b/c of statutes making homosexual sodomy is a crime in

many states

 3 Factors in Determining Suspect Class

 History of purposeful discrimination

 Discrimination embodies a gross unfairness inconsistent w/ideas of

equal protection

 Lacks effective political representation need to protect itself from

prejudice

 Romer v. Evans (1996)

 Doesn’t allow orientation to be considered a class

 Court says level of review is a RB

 Baehr v. Lewin (1993)

 Hawaii adopted ERA

 ERA coupled with rulings in Loving made it unconstitutional for state to

ban

 Voters amended constitution to avoid having to comply with ruling

 Baker v. State (1999)



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 Vermont ruled same-sex couples must be entitled to the same rights

and privileges as different-sex couples

 Goodridge v. Dep of Public Health (2003)

 Decided on RB

 Mass statute banning was ruled unconstitutional

 In Re Marriage (2008)

 California statute banning gay marriage overruled

 Classification: Sexual orientation, not sex

 Ruled on IS

 Protecting Fundamental Rights: The 2nd way to get strict scrutiny under the Equal Protection

Clause

o Introduction

 Baron v. Baltimore

 The Bill of Rights only applies to the Federal Government

 Still basic law, but over time the Court has incorporated many of them

into the 14th amendment along with rights with no textual support like

marriage, procreation, and privacy

 Slaughterhouse Cases (1873)

 Louisiana statute forbidding all slaughterhouses but one in the city

 Seen as a business monopoly

 P & I Clause argument fails and is essentially buried

 They limit P & I to:

o Right to travel w/in the US

o Right to use federal agencies

 Due Process Violations

o 2 Locations of Clause

 5th Amendment that applies to the Federal Government

 14th Amendment that applies to the States

o 2 Types of Due Process

 Procedural: focuses on not being able to deprive life, liberty, or property w/out

the process. Depends on 3 factors

 Harm

 Benefit

 Cost

 Substantive: evaluation of the act of deprivation according to the law

 If violation of a fundamental right, it violates clause even though there

was no defect in the process

 What are these fundamental rights? We don’t know. The 9th

amendment tells us that there are some. SC does not find new ones

very often

o Incorporation of Unenumerated Rights into the 14th Amendment



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 Palko v. Connecticut (1937)

 Statute would allow state to appeal and put a D in double jeopardly

 Issues is whether Bill of Rights should be incorporated into due process

of 14th

 Rule of Selected Incorporation

o Rights implicit in the concept of ordered liberty will apply

against states through due process of 14th

o Right must be a principal of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental

 Adamson v. California (1947)

 Right to not self-incriminate is not implicit in concept of ordered liberty

 Justices are starting to be uncomfortable with this concept

 Black argued for Total Incorporation or that all 8 amendments are

incorporated in the 14th amendment b/c of originalism

 Murphy and Rutledge want Total Incorporation Plus or all of Bill of

Rights and others

 Selective Incorporation wins the day but all except the 2nd, 5th

amendment grand jury, and 7th amendment jury trial have been

incorporated

o Reverse Incorporation

 Bolling v. Sharpe (Brown companion case)

 Equal protection clause applies to feds through due process of 5th

 Skinner v. Oklahoma (1942)

 Precusor to this was Buck v. Bell (1927) that sterilized a woman b/c 3

generations of imbeciles was enough

 Lots of states had sterilization statutes

 Statute would sterilize 3-time felons

 B/c violation of fundamental right, got SS and failed

 Problem was exceptions

 Remember this is after the Nazis

o Economic Liberty

 Progression Pre-Due Process

 Contracts Clause Art. I § 10: “No state shall pass any law impairing the

obligation of contract.”

 Marshall loved this clause and used it to invalidate many state statutes

 Taney in Charles River Bridge ended the use of this for good

 P & I Clause: this argument failed as well

 Liberty of Contract and Substantive Due Process

 Allegeyer v. Louisiana (1897)

o All property must be insured

o Fails SS



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Holden v. Hardy (1898)

o Upheld Utah statute that limited mining workers to 8 hours a

day

 Knoxville Co. v. Harbison (1901)

o Upheld limiting contract for giving equal bargaining power for

employer and employee

 Lochner v. New York (1905)

o Rejected statute the forbid bakers to work more than 60 hours

a week for health concerns

o Interpret liberty of contract as a fundamental right

o Overinclusive b/c some bakers could work that much and not be

effected and underinclusive b/c other jobs might need the same

protection

o Holmes’s Dissent: Court isn’t supposed to adopt an economic

theory, like laissez-faire, that is the job of the legislatures

o Death of economic regulation until fateful 1937

 West Coast Hotel v. Parrish (1937)

o Upheld minimum wage for women b/c Roberts switches sides

o Drops level of review from SS to RB b/c liberty of contract is not

a fundamental right

 Williamson v. Lee Optical (1955)

o Okla statute forbidding opticians from making glasses w/out a

prescription

o Court thinks it’s stupid, but the legislature has right to make it

and if people don’t like it, elect new reps

 Due Process/Fundamental Rights

o 2 Examples

 Loving : Marriage

 Skinner: Procreation

o Voting Rights

 Guarantee Clause Art IV § 4: “The US shall guarantee to every state in this

Union a Republican Form of Government.”

 Luther v. Borden (1849)

 RI elected 2 governments and went to SC for this

 They created political question doctrine deferring to Congress b/c they

didn’t want to hear from them anymore

 Reynolds v. Sims (1964)

 Alabama stopped looking at census figures after 1900 and the

apportionment ratios were unconscionable

 Equal voting is a fundamental right

o “One person, one vote.”





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o Unenumerated right through 9th

o Up to 10 % deviation allowed

 Bush v. Gore (2000)

 Equal protection claim that recount is unconstitutional

 Not getting equal vote: They weren’t applying the same standard and

FA SC only gave vague instruction of look at intent of the voter

 Intent of voter failed SS

 SC should’ve remanded so FA SC could’ve fixed the vague instruction,

but they just stopped the recount b/c the FA statute was running out

but that should’ve been an issues for the FA SC

o Education Rights

 San Antonio Independent School District v. Rodriguez (1973)

 School districts were funded by property taxes

 Wealthy neighborhoods had much better schools giving better quality

of education to the rich

 Classification: Rich v. Poor which isn’t suspect class and would pass RB

 Argued Fundamental Right: equal quality education or minimum quality

of education

 Court rejected that argument and they still got RB

 End: local control of schools which was legitimate and property tax

system was rationally related

 Edgewood Independent School District v. Kirby (1989)

 Go to TX Con Art. VII, § 1 and argues that same program as above

doesn’t meet the general diffusion of knowledge essential to the

preservation of the liberties and rights of people and duty to create

efficient public schools

 They say that there must be equal funding for schools

 Plyler v. Doe (1982)

 No state funds for students not legally admitted to the US

 Children can’t be held responsible for the actions of their children

 No fundamental right of education or suspect class of illegal children

 Level of Review: Hybrid of RB and IS; logically should’ve been straight

RB

 Brennan writes opinion similar to Moreno or aggressive RB again

 Future courts say this case is confined to its facts

o Right to Travel

 Several states passed laws forbidding poor people from moving to California

during Dust Bowl and was ruled to infringe on right to travel

 Shapiro v. Thompson (1969)

 Statute denying welfare assistance unless you have a year’s residence

 B/c infringes fundamental right to travel, the level of review is SS



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 Don’t know where right to travel comes from, but know that it is a right

 Saenz v. Roe (1999)

 Statute that new residents up to the 1st year can only get the amount of

welfare, you got where you came from

 Rejected b/c of right to travel under P & I clause

 Could’ve been argued equal protection clause b/c classifies between

people that have lived more than a year and less than a year

o Privacy Rights

 Meyer v. Nebraska (1923)

 Nebraska statute forbidding teaching in any modern language other

than English. Could teach Greek, Hebrew, or Latin

 Written by McReynolds, one of the 4 horseman wrote the opinion

 Fundamental Right: Parents to control the education of their children

 Level of Review: SS

 End: want to limit activities b/c it was bad for the kids’ health to think

too much, foster a homogenous people with American ideals

 Pierce v. Society of Sisters (1925)

 Statute that everyone has to go to public school

 Cite Meyer b/c parents have right to control education of children

 Starting to develop a sphere that the gov shouldn’t be able to interfere

in

 Statutes criminalize anything related to birth control

 Bringing cases based on Meyer b/c there is a fundamental right that gov

shouldn’t interfere with

 Tileston v. Ullman (1943)

 Dismissed for lack of standing b/c doctor brought it

 Poe v. Ullman (1961)

 Dismissed for ripeness

 2nd Justice Harlan dissenting writes and gives language that is useful

o Should recognize fundamental rights and not just apply the 1st

8 amendments

o Judgment and restraint is necessary

o Liberty is a rational continuum which includes a freedom from

all substantial arbitrary impositions and purposeless restraints

and must be careful scrutiny of state needs

o Privacy of most intimate details of marital relationships

o No textual support for privacy but things in the bill of rights

seem to suggest that framers recognized this as a right b/c gov

couldn’t just come and search your house

 Griswold v. Connecticut (1965)

 Decided in way Harlan would’ve decided Poe



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 Doctor gives out info to married couples about birth control and is

charged as an accessory to using birth control

 Statute makes it a crime to use control

 There is a privacy right and extends to married couples to use birth

control w/out state intervention.

 Right comes from penumbra of the bill of rights

o Cicero invented this

 Very moderate opinion and was a compromise b/c he didn’t accept that

9th amendment gave them right to do anything

 Troxell v. Granville (2000): no fundamental right of grandparents’ visitation

 Roe v. Wade (1973)

 Is the fetus a person? Is only relevant constitutionally under the 14th

amendment because the due process protects “persons.”

 To win that a fetus is a person, you would have to argue evolutive

jurisprudence because it is fairly obvious that the framers weren’t

thinking about the unborn when they wrote the 14th amendment.

 Right of privacy: established under Griswold

 Does it include the right of woman to decide to terminate pregnancy?

Yes according to court b/c of right of marriage, procreate, education of

children

 Where does the fundamental right end? At the birth of the baby and

anything before then the statute must be necessary to a compelling

end.

 End: protecting potential life and woman’s health are big ones are at

varying degrees at different stages of pregnancy

o Health point: it’s safer to abort during the first trimester and

after that the end becomes compelling

o Life interest: becomes compelling at viability, if fetus was

separated from Mom it could survive, or at end of 2nd trimester

 Means: regulations like licensed hospitals and doctors for health issue

and can prohibit abortion unless it’s necessary to protect mother’s

health (other compelling end)

 Rehnquist’s dissent: there is no privacy right and should be rational

basis level of review

 Planned Parenthood v. Danforth (1976)

 State legislatures try to make it as hard as they can to exercise this new

right

 Required parental consent for minors

 Required spousal consent for wives

 Find that wasn’t necessary to the compelling end

 Planned Parenthood v. Ashcroft (1983)



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 Required parental consent or judicial bypass

 Found that was ok

 Akron v. Akron Center of Reproductive Health (1983)

 Required abortion to be performed in hospital

 Rejected

 Maher v. Roe (1977) and Harris v. McRae (1980)

 Does gov have to pay for poor people? No

 Not affirmative obligation

 Webster v. Reproductive Health (1989)

 Contends that the trimester system ought to be abandoned and replace

with moving viability line

 Hodgson v. Minnesota (1900)

 Affirms parental consent if judicial bypass option

 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

 Statute requirements

 Imposed 24 hour waiting period to have an abortion

 Minors had to get consent of one parent with judicial bypass

 Mother had to get approval of spouse

 Buries the trimester system

 Viability was shown to be earlier than the end of the 2nd trimester

 Pre-viability state is empowered to exercise only to extent that it does

not impose an undue burden on the woman’s right to get an abortion

 Post viability is still compelling end

 Decision

o 24 hour waiting period was and parental consent was okayed

o Spousal approval is rejected

 “A decision to overturn Roe’s essential holding under the existing

circumstances would address error, if error there was, at the cost of

both profound and unnecessary damage to the Court’s legitimacy, and

to the Nation’s commitment to the rule of law. It is therefore

imperative to adhere to the essence of Roe’s original decision, and we

do so today.”

 Stenberg v. Carhart (2000): struck down a partial-birth ban because it imposed

an undue burden on a woman’s ability to choose an abortion under the Casey

rule

 Bowers v. Hardwick (1986):

 Georgia statute prohibiting sodomy

 What’s the right and define? the right of privacy for adult consensual

activity with no money involved; made it broad and sound good, but

court buys that it is right to engage in homosexual sodomy







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 Majority finds that this isn’t a right implicit in the concept of ordered

liberty or long held in the tradition and history of the country under

Palko; therefore, not a fundamental right

 Rational basis review

o Ends: promoting morality

o Means: prohibiting sodomy

 Statute upheld

 Powell thinks this a cruel and unusual punishment problem, but agrees

with the judgment

 Blackmun says the right here is the right to be let alone

 Overruled by Lawrence

 Lawrence v. Texas (2003)

 Statute prohibiting deviate sexual intercourse with people of the same

sex

 Invites equal protection classification claim, but brought on due process

claim

 What’s the right and define it? Majority finds it to be privacy and not

the right to engage in homosexual sexual relations

 Majority uses the Casey rule: “These matters, involving the most

intimate and personal choices a person may make in a lifetime, choices

central to personal dignity and autonomy, are central to the liberty

protected by the 14th amendment.”

 Under the Bowers case, this may survive the due process challenge, but

the Court overrules it completely because it was wrong and the world

has changed.

 Is this a fundamental right? What’s the level of review?

o Not that we can tell, it seems RB.

o End: Morality alone is not a legitimate end

o He may have been saying that it was a right and get SS, but that

morality wouldn’t even pass RB.

 O’Connor concurred in the judgment but thought statute would’ve

failed due process claim, but that it failed as an equal protection claim

because it classifies and the classification doesn’t promote a legitimate

end.

 Washington v. Glucksberg (1997): no fundamental right to die









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