Constitutionalism Graglia Spring 2011
General Principles
Creation of the National Government
o Art I – Powers reserved to Congress
§8 – powers reserved to congress (clause 1), interstate commerce ( clause 3), and
―necessary and proper‖ clause
§9 – limits on congress
§10 – limits on state legislatures
o Art II – Vests executive power in President
o Art III – Vests judicial power in the Supreme Court and the inferior courts created by
Congress
§2 – extent of judicial power
o Art V – provides for amendments to the Constitution (2/3 of both houses or ¾ of states)
Divides power between federal and state governments (federalism)
o 10th Amendment – explicitly reserves power not granted to the federal government to the
states
o Article VI Supremacy Clause – establishes hierarchical relationship between federal and state
governments (federal trumps state law where they conflict)
o Dormant Commerce Clause - Limits the ability of states to impose burdens on each other
Protection of Individual Liberties
o Except for Bill of Rights, few provisions of the Constitution deal with individual rights
o Constitution‘s protections of individual liberties apply only to the government‘s actions, not
private (exception of 13th amendment which prohibits slavery)
o Bill of Rights initially only applied to federal government
Why a Constitution?
o Difficult to Change
o Broad Outline
o An attempt by society to limit itself to protect the values it most cherishes/society‘s attempt to
bind its own hands
Interpretation of the Constitution
Originalism
o View that the judges deciding constitutional issues should confine themselves to enforcing
norms that are stated or clearly implicit in the written Constitution.
o Believe that amendment is the only legitimate means of constitutional evolution
o Arguments for originalism
Nature of interpreting a document requires that its meaning be limited to its specific
text and the framer‘s intentions
Desirable to constrain the power of unelected judges in a democratic society
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Non-originalism
o View that courts should go beyond the set of references and enforce norms that cannot be
discovered within the four corners of the document
Desirable to have a Constitution evolve by interpretation and not only by amendment
because the amendment process is too cumbersome to meet the needs of a changing
society (living constitution)
Framer‘s intent is ambiguous
Nonoriginalism was intended by the framers (did not want society to be governed by
the dead hand of the past)
o Graglia – if you can‘t tell that they disallowed this policy choice, then it‘s not disallowed and
not unconstitutional
Government
Government exists for 3 main reasons
o 1. Division of Labor/Economies of Scale – in an anarchy, everyone does everything for
himself
o 2. Controlling the animalistic nature of people – protecting property rights, contract rights, etc
(and to prevent free-riding)
o 3. Prisoner‘s Dilemma – if everyone acts solely for in their own interests, everyone suffers as
a result
Democracy
o Rule of the People – in the US, it‘s a representative democracy
o Graglia is heavily in favor of democracy, even to the exclusion of individual rights
His biggest beef is with the court denying the will of the people
Courts propagate a liberal agenda never approved by the people via judicial activism
under the guise of finding a law unconstitutional
Graglia has less of a problem with a court ignoring the unconstitutionality of a law,
since at least the will of the people is being done
Federalism
o A government of divided power, with local control predominating
o The federal government is only supposed to legislate in certain well-defined, enumerated
areas, leaving the rest to the states
o Federalism as a fiction
While looks good on paper, is fundamentally unworkable – ―everyone loves
federalism except when it gets in the way‖
Idea of co-sovereigns is unworkable – definition of sovereign implies that its powers
must be greater than the other
Power over time inevitably develops into all power since everything has some kind
of impact on it
o Separation of powers really just slows down policy making
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Constitutionalism
o Why permit control of government by the dead? Why would people in a democracy set up a
government that limits their own power?
Passion v Calm-Decision Making
Hamilton argues that a constitution would be free from the whims and
passing passions of the people
Protection from mob rule
Jefferson criticized the idea of ―the living being ruled by the dead‖
Ironically the liberal response in justification of judicial review is
that we ought to have a living constitution
Better question: how do you know you‘re in a time of calm? The
Constitution was written during a time of war, after all
Better reasons for constitutionalism
Structural defects in society exist
Facilitates transactions by preventing monopolies
Partially checks special interests by instituting term limits
o Local folks like their representative because he brings
home pork, but pork isn‘t good for the rest of the country
Acts as a moral compass for guiding the passage of laws
o Graglia – rights aren‘t inherently moral
o Passage of the Constitution
Principle reasons
Remove restraints on trade
Regulate foreign trade
Provide for foreign defense
Articles of Confederation fell because they didn‘t achieve these objectives
Graglia – passage of the constitution had nothing to do with rights
Patrick Henry predicted the commerce power would become all powerful
Madison was sneaky – he bent to the anti-federalists desire for a Bill of
Rights, then wrote them all himself
Study of Law
Prediction of what a court will do
Legal right/duty cannot be defined independent of its consequences
o Law is coercion, not morality; laws essentially grant power to act, which we call a right
To distinguish between ethics and the law, we should look at the law through the eyes of a ―bad‖ man,
because he doesn‘t care for ethical norms but cares very much how an adverse judgment will affect
him
o Consequences as a result of a contract breach = the law‘s understanding that the actor does
not have a ―right‖ to engage in that activity
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Federal Judicial Power Graglia Spring 2011
Judicial Review
Article III never expressly grants the federal courts the power to review the constitutionality of federal
or state laws or executive actions.
Silence on the matter means either 1) shared understanding that the courts possess the authority for
constitutional authority or 2) assumption that courts would not have this authority
Limits of Federal Judicial Power
Article III of the Constitution defines the scope of federal court authority through limited subject
matter jurisdiction
Congress may, through statute, limit the authority of the federal courts
Substantive power is limited through Article III §2
o Cases and Controversies arising under
o Cannot issue advisory opinions
o There must be a real dispute
Authority for Judicial Review
Marbury v Madison
o SCOTUS ruled against Marbury and held that it could not constitutionally hear the case as a
matter of original jurisdiction
Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was
unconstitutional because Congress cannot allow original jurisdiction beyond the
situations enumerated in the Constitution
o Politically, Marshall knew that a ruling in favor of Marbury would be futile; the Jefferson
administration would ignore it and that would undermine the authority of the Court
o Issue I: does Marbury have a right to the Commission?
Yes, all appropriate procedures were followed
Graglia – What is a right?
A right is a legally protected interest
Natural law – making “oughts” into “ifs”(and you prescribe rather than
describe)
No rights exist outside of law – law is a description (describes how a court
will rule)
o Issue II: do the laws afford Marbury a remedy?
Yes, judiciary could provide remedies against the executive when there is a specific
duty to a particular person, but not when it is a political matter left to executive
discretion
Graglia – Marshall defines rights in terms of there being a remedy. Thus, if
the court cannot provide a remedy, wouldn’t that mean Marbury doesn’t
have a right?
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o Issue III: Can the Supreme Court Issue this remedy? Is Mandamus an Appropriate Remedy?
Courts had authority to review ministerial acts where the executive had a duty to
perform, but not political acts within the discretion of the executive
o Jurisdictional Issue
Does Mandamus on Original Jurisdiction violate Article III?
Court held that Article III enumerated its original jurisdiction and that
Congress could not enlarge it
Incorporates the doctrine of Exclusio Unius – affirmation of some is the
exclusion of others (acts like the Dormant Commerce Clause)
o Graglia‘s Criticism of Marbury v Madison
Bad Logic: Constitution list a minimum and doesn‘t say ―original jurisdiction as to
only x‖ just that it has jurisdiction over ―x‖
Indicates that Congress cannot reduce the jurisdiction, but doesn‘t indicate
that Congress cannot add to it
Example: lease that says ―you may have a cat‖ doesn‘t indicate dogs are
barred
Drafters of the constitution also drafted the Judicial Act – why would they pass a law
that‘s unconstitutional?
―Surplusage ain‘t so bad‖ – even if all this means the clause in Art III is surplusage,
that‘s no so bad because it helps drive home a point
o Marshall actually weakens the court by saying that Congress can‘t add to their power, but can
subtract from it under the ―such exceptions‖ clause
Establishment of Judicial Review
o Constitution v Laws
The Constitution is the People‘s Original Will
Graglia – true, but the constitution is amendable
Law that contradicts the Constitution is invalid because, otherwise, what‘s the point
of a binding written constitution?
Graglia – to caution the legislature. Currently, Congress can just enact
whatever it wants and have the judiciary sort it out. Without review,
Congress would be more cautious
As it stands, the judiciary takes the heat for popular support for an
act
o Justice Jackson – we are not final becausewe are
infallible, but we are infallible only because we are final
A world without the judiciary interfering would make Congress
directly accountable to the popular opinion, and that‘s desirable
Graglia – is this necessarily so? In the UK, parliament‘s enactments are
supreme and not under any judicial review
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The Constitution shouldn‘t be talismanic – popular support should
be able to overturn it
Marshall presents a false dilemma in insisting that the Constitution
can either be 1) paramount law or 2) on a level with ordinary
Supremacy Clause (Art VI) – strongest textual argument
The Supremacy Clause (while showing the constitution is real law and not
just moral exhortation) could only mean that federal law is superior to state
law
―In Pursuance of‖ – two interpretations
1. ―in the manner prescribed by‖ – which supports judicial review
as to the procedural integrity
2. Only those laws adopted after the Constitution are valid and not
those that were adopted during the Articles of Confederation
o Acts of Congress, like acts of Parliament, are the supreme
law of the land, not to be second-guessed by any court
o Arguments for Judicial Review
Marshall asks ―is an unconstitutional law valid?‖
Begs the question that presupposes the answer to ―who, according to the
Constitution, is to make the determination as to whether any given law is in
fact repugnant to the Constitution?
Graglia – clearly does not authorize the Court to make critical
judgment as to which laws were not made in pursuance of the
Constitution
Marshall states: Province of the Judiciary to say what the law is
Graglia – this blurs the distinction between ordinary judicial review and
substantive review; if two laws conflict, courts may apply the law that
controls the case but doesn‘t give them the ability for substantive review
Marshall states: Power is extended to all cases and controversies arising under (Art
III §2)
Even though procedural review of a decision upon which there are no
constitutional provisions dispositive of the question is possible, there‘s no
inherent power for the Court to execute substantive review
Marshall states: Judges take an oath to uphold the Constitution
Graglia – so does everybody else
State courts also have judicial review, so it must be OK
That‘s a moot point. The question is what the ratifiers thought. Judicial
review might have been acceptable to an extent, but what nature and scope
of review is permissible? Lack of scope leads to judicial activism.
Ultimate Control by the people will prevail through amendments
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Democracy means control right now
Might the delay be of benefit (―sober decisions?‖)
o How drunk should the people be before the courts step in?
Also a very undemocratic argument
Judicial Omniscience – Judges take a long-term view; Congress is temporal
Review hamstrings great leaders
Judges aren‘t necessarily better equipped to take a long-term view since
they come from political backgrounds – government in general should
always strive to serve both immediate and long-term needs
Appointed judiciary is analogous to other appointed policy makers
No, military is directly controlled by popular representatives, the Fed and
ICC are also criticized for their lack of popular control, but even then,
they‘re controlled indirectly through Congress by limiting budget & scope
Review has been accepted historically
Doesn‘t mean it‘s democratic, only that we adhere to constitutional
principles regardless of how undemocratic they are
o Arguments Against
Jefferson
Why should the framers be able to impose their vision on generations to
come?
Each generation should be able to come up with their own rules
This vision has not taken hold
Co-equal branches
Each of the other two branches are under the same oath of office to uphold
the constitution as the justices
What makes the Supreme Court‘s interpretation superior to that of the other
co-equal branches
Contemporary Acceptance
Popular control exists by
o Amendment
Too difficult (extraordinary majorities required can‘t be squared)
Too time-consuming
Court could interpret amendment anyway
Graglia – not likely, since the amendment would be staring them in the face
o Impeachment
Impractical (too hard to get 2/3 requirement)
o Manipulation of Personnel by Congress
Difficult to predict how judges will vote (Nixon‘s appointees ended up being raging
liberals)
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o Congressional control of jurisdiction and lower courts
Impractical, messes up judicial process, paucity of examples
The statutory limitations placed by Art III §2 aren‘t real limitations
o Example: ACLU always has cases lined up
Further Development of Judicial Power
Supreme Court‘s Authority to Review State Court Judgments
o Martin v Hunter‘s Lessee
Supreme Court can review state court decisions that rest on federal law
Art III deals with types of cases, not courts. The subject matter confers jurisdiction,
not the courts.
States do not have absolute sovereignty and are bound to obey the Constitution (Art
VI)
It is illogical to question a power by illustrating a potential for abuse – review must
reside somewhere and that power can be abused by any court.
States cannot have the last word on federal issues because state prejudices/biases
might obstruct administration of justice (history shows this – the Articles of
Confederation didn‘t work because they lacked a strong centralized government).
Necessity of uniformity in federal law.
o Limitations – Independent and Adequate State Grounds
Rule – The Supreme Court can only hear a state case to the extent that it involves
correcting application of federal law; if the case involves both a question of federal
and state law and was decided on adequate and independent state grounds, the court
will deny review since it wouldn‘t affect the outcome (and would be an advisory
opinion)
Michigan v Long (1983)
If the state court uses federal law persuasively but not relying on it, it
should state in clear terms that it has adequate and independent grounds for
its decision
Without such clear terms, SCOTUS will have jurisdiction
Michigan is a change because of the clear terms requirement – the MI court
essentially put in a line saying ―hey, by the way, this doesn‘t fit with the
state constitution either‖ in order to put it out of SCOTUS‘s reach
Limitations placed by Congress - jurisdiction
o Ex Parte McCardle (1868)
McCardle challenges his imprisonment as part of Civil War Reconstruction
provision and brought a habeas corpus action in federal courts. He appeals under a
1867 statute, but before SCOTUS responds, Congress repeals the Court‘s
jurisdiction. SCOTUS upholds the lack of jurisdiction
Represents Congress effectively controlling the Court
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Congress doesn‘t do this as often because:
Court would still get to decide the constitutionality of the act reducing
jurisdiction
―Locking the barn door after the horses are out‖
Con Law professors would complain to Congress
Judicial Activism – “holding something unconstitutional when it really isn’t”
Defeats the ideal of a democracy
o Really popular in liberal academia, though. Since most activism tends to be liberal, most
academics like the idea of the court slapping down ―bad‖ lawmakers
o Representative self-government thus continues to operate only to the extent judges permit it to
do so. American government becomes, as Learned Hand warned, government by ―Platonic
Guardians,‖ except the guardians are not philosophers but lawyers in robes, resolving
problems in a disorganized, haphazard way and operating under the embarrassment of
claiming to enforce the Constitution
Arguments for
o There are many other limitations on democracy in our system of government, even elected
representatives are subject to constitutional limitations further restricting democracy
No form of democracy, direct or representative, exists when public policy is made by
life-tenured officials not subject to electoral control
Acknowledging limitations on democracy is not an argument for judicial
policymaking but an argument against constitutionalism
o Activism supports natural law
Natural law is too flexible – the pursuit of natural justice, sound justice, social
welfare, or neutral principles may be methods of deciding cases, but they are not
methods of interpreting the Constitution
o Originalism leaves too little for courts to do; activism is around because without it, there
would be no work for the Court to do
Removing activism would result in very few judicial invalidations of popoular
choices – though must professors of con law deem it unthinkable, it‘s the ultimate
nightmare of socially and the educationally advantaged
Self-government and federalism are their most important constitutional rights and the
best protection of freedom, security and prosperity
o Using framer‘s intent is arrogant, to pretend that from our vantage we can gauge accurately
the intent of the framers on the application of the principle to specific, contemporary
questions (Brennan)
Sparse or ambiguous evidence of the original intention
To restrict it to 1789 values would ignore all social progress – too archaic – ―those
who would restrict claims of right to the values of 1789 specifically articulated in the
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Constitution turn a blind eye to social progress and eschew adaptation of overarching
principles to changes of social circumstance‖.
―Majoritarianism‖ = ―The majoritarian process cannot be expected to rectify claims
of minority right that arise as a response to the outcomes of that very majoritarian
process‖
Graglia: Enormous assumption that people are not fit to rule themselves;
―Like other defenders of judicial activism, however, he seems to view the
Constitution not as an actual document produced by actual people but as a
metaphysical entity from an extraterrestrial source of greater authority than
the mere wishes of a majority of the American people, which source,
fortunately, is in effective communication with Supreme Court justices‖
Graglia‘s arguments against:
o Using the framer‘s intent is only to state the basic premise of our political-legal system that
the function of judges is to apply, not make, the law
o The debate is not about how judges should read or interpret the Constitution, but about
whether that is what they should in fact confine themselves to doing in deciding constitutional
cases—constitutional law without the Constitution
o Brennan‘s objections could be made regarding interpretation of almost any law – if these
difficulties made the effort to determine legislative intent futile, a system of written law
would hardly be possible
o Justice Brennan‘s rapturous statements…of poetic fancy or utopian ecstasy…are the only
justification offered by him, or other contemporary defenders of judicial activism, for the
Court‘s assumption and exercise of enormous government power
No more is necessary to rebut all contemporary defenses of judicial activism than
that a copy of the Constitution be kept close at hand to demonstrate that the
defenders of judicial activism are invariably relying on something else
Bush v Gore (2000) – judicial activism can swing both ways
o Florida State Supreme Court ordered the Secretary of State to permit the recounts during the
presidential election for four counties
o SCOTUS held that counting the uncounted ballots without standards denies equal protection
SCOTUS decided the outcome of the presidential election
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Federalism Graglia Spring 2011
2 different types of constitutional issues derive from the federal form of government
1. Under what circumstances can the federal government act?
o Federal government can only act pursuant to one of the enumerated powers in Art I
o Proponents try to fit the actions into one of these enumerated powers
2. Under what circumstances can the state governments act?
o Pre-emptive doctrine
State regulation violates the supremacy clause if it interferes with national regulation
o Dormant Commerce Clause doctrine
State laws that are unduly burdensome to interstate commerce are invalid
Federalism as Fiction
Graglia believes that federalism, while looking good on paper, is fundamentally unworkable.
―Everyone loves federalism except when it gets in the way.‖
The basic problem is that one side or the other (federal v. state) has to control certain key components,
like commerce.
Power over time inevitably develops into all power since everything has some kind of impact on it.
McCulloch v Maryland (1819)
Marshall used this case to broadly construe Congress‘ powers and narrowly limit the authority of the
state government to impede on the federal government
Rule established: SCOTUS, as the ultimate interpreter of the Constitution, is fit to speak both on the
relative powers of the 3 branches of government and on the supremacy of federal over state
government
Rational Basis Test: This case interprets the Necessary and Proper Clause to mean that Congress may
use any means: (1) rationally related to the exercise of the enumerated power; and (2) not specifically
forbidden by the Constitution.
o Means-end Test – federal government can do whatever it wants to achieve a constitutionally-
sanctioned end, but it cannot be a pretext (the pretext limitation is eventually done away with
the Commerce Clause‘s ‗Bar Doctrine‘)
Issue I: Can the federal government charter a national bank?
o Maryland
Syllogism: Congressional power is limited (enumerated); The power to charter the
bank is not among the enumerated powers; therefore, the bank is not constitutional
Marshall: 10th amendment was to quiet excessive jealousies
Marshall: the power to create a bank is implied: Congress has the power to
use any necessary and proper means to achieve its ends
Necessary and Proper clause – just because the bank is a convenient means of
carrying out Congress‘s power to spend/tax doesn‘t mean it‘s necessary (ie,
essential)
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o Pro-bank (McCulloch / Marshall)
Textual arguments
10th amendment does not say ―powers not expressly granted‖ and therefore
suggests existence of implied powers. Unlike the Articles of Confederation,
which did include ―expressly‖
Graglia – weak argument, because you can always qualify
statements to strengthen it. Absurd that the 10th amendment is
used to expand federal power.
Hamilton edited out ―expressly‖
What‘s the point of enumerating if they have all power by
implication
Art I, § 10 uses ―absolutely‖ necessary in limiting states powers in contrast
to just ―necessary‖
Graglia – excellent in that it shows that necessary is a matter of
degree
Art I, § 8 – textual placement of ―necessary and proper‖ is found within the
section of enumerating powers, not setting limitations
Congress shall have power to collect taxes, pay debts… for general welfare
Graglia – that just gives Congress the power to tax, there is no
general welfare power to expand federal powers; GW is simply a
limitation on taxation
―Proper‖ suggests flexibility since it would be superfluous if necessary were
interpreted in its narrowest sense
Proper might simply mean legal – not prohibited by law
This would not be inconsistent with the ―essential‖ construction of
―necessary‖
Structural Arguments
The Constitution is a broad outline not intended to be read as a detailed list
of every government power
Graglia: there are some pretty specific things in Art. VIII, and
there is often overlap between the broad and specific – e.g.,
Congress can declare war and raise armies and grant letters of
Marque – If the Constitution is so broad, wouldn‘t those specifics
be included in the broad grant?
What enumerated powers are relevant to the incorporation of the bank?
Power to Tax
Power to Spend
Regulation of Interstate Comerce
Declare and Conduct War
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Raise and Support Armies and Navies
Great powers imply the means to carry them out
Policy Argument
Should choose a construction that is convenient and facilitates government
operation that doesn‘t run in conflict with state sovereignty
Graglia – why? Isn‘t the whole point of federalism to restrict the
federal government?
Issue 2: Can Maryland tax the bank?
o Marshall‘s rationale
Major Premise: Power to create = Power to preserve
Graglia – why doesn‘t Congress just pass a law prohibiting the states from
taxing the bank? Why should it be a Constitutional issue?
Minor Premise: Power to tax = power to destroy
Graglia – this is weak – any power can be abused; you shouldn‘t say that a
power doesn‘t exist simply because it can be abused
Graglia – Marshall might have a better stab at this if he said the tax was a
tax by Maryland citizens against non-Maryland citizens – a discriminatory
tax
Tax is enacted by a legislature that is responsible only to Maryland
citizens, and non-Maryland citizens do not have representation in
that legislature – so there is no check against legislative abuse
Therefore, the power to tax is repugnant to the power to create
Graglia – the states can and do tax federal entities today!
The correct logical result is that Congress can act to preserve it –
that you can‘t have destructive taxes on our laws. Thus, if there is
a destructive tax, Congress can step in and prevent it
o Graglia‘s counterargument
No express provision prohibits the tax, so why is it unconstitutional? There‘s no
provision, and yet it pervades the constitution.
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Commerce Clause Graglia Spring 2011
Overview
Greatest source of congressional legislative power – found in Article I, § 8 which provides that
Congress shall have the power ―to regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.‖
Four Periods:
o Gibbons v. Ogden – broad view of commerce power
o 1887-1937 – Narrow view of commerce power
o 1937-1995 – Very liberal view of commerce power
o Lopez (1995 ) – Narrows interpretation of commerce power
Presents a dilemma: a plenary power to regulate interstate commerce must include power to regulate
intrastate activities that affect it, but everything affects interstate commerce in a physically and
economically interconnected world, effectively making the power unlimited. It could therefore only be
resolved through the political process, and such questions are legislative not judicial in nature.
Two doctrines
o Affects doctrine
Dormant Commerce Clause – the federal government has the exclusive power to
regulate; the only limit on interstate commerce legislation is the ballot box
Power to regulate commerce is the authority to decide that commerce
should not be regulated, and that the states therefore should not be able to
act with regard to commerce unless specifically authorized by Congress
Graglia – isn‘t it more likely that Congress simply hasn‘t approached the
issue yet? Marshall incorrectly assumes Congress has considered every
possible regulation and decided which to keep and which to discard
Affects doctrine presents a dilemma: a ―plenary‖ power to regulate interstate
commerce includes the power to regulate intrastate activities that affect interstate
commerce, but everything affects interstate commerce in a physically and
economically interconnected world, effectively making the power unlimited
o Bar doctrine – ―Power as a pretext‖
Requires a definitional approach – Court says it won‘t look into the motive for the
law, only into whether or not Congress can regulate it as commerce
Eliminates Marshall‘s pretext limitation on federal powers –
enthusiastically accepted by Congres, which relied on this octrine to enact a
wide array of police measures
The Bar doctrine effectively does away with this limitation and allows the federal
government to use the Commerce clause as a policing power on state legislations
Gibbons v. Ogden era (very broad commerce power recognized & creation of Affects doctrine)
Gibbons v Ogden (1824)
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o Rules:
1. Commerce power is the power to regulate, to prescribe the rule by which
commerce is to be governed. It acknowledges no limitations, other than those
prescribed in the Constitution (no external limitations).
2. It does not extend to purely intrastate activity, but can be used regulate activities
that occur within the state if those activities have a commercial connection with
another state.
o Facts: NY gave monopoly to Livingston and Fulton. They licensed O to operate ferry
between NY and NJ. G was licensed to operate ferry in the same area under federal statute.
O brought suit to get an injunction to prevent G from operating his ferry. If congressional act
was valid, then G wins. Issue was whether Congress could pass a law regulating navigation –
S.Ct. said yes.
o Introduces Affects Doctrine and the Dormant Commerce Clause, and sets the foundation for
the Bar Doctrine
Affects Doctrine – power to regulate may extend to intrastate activities that affect
intrastate commerce
Dormant Commerce – Court ducks the constitutional issue of whether NY statute of
regulating an interstate activity is prohibited, but instead attacks it from the
Supremacy Clause since there was a federal statute that was on point
Bar Doctrine – States that the scope of the commerce power is subject only to
political control
The Daniel Ball (1870) – Expansion of the Affects Doctrine
o Rules: Interstate commerce is a chain – any links in the chain are interstate, even if by
themselves they are wholly intrastate (if the chain crosses state lines, all links are interstate)
Graglia – there‘s no stopping point with this, virtually all activities are at some point
in the chain interstate commerce
o Facts: Michigan steamer only operates within Michigan but carries goods that are eventually
sold interstate. Congress requires a license for transport by any vessel that transports
merchandise after October 1st of each year; can it be applied to a ship which operates entirely
intrastate?
1887-1937 (Conservative Era)
Key ideas:
o Commerce is NOT intercourse. Commerce = traffic or the final exchange (nothing
preliminary).
o Direct Relationship Test – intrastate activity must have a direct relationship to interstate
commerce to be regulated.
Development of the Affects Doctrine
o Kidd v Pearson (1888) – manufacturing not interstate commerce
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Supreme Court narrowed the definition of ―commerce‖ to relax restraints that they
shouldn‘t have placed on the states in the first place
o U.S. v. E.C. Knight Co. (1895) – direct/indirect distinction
Rules:
Congress cannot, under the commerce clause, control a monopoly in
―manufacture‖ because manufacturing is not commerce. Commerce is
buying, selling and transporting goods, whereas manufacture is the
transformation of raw goods that occurs wholly intrastate.
Established ―direct relationship test‖: To regulate an activity, the nexus
between the local and interstate activities must be a formal, qualitative one
of logical relationships, rather than an empiric, practical one of logical,
economic impacts.
Graglia - Entirely too subjective and becomes too policy-
dependant
Concerned with infringing on state authority.
Facts: Merger of sugar refineries proposed which would give control of 98% of the
sugar industry to one company. Government brought suit to prevent merger under
Sherman Anti-trust Act and the S.Ct. dismissed the action.
Decision is later repudiated by decisions concerning manufacturing simply finding a
direct effect
EC Knight takes a formalistic (decisionmaking on the basis of the meaning of words)
approach, and this definitional approach has the merit of providing a knowable and
administrable rule, unlike balancing tests
The difficulty with EC Knight is that its rule is not a good one and serves neither the
national or state interest, but rather that of the monopoly itself
o Swift & Co v United States (1905) – Stream of Commerce Theory
Rules: Pure intrastate activities are interstate if the activity was once interstate and
continue in the stream of interstate commerce
Facts: Purely intrastate agreements of meat dealers in Chicago were deemed to
violate the Sherman Antitrust Act because they affected the purchase of cattle from
out of state. The stockyards were only a temporary ―way station‖
Graglia – this ought to be intrastate commerce as in EC Knight
Effectively kills EC Knight‘s local autonomy protection, surely the
monopoly is going to control prices and sales more than this agreement
does
o Houston E. & W. Texas Ry. Co. v. United States (The Shreveport Rate Case) (1914) – basis
for the Modern Affects Doctrine – ―Substantially Affects‖
17
Rule: Congress can control the operations of railroads in all matters having a close
and substantial relation to interstate traffic. (substantial economic effects test –
looser causal connection than direct effects)
Facts: ICC set rail rates between TX and Shreveport, LA. RR charged cheaper rates
to ship within TX so goods would stay in TX. Government brought suit to enforce
ICC rates. Court said that ICC could set rates in Texas because they have a
substantial relationship to interstate traffic.
Graglia – where do you draw the line? What can‘t Congress do by this
doctrine?
Abolishment of the direct/indirect distinction
Court throws in the towel from EC Knight. Since the ICC must
control intrastate commerce to regulate interstate commerce,
distinction between direct/indirect is abolished
Why didn‘t ICC just lower the rate to avoid the constitutional quandary?
It would effectively give states control over interstate commerce
This case is not often followed until after 1937.
o Stafford v. Wallace (Stream of Commerce) (1922)
Rule: If an activity is so essential to the stream of commerce that it is problematic to
separate it from commerce, then the activity can be regulated by Congress.
However, if an intrastate activity merely affects it, then Congress may only
limit its effect
Graglia – false distinction here, because stream and affects is really
the same thing; the flow of current is simply another way of saying
that it affects commerce
Here, warehousing animals before shipment can be regulated because warehousing is
part of the stream of commerce of shipping animals across state lines.
o A.L.A. Schechter Poultry Corp. v. U.S. (Sick Chicken Case) (1935)
Rule: For an activity to be regulated, it must have a direct effect on interstate
commerce (adopts approach of Knight). Because hours and wages of Schecter‘s
employees didn‘t have a direct relation to interstate commerce, they couldn‘t be
regulated by Congress.
Graglia – wages do affect commerce, though: lower wages = lower costs =
more poultry sold
Cardozo (in concurrence) – ―proves too much‖ to find directness
here
Graglia – because all aspects of a business affect cost, to permit federal
regulation on that basis would be to permit complete regulation
Facts: National Industrial Recovery Act (NIRA) authorized President to approve
codes of fair competition (including minimum wages, maximum hours, etc.).
18
Regulation was being applied to regulate the conditions in a slaughterhouse that sold
all of its chickens intrastate.
o Carter v. Carter Coal Co. (1936) – revives direct/indirect distinction
Rule: Utilizes direct effects test. ―Direct‖ implies that the activity shall operate
proximately—not moderately, remotely, or collaterally—to produce the effect.
(Shows that nexus between regulated activity and interstate commerce must be very
close).
Facts: Invalidated Bitumonous Coal Conservation Act of 1935 that regulated the
maximum hours and minimum wages in coal mines. Violators of act taxed 13.5% of
their production. C brought suit seeking to enjoin Co. from complying with Act
because it is not constitutional.
Development of the Bar Doctrine
o Champion v. Ames (The Lottery Case) (1903)
Rule: The prohibition of commerce is within the regulatory power of Congress.
(Authorizes fairly broad police power to regulate an inherently evil item, lotteries
because they travel within interstate commerce.)
Power to regulate = power to prohibit
Permits Congress to exercise de facto police power (as opposed to
de jure)
Congress can, in effect, stand on the state line and say what may or
may not pass
Facts: C was indicted for shopping a box of lottery tickets from TX to CA in
violation of the Federal Lottery Act of 1895. C challenged constitutionality of act
and lost.
Graglia – appears Congress purported to use its commerce power not to facilitate but
to prevent interstate trade, and not for a ―commercial purpose‖ but a ―police power‖
to regulate morality
Majority answers Marshall‘s pretext limitation by citing his statement in
Gibbons that the scope of the commerce power is subject only to political
control
Dissent fears this signals the loss of the 10th Amendment – ―to hold that
Congress has general police power would be to hold that it may accomplish
objects not entrusted to the federal government‖
Effectively removed from Constitutional Law the most significant, if not the
only, judicially enforceable limitation on federal power acknowledged by
Marshall in McCulloch
o McDermott v Wisconsin (1913)
upheld the Pure Food & Drug Act, which allowed Congress to dictate labels on food
& drugs that crossed state lines (followed The Lottery Case)
19
o Hoke and Economides v United States (1913)
Unanimous court upheld the Mann Act, which prohibited moving women across
state lines
Turns not on the nature of the goods, but the purpose of the crossing
Results in expanding national power by permitting use of the bar doctrine to
control conduct in the state of destination as well as the state of origin
Federalism is now little more than an inconvenience
Congress has power over transportation ―among the several states,‖ and that
Congress as an incident to it may adopt not only means necessary but
convenient to its exercise, and the means may have the quality of police
regulations
o Hammer v. Dagenhart (The Child Labor Case) (1918) – slight contraction of the Bar Doctrine
Rule: The fact that items are intended for shipment in interstate commerce does not
subject their production to federal control. Working conditions are a matter of
intrastate concern only – they have no direct effect on interstate commerce.
Facts: 1916 federal law prohibited shipment of goods produced by child labor in
interstate commerce. Court said law was unconstitutional because it was not
regulating the products (which are harmless), but rather the hours of the workers.
Note: The Court distinguishes Champion by saying that items in that case could be
prohibited from commerce because they were inherently evil, whereas the products
here are not inherently evil.
Graglia – harmlessness is looking the wrong way; lottery tickets and young
women are not more inherently harmful than child labor
Hammer presents a stronger case – it involves interstate commerce more so
than either of those cases as it affects prices
Holmes Dissent: If a congressional regulation falls within a power specifically
delegated to Congress (here, the regulation of commerce), the fact that it has a
collateral effect upon local activities, does not render it less constitutional.
Graglia – this is a more realistic position – it‘s honest! Commerce power is
all power
Holmes was willing to endorse officially a device that he recognized
unofficially as dishonest
Note that a state cannot merely deny acceptance of shipments from child laboring
states – because that would be discrimination against interstate commerce (and a
violation of the Dormant Commerce Clause)
New Deal Changes – signaled the Court’s de facto withdrawal from Commerce Clause review
Composition of Court changes because:
o Several justices retired and FDR got to change the political makeup of the Court with his
appointees.
20
o Justice Roberts stopped voting conservatively (switch in time that saved nine) – debatable
whether the switch occurred due to political pressure from FDR‘s court-packing plan which
proposed adding a new justice for every existing S.Ct. justice who was 70 years old and had
served on the Court for 10 years.
4 horsemen of the apocalypse – the conservative justices that would reliably vote
against any New Deal Measure
Butler
McReynolds
Sutherland
VanDevanter
4 liberals
Brandeis
Cardozo
Hughes
Stone
NLRB v. Jones & Laughlin Steel Corp. (1937)
o Rule: If intrastate activities have a close and substantial relationship to interstate commerce,
they may be regulated. (Adopts test from Shreveport)
Substantial Economic Effect = pretext use = Bar Doctrine
Court purported to believe that Jones and Laughlin‘s discharge of 10 of its
10,000 employees in the middle of the Depression would result in a work
stoppage affecting interstate commerce
o Facts: NLRB regulated unfair labor practices. J didn‘t comply with NLRA because it fired
employees for joining unions. NLRB brought suit seeking to force J to comply with NLRA.
Purpose of the Act is to prevent coercion, to promote the rights of employees to
organize
Graglia - There‘s no cornucopia of rights! This is obviously a regulation of
labor relations and not of interstate commerce
The Court threw in the towel on the attempt to limit federal
regulatory abilities
o Note: Court abandoned distinction between production and commerce that dominated
conservative era.
United States v. Darby (1941) – Bar Doctrine Absolutism
o Rules:
Regulations of interstate commerce subject only to rational basis review (means/end
test).
Congress can regulate working conditions because they affect interstate commerce.
(Products made by workers who are paid less create unfair competition because they
can be sold more cheaply than goods made lawfully. Congress was trying to get rid
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of unfair competition by regulating working conditions, unfair competition is
substantially related to interstate commerce.)
Motive of Congress is irrelevant.
Looked at wages in aggregate to determine that they have a substantial effect on
interstate commerce.
o Bar Theory Approach
Darby Bootstrap (Means affecting Means):
1. Prohibit all interstate commerce activity associated with the local activity
Act in 15(a)(1) prohibits shipment of goods not made in
accordance with the Act‘s wage and hour requirements
2. Prohibit the activity itself as a means of enforcing the commerce
prohibition
Act in 15(a)(2) prohibits production of such goods, ostensibly as a
means of enforcement of the first part
o Overruled Carter and Hammer to the extent those opinions were inconsistent with this
opinion.
o Rejects idea that state sovereignty limits commerce power – says that commerce power knows
no limitations (Gibbons) and that 10th Amendment is but a truism.
Graglia – a tautology, doesn‘t help us at all to answer the question of what has been
given
o Court has withdrawn in all but name from the role of protector of state autonomy
Nominal review is worse for state autonomy than no review
Graglia – abstention from review permits questionable exercises of national
power to stand; nominal review appears to validate them
o Facts: D charged with violating Fair Labor Standards Act (FLSA) which set
minimum wage and maximum hour requirements and made it an offense to place products
made by workers who were overworked/underpaid in interstate commerce.
Wickard v. Filburn (1942) – Aggregate Affects – Affects Doctrine Absolutism
o Rules:
Court explicitly departs from bright line categorical approach in which the
nomenclature attached to an activity determined the outcome of the case (rejects
direct/indirect distinction and production/commerce distinction).
Utilizes ―substantially effects‖ test.
Court looks at actions in the aggregate to determine their effect on interstate
commerce.
o Facts: F grew more wheat for personal consumption than the Agricultural Adjustment Act
quota would allow him to grow. F challenged law as unconstitutional to avoid paying the
penalty on his excess wheat – he said it was an intrastate activity that could not be regulated
under the commerce clause. He lost.
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Post New Deal Expansion
After Darby, no piece of legislation was found to exceed the scope of commerce clause authority until
Lopez – even civil rights legislation (i.e., 1964 Civil Rights Act) and criminal regulations were passed
under the commerce clause and found to be constitutional.
3 ways Congress can exercise the Commerce Power
o 1. Protect the instrumentalities (e.g., railroads, airplanes)
o 2. Regulate activities that affect interstate commerce (Affects Theory)
o 3. Regulate use of channels of interstate commerce that congress deems are being misused
(Bar Theory)
Drug Cases
o US v Sullivan (1948) – Expansion of Bar Theory
Facts: Sullivan bought a large bottle of pills from a wholesaler in Atlanta who had
obtained them from Chicago; bottle was labeled as required by FDCA of 1938 when
it entered Sullivan‘s store, but he transferred twelve pills from the one thousand pill
bottle to a small pillbox for sale to a customer; Court held the Commerce Clause
authorized Congress to regulate the contents of the label Sullivan placed on the new
container
Court applies same bar theory as in McDermott, saying it is essentially the same case
even though Sullivan is a secondary receiver where McDermott was a primary
receiver: because the pill once crossed state lines, Congress could regulate it
Court relies on the ‗ease of inspection‘ argument, but it doesn‘t really apply.
The original container is still there.
Huge expansion of commerce power in that it controls products that once
crossed state lines
Graglia – Affects doctrine probably a more forceful argument than the Bar Theory
Not labeling gives the druggist a competitive advantage, thus affecting
interstate commerce
Labels are designed to prevent people from taking them improperly – if
someone takes them improperly because there isn‘t a label, gets sick, and
can‘t work, it affects interstate commerce – regulation is to protect
consumers
FDA doesn‘t make this argument because it would give the game
away to argue that inadequately labeled pills affect health, which
affects production and consumption, and thus affect commerce
Temptation to use Bar Doctrine was too irresistible
Criminal Law
o Scarborough v United States - Bar Theory
Facts: Scarborough possessed, perfectly legally, a gun; he then committed a felony, a
drug offense, and continued to possess a gun; but now it‘s a gun possessed by a
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felon, which violates a statute; the Court says the statute applies, it does not make the
possession of guns illegal—it only applies to guns that have crossed a state line, and
this gun crossed a state line, therefore it applies to Scarborough as a matter of
statutory interpretation
Bar theory only allows people to stand on the state line and say what may or may
not pass
The Court doesn‘t even question constitutionality! An extraordinary
extension of the bar theory. Court essentially says that congress can regulate
people so long as they possess something that crossed a state line.
o Perez v United States (1971) – Affects
Court upheld statute making loan sharking a crime since Congress could have
believed loan sharking affects interstate commerce because it supports ―organized
crime‖
Graglia: First real example of using the affects theory for moral ends;
typically bar theory is used; an even clearer example of how Congress is
simply controlling what seems to be ordinary crime
Rationale is that business is hurt by organized crime (by essentially stealing money,
coercing victims to commit crime to make payments, and causing legitimate
businesses to be taken over by racketeers)
Stewart‘s Dissent: Congress could nationalize nearly all crime, taking over
a core function of the states, because nearly all crime can be said to affect
business; Congress has indeed taken steps in that direction
Labor & Other regulation
o Maryland v Wirtz (1968) – Affects doctrine - Court upheld application of the Fair Labor
Standards Act, regulating hours and wages, to employees of schools and hospitals, even
though they neither shipped goods nor competed in interstate commerce; relied more on
affects theory than rational basis test: poor working conditions might cause labor unrest and
thereby ―interrupt…the flow of goods across state lines‖
Could have applied Bar Doctrine in that the schools and hospitals made purchases
from out of state
o Hodel v Virginia Surface Mining (1981)
Facts: Action brought challenging act regulating land use for mining, they must
restore the land after the land is exhausted and the mining is over. Act requires coal
miners to restore appearance of land.
Graglia: Isn‘t this purely an aesthetic purpose? How can rebeautification
have any effect? Can Congress regulate to restore beauty?
Congress doesn‘t even justify how it‘s related to Commerce; just says that it
is – All Congress has to do is cite Gibbon‘s statement that the commerce
power is ―plenary‖ and Katzenbach‘s statement on the rational basis test
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Pretend to review – worse than no review. Say they use ―rational basis‖. Worse
because instead of making no comment on it, they seem to validate it
Civil Rights Legislation
o Under 1964 Act
Extends 14th Amendment to private enterprises by use of the Commerce Clause
Title II - public accommodations title prohibits discrimination only if they
deal in out-of-state goods
Mrs Murphry exception – less than 5 guests and owner lives on
premises
Expansion of the Bar Doctrine under Sullivan by allowing federal
regulation if the food served has ever crossed state lines
Title IV – school desegregation via withholding funds
Title VI – no discrimination allowed if you receive federal funds
Title VII – employment discrimination via commerce clause (Congressman
entered sex in hopes of defeating it, but it was accepted anyway)
Ratified the Brown principle
o i. Heart of Atlanta Motel v. U.S. – challenged 1964 CRA re racial discrimination by hotel.
o ii. Katzenbach v. McClung – challenged 1964 CRA re racial discrimination by restaurant.
Utilized Wickard aggregate effects test
Formalized the adoption of the Rational Basis Test - that is, it doesn‘t matter if
discrimination (or whatever is being regulated) actually affects commerce, only that
Congress has a rational basis for believing it does
Removed the ―prisoner‘s dilemma‖ – if a restaurant served black customers, it would
lose more white business than it gained in black business to restaurants that still
discriminated. Under Title, no one can discriminate so it evens out the playing field
Title II was enacted under the ―Bar Doctrine‖ but instead of arguing that regulation
could be made because the restaurant purchased most of its food from out-of-state,
the Court unusually applied the affects doctrine
o iii. Both cases sustained the validity of the CRA as a regulation of interstate commerce.
Heart of Atlanta because discrimination by hotels burdens the interstate travel of blacks.
Katzenbach because M‘s food was sold in interstate commerce and traveled in interstate
commerce to get to M.
Pre-Lopez Discontent
National League of Cities v Usery (1976) – first time Court invalidates a Congressional act under the
Commerce Clause, but not because this was not an exercise of the Commerce power but because the
law ran into a prohibition of state immunity from federal regulation in this particular regard
o The law was overturned because it impermissibly interfered with ―integral governmental
functions of the state‖ not because the law was not a regulation of commerce
25
o The limit in this case was never applied again—always rejected, because Blackmun then
voted with the liberals in those cases! (Garcia v San Antonio Metropolitan Transit)
Constriction of the Commerce Clause
U.S. v. Lopez (1995)
o Rules:
Three categories of activities which Congress can regulate under commerce clause:
1. Can regulate uses of the channels of interstate commerce (Darby, Heart
of Atlanta). (bar doctrine)
2. Can regulate/protect instrumentalities of interstate commerce or
persons/things in interstate commerce even if threat comes from intrastate
activities (Shreveport Rate) (Instrumentality = highways, RR, trains, ships,
airplanes, etc.)
3. Can regulate activities that substantially affect interstate commerce.
Establishes new requirements for when an activity ―substantially affects‖ interstate
commerce:
Activity being regulated must be economic/commercial. (H says this is a
return to rigid, bright-line distinction from conservative era.)
Regulation must have express jurisdictional requirement that activity be in
interstate commerce to be regulated (to place a limitation on the cases that
can be prosecuted under the act).
Legislative findings re effect on interstate commerce (not required, but
Congress will better be able to establish rational basis if legislative findings
are included in the act)
Court did not overrule any prior case in Lopez because the intrusion on national
policy (eg, environmental protection) would be too great and unwanted
Court maintains endorsement of bar doctrine
Court suggested a substantiality limit on the affects doctrine, but it made no
attempt to explain how substantiality is to be determined other than by a
purely ad hoc judgment
o Facts: Lopez was a 12th grade student who was convicted for violating the Gunfree School
Zones Act of 1990 which prohibited persons from knowingly carrying firearms in school
zones. Lopez challenged the constitutionality of the Act and had his conviction reversed.
o Kennedy/O‘Connor concurrence: Troubled by bright-line rule and the imprecision of content-
based boundaries. Says that there is a need for stability in commerce clause jurisprudence so
Congress knows what it can pass. Says this law fails because it does not have a strong
enough identification with or connection to commercial concerns that are central to the
commerce clause.
Graglia – distinction between traditional state concern and national concern is
meaningless – the horse has long left the stable
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What Kennedy seems to want is a requirement in the statute that someone or
something at some point to have crossed a state line (the bar theory)
It would surely be enough for him that Congress ―find‖ that the regulated
act affects commerce. If the incantation of the magic words ―in interstate
commerce‖ appeared, majority would have lost both votes
In other words, he says the court has a role in protecting federalism, but that the
majority opinion shouldn‘t raise hopes that it will
o Thomas concurrence: Rejects ―substantial effects‖ test because the other duties listed in
Constitution would be superfluous if Congress had the power to regulate any activity
substantially affecting interstate commerce
Graglia – this is a return to the EC Knight definitional approach – that production
isn‘t commerce
Unlikely the framers‘ intent – their concern for federalism was less than
their concern for effective national control of commerce
Substantial affects is really the point of the Commerce Clause otherwise it
would be meaningless
The intended scope of commerce power is uncertain, and it is not a proper
basis for judicial invalidation of legislative action
o Graglia says that Court seems to be demanding more than a rational basis in Lopez. Says that
it wants proof that Congress actually believed there was a substantial effect on interstate
commerce, not just that they could have believed.
Court doesn‘t overturn or even criticize its previous decisions, and those decisions
long ago gave Congress the de facto police power
Lopez only means that the omission of a few trivial words invalidated the act; the
court indicates an apparent indication to undertake serious review of commerce
clause legislation under the affects theory, but it is unlikely that it will be able to
muster five votes if the ‗magic words‘ are included
o Steven‘s dissent – states that as an ―article of commerce‖ guns can be regulated via the bar
doctrine, and because of their ―harmful use‖ in restraining commerce, could also be regulated
under the affects doctrine
He did not undertake to explain how this analysis could fail to make virtually any
regulation valid under the Commerce Clause
o Souter‘s dissent – waver between realism and pretense
Advocates against judicial activism, ironically (invalidating policy choices that the
Constitution does not clearly prohibit)
o Breyer‘s dissent (main dissent)
Uses the hyperbole ―well within the scope of the commerce power‖
Graglia – what, then, is not well within it?
27
His entire opinion is a paradigm, if not a parody, of conventional legal
argument
Never responds to the majority‘s concern, which is, if Congress can regulate guns
near schools because they affect education, what‘s to stop them from regulating
education itself, making nonsense of the idea of enumerated powers
US v Morrison (2000) – Deals with prohibition by federal law to stop gender-motivated violence; court
finds the law unconstitutional because ―it has nothing to do with commerce or any sort of economic
enterprise;‖ ―no better example of the police power, which the Founders denied the National
Government and reposed in the States;‖ ―commercial effects are too attenuated, and therefore won‘t be
aggregation‖
o Rule: Noneconomic activity based on a cumulative impact on interstate commerce is not an
enumerated power of Congress because it does not substantially affect it.
o Other argument: plaintiffs contend statute is based upon Section 5 of the 14 th Amendment and
the Commerce Clause
Court: Civil Rights Cases explicitly limit Congress‘s powers under the 14 th
amendment to state actions; not that of private individuals
o Here we find that the Court has shown Lopez was not a fluke—the Congressional measure is
not supported by the Commerce Clause
o The statute attempts to say that the bar theory can be used to prevent crimes, in essence, that
the government can stand on the state line and ask individuals if they will commit a crime in
their state of definition—they try to package intent to commit a crime with interstate
commerce to allow regulation
o Congress argued that it found that in the states, sex discrimination and violence has affected
commerce
Here Congress is trying to prevent individual action
Gonzales v Raich - US Congress may criminalize the production and use of home-grown cannabis
even where states approved it for medicinal purposes under the Controlled Substances Act (―CSA‖).
Majority bases opinion on Wickard v Filburn, where marijuana grown for home consumption would
affect the illicit interstate trade of marijuana, which would place the plant growth under the Commerce
Clause. Congress has the objective of preventing the interstate sale of marijuana. Question isn‘t
whether these individual marijuana plants will reach the interstate market, but it‘s whether Congress
could rationally think so. Marks a shift from Lopez and Morrison in that it embraces the rational basis
test.
o O’Connor dissent says that Lopez and Morrison have been overruled. Graglia says this is a
stretch.
Graglia said the other cases relied on non-commercial activities – significant
distinction
Lopez and Morrison – effective rejection of the rational basis test.
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Whether congress can rationally think the regulated activity substantially
effects commerce
Morrison and Lopez case – judicial question, not rational basis test
Raich completely ignores Lopez and Morrison and goes back to rational basis test
o Scalia’s Concurrence says that when something is being regulated, not because it is
interstate commerce, because the activity effects… then congress can regulate things that
effect commerce not just because of the commerce clause but also because of the ―Necessary
and Proper‖ clause.
Graglia‘s summary on Lopez, the Commerce Clause, and Federalism
o Lopez struck down future Commerce Clause cases in which 1)activities had nothing to do
with commerce; 2) there is no express jurisdictional element (ie, no reference to anything
crossing state lines) and 3) the effect is attenuated and too removed from the activity
Graglia – what is the relevance as to whether or not something crossed state lines?
That would be an absurd extension of the Bar Theory
o Lopez only means that the omission of a few trivial words invalidated the act; the court
indicates an apparent indication to undertake serious review of commerce clause legislation
under the affects theory, but it is unlikely that it will be able to muster five votes if the ‗magic
words‘ are included
o The court ought to abandon judicial review under the commerce clause because:
1. Review for federalism is fundamentally different from review for individual rights
It is one thing to say a law violates a specific provision, quite another to say
a law doesn‘t fit within such a vague concept as commerce
Federalism review is unnecessary because there is a clear nonjudicial means
of preventing or remedying unwarranted federal intrusions on state
autonomy – election of federal representatives
2. Unrealistic to think that the Court can place real limits on the commerce power by
tightening the affects doctrine.
Tightening the rational basis test would only result in more legislation
utilizing the bar theory (and thus even less intellectual honesty by the court,
as the court has shown no inclination to question the bar doctrine)
3. Principled limits cannot be drawn, since the power to regulate commerce
necessarily mean the power to regulate things that affect it and all things affect it to
some degree – no review would be the end of the ―embarrassing charade‖ that is
rational basis review
Honesty and openness in a government‘s institutions are desirable as a
means of maintaining the public‘s trust
Better (more ethical) training of lawyers because they wouldn‘t have to
learn how sneaky constitutional federalism is
29
o The court would cease to give legitimacy to congressional acts via the rubber stamp of the
rational basis test (puts responsibility for expansion of federal power where it belongs –
squarely on Congress)
As it stands, Congress doesn‘t care – they just leave the ultimate decision to the
court. Congress has no incentive to meet their constitutional responsibility
The court then ‗defers‘ to a nonexistent legislative judgment, and so federalism is
considered at neither stage.
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Dormant Commerce Clause Graglia Spring 2011
Occurs when 2 events coalesce
1. A state regulates interstate commerce
2. Congress has not preempted the state regulation by federal legislation
General Notes
In applying this doctrine, the Court often defined ―commerce‖ narrowly so as to relax restraints, when
it saw fit, that it had no warrant in putting on the states in the first place
Justifications for the Dormant Commerce Clause
o Historical – framers intended to prevent state laws that interfered with interstate commerce.
A key impetus for the Constitutional Convention was the absence of any federal commerce
power under the Art of Confederation; framers meant to prevent protectionist state legislation
o Economic – economy is better off if state and local laws impeding interstate commerce are
invalidated. If 1 state enacts protectionist measures, other states would retaliate, stifling
interstate commerce
o Political – states and their citizens should not be harmed by laws in other states where they
lack political representation (McCulloch)
Arguments against
o Mainly textual – the drafters could have included a provision prohibiting states from
interfering with interstate commerce
Restrictions exist in other areas (to include some is to exclude others):
Art IV § 2 – limits the ability of states to discriminate against out of staters
with regard to privileges and immunities
Art I § 10 – restrictions on state power – limit on interstate commerce
regulation not one of them
o If states do unduly restrict interstate commerce, Congress can invalidate these acts
Not a task for an unelected federal judiciary
Rooted in separation of powers and federalism
Gives deference to elected legislature
Reduces judicial interference on state actions
Establishment of the Dormant Commerce Clause
Gibbons v Ogden (1824)
o Relying on Gibbons dicta, Court upheld state regulations that had an impact on interstate
commerce, so long as they were to improve the health, welfare, safety, or morals of the state
polity
o They were classified as a state‘s exercise of its Police Powers – and were treated as valid in
the absence of some conflict with federal law
Willson v. Black Bird Creek Marsh Co (1829)
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o Court considered whether a state could construct a dam that obstructed an interstate
waterway. Court rejected the challenge by the owner of a federally licensed ship because
construction of the dam was a permissible exercise of the state‘s police power
Shortest opinion written by Marshall
o Marshall concedes that state could sometimes affect interstate commerce as an incidental
consequence of its exercise of its ―police power‖
The License Cases (1847) – Taney Court – denounces notion of ―dormant commerce clause‖
o A group of cases involving state liquor licensing, where state laws were passed for the
purpose of discouraging liquor use and prohibiting their sale in small quantities and without
licenses
o Taney says it is a regulation of interstate commerce, but ―the State may nevertheless, for the
safety or convenience of trade, or for the protection of the health of its citizens, make
regulations of commerce for its own ports and harbours, and for its own territory; and such
regulations are valid unless they come in conflict with a law of Congress‖
o Taney essentially says there is no dormant commerce power; the states are free to regulate
where Congress has not spoken (no such thing as implied prohibitions)
National v Local Subject Matter
o Cooley v Board of Wardens (1851) – Court takes middle position between the License cases
and Gibbons
Court makes a distinction between ―national‖ subject matter – where DCC applies,
and ―local‖ subject matter – where state laws are upheld
No clear distinction between what is deemed ―local‖ and what is deemed ―national‖
Allows state regulations, no matter how protectionist or how much they
interfere with interstate commerce, so long as the subject matter is deemed
local
State laws that burden interstate commerce—safety requirements on interstate
railroads—are subject to a balancing test, court decides if state interest is sufficient
Graglia: An obviously inappropriate role for the court - turns on the court
balancing between the state interest in regulating local affairs and the
national interest in uniformity
Modern Doctrine
Two types of regulation are reviewed under the Dormant Commerce Clause
o 1. Those that discriminate against out-of-staters
Regulation is valid only if the state can prove that it furthers a legitimate state
interest that cannot be accomplished by any less discriminatory means
o 2. Those that are nondiscriminatory, but exert a burden on interstate commerce
Court takes a balancing test approach
Police power/commerce power test (Gibbons)
Local/national subject matter test (Cooley)
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Central issue in these dormant commerce clause cases is whether the benefits of the
state law outweigh its burdens on interstate commerce
If a state regulation is nondiscriminatory and has only incidental effects on interstate
commerce, it is presumed to be valid
States may not discriminate against interstate commerce if
o It‘s clearly protectionist (discriminate against out-of-staters)
Graglia – presents very little problem. Congress can just issue a law that prohibits
protectionist laws and actually make it part of an exercise of the commerce clause.
Ex: Arizona cantaloupe law that prohibits state growers from packing in another
state
o It‘s not discriminating toward interstate commerce, but burden it severely through regulations
Ex: Arizona‘s law that limited number of cars on a railroad train
Ex2: Mudflap requirements on trucks that drive through the state
Uses a balancing test (see comments above)
Ex: safety of the mudflaps vs effect on interstate commerce
Liberals in the 1940s and 1950s state that court should not be
enforcing this burden restriction
Strangely enough, conservatives nowadays do not like the dormant
commerce clause. Why should the 9 justices determine something
they know nothing about? - Graglia
Philadelphia v New Jersey (1978) – Court voids NJ law preventing out of state waste from entering
state
o Why is the Court doing this? Graglia doesn‘t agree. Graglia claims that this isn‘t really
protectionist.
Dormant Commerce Clause and Scalia – Scalia thinks like Taney in Lottery – that the idea of a
dormant commerce clause should be abolished except where the states are actually discriminating
against interstate commerce, i.e. they would enormously burden interstate transportation
o Graglia: All we should have is a federal statute that says the states can‘t legislate against
interstate commerce, and avoid all of this quibbling
o Thomas, Scalia, and Graglia would get out of the Cooley balancing idea as soon as possible
33
Taxing & Spending Graglia Spring 2011
Generally
Any taxing measure will have some regulatory effect (e.g., taxing liquor tends to reduce the
consumption of liquor)
Therefore, it‘s a mistake to look to what was intended by an act to determine if it is a regulation or a
tax – Congress intends all its effects
Scope of the Taxing and Spending Power
Art I § 8 – ―Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defense and general Welfare of the United States‖
For What Purposes may Congress Tax and Spend?
o Is Congress limited to taxing and spending only to carry out other powers specifically
enumerated (Madison) or does Congress have broad authority to tax and spend for the general
welfare (Hamilton)?
o United States v Butler (1936) – concerned the constitutionality of the Agricultural Adjustment
Act of 1933, which sought to stabilize production in agriculture by offering subsidies to
farmers to limit their crops. By restricting the supply of products, Congress sought to ensure a
fair price and thus to encourage agricultural production
Held the Act unconstitutional on grounds that it violated the Tenth Amendment
because it regulated production, but also held that Congress has broad authority to
tax and spend for the general welfare
Congress could tax and spend for any purpose that it believed served the general
welfare, so long as Congress did not violate another constitutional provision
Limitation on spending:
Must be national
Must be for the general welfare
The Taxing Power
Historically, there was a distinction between direct and indirect taxes, between revenue raising and
regulatory taxes, in considering the constitutionality of the tax. These hold no significance today.
Direct and Indirect Taxes
o Art I, § 2 – ―direct taxes shall be apportioned among the several States which may be included
within this Union, according to their respective numbers
o Court narrowly defined what is a direct tax and thus accorded Congress broad authority to
impose various kinds of taxes. Direct was limited to only property related taxes.
o Pollock v Farmers Loan & Trust Co (1895) – declared unconstitutional the federal income tax
on the grounds that the income tax collected revenue gained from property, so it was a direct
tax and needed to be apportioned among the states.
o Adoption of the 16th Amendment overturned that decision and provides that Congress shall
have power to collect taxes on income without apportionment among the several states
34
o Thus, unless Congress were to create a national property tax, all other taxes are very likely to
be deemed indirect and therefore are constitutional.
Regulatory and Revenue Raising Taxes
o Distinction was judicially created, however, it also no longer has any practical significance
o Bailey v Drexel Furniture Co (1922) (Child Labor Tax Case – Dagenhart companion case) –
Court declared unconstitutional a federal tax on companies that shipped in interstate
commerce goods made by child labor
Court based its decision on a distinction between a true tax and a penalty for a
violation of a commercial regulation
A tax is unconstitutional when it loses character as a revenue raising tool and
becomes a mere penalty with the characteristics of regulation and punishment
o United States v Constantine (1935) – held unconstitutional a federal tax on liquor dealers who
had violated state liquor laws.
Court based decision again on a distinction between regulatory taxes and revenue
raising taxes
o The problem with these cases is that they draw a false distinction between revenue raising and
penalty taxes. It is inherently arbitrary. A tax can be both at the same time. Additionally, it
is questionable why Congress cannot use taxes for a regulatory purpose; it is unclear what
constitutional principle allows taxes for one purpose and not the other.
o Prior to the Child Labor Case, the Court repeatedly rejected such a distinction.
Veazie Bank v Fenno (1869) – court upheld a federal tax on state bank notes even
though the primary purpose of the tax was to elminate such state notes
US v Doremus (1919) – court upheld the Narcotics Drug Act of 1914, which both
taxed narcotics and imposed extensive regulations on their sale
McCrary v US (1904) – court upheld a federal tax on colored oleomargarine
Court expressly rejected the argument that the tax was unconstitutional
because it was a penalty (designed to aid in reducing competition for the
butter lobbyists)
The Spending Power
Broad Scope of the Spending Power
o Congress may spend in any way it believes would serve the general welfare, so long as it does
not violate another constitutional provision
o Steward Machine Co v Davis (1937) – court upheld provisions of the Social Security Act
which provided unemployment compensation
Social Security is a ponzi scheme (funds generated from later investors is used
deceivingly to pay off earlier investors)
Gave states an option that they could choose to administer it themselves if they pass
an unemployment law
35
Effectively coerced them – unlike Butler, the option isn‘t to receive money
or not, but to have the law regardless of whether Alabama wanted it
Regardless, Butler states that the only limitation is ―general welfare‖ so this passes
muster
o Helvering v Davis (1937) – upheld provisions of the Social Security Act which provided old
age pension program
Court basically says that Congress can spend for the ―general welfare‖ and that what
the general welfare means is determined by Congress (and not the states, and not
the courts)
Conditions on Grants to State Governments
o The Court has held that Congress may place conditions on such grants, so long as the
conditions are expressly stated and have some relationship to the purpose of the spending
program
o Individual taxpayers have no standing to sue on behalf of the state
Frothingham v Mellon (1923) – Frothingham sues as a taxpayer challenging an act
that gives the states funds if they take steps to reduce infant mortality. Court holds
that she has no standing
Court reasons that her interest is to minute
Precluded almost all constitutional challenges by taxpayers based on
improper spending
o Oklahoma v Civil Service Commission (1947) – Court upheld a provision of the federal
Hatch Act which granted federal funds to state governments on the condition that the states
adopt civil service systems and limit the political activities of many categories of government
workers
Established that Congress has broad power to set conditions for the receipt of federal
funds even as to areas that Congress might otherwise not be able to regulate
o South Dakota v Dole (1987) – Court upheld a federal law creating a 21 year old drinking age
by withholding a portion of federal highway funds from any state government that failed to
impose such a drinking age
Emphasized that the condition imposed by Congress was directly related to one of
the main purposes behind federal highway money: creating safe interstate travel
Created a 4 part test:
Be for the general welfare
Unambiguous
Related to the purpose
Doesn‘t violate other constitutional provision
However, Court recognized that at some point, financial inducement might be so
coercive as to pass the point at which pressure turns to compulsion
36
o Pennhurst State School and Hospital v Halderrnan (1981) – Court held that Congress may
place strings on grants to state and local governments so long as the conditions are expressly
stated
Court ruled in favor the State because the requirements were explicitly stated
37
Other Powers Graglia Spring 2011
Treaty implementation
Constitution gives the president the authority, ―by and with Advice and Consent of the Senate, to make
treaties provided two thirds of the Senators present concur.‖
These treaties are the law of the land and prevail over all conflicting state laws
If there is a conflict with a federal statute, the one adopted last in time controls
o If they relate to the same subject, the Courts will always endeavor to construe them as to give
effect to both
However, they cannot violate the Constitution
o Reid v Covert (1957) – Court reversed conviction of a US military dependent who was
convicted in Great Britain without a jury trial pursuant to a treaty between the US and Great
Britain
Court rejects claim that state sovereignty and the Tenth Amendment limit the scope of the treaty power
o Missouri v Holland (1920) – upheld the constitutionality of a treaty between the US and Great
Britain protecting migratory birds
State of Missouri argues that this is a violation of the 10 th amendment; Court holds
that since treaties is expressly stated in the Constitution, it cannot violate it.
War Powers
Art I grants Congress the power to declare war and the authority to raise and support the army and the
navy
o Woods v Cloyd Miller (1948) – held that the war powers of Congress extend beyond the end
of hostilities allowing them to remedy problems caused by a war after it has ended
Facts: Law in question was a rent-control act for the purpose of controlling a deficit
of housing due to returning veterans which took effect in 1947. Hostilities in the
War had been terminated by presidential proclamation.
Court found that the law was valid under the Necessary and Proper Clause and the
War Powers Clause of the Constitution.
Foreign Affairs
Immigration and Citizenship
o Art I § 8 – empowers Congress ―to establish a uniform Rule of Naturalization‖
o Congress thus has been recognized as having plenary power to set the conditions for entry
into the country, the circumstances under which a person can remain, and the rules for
becoming a citizen
o Perez v Brownell (1958) – Court upheld a federal law that stripped Americans of their
citizenship if they voted in foreign elections
Dormant Foreign Affairs‖ Clause – implied through the treaty power, immigration power, and war-
making power
38
o Zschernig v Miller (2003) – invalidated law where foreigners cannot inherit Oregon land if
Oregon residents cannot inherit land in those countries
Congress has not exercised its powers to invalidated the state‘s ability to enforce this
law, but the Court has through judicial activism
o American Insurance Association v Garamendi (2003) – Court invalidated California law
(Holocaust Victim Insurance Relief Act of 1999) which required any insurer doing business in
CA to disclose information about all policies sold in Europe between 1920-1945
President entered into executive agreement that Germany would create a fund, and
this conflicted with what California has done
Expanded constitutional restriction on state power
Power to enforce the Reconstruction Amendments – 13th, 14th, and 15th amendments marked a profound
transition to an all-powerful federal government
39
Incorporation & P/I Graglia Spring 2011
th
Incorporation – to what extent does the 14 amendment incorporate the Bill of Rights
Selective Incorporation – piecemeal approach, the court looks at the right to determine if it is ―the very
essence of ordered liberty‖ (Palko v. Connecticut); if it is, then it is incorporated.
o This approach was advocated by Cardozo and Frankfurter.
o Court adopts this approach.
Total incorporation – 14th amendment incorporates Bill of Rights in its entirety
o Advocated by Black
o Black said that selective incorporation gave Court too much power because it allowed the
Court to decide what was fundamental based on its own personal biases.
Today, the 1st, 4th, 5th, 6th, and 8th Amendments are incorporated. The 2nd, 3rd, and 7th are not.
Rejection of Application before the Civil War
Early in American history, the Supreme Court ruled that the protection of individual liberties in the
Bill of Rights applied only to the federal government, not to state or local governments
Individual Rights in the Constitution
o Art I § 9 – Limits on federal legislature
Privilege of Writ of Habeas Corpus
Prohibition of Nobility
No Bills of Attainder – legislature can‘t condemn individuals
No Ex Post Facto Law – legislature can‘t enact a law after the fact
o Art I § 10 – limits on states – much fewer than on federal
No Bills of Attainder & No Ex Post Facto Law
No law impairing the obligations of contracts
o Art III § 3 – Limits on the Judiciary
All trial crimes—surely meant only federal crimes, except impeachment
Treason requires two witnesses or an open confession
Punishment for treason limited to killing the guy
o Art IV § 2 – Privileges and Immunities – out of staters have the same privileges and
immunities as those of this state
Permissible discrimination – in-state tuition based on fairness
o Art VI, ¶3 – no religious tests for qualification for public office
Bill of Rights
o Madison (a fox if there ever was one – agreed to put in a Bill of Rights to appease the anti-
federalists, but then wrote/edited it himself)
Initially, he wrote in the Federalist papers that the Bill of Rights wasn‘t necessary,
and that Federalism was the ultimate protection because it limits the government‘s
power
40
To have such a provision would imply the government could impose
restrictions if the provision weren‘t there
For example, he took out the word ―expressly‖ from the 10 th amendment,
leading to an expansion of federal power such as the Dormant Commerce
Clause
The view of most people in Congress was that there were more important things to
do (such as getting the government going), and that drafting a bill of rights was
something petty but needed to be done just to satisfy the anti-federalists
o The Bill of Rights are mere aphorisms
1. Free Speech, Religion, Press and Assembly (Substantive)
2. Right to Bear Arms (Substantive)
3. No Quartering Soldiers (Pointless)
4. Search and Seizure (Criminal)
5. Catch-All (Mostly Criminal, except E)
A. Grand Jury Indictment
B. Double Jeopardy
C. Self-Incrimination
D. Due Process
E. Takings without Compensation
6. Right to Jury Trial for Criminal Matters (Criminal)
7. Jury Trial for Civil Matters over $20
8. Cruel & Unusual Punishment (Criminal)
9. & 10. Don‘t protect any individual rights
Barron v Baltimore (1833) - Barron sues because he claims the city of Baltimore took his property
without compensation in violation of the 5th amendment; Court says 5th amendment (and all the
others) only apply to the federal government—the prohibition on taking property without
compensation does not apply to state actions
o Marshall says, ―the constitution was created to establish the national government‖—it follows
that restrictions on governmental power would apply to the national government
Marshall says that if the people wanted the restrictions for their state governments,
they could have put them in their state constitutions.
Plaintiff points out, that‘s not so—namely, Article I, Section 10 puts restrictions on
the state governments—an answer to the Hamilton/Madison argument that there are
few protections on individual rights in the Constitution
o Textual argument – Graglia agrees with this
In the body of the Constitution where it refers to the states (in Article I, Section 10),
it specifically says ―no state shall …‖ while the rest of the document refers to the
federal government without specifically saying so
41
Also, some but not all of the same things appear in Sec. 10 that appear in Sec. 9,
which seems to indicate that a different set of rules apply to the states
Therefore, general language only applies to the federal government—very clearly
their approach was, when it‘s stated as a restriction without general limitation, it
applies only to the feds; when it specifically states that the states have that power,
then they do
o Therefore, if the framers of the 5th amendment wanted it to apply to the states, they would
have done so in plain, unambiguous language.
However, Graglia points out that nowhere in the 5th amendment does it state
explicitly that it‘s limited to the Fed Gov‘t, while the 1st Amendment does make this
distinction where it‘s applicable only to the Fed.
Graglia on takings: Whenever government acts, it rearranges rights (even if it helps
some people and doesn‘t hurt anyone else, the parties not helped are relatively worse
off). When should it make an injured party whole? (Graglia thinks this is one of the
most fascinating questions in law)
Post Civil War Enactments
13th Amendment
o The 13th Amendment, passed in 1865, bans slavery in the US and gives Congress the power
to enforce it w. appropriate legislation.
o NOTE: the 13th Amendment does NOT require ―state action‖
Civil Rights Act of 1866
o The following year, Congress passed the Civil Rights Act of 1866, which granted citizenship
to all persons born in the US (excluding Indians) and granted all citizens ―the same right to
make and enforce contracts, sue, give evidence, acquire property and to the full and equal
benefit of all laws…for the security of property and persons as enjoyed by white citizens.‖
o The Act was intended to protect what were considered at the time to be ―civil‖ (K, property,
access to courts) as opposed to ―political‖ (voting) or ―social‖ (non-discriminatory access to
private businesses) rights.
Vetoed by Johnson on grounds that it didn‘t relate to the slavery objective of the 13 th
amendment
Why it is constitutional? Based on McCulloch, powers are to be broadly interpreted.
Congress can use any legitimate means to achieve the ends. To prohibit these rights,
it could be seen as an enforcement of the vestiges of slavery.
Why is it unconstitutional? Not on its face directly related to slavery. Radical
Republicans angered, but did not appeal because they didn‘t want to leave the
decision to the same court that decided Dred Scott.
th
14 amendment
42
o Because of doubts regarding the constitutional power of Congress to pass the Civil Rights Act
of 1866, Congress debated and ultimately drafted the 14th Amendment, which has become the
centerpiece of modern constitutional civil rights jurisprudence.
Gives Congress the Power to enact legislation
Makes the provisions of the 1866 Act part of the Constitution
But the 14th amendment doesn‘t look like the 1866 act because the
Radical Republicans enacted their whole agenda with the 14th amendment
o 3 main restrictions on states:
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens
No State shall deprive any person of life liberty or property without due process of
law
No state shall deny any person equal protection
o Thaddeus Stevens, the leader of the House, wanted to make an amendment ban racial
discrimination outright, but that would have forced them to give the right to vote to blacks –
many (even from the north) thought that was too radical
Republicans were afraid in the coming election that if they adopted this amendment
which meant the states could not deny the vote to blacks, that would be a serious
detriment to the party
o Redefines ―citizenship‖ (all people born or naturalized in the U.S. are citizens of both the
U.S. and the state where they reside – dual state and federal citizenship); States can‘t make
laws abridging due process, equal protection, or privileges & immunities (major crux of Con
Law)
Reduces headcount for elections by number of people who can‘t vote (designed to
prevent the South‘s population from increasing for election purposes since blacks
aren‘t counted as 3/5 of a person anymore)
Slaughterhouse Cases (1873) & The Privileges and Immunities Clause
Action was brought by slaughterhouses challenging a Louisiana statute that gave one company the
exclusive right to slaughter in the New Orleans area. They claim 13 th amendment violations and 14th
amendment privileges & immunities, equal protection, and due process violations
Rules
o Interpretation of civil rights amendments limited to historical antecedents (only purpose is to
emancipate and give rights to black Americans)
o Citizens of U.S. do NOT have fundamental rights that cannot be infringed under the
privileges and immunities clause. Privileges and immunities clause only protects rights
specifically enumerated as protected by federal government in Constitution (very narrow
interpretation).
13th Amendment, Equal Protection, and Due Process violations
43
o Court holds that 13th amendment only applied to slavery, equal protection is only race-based,
and due process isn‘t an issue because state-enacted monopolies are not a deprivation of
property
Privileges and Immunities
o Slaughterhouses claim this was violated because butchers are denied the opportunity to
practice their trade (denied economic privileges). Court rejected this argument.
14th was intended to protect privileges and immunities of U.S. citizens, not to protect
all rights. Privileges and immunities of U.S. citizens not specifically defined, but
court says petitioning government for redress of grievances, seeking governmental
protection while in a foreign country, running for office, transacting business with
the government, and using navigable waters are examples. (Very narrow definition
of federal privileges – dissent says that privileges = all rights existing in states when
14th was ratified and that majority‘s interpretation renders the clause superfluous
because those rights are inherent in the Constitution)
o ―All persons … are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States‖
First sentence indicates dual-citizenships of both national and state
Second sentence says that no state will deny a ―citizen of the US‖ privileges and
immunities
This means that the only privileges and immunities that cannot be abridged are those
which are within the province of the federal government. This includes:
o Graglia: textual argument is wrong
the first sentence was added later than the second, and no such discrepancy was
intended
this interpretation renders the clause superfluous because those rights are inherent in
the Constitution
Why? The privileges & immunities clause protects everything or it protects
nothing. If the court held otherwise, it would mean Congress would have
all power for civil rights and that the court would have to rule on every state
law
Thus, the privileges and immunities clause has been – and is – dead in the
water. No law has ever been invalidated because of it (except one, and it
was quickly overturned)
This is mostly because equal protection and due process have taken
up the slack
th
Dissenters read 14 amendment as a natural law provision
o Field - no statute which violates ―abstract justice‖ is valid
44
Graglia: this is another appeal to natural law. Again, the problem is who decides
what ―principles of abstract justice‖ are?
o Field - Says this act is just a grant of a special privilege, and is thus just a special interest law
Graglia: So? Isn‘t that just politics? Most laws protect one interest over another
(remember oleomargarine?). To allow the court to decide on this would be to allow
them to decide the which laws are good and which are bad (e.g., not just their
constitutional validity)
This case effectively read the “privileges and immunities clause” out of the constitution. And it
has stayed out since then. Court says nearly all privileges and immunities you have are because
of state law.
Later Cases
Saenz v Roe (1999) - Court invalidated a California law restricting the welfare benefits of new
residents for the first year of their residency in California – violation of the privileges and immunities
clause
o Doesn‘t it violate Article IV §2 re discrimination against other states
Graglia – not so much about discrimination against other states; it‘s discrimination
against citizens of California
o Privileges and immunities clause of the 14th amendment includes the ―federal‖ citizen right to
travel
45
Substantive Due Process Graglia Spring 2011
Substantive Due Process (SDP) v. Procedural Due Process (PDP)
Procedural - implies that certain procedures must be followed before a state may deprive a person of
life, liberty, or property (i.e., a person cannot be denied the right to counsel in criminal proceedings, to
jury trial, etc.).
Substantive - the concept that certain rights are so fundamental and intimately connected to liberty that
the state cannot deny a person the enjoyment of those rights without a compelling reason (i.e.,
Lochner said that freedom of contract was protected by SDP)
SDP is an oxymoron
14th amendment marks the first time that ―due process‖ is used in place of ―law of the land‖
o Also note that due process (and equal protection) in the 14 th amendment apply ―to persons‖
(not citizens) so there is not the same problem that existed with privileges and immunities in
The Slaughterhouse Cases
Requires that laws be reasonable and grounded in ideas of ―natural law‖
Early precedents for SDP
Calder v Bull (1798)
o Facts: Connecticut passes a law after a hearing on a will which altered the outcome of probate
(will declared invalid CT passes law that declared the will valid property involved goes
to Calder instead of Bull); suit by Calder brought claiming this violates the ex post facto
provision of the Constitution
o Law is upheld – ex post facto only pertains to federal government, not states
o In dicta, Justice Chase indicated a willingness to invalidate legislation that violated natural
rights, even though such rights were not found explicitly in the Constitution. He said that the
people delegated power to the federal government but assumed that the government was
bound by natural law (inalienable principles that couldn‘t be changed by legislatures). These
natural law principles implicit in the Constitution overrule a flagrant abuse of legislative
power.
The US is the most natural-law accepting country. Founded on the Declaration of
Independence ―inalienable right granted by the Creator‖.
The big problem (as Justice Iredell – a positivist – says in his concurrence) is that a
natural law standard can support any position – it is not a fixed standard. Counters
Chase‘s discussion of natural law. No agreement on Natural Law. No fixed standard
for natural law.
Murray v Hoboken Land & Improvement (1855) – Held that the legislature cannot adopt just any law
and more than just the ―mere will‖ of congress is needed
o Due process does restrict the government
o Procedure also must be fair. Fair means there must be notice and a hearing; made it into a
natural law type restriction
46
The restraint is on the substance of laws, not just the procedures of how they‘re
enforced
o Created a 2 part test
1. Check if the law conforms with the constitution
Graglia – renders the 5th amendment redundant if judicial review is based
on Art VI
2. Check if the law conforms with settled usage and mode of English statutes and
common law?
Graglia – why would you freeze the law to 1791 standards and why should
American law be tied to British laws?
Incorporation
14th amendment unconstitutional because it was ratified through coercion.
o Southern states were not allowed to fully participate in the union without ratifying it
Munn v Illinois (1877) - court upheld against a due process challenge of Illinois‘ regulation of grain
storage rates, concluding that governments could regulate private property when it is ―affected with a
public interest‖ or ―used in a manner to make it of public consequence and affects the community at
large‖
o Court made a comment that if you‘re unhappy with the regulation, go re-elect your
representatives
Mugler v Kansas (1887) - written by Harlan (one dissenter in Plessy v Ferguson, wrote lottery case)
o Court upheld a Kansas law prohibiting alcoholic beverages
o Harlan threw in that laws having no real or substantial relation to a state‘s legitimate police
powers would be struck down (a pure natural law approach)
Allgeyer v Louisiana (1897) – First time state law is invalidated on SDP grounds
o Rule: Liberty embraces the right of the citizen to be free in the enjoyment of all his faculties,
to live and work where he will; to earn his livelihood by any lawful calling; to pursue any
livelihood or avocation, and for that purpose to enter into all contracts which may be proper,
necessary and essential to his carrying out all these purposes. (Broad reading of liberty)
Nothing wrong with the procedure of the law, but ―due process‖ clause now protects
liberty/property unless the court thinks the law is ―reasonable‖
o Facts: LA made it illegal to purchase insurance from out of state. Allgeyer was convicted
under this statute and claimed that it violated his 14 th Amendment rights by infringing on his
economic liberty.
Twining v New Jersey (1908) – Court held that 5th Amendment‘s Self-Incrimination provision was not
included as part of the 14th Amendment‘s Due Process provision (Incorporation)
o Facts: The case involved two men charged with fraud in New Jersey who claimed 5th
Amendment protection and refused to testify during their trial. The jury was told of the men's
refusal to testify, and the men were convicted. They appealed, arguing that the instructions to
the jury violated their 5th Amendment privilege to not incriminate themselves.
47
o This case provides an early explanation of the Doctrine of Selective incorporation, in which
some but not all of the Bill of Rights is applied to the states by incorporating into the 14th
Amendment's due process clause.
Justice Moody in dicta indicates support of the notion of ―natural rights‖
Palko v Connecticut (1936)
o Facts: Palka had been charged with first-degree murder but was instead convicted of the
lesser offense of second-degree murder. Prosecutors appealed and won a new trial, in which
Palka was found guilty of first-degree murder and sentenced to death. Palka appealed, arguing
that the Fifth Amendment protection against double jeopardy applied to state governments
through the Due Process Clause of the Fourteenth Amendment.
o Cardozo held that the Due Process Clause protected only those rights that were "of the very
essence of a scheme of ordered liberty" and that the court should therefore gradually
incorporate the Bill of Rights onto the States as justiciable violations arose, based on whether
the infringed right met that test.
Appeals to natural law
Palko has since been reversed by Marshall in the Bentham v. Maryland case, so now
the state can‘t appeal and try him again
Graglia: That‘s not because the double jeopardy clause was incorporated,
it‘s not the double jeopardy clause—it was just the view of the 60s, society
is the criminal
Incorporation gives them more language to work with, that‘s all
Adamson v California (1947)
o Facts: Adamson was charged with first-degree murder but chose not to testify on his own
behalf because he knew the prosecutor would impeach him with questions about his prior
criminal record. Court held that self-incrimination protection under the Fifth Amendment
was not incorporated as part of the 14th Amendment
o Note: The court decides that the 14th amendment does not extend the 5th amendment to the
states; it does, however, say that due process means the defendant should get a fair trial
o Black‘s dissent
Argues for total incorporation of the Bill of Rights
He waffles a bit here, indicating that the 7th amendment probably doesn‘t
apply, but if he concedes that, he‘ll arrive at the ―natural law‖ that he
loathes
o Graglia - How can the due process clause incorporate itself? (Both the 14 th and 5th contain the
terms ―due process‖ – it‘s kind of silly to say ―due process‖ = ―double jeopardy‖ when the
two are right next to each other in the 5th [implying they mean different things]? If full
incorporation is meant, why was it not done expressly? Those very things appear in the 5th
itself!
48
Why would the states do this to themselves (in ratifying the 14 th)? This isn‘t what
the meant – they just thought they were helping blacks
Duncan v Louisiana (1968) – incorporated 6th amendment
o The court held that a jury was a fundamental right (―fundamental to the American scheme of
justice‖) and qualifies for due process protection in serious criminal cases
In essence, the court takes the Palko court approach to selective incorporation, based
on natural law concepts
By this time, almost all of the Bill of Rights had been extended (and then some)
o Graglia – the court‘s logical fallacy in syllogism
Major premise: Due process requires all things fundamental
Minor premise: jury trials are fundamental
Conclusion: 6th amendment jury trial is required by due process
Error: Logically, they should have concluded that ―jury trials‖ are required by due
process, not 6th amendment jury trials
What‘s the difference? A 6th amendment jury carries with it a lot of details
– 12 jurors, unanimous verdicts. This error makes later decisions illogical
For instance, the 6th requires a jury for all criminal cases, but here they only
say it is required for serious (non-petty) criminal cases (seriousness being
measured by length of maximum sentence of at least 2 years)
o Black is near-gleeful; although he wanted blanket incorporation, since almost all of the Bill of
Rights has been incorporated, the effect is the same—he says he‘s fine with selective
incorporation
Graglia: That‘s policy, no more, no less—taking control of criminal procedure out
of the hands of the states and making it a federal matter
We don‘t need federalism to protect the states from Congress—we need Congress to
protect federalism from the Court!
Economic Substantive Due Process
Slaughterhouse overturned w/r/t SDP
o Court rejected SDP in Slaughterhouse, but changed its mind at the turn of the 20 th century
regarding economic regulations because:
States were enacting a lot of regulations of economic conditions (wage controls, hour
controls, etc.) and there was a lot of pressure for judiciary to invalidate the
regulations.
Court was conservative – it had a laissez faire approach to economy and thus
opposed economic regulation. It interpreted the 14th as protective of economic
liberty.
Lochner v New York (1905)
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o Facts: Lochner, the owner of a bakery, violated NY law that prohibited bakers from working
more than 10 hours per day or 60 hours/week. He challenged the law as violative of due
process because it infringed on right to K.
o Rules
Right to form contracts is part of the liberty protected by the 14 th amendment as is
the right to purchase and sell labor. It was a violation of substantive due process.
Graglia: textually, there is nothing in the Constitution that would prevent
New York from passing this law; the states power‘s are not enumerated, and
they can do pretty much whatever they want under this general police
power (subject to constitutional restraint)
Court by using this gets the final word on the basis of whatever policy it
chooses
Every law limits liberty, classifies—if you use an ―unreasonable‖
standard that gives the Court carte blanche to do anything
This liberty can only be limited by a valid exercise of police power (law is valid if it
is fair, reasonable, and appropriate and does not capriciously or arbitrarily interfere
with personal liberty). (This is a means-end test – means must be reasonable and end
must be legitimate.)
The court‘s position is based on the phrase saying you can‘t deprive ―life,
liberty, and property, without due process of law;‖ that is, the court says
liberty has been deprived (freedom to contract) unfairly
Graglia - But is this what that phrase really means? Shouldn‘t it mean you
can‘t deprive unless the appropriate procedures have been followed? (e.g.,
procedural due process)
Court did not defer to legislative findings about the necessity of the law (shows
stricter scrutiny).
Court implied that readjustment of bargaining power between bakery employers and
employees was not a valid exercise of police power.
It‘s a union-aiding measure—a means of trying to spread employment by
decreasing the number of hours, and the Court takes the position that that‘s
not a legitimate end! It‘s anticompetitive
o Holmes Dissent: Accuses majority of embracing laissez faire economic policy (the
Constitution does not embody any economic theory). Also accused Court of substituting its
judgment for that of the legislature.
―Unless…it infringes on fundamental principles‖
Graglia claims this statement undermines Holmes‘ position. Peckham
could argue that this is a violation of fundamental principles
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―The word ‗liberty‘…is perverted when it…prevent[s] the natural outcome of a
dominant opinion‖
judicial activism – holding something unconstitutional that really isn‘t and
counter-majoritarian
o Graglia – Roe v Wade is just a modern-day Lochner
Adair v United States (1908)
o Facts: Federal law barring ―yellow dog contracts‖ on interstate railroads held
unconstitutional under 5th Amendment. (This case is relied on in Coppage.)
o Rule: The right of a person to sell his labor upon such terms as he deems proper is the same
as the right of the purchaser of labor to prescribe the conditions. The employer and the
employee have equality of right, and any legislation that disturbs that equality is an arbitrary
interference with the liberty of K.
Coppage v Kansas (1915)
o Facts: KS law prohibited yellow dog contracts (K in which employees agreed not to become
members of unions in exchange for employment). Court said that law infringed right of K
and that state must have a valid justification for such an infringement.
o Rule: Eliminating inequality of bargaining power is not a valid reason for interfering with
freedom of K because inequalities are inevitable in contract negotiations
Treated the ―liberty‖ protected by Lochner as a form of ―property‖
Enables the modern version of substantive due process to protect personal liberties
lacking property attributes while rejecting like protection to property rights
Adkins v Children‘s Hospital (1923)
o Rule: Law guaranteeing minimum wages for women violates due process (even though their
hours can be regulated under Muller).
o Rationale: Since Muller, the 19th Amendment had been adopted and the civil inferiority of
women was thus almost at a ―vanishing point.‖ (Dissent criticizes this view.) Perhaps it is
actually that regulating hours can be seen as promoting a legitimate health objective whereas
minimum wage rules only promote economic equality (which the Court doesn‘t consider a
legitimate objective of the state police power).
Decline of SDP in Economic Arena
Nebbia v New York (1934)
o Facts: NY established Milk Control Board in 1933 to fix the minimum and maximum retail
prices that could be charged for milk. The purpose of the statute was to stabilize the price of
milk to assist dairy producers (which the state said was necessary to protect health – if
producers weren‘t given a reasonable return, there might be a relaxation of vigilance against
contamination). Nebbia was convicted of selling milk for less than the minimum price. New
York law is upheld.
o Rules:
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Due process demands that the law shall not be unreasonable, arbitrary or capricious,
and that the means selected shall have a real and substantial relation to the object
sought to be obtained.
Under this rule, a state can adopt economic policies that may be reasonably deemed
to promote public welfare and protect the public interest (this right is not just limited
to regulation of monopolies).
The courts are without authority to override these policies, so long as they are
reasonable and not arbitrary nor discriminatory.
o Dissent:
McReynolds – if means has no relation to end, it‘s arbitrary
Graglia: But rarely do legislators do crazy, irrational things—the free
market tells you that if prices are too low, you‘re overproducing, so people
should go bankrupt!
Counter : But at the higher price, people will buy even less, so
there‘s even more overproduction!
Counter: There‘s some thought that they don‘t want small grocers
cutting the price of milk to protect larger retailers—how will that
help the farmer? Perhaps it will raise wholesale prices
Most expansive view of substantive due process and most willing to
intervene
Cites Meyer v. Nebraska (1919), which overturned a state
enactment that forbade the teaching in schools of any language
other than English
Scoffs at the notion that the law is not for the wisdom of the
judges—of course it is as he sees it
West Coast Hotel v Parrish (1937)
o Rules:
Liberty is subject to the restraints of due process – a regulation that is reasonable in
relation to its subject and is adopted in the interests of the community meets these
restraints.
State can enact legislation to prevent exploitation of those with unfair bargaining
power. (Contradicts Coppage.)
o Facts: Upheld minimum wage law for women (overruled Adkins). In doing so, the court
says that the Constitution does not speak of freedom of K and it refuses to second-guess the
legislature‘s justifications re the necessity of minimum wage law.
Hughes upholds the law saying that it protects the health of women from
―unscrupulous and overreaching employers‖
Graglia: Good result, totally improper reasoning—why this gratuitous
insult, moral high horse?
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The suggestion that the only check on judicial power is self-
restraint is ill-reasoned
When the question is whether something is reasonable, it‘s extremely
context-dependent—Hughes over-relies on precedent to make his emphasis
on reasonableness
o Significance
This case is to substantive due process as Jones & Laughlin (also 1937) was to the
Commerce Power—the court deviates entirely from its position the year before
Court throws in the towel – ending review of economic substantive due process
The Court has never again held unconstitutional a business regulation on substantive
due process grounds
US v Carolene Products (1938)
o Rules:
Legislative findings are not essential – the existence of facts supporting legislative
judgment as to the necessity of the law is to be presumed.
As long as facts, either known or which could be reasonably assumed, afford support
for the law, it is a valid exercise of legislative power.
If it is debatable whether something should be regulated (here, filled milk), the Court
will not substitute its judgment for that of the legislature – it will find the law
rational.
o Commerce Clause
Permissible Under the Bar Doctrine
o Substantive Due Process
Stone finds that it doesn‘t violate due process because it‘s related to public health
o Footnote 4
Suggests that court will not abandon interventionism entirely even though it is
turning its back on Lochner (shows Court‘s willingness to be interventionist in some
areas and deferential in others):
We will be more willing to intervene in some other area like where 1) a
specific constitutional prohibition is involved, 2) the legislation deals with
limitation of political process, 3) cases involving discreet and insular
minorities
Graglia: What justifies the Court overturning results of the political
process; what Stone is saying is that they can justify it when they make the
political process better
People should be able to fight for their interests in the political
process
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One could say the revolutionary behavior of the Warren Court was
based upon this philosophy—John Hart Ely—Democracy and
Distrust—justifies all their decisions
o Black and Douglas came the closest to being honest and saying there is no substantive due
process
Williamson v Lee Optical (1955)
o Rules:
Even if a law is needless or wasteful, it is for the legislature, not the courts, to
balance the advantages and disadvantages of it (shows extreme deference to the
legislature).
As long as Court can hypothesize a reason why the legislature might find the law
reasonable/necessary, then it is constitutional (the legislature is no longer required to
show that the law is reasonable, nonarbitrary).
Law need not be completely logically consistent with its aims to be constitutional.
Incremental change (one step at a time) is permissible – in dealing with
underinclusiveness
o Facts: OK law made it unlawful for an optician to make or fit glasses without a prescription
from an opthamologist or optometrist. (Enacted to protect optometrists and opthamologists.)
SDP - Fundamental Rights
Two standards of review used for substantive due process:
o If a fundamental right‖ is impaired, court applies strict scrutiny:
Compelling state objective
Means are necessary to the achievement of that objective
o If a non-fundamental right (e.g. economic) is impaired, then the court applies rational basis
scrutiny:
Legitimate state objective
Rational relation between means selected and that objective
Meyer v Nebraska (1923)
o Rule: Liberty is a broad concept that ―denotes not merely freedom from bodily restraint but
also the right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy those privileges
long recognized at CL as essential to the orderly pursuit of happiness by free men.‖
o Facts: M was convicted of violating a state law that prohibited the teaching of foreign
language to young children (he taught them German). Because the law materially interfered
with the right of students to learn and the right of parents to control their child‘s education, it
was unconstitutional
Pierce v Society of Sisters (1925)
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o Rule: Law is unconstitutional because it interfered ―with the liberty of parents and guardians
to direct the upbringing and education of children under their control.‖ (A right not explicitly
in Constitution)
o Facts: Court sustained a challenge to the constitutionality of an OR law requiring children to
attend public schools.
Powell v Alabama (1932)
o Facts: Nine black boys accused of raping a white woman. Evidence shows they couldn‘t
have, but they are convicted anyway and sentenced to die (creating an international scandal)
o Rule: establishes that due process can require things apart from (procedural) due process
The court has no legal reason to reverse – not unconstitutional per Graglia (all
procedures were followed); they reverse anyway, saying the right to counsel for an
illiterate in a capital case means not only counsel but good counsel
Graglia: there is no actual basis for this – the court just applies natural law; ends
up finding that State did not provide counsel for these 9 blacks
The 6th amendment (when written) didn‘t mean the state would provide
counsel – it meant the right to hire counsel (which was not guaranteed by
English law)
o Note: shows how much race shapes Constitutional Law
Problem – restrictions that are appropriate for Alabama might not be appropriate for
Massachusetts
Griswold v Connecticut (1965)
o Facts: CT statute forbade aiding and abetting the prevention of contraception by any person.
G was arrested for violating the law by distributing information and medical advice to
MARRIED persons about how to prevent contraception.
o Rules:
Specific guarantees in the Bill of Rights have penumbras, formed by emanations
from those guarantees that give them life and substance.
Graglia – a level of ―prenumbraism‖ that would embarrass astrology – there
is no violation of Bill of Rights here
st
The 1 , 3rd, 4th, 5th, and 9th Amendments create zones of privacy – privacy in
intimate, marital relations is protected by this zone of privacy from unjustified
intrusion by the state.
Graglia - What‘s privacy? A right to withhold information, to keep others
from knowing certain things about your
Here, it‘s merely a right to use contraceptives. It‘s not privacy, it‘s
self-autonomy
Graglia – what‘s so unusual, striking and significant about this opinion is
Douglas‘s invocation of the 9th amendment—practically like the 3rd
amendment in that it‘s useless
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―The enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people.‖ –
Amendment IX
The crucial move in doing this is to deny what would be obvious:
that finding rights on any such basis is entirely subjective!
o Graglia:
Not really dealing with the rights of parents, we‘re dealing with the right of Planned
Parenthood. The law wasn‘t being enforced except to prevent the construction of
contraceptive clinics
Surely, the state can regulate economic due process
Then what standing do these people have? They are acting as
accessories to the crime by giving advice to marital couples
If the rights of married people are abridged, then a married couple
needs to raise the issue (but this law was never enforced against
married people—only clinics)
Court could have made the argument that barring contraceptives support the
prohibition against illicit sex
Argument against that would be ―why can‘t married people use it‖
Will it deter the behavior of the friendly milk man?
Douglas argues that unprotected sex protects the sanctity of
marriage
o Harlan‘s concurrence – most conservative member of the court
14th Amendment protects rights ―implicit in the concept of ordered liberty.‖ Liberty
interests do not have to be embodied in Bill of Rights to be protected by the Bill of
Rights.
Relied on his dissent in Poe v. Ullman (a prior challenge to the CT law that the court
dismissed on justiciability grounds):
The meaning of liberty cannot be found or limited by the specific guarantees found
elsewhere in the Constitution, it is a rational continuum that includes a freedom from
all substantial arbitrary impositions and purposeless restraints.
Regulations that infringe on a protected liberty must be subject to STRICT
SCRUTINY
Limits his opinion to the protection of marital privacy – does not protect
homosexuality, adultery, fornication, or incest even if they are privately practiced.
o Goldberg concurrence – doesn‘t shy away from natural law
9th Amendment protects marital privacy.
9th Amendment provides protection for those rights that exist, but that aren‘t
specifically enumerated in Constitution. (9th is not an independent source of rights).
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Test to determine what rights are fundamental: whether the principle is so rooted in
the traditions and collective conscience of our people as to be ranked as fundamental.
State interest in safeguarding marital fidelity can be served by a more discriminately
tailored statute which does not sweep unnecessarily broadly and intrude upon the
privacy of all married couples.
o Black dissent - undeniably right when he expresses anger at the Court‘s use of a natural law
philosophy
Invests this court with the power to act as a supervisory agency evaluating the
wisdom, need, and propriety of state laws
Due process clause clearly doesn‘t do that, only does procedure
Douglas relied on two economic due process cases: Meyer v Nebraska
(right to teach German) and Pierce v Society of Sisters (the right to educate
one‘s children as one chooses)
Douglas erred by relying on the same natural law due process
philosophy found in Lochner
o Questions Raised by Griswold:
Is Court utilizing a double standard by applying strict scrutiny to personal rights vs.
rational basis review of economic regulations?
Perhaps increased scrutiny of noneconomic liberty is appropriate because
this liberty dictates personal well-being.
Perhaps lesser scrutiny of laws regulating economic liberty is justified
because operation of business invites public attention/scrutiny thereby
creating a state interest in regulating it.
Perhaps broad view of personal liberty is justified by the history of the 14 th
– the abuses suffered by slaves were extensive, so the liberty guaranteed to
them should be also.
Carolene Products footnote set up the paradigm for heightened scrutiny
and it does not mention abortion or privacy – H says these rights are
sufficiently similar to fall within the scope of Carolene Products.
Is the Court creating a marital double standard?
If the right to intimacy is so fundamental, why should it be confined to
heterosexual married couples.
Is the Court‘s holding too narrow?
Eisenstadt v Baird (1972)
o Rule: Right of privacy in sexual relations is protected for unmarried individuals too. ―If the
right of privacy means anything, it is the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child.‖
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o Facts: Overturned a conviction under a law banning the distribution of contraceptives,
whereas the Griswold decision dealt with the use of contraceptive. Also, the recipient of
birth control, here, was an unmarried person (thus the decision is much broader).
o Graglia: Isn‘t this just an economic regulation?
Every ruling of unconstitutionality becomes a springboard for new restrictions
Note: This case is fundamental for Roe.
Roe v Wade (1973)
o Rules:
Only personal rights that can be deemed ―fundamental‖ or ―implicit in the concept of
ordered liberty‖ are included in the constitutional right to privacy – this right to
privacy includes a woman‘s right to terminate her pregnancy.
Strict scrutiny applied to any limitations imposed on the right to abortion (state must
have a compelling interest and the law must be narrowly tailored to achieve that
interest).
A fetus is not a person (shows that court is adopting a narrow construction of person
– necessary because if a fetus is a person, its life must be protected under the 14 th)
Blackmun fancied himself as a medical authority and brings in privacy
arguments, that fetuses aren‘t persons in the whole sense
Do we want to hold whether someone is a person ―in the whole
sense‖ especially when it leads to infanticide?
State can regulate abortion to protect maternal health and to protect potential life.
Trimester approach established:
First trimester – state cannot regulate abortion
Second semester – state can regulate the procedure to protect maternal
health only (i.e., establishing requirements for facilities, doctors, etc.)
Viability (28 weeks) – state can prohibit abortions to protect potential life,
except when abortion is necessary to preserve the life or health of the
mother.
Life = fundamental right, so the state can restrict abortion at
viability because it has a compelling interest to protect life
o Facts: Texas law made it a crime to procure an abortion except by medical advice for the
purpose of saving the life of the mother. This law was declared unconstitutional because it
prohibited abortions throughout pregnancy (it didn‘t survive strict scrutiny).
o Stewart Concurrence: SDP protects liberties not explicitly named in the Bill of Rights –
including the fundamental right to decide whether to bear or beget a child (Eisenstadt).
Stewart dissented in Griswold – idea that 9th amendment is incorporated is ridiculous
He doesn‘t agree with incorporation of 9th amendment, but now that it‘s
there, he believes in upholding it
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o White Dissent: Nothing in the Constitution supports the Court‘s judgment that abortion is a
fundamental right; the decision is an improvident and extravagant exercise of judicial review.
White concurred in Griswold – distinguishes this case in that here there is a new
―constitutional right‖ being created while Griswold is rooted in tradition
o Can Roe be justified as a way to protect minorities under Carolene Products?
Women are less politically powerful than are men – perhaps so.
But women‘s interests must be compared with the interest to which they have been
subordinated. Compared to men, women may be a minority, but compared with the
unborn they are not.
o Comparing Roe to Lochner
Roe is justified on the same grounds as Lochner
Way to distance it is to liken Roe more to Brown
Brown dealt with a constitutional right (13th, 14th and 15th amendments were
put in place to help the blacks) so there is no doubt regarding the
constitutionality of Brown
A much earlier case than Brown held that a 14th amendment should be read
as no law can disadvantage blacks (Graglia – that‘s a stretch, but it‘s an
arguable stretch)
Maher v Roe (1977) – Government refusal to fund abortions
o Government can refuse to fund medically unnecessary abortions because a denial of funding
does not impose a barrier on a woman‘s right to choose.
Because lack of funding doesn‘t restrict abortion, rational review used.
Even though abortion is a fundamental right, there is NOT a right to state assistance
to procure one.
o Is there discrimination? Yes – between abortion and live birth
Planned Parenthood v Casey (1992) – written by the 3 traitors O‘Connor, Kennedy and Souter
o Facts: Challenge to PA Abortion Control Act of 1982. Act requires that a woman give her
informed consent prior to the abortion, and specifies that she be provided with information to
give that consent at least 24 hours before the abortion is performed. Also requires the consent
of one parent for a minor to receive an abortion (has a judicial bypass option). Requires that
married woman sign a statement indicating that she has informed her husband of the abortion
and imposes reporting requirements on abortion facilities. All of these procedures could be
bypassed if there was a ―medical emergency.‖ Court upheld all restrictions except for the
spousal notification requirement
o Rules
Court upholds the ―essential holding‖ of Roe because of stare decisis, desire to
protect institutional integrity (concern with legitimacy of court) and desire to protect
constitutional liberty. Essential holding defined as:
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The right of a woman to choose abortion before viability without undue
interference from the state.
The state‘s power to restrict abortions after viability, if the law contains
exceptions for pregnancies which endanger the mother‘s health or life.
―Health of the mother‖ restriction completely removes any
restrictions on abortion, meaning there is no right of the state to
regulate this; it is, essentially, abortion on demand
o Health can include emotional, physical, and mental
distress
Recognition of state‘s legitimate interest in protecting the health of the
woman and the life of the fetus from the outset of the pregnancy.
Protection of abortion comes from 14th Amendment.
SDP not limited to rights enumerated in the Bill of Rights.
SDP does not only protect those rights that were protected when the 14th
was ratified.
SDP limits state‘s right to interfere with decisions re family, parenthood and
bodily integrity
Undue Burden Standard (followed only by Kennedy, O‘Connor and Souter)
Rejects trimester approach because it devalued the state‘s interest in
protecting potential life throughout pregnancy. (this is fundamentally
different from Roe, which said that state only had an interest in protecting
potential life at viability.)
Test: Only when a state regulation imposes an undue burden on a woman‘s
choice is it unconstitutional.
Undue burden = state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking to abort a nonviable
fetus.
Essentially doesn’t make abortion a fundamental right – no more strict
scrutiny
o Graglia
Plurality agues that it wants to maintain the ―legitimacy‖ of the court. Isn‘t Roe v
Wade even more of an example of the illegitimacy of the court? There is no
constitutional basis for it and was decided based solely on the political persuasion of
the court
Gonzales v Carhart (2007)
o Upheld the Partial Birth Abortion Ban Act of 2003 and held that it did not impose an undue
burden on the due process right of women to obtain an abortion
o This is the first time the Court has ever held that physicians can be prohibited from using a
medical procedure deemed necessary by the physician to benefit the patient's health.
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Relying deferentially on Congress's findings that this intact dilation and extraction
procedure is never needed to protect the health of a pregnant woman, Kennedy wrote
that a health exception was therefore unnecessary
In other words, if you chop it up, it‘ll be OK
Removes the distinction between pre/post viability
o Authority
Congress passes the bill pursuant to the Commerce Clause (Graglia thinks this is
preposterous)
Argued under the Aggregate Affects Doctrine
If all women were allowed to abort their babies in this fashion, it
would affect interstate commerce
In Roe and Casey, Court held that it could not regulate ―morality‖
One could say that it‘s abortion that's immoral, not partial-birth
Here, though, they ground their arguments in morality
In contrast with Lawrence v Texas (2003)
o Court upheld the law because it was challenged facially
Govt concedes that there may be pre-enforcement applied challenges – where a
woman was denied abortion relief before the enforcement
How could this exist
An intact abortion can be safer than a dismemberment and the claim is that
it is required for safety in a few cases (such as where there is uterine
scarring, heart disease, compromised immune system)
What Kennedy is saying is that bring a case where the plaintiff falls into
one of those categories and can make the claim necessary
Only very few women would benefit health-wise from this type of abortion
o Why not uphold that Congress had no right to regulate abortion in the first place?
Role of Tradition in SDP Analysis
Liberty encompasses rights not explicitly enumerated in Constitution – it includes rights so deeply
rooted in our traditions that they are fundamental.
Debate centers upon what ―traditional‖ means.
o Narrow view of “tradition” – looks for specific historical protection of rights. A right is
fundamental if:
It was protected at CL;
It was protected when the Bill of Rights was ratified; OR
It was protected when the 14th Amendment was ratified.
This view is disavowed in Casey
o Broad view of tradition
Doesn‘t limit liberty to rights that were specifically historically protected – finding a
right that was historically protected is just a starting point of the analysis. Then the
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court compares the right being asserted with the right recognized historically to see if
they are similar or based on the same rationale.
A right is ―deeply rooted in tradition‖ if it is sufficiently similar/related to those
rights recognized historically such that Court ought to recognize the right as
fundamental.
Examples: Eisenstadt – extends right to privacy to unmarried persons; Roe –
extends privacy right re contraception to include right to terminate pregnancy
(because that privacy is a broad enough concept to encompass both); Moore
Moore v City of East Cleveland (1977) – Broad view
o Rule: The protection of family relationships recognized in the Meyer-Pierce line of cases
extends to non-nuclear families because the basic reasons underlying the Court‘s protection of
family relationships exist for non-nuclear as well as nuclear families
o Facts: City had zoning ordinance that limited the occupancy of dwellings to members of a
―single‖ family, which essentially meant a nuclear family. Moore was convicted of violating
this ordinance for living with her two grandsons, who were first cousins.
Graglia – this was a social and economic type regulation and should‘ve been subject
only to the rational basis review
Held unconstitutional by the liberal wing of the court – a total lack of respect for
democracy
o Dissent: Adopts a very narrow view of the liberty interest that Moore claimed – said that the
right to reside with more than one set of grandchildren was not deserving of heightened
scrutiny. Worries that majority‘s emphasis on ―history and tradition‖ broadens enormously
the horizons of SDP.
Michael H v Gerald D (1989) – Narrow view of tradition
o Rule: Court refuses to recognize the right of a father of an illegitimate child to see the child
because historical traditions do not afford protection to that relationship.
o Facts: Michael H. claimed to be the father of the child of Carole and Gerald D. and sought
visitation rights with the child. CA law established a rebuttable presumption that a child born
to a married woman is a child of the marriage. Despite blood tests revealing a 98% likelihood
that M was the father, he lost because of the presumption. M claimed that the law deprived
him of the right to be a parent.
o Note: This is a plurality opinion, because O‘Connor and Kennedy refused to join Scalia‘s
footnote which insisted that tradition had to be defined at its most specific level when the
Court is trying to determine what rights are fundamental.
Scalia – there is no tradition that an adulterous parent has a right to a child
o Dissent: Brennan - Says that the concept of ―tradition‖ does not create discernible boundaries
although the plurality claims that it does. Furthermore, strict reliance on specific tradition
homogeneous society. Says that we must protect the right not to conform; not adhere to a
stagnant, archaic view steeped in prejudice long since passed.
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Graglia – Brennan‘s living constitution is adding more restrictions. He‘s now
encouraging bastard children.
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Procedural Due Process / Takings Graglia Spring 2011
Substantive Due Process v Procedural Due Process
PDP implies that certain procedures must be followed before a state may deprive a person of life,
liberty, or property (i.e., a person cannot be denied the right to counsel in criminal proceedings, to jury
trial, etc.).
SDP is the concept that certain rights are so fundamental and intimately connected to liberty that the
state cannot deny a person the enjoyment of those rights without a compelling reason (i.e., Lochner
said that freedom of contract was protected by SDP)
Procedural Due Process (PDP)
Presents 2 questions:
o When will it add procedural protections?
There has to be a property or liberty or interest created by an independent source
such as state law (Roth and Perry)
Once state law creates the interest, federal law adds the procedural
protections (Loudermill)
o What are the procedural protections?
Eldridge states out the considerations for the procedural requirements
Property Rights
Goldberg v Kelly (1970)
o held that a welfare recipient was entitled to an evidentiary hearing before the termination of
benefits – expands constitutional law
o Brennan - changed the law. Historically, due process was needed for a right, but not for a
deprivation of benefits
What is a right? A legally protected interest. What is this legally protected interest?
A right to receive welfare until they terminate it
o The extent of that right will no longer be defined and determined by the statute. The right
will be expanded so that you can no longer be cut off until some ―due process‖ is given.
Creates additional costs in administering welfare and reduces number of people able
to receive welfare
Reasoning – depriving these people the benefits is depriving them the means to live
Graglia – but isn‘t this also true of drivers licenses and virtually everything?
Board of Regents v Roth (1971)
o Facts: non-tenured professor is dismissed after the end of the contract-term. He was informed
that his services would no longer be needed after the termination of the contract.
o Rule: Due process depends not on the weight of the benefit but the nature (i.e., whether under
state law you had a right to that benefit)
Perry v Sindermann (1972)
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o Facts: Sindermann was a teacher at several schools in the state college system of the State of
Texas and was successful enough to be appointed department co-chair for a time. During the
1968-1969 academic year, Sindermann became involved in public disagreements with the
policies of the Board of Regents as president of the Texas Junior College Teachers
Association. In May 1969 Sindermann‘s one-year contract was terminated and was not
renewed.
o Rule: If there is an issue of fact as to whether there was an arguable property interest (where
the plaintiff presents colorable evidence), then he is owed due process
Cleveland Board of Education v Loudermill (1984)
o Facts: a security guard (James Loudermill) employed by the Cleveland Board of Education
was dismissed for failing to disclose a prior felony conviction for grand larceny on his job
application.
o Rule: Two prong test
1. Does the state law confer a property interest?
2. If so, is the state due process sufficient for federal standards?
Thus, state law prescribes whether there is a property interest, but the sufficiency of
the due process is based on federal law (e.g., the Loudermill hearing)
Liberty Interests
Reputation alone, apart from some more tangible interests such as employment is neither liberty nor
property by itself sufficient to invoke the procedural protection of the Due Process Clause
Prison Cases
o Meachum v Fano (1976) - no liberty interest infringed when transferring a prisoner from a
medium to maximum security prison
o Greenholtz v Inmates (1979) - denial of parole is not a deprivation of a liberty interest, but a
revocation or parole implicates a liberty interest
o Vitek v Jones (1980) - court found that there was a liberty interest when a prisoner is
transferred to a mental hospital
Nebraska statute set an ―objective expectation‖ that a prisoner would not be
transferred, thus creating a liberty interest
o Wilkinson v Austin (2005) - held that while the Due Process Clause of the Fourteenth
Amendment gives rise to a liberty interest in not being placed in a Supermax prison, Ohio's
procedures for determining which prisoners should be placed there satisfied the requirements
of due process.
Adopts the Eldridge test and holds that Ohio‘s current procedures are sufficient to
protect the liberty interest
Mathews v Eldridge (1976) – sets out the procedures necessary
o Facts: Eldridge is denied social security benefits and can receive an evidentiary hearing
subsequent to the termination of the benefits. Social security benefits are a statutorily created
property right implicating due process.
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o Rules:
Sets out the 3 factor Test
1. the private interest that will be affected by the official action
2. the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards
3. the Government‘s interest, including the function involved and the fiscal
and administrative burdens that the additional procedural requirement
would entail
Takings Clause
Grounded in the 5th Amendment‘s takings clause ―private property [shall] not be taken for public use
without just compensation
o However, the power of condemnation is nowhere to be found in constitution
o Property rights are never so strong that they cannot be subject to a forced sale. Government
always has the power to condemn and make it a forced transaction
5th amendment merely states that when that does occur, it must provide just
compensation
Market value is never really ―just‖…if the owner owns property, then he‘s not
selling for market value (meaning, the property is worth more to him than the market
value)
o Why should society bear the cost?
A major purpose it serves is as an insurance. Starting from an economic approach:
the purpose of the government is to make people better off. Investment will be
deterred by risk (that‘s why businesses purchase insurance). But you cannot insure
against the government.
It makes for fiscal responsibility. Unless gains exceed the losses, society is
worse off. If government has to pay when it makes the move, it only makes
winners.
Graglia – thus Penn Central was a giant loss for NYC (by depriving them from
making 2.2B a year) only to have access to French Beaux Arts! What type of gain is
that!
Whatever gains from French Beaux Arts could never offset the loss of 2.2B
a year
When the government physically possesses the property, there will always
be a taking because the ―loser‖ is identified.
Market failures require government intervention to cure society‘s ills
Free market transactions just doesn‘t work in this public goods problem; so
you need government law to force a cooperative dealing
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The other market failure is externalities, because all costs aren‘t taken into
consideration, so a government must step in when such a problem arises
o A constitutional right is just an exclusion of a policy choice!
2 major issues:
o 1. What is the borderline between a ―taking‖ for which just compensation must be paid and a
mere regulation for which no compensation is due?
o 2. When is a taking made for ―private‖ rather than ―public‖ use so that there is no right of
eminent domain, even if compensation is paid?
What is a taking?
o If the court finds that private property has been ―taken‖ by the government, compensation
must be paid. But if the state merely regulates property use in a manner consistent with the
state‘s ―police power,‖ then no compensation needs to be paid
o 1. Physical use – if the government makes or authorizes a permanent physical occupation of
the property, this will automatically be found to constitute a taking, no matter how minor the
interference with the owner‘s use and no matter how important the countervailing government
interests
o 2. Regulatory Takings
Pennsylvania Coal v Mahon (1922) – taking could also be found if government
regulation of the use of property went too far.
Facts: Pennsylvania statute prohibited the mining of coal in any manner
that would cause the subsidence of property
Rule: If regulation goes too far, it would be recognized as a taking
3 factor test (Graglia – ―Ruleless‖ utilitarian calculus
o 1. Economic impact of the regulation on the claimant
o 2. Extent to which the regulation has interfered with
investment backed expectations
o 3. Character of the governmental action
If it leaves no reasonable economically viable use of property =
taking
Brandeis dissent - if you want to look at the percentage loss in value of the
property, that depends on how you define the property
You could see this either as 100% loss of the coal in the columns
or a 1% loss of all coal on the property
2 schools of thought
Utilitarianism (Bentham) – a move is justified if it benefits overall
happiness
Consequentailist – results matter in determining what is wrong
Kant – what‘s wrong is wrong and cannot be violated, even if the world will
collapse
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Non-consequentialist – some things are inherently wrong
Ex: Internment camps: justified under utilitarianism; forbidden
under Kant
Reconciliation: Pareto Optimal – makes some better off without making
others worse off
This ignores possible relative differences
Application: Airport near a house
Miller v Schoene (1928) - Cedar Rust Act ordered people to cut down a large
number of ornamental red cedar trees growing on their property as a means of
preventing the communication of a rust or plant disease; Court holds statute is valid,
not a just compensation case. Legitimate State interest in protecting trees.
State does not exceed constitutional powers by deciding upon the
destruction of one class of property over the other if one is of greater value
ot the public
Penn Central v New York (1978)
Facts: Penn Central built the Grand Central Station at 4th and Park Avenue,
became a landmark, but Penn Central wanted to build an enormously
valuable tower over it and New York denied, saying it‘s a landmark—a
skyscraper would eliminate its view; removes hundreds of millions of
dollars
Rules: Because designating the building a historic landmark had the effect
only of decreasing the value of the property, and because it served an
important purpose, the Court concluded that there was not a taking
requiring just compensation
Lucas v South Carolina Coastal Council (1992)
Facts: person purchased beachfront property for $1M, and the state adopted
a coastal protection plan that prevented the construction of any permanent
habitable structure on the property
Rules: there is a taking where regulation denies all economically beneficial
or productive use of the land
There is not a regulatory taking when the govt‘s action leaves
reasonable economically viable use of the property
Palazzolo v Rhode Island (2001)
Facts: Palazzolo formed a company to purchase and develop coastal
property in Rhode Island. All his proposals were denied under existing
regulations.
Rule: Takings claims may be brought by owners to challenge regulations
that were in place at the time that the property was acquired
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Court draws distinction between existing Common Law rules and
takings claims as to regulations and statutes
However, under the balancing test, so long as there was still some
economically viable use, there was not a regulatory taking
o 3. Zoning Ordinances
Generally, the Court has refused to find a taking, concluding that the regulation does
not eliminate all reasonable economically viable uses of the property
o 4. Government Conditions on Development
Nollan v California Coastal Commission (1987)
Facts: government conditioned a permit for development on beachfront
property on the owner‘s granting the public an easement to cross the
property for beach access
Rule: Condition on development of property is a taking if the burden
imposed by the condition is not roughly proportionate to the government‘s
justification for regulating
Police power must substantially relate to preventing harms caused
by the new construction
o Scalia tries to make just compensation stricter than due
process
The state goal was increasing public view; the easement had no
―nexus‖ with this goal.
Dolan v City of Tigard (1994)
Facts: Government gave the owner of a store a permit to expand the
building on the condition that land be set aside for a public greenway along
a creek to minimize floding and a bicycle path to relieve traffic congestion
Rule: Two part test:
1. Is there a nexus between the legitimate state interest and the
permit condition created?
2. Was it in proportionate to the government‘s justifications for
regulating?
o 5. Temporary Takings
Tahoe-Sierra Preservation Council v Tahoe Regional Planning (2002)
Facts: Local government became concerned about development damaging
the pristine waters of Lake Tahoe and imposed a moratorium on further
development pending studies being conducted
Rule: Not a taking when the regulation was designed to be temporary
Contrasted with First English Church
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o First English - temporary gets compensation, but it‘s
assumed that there was a regulatory taking; over here
there is not regulatory taking
o Tahoe – regulation is meant to be temporary, so there is
still expectation of future economic benefits
Court holds that the interest in ―fairness and justice‖ will be best
served by relying on the familiar Penn Central approach when
deciding cases like this, rather than by attempting to craft a new
categorical rule
o 6. Limitations on Conveyance of Property
Hodel v Irving (1987) – Court found that there was a taking when the government
prevented inheritance of certain property. The regulation amounts to virtually the
abrogation of the right to pass on a certain type of property to one‘s heirs
What is Public Use?
o Berman v Parker (1954)
Facts: DC used its eminent domain power to acquire slum propertie and planned to
sell or lease them to private interests for development
Rule: A taking is for ―public use‖ so long as the government is taking property to
achieve a legitimate government purpose and so long as the taking is a reasonable
way to achieve the goal
o Hawaii Housing Authority v Midkiff (1984)
Facts: State used its eminent domain power to take the property, with just
compensation, and with the plan of selling ownership to a much larger number of
people
Rule: Taking is for public use so long as the government meets the rational basis test
Exercise of judicial restraint – ―legislature is the guardian of the public
needs‖
o Kelo v City of New London (2005)
Facts: An economically depressed city sought, through a private economic
development corporation, to take private property for purposes of a new economic
development project
Rule: Taking is for ―public use‖ so long as the government acts out of a reasonable
belief that the taking will benefit the public
What is the requirement for Just Compensation?
o Temporary takings in inverse condemnation suits
o First English Evangelical Lutheran Church v Los Angeles (1987)
Rule: Even if the government ceases its regulation in response to an inverse
condemnation suit, the government nonetheless must pay damages for the time,
however temporary, that it had taken the private property
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However, a temporary denial to development is not a taking so long as the
government‘s action is reasonable
Contracts Clause
Art I § 10 – ―No State shall…pass any…law impairing the obligation of contracts‖
o Applies only to the States and not to the federal government (which is only limited by due
process)
o Goal was not only to protect creditors, but also to encourage credit by assuring lenders that
they would be repaid
Before 1934
o The Contracts Clause and the Marshall Court
Actively used the contracts clause to limit the ability of state and local governments
to interfere with existing contracts.
Fletcher v Peck (1810) – declared unconstitutional a Georgia statute that rescinded
an earlier law that granted land to certain individuals
Court bases its reasoning on ―natural law‖ – see SDP
Graglia: In a pinch, Marshall resorted to natural law which has the happy
facility of meaning whatever its discoverer wants it to mean
Dartmouth College v Woodward (1819) – declared unconstitutional a New
Hampshire law that changed the charter that had been issued to Dartmouth College
Sturges v Crowinshield (1819) – held that a state‘s bankruptcy law could not be
applied retroactively to discharge a debt incurred before the law was adopted
Ogden v Saunders (1827) – limited Sturges and the scope of the contracts clause to
interference with already existing contracts; the contracts clause does not apply to
limit the ability of the govt to regulate the terms of future contracts
Marshall‘s dissent – only dissent he ever wrote on a constitutional case
Grounded in natural law: government should never be able to
dictate the terms of future contracts to protect debtors
Bronson v Kinzie (1843) – held that a state may shorten the statute of limitations
period or specify what items may be used to satisfy a judgment
Difficulty becomes when interference with a remedy is impairment of the
contract?
What‘s wrong with this is that the remedy is the right (a right is
merely a legally protected interest, and its scope is the extent of the
protection). If the remedy is changed, then the protection is
decreased.
Relativism is situation specific; absolutism is eternal
Rights essentially are just policy preclusions
o Early 20th Century – ―Lochner era‖
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The Supreme Court‘s aggressive protection of freedom of contract under the due
process clauses made the contracts clause superfluous during the first third of the
twentieth century
Due process limited govt regulation of existing or future contracts, whereas
the contracts clause safeguarded only existing contracts
Since 1934
o Home Building & Loan Association v Blaisdell (1934)
Facts: Minnesota enacted a law that created a moratorium on foreclosures of
mortgages from 1933 until no later than May 1, 1935
Rule: Government can interfere with existing contracts if it has a valid police
purpose, and it describes the police power broadly enough to include debtor relief,
protecting people from foreclosure of their mortgages, as a valid governmental
objective
Significance: The Minnesota law was exactly the type of legislation that the
contracts clause explicitly forbade.
By broadening what a state‘s ―police powers‖ were, the Court threw in the
towel with Contracts Clause enforcement
This is the once instance the Court should have held something
unconstitutional
Minnesota was at least honest in acknowledging that this violated the
contracts clause, but argued that it was under extreme emergency. Hughes
claims that the prohibition is ―not absolute and not to be read literally‖
If not literally, then how?
Graglia – would have been with the dissenters, but Minnesota should have just
ignored the decision and continued to enforce its debtor relief law (what could the
court do about this?)
o Government interference with Private Contracts
Current test articulated in Energy Reserves Group v Kansas Power & Light (1983)
Facts: a contract for natural gas provided that the price to be paid would be
increased if government regulators fixed a higher price than that specified in
the contract. Subsequently, Kansas enacted a law that provided that the
price could not be increased because of prices set by federal authorities.
Rule: When a state or local government interferes with existing private
contracts, a 3 part test I used:
1. Is there a substantial impairment of a contractual relationship
2. If so, does it serve a significant and legitimate public purpose
3. Is it reasonably related to achieving the goal
Graglia: Certainly further restricts the limited revival of the Contracts
Clause
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Exxon Corp v Eagerton (1983) – Court upheld a state law that prevented oil and gas
producers from passing on the costs of a severance tax, even though their contracts
permitted them to do so.
Using 3 part (rational basis) test: notwithstanding its impairment of
contractual rights, the law advances a broad societal interest
Anomaly: Allied Structural Steel Co. v Spannaus (1978)
held unconstitutional a law that required Allied Structural Steel to fund
pension plans
Court argues that it wasn‘t narrowly tailored
But this isn‘t a requirement for rational basis
Not really followed by later courts
o Government Interference with Government Contracts
United States Trust Co v New Jersey (1977)
Facts: NJ and NY adopted laws prohibiting the use of toll revenues from
the Port Authority to subsidize railroad passenger service. A decade later,
the states adopted laws to repeal the earlier prohibition and to permit the use
of toll funds to improve rail transit.
Rule: Government interference with government contracts will be subjected
to heightened scrutiny
Complete deference to a legislative assessment of reasonableness
and necessity is not appropriate when the State‘s self interest is at
stake
Although the court did not articulate a level of scrutiny, its use of
―least restrictive alternative‖ analysis and the word ―necessary‖
seems indicate of strict scrutiny
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Equal Protection Graglia Spring 2011
Equal Protection Clause
―No state shall…deny to any person within its jurisdiction the equal protection of the laws‖
Holmes – ―the last resort of constitutional arguments‖
o Referring to the possibility of challenging any law as discriminating and the Court‘s
consistent reluctance to use the equal protection clause to invalidate stte or local laws
Application to the federal government
o Bolling v Sharps (1954) – Court held that equal protection applies to the federal government
through the due process clause
Graglia – this is total utter crap
The Basic Questions
1. What is the Classification?
o Can be established on the face of the law – eg, law prohibiting blacks from serving on the jury
o Facially neutral, but discriminatory impact – eg, height requirements for becoming a police
officer (disparate impact on men and women)
Discriminatory impact is insufficient to prove a racial or ender classification.
Demonstrating that there‘s a race or gender classification requires proof that there is
a discriminatory purpose behind the law
2. What is the appropriate level of scrutiny?
o Race, national origin, and alienage – trigger strict scrutiny
Law is upheld if it is proved necessary to achieve a compelling government interest
o Gender and nonmarital children – trigger intermediate scrutiny
Law is upheld if it is substantially related to an important government interest
o Classifications that are not ―suspect‖ are subject to rational review.
Rationally related to a legitimate government purpose
Sometimes, the court says it‘s using rational basis, but is employing a test with more
―bite‖
Reality is a range of standards
3. Does the government action meet the level of scrutiny?
o For strict scrutiny, the end must be deemed compelling for the law to be upheld; for
intermediate, the end has to be regarded as important, and for the rational basis test, it has to
be legitimate
o In evaluating the relationship of the means of the law to the end, the Court often focuses on
the degree to which a law is under inclusive or over inclusive
Underinclusive – does not apply to individuals who are similar to those to whom the
law applies
Overinclusive – applies to those who need not be included in order for the
government to achieve its purpose
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Both under and over inclusive
Example: Japanese-American internment
Underinclusive because it didn‘t apply to German or Italian
Americans
Overinclusive because the internment included those that weren‘t a
threat (in fact, none were)
The Rational Basis Test
Underlying issues
o The Supreme Court has generally been extremely deferential to the government when
applying the rational basis test
This can be defended as proper judicial restraint, as the Court allows the more
democratic branches of government to make decisions except in reas where there is
reason for heightened judicial scrutiny
Legislation often involves arbitrary choices favoring some over others, and
judicial deference leaves these decisions to the political process
It can also be argued that the Court has gone too far in its deference under the
rational basis test
Unfair laws are allowed to stand because a conceivable legitimate purpose
can be identified for virtually any law
Frequently, these are laws enacted to help a particular group with political
clout at the expense of others
Kotch v. Board of River Pilot Commissioners – LA law that
conditioned receiving a harbor pilot‘s license on completion of an
apprenticeship term (even though apprentices are only limited to
family members)
US v Carolene Products – filled milk case
Oleomargarine case
Lee Optical Case
o Consistency in application
Although the Court has been enormously deferential, there have been cases where
laws have been declared unconstitutional under rational basis review
City of Cleburne v Cleburne Living Center (1985) – Court used rational
basis review to invalidate a zoning ordinance that prevented the operation of
a home for the mentally disabled
Court uses the ―quasi-suspect‖ form of rational review
Court held that these justifications were based on prejudices
against the mentally disabled and not a legitimate state interest
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Metropolitan Life Insurance Co v Ward (1985) – Court held
unconstitutional a state law that attempted to encourage growth of an in-
state insurance industry by taxing in-state companies at lower rates
United States Dept of Agriculture v Moreno (1973) – Court invalidated a
federal law that prevented a household from receiving food stamps if it
included individuals unrelated to each other
Legitimate Purpose
o Government has a legitimate purpose if it advances a traditional ―police‖ purpose of
protecting safety, public health or public morals
United States v Carolene Products (1938)
Court pulled out of commerce clause review and also substantive due
process review (and became non-interventionalist)
But in FN 4, the court introduced the concept of heightened scrutiny when it
comes to infringements on the political process (where it‘s more pro-
democratic), when the law is directed toward a minority (religious, racial or
national), and when it on its face to be a specific prohibition of the
constitution
Railway Express Agency v New York (1949)
Facts: NY passed a law prohibiting the operation of an ―advertising
vehicle,‖ but created an exception for business delivery vehicles advertising
their own work
Court held that the law had the legitimate purpose of enhancing traffic
safety because the city might perceive that the prohibited advertisements
could be more distracting
Clear example of special interest legislation
o The legislation isn‘t really irrational it‘s serving its
purpose perfectly – to protect newspapers from
competition
o Since they can‘t say that, it devises the ―safety concern‖
Williamson v Lee Optical (1955)
Facts: OK law made it illegal for any person other than an optometrist or
ophthalmologist to fit eyeglass lenses
Another clear example of State serving protectionist interest
So long as there was ―an evil at hand for correction,‖ however
modest it may be, the law must be upheld if ―it might be thought
that the legislation was a rational way to correct it‖
Essentially, there was no review as long as the state had a pretext
US Department of Agriculture v Moreno (1973)
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Facts: Court declared unconstitutional a federal law that excluded from
participation in the food stamp program any household containing an
individual who is unrelated to any other member of the household
Rule: A bare congressional desire to single out and harm a politically
unpopular group cannot constitute a legitimate governmental purpose
A different rational basis test is applied – one with more ―bite‖
o It could be claimed that the unrelated household is less
likely to report income (surely this is enough for any
rational basis test based on prior versions), but it‘s not
enough here
o If there is a purpose, it will do it (in prior decisions), but
here, Brennan rejects the facial reason of the legislation
and looks to the underlying reason
Graglia finds this questionable. Can an act that
is reasonable become impermissible because of
the wrong mental state?
Plyler v Doe (1982)
Facts: Supreme Court declared unconstitutional a Texas law that provided a
free education for children of citizens and of documented aliens, but
required illegal aliens to pay
Significance: Court made it clear it was using something more than rational
basis review
Appeals to natural law – judges ignore the constitution and appeal
to moral justice
Required the classification to be rationally related to a substantial
state interest
Graglia: Something that can only happen in the US, where people who have
total power and utter lack of responsibility
The Country cannot have illegal entry, but if the people enter
illegally, the states are compelled to provide free public education.
How can this possibly be?
Because Brennan got to make the decision with the support from 4
others
Romer v Evans (1996)
Facts: Supreme Court declared unconstitutional Colorado Amendment 2, a
voter-approved initiative that repealed all laws protecting gays and
prohibited future government action to protect them
Rule: No legitimate purpose in singling out a particular group and
precluding it from using the political process
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Dissent: State is allowed to regulate public morals under state police
powers, especially when it‘s voter-initiated
Graglia: The legitimate interest being served is “Freedom of
Association”
All it does is deny homosexuals special rights that others don‘t
have. Most people don‘t have such rights and puts them merely in
the same position as other people
Railroad Retirement Board v Fritz (1980)
Facts: SC upheld a federal law designed to prevent retired railroad workers
from receiving benefits under both the Social Security system and the
railroad retirement system
Rule: A conceivable legitimate purpose is sufficient; Court does not require
that a legislative body articulate its reasons
Reasonable Relationship – everything‘s reasonable as long as it‘s not arbitrary or clearly wrong
o Tolerance for Underinclusiveness
Government may take ―one step at a time‖
It is no requirement of equal protection that all evils of the same genus be eradicated
or none at all
o Tolerance for Overinclusiveness
New York Transit v Beazer (1979) – upheld a city‘s regulation that prevented those
in methadone maintenance programs from holing positions with the Transit
Authority
Any alternative rule is likely to be less precise and will be more costly
administrative convenience and limit bureaucratic discretion
o When are laws deemed arbitrary and unreasonable?
Laws that are clearly prejudicial
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Freedom of Speech Graglia Spring 2011
Amendment I : Congress shall make no law abridging the freedom of speech
Seems to only limit Congress, not the states, but it was made applicable to the States through the 14 th
amendment
It can‘t mean what it says – implies there can be no restriction on speech, but perjury is a crime, price
fixing agreements is a crime, making threats to unions is a crime, libel, etc
o Graglia - If it doesn‘t mean what it says, then it means whatever you want it to mean
Common law definition – merely meant that the government could not license the press (prior
restraint), but the government could fine or punish the press for what was published (post-restraint)
Speech could be verbal or non-verbal
o United States v O‘Brien (1968)
Facts: O‘Brien publicly burns his draft card and violates the law that makes criminal
any mutilation of the draft card
Rule:
Content Based v Content Neutral
Content-based – if the government action is ―content-based,‖ the action will be generally subjected to
strict scrutiny
o A governmental action that burdens expression is ―content-based‖ if the government is aiming
at the communicative impact of the expression
Content-neutral – if the government action is ―content-neutral,‖ the government‘s action is subjected to
a much easier to satisfy test, and will usually be upheld
Analysis of Content-based government action
Unprotected category
o Obscenity, fraudulent misrepresentation, defamation, advocacy of imminent lawless behavior
and ―fighting words‖
Protected category – all expressions not falling into one of these five categories is ―protected‖
o If expression is protected, then any government an or restriction on its content is presumed to
be unconstitutional
o The regulation will be sustained only if it 1) serves a compelling governmental objective and
is 2) narrowly tailored to that objective
Pornography/Obscenity
o Evolving standards of what was considered obscene
Is pornography obscene?
In support of making it obscene
Community should be able to determine its moral environment
(Paris Adult Theater I)
Causes anti-social behavior and violence against women
It‘s a masturbatory agent
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Against
Government should not be able to decide what is moral and
suppress speech that does not advance that conception
No evidence that sexual acts encourage antisocial behavior, but
rather, it‘s violent acts
Other forms of protected speech likewise generate emotions
o Roth v United States (1957)
Definition of obscene – whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole appeals
to prurient interest
However, all ideas having even the slightest redeeming social importance are to be
protected
o The ―Crotchless‖ generation – postmaster‘s definition of obscenity was the visibility of pubic
hair
Sunshine and Health - nudist magazines with lots of pubic hair – when that was
presented to the Supreme Court, it was declared that nudity is not obscene
o Nothing is ever really found to be obscene
Redrup v New York (1967) - The court's final ruling affirmed that written materials
that were neither sold to minors nor foisted on unwilling audiences were
constitutionally protected, thereby de facto ending American censorship of written
material.
Miller v California (1973) – laid out a 3 part test of obscenity
1. Average person applying community standards would find that the work,
taken as a whole, appeals to prurient interests
2. The work depicts in a patently offensive way, sexual conduct specifically
defined by the applicable state law
Patent refers masturbation, sex acts, or lewd exhibition of genitals
– thus it only limits hardcore porn as obscenity
3. The work lacks serious literary, artistic, political or scientific value
Pornography industry is operating as though there are no restrictions
o Regulation through manner even if it‘s not obscene
Young v American Mini Theaters (1976) – non-obscene
Obscenity is so narrowly defined that everything is basically protected, so
city cannot prohibit the ―speech‖
Detroit has taken the approach of dispersal (you can have them, but
you have to spread them out)
Other cities has taken the approach of concentration (creating a red
light district)
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Justice Stevens (writing for plurality) reasoned that the speech involved
here is of lower value, and the city also has a compelling interest in
protecting quality of life.
Paris Adult Theater I v. Slaton (1973) - obscene
Held that there were legitimate state interests at stake in stemming the tide
of commercialized obscenity, even assuming it is feasible to enforce
effective safeguards against exposure to juveniles and to the passerby
State can prohibit the sale, distribution, and exhibition of obscene materials
even to willing participants
United States v Playboy (2000)
Facts: § 505 of the Cable Act requires cable television operators who
provide sexually-oriented programming to scramble them during parts of
the day when children are more likely to watch
Rule: Court found this to be a content-based restriction on protected speech.
Thus, strict scrutiny must be applied: narrowly tailored to serve a
compelling state interest
Compelling state interest? Yes – protects children and
unconsenting adults from sexually explicit material
Narrowly tailored? No – there are less restricting means, since
subscribers could voluntary block the channel if they wanted
Advocacy of Illegal Conduct
o Clear and Present Danger Test
Schenck v United States (1919) – involved the degree to which citizens had a
constitutional right to oppose the First World War
Facts: 1917 Espionage Act made it a crime to willfully cause or attempt to
cause insubordination, disloyalty, mutiny or refusal of duty
Rule: Clear and Present Danger Test
Allowed regulation of speech that presented a ―clear and present
danger‖
Frohwerk v United States (1919) – allowed Court to apply a aggregate affects type
test in a ―clear and present danger‖ analysis
The paper‘s circulation was tiny but ―it was in quarters where a little breath
would be enough to kindle a flame‖
Debs v United States (1919) – clear and present danger standard means merely that
words have a ―natural tendency and reasonably probable effect‖
Low threshold : effectively allowed government control over all speech
Abrams v United States (1919) – allowed prosecution if the acts ―were likely to
produce‖ effects that amounted to espionage
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Holmes dissent – begins some of the rhetoric that Principle to the right of
free speech should be limited only by clear and present dangers
Advocated a ―marketplace‖ of ideas theory
o Learned Hand Test
Masses Publishing Co v Patten (SDNY 1917)
Focuses solely on the words spoken, not on the surrounding circumstances
Terms of the test – words could be punished if they ―counsel or advise
others to violate the law‖ but not if they were merely critical
Makes likely effects of the speech completely irrelevant
o Statutes directly proscribing speech
Gitlow v New York (1925)
Facts: New York passed a ―criminal anarchy‖ statute, which banned
advocating the overthrow of a government by assassination or other violent
means. The defendant published a ―Left Win Manifesto‖ which advocated
establishment of a dictatorship
Rules: ―Clear and Present Danger‖ was limited only to acts, without
reference to language itself; certain language is inherently dangerous
No immediacy or definite requirement
Whitney v California (1927)
Facts: The California Criminal Syndicalism Act forbade membership in
any organization advocating the use of force or violence to effect political
change. Whitney was a member of the Communist Party but did not act in
any way or believe in any violent acts.
Rules: Legislature is given great deference in determining what is
dangerous and what is not.
Braindeis’s dissent:
Legislature‘s power – Legislature cannot by passing a statute
establish the facts which hare essential to the law‘s validity
Value of Free Speech - Can‘t punish the speech unless it produces
a clear and imminent danger
o Must be ―imminent‖ and must be ―incitement‖ –
encouraging some specific act
o Must allow a full opportunity for discussion
Graglia - answer to bad speech is more speech
o Threat of Communism and the Smith Act
Smith Act was meant to prohibit communism
American communist party was subsidized by the Soviet Union and spies
did exist
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Currently denounced as a witch hunt, but unlike a witch hunt, there
certainly were communists
Dennis v United States (1951)
Facts: Deendants were convicted under the Smith Act of conspiring to
advocate the overthrow of the government
Rule: In applying the ―Clear and Present Danger‖ test, the greater the
danger, the less ―clear and present‖ it needs to be
Black/Douglas dissent – does away with ―clear and present‖ requirement
Yates v United States (1957) and Scales v United States (1961)
Requires that in order to be convicted, the defendant needs to advocate
specific violence
Requires that mere membership isn‘t enough, the defendant must be active
in promoting violence
Brandenburg v Ohio (1969)
Adopts Brandeis‘s concurring opinion of ―clear and imminent‖ danger
Rule: Speech advocating force/crime can be proscribed if 1)the advocacy is
directed to inciting or producing imminent lawless action and 2) the
advocacy is also ―likely to incite or produce such action‖
Analysis of Content-Neutral government Action
3 part test
o 1. Significant Government Interest
o 2. Narrowly Tailored
o 3. Must leave open alternative channels for communicating the information
Regulating time, place, manner
o 1. Must be content-neutral
o 2. Narrowly tailored for a significant government interest
o Must leave open alternative channels
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Religion / State Action/Congr Pwr Graglia Spring 2011
Free Exercise Clause
Amen I: Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof...
Prior to the 1960s, the Court did not formulate a test for the free exercise clause
o Sherbert v Verner (1963)
Strict scrutiny should be used in evaluating laws burdening free exercise of religion
and declared unconstitutional the denial of unemployment benefits to a woman who
was discharged from her job rather than work on her Saturday Sabbath
In the 1990s, the law of the free exercise clause changed significantly.
o Employment Division v Smith (1990)
Facts: Law prohibits the use of peyote, but use of peyote was required by some
Native American religions
Rule: Free exercise clause cannot be used to challenge a neutral law of general
applicability.
No matter how much a law burdens religious practices, it is constitutional
under Smith so long as it does not single out religious behavior for
punishment and was not motivated by a desire to interfere with religion.
Thus, a law that is neutral must meet rational basis review (no review)
while one that is directed at a specific religious practice faces strict scrutiny
o Religious Freedom Restoration Act – required that courts use strict scrutiny in analyzing free
exercise clause claims
Held unconstitutional in City of Boerne v Flores (1997)
Law exceeded the scope of Congress‘s powers under §5 of the 14th
Amendment. Because this provision of the amendment had been
interpreted by the Supreme Court, Congress cannot invalidate the Court‘s
holdings.
Holding goes against McCulloch v Maryland, where Congress can use any necessary
means for a legitimate end.
Thus, it‘s another instance of the Court holding something unconstitutional
that isn‘t.
State Action
Due process operates as a limitation on the State‘s power to act
o DeShaney v Winnebago County (1989)
Facts: a small boy in the custody of his father following his parents divorce was so
severely beaten by his father that he suffered brain damage. Court rejected that
Wisconsin‘s failure to act was a form of state action.
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Rule: Like most other constitutional provisions, due process operates as a limitation
on the state‘s power to act, not as a guarantee of certain minimal levels of safety and
security
Rule: State inaction does not amount to state action that can be regulated by
Congress
Public Function Doctrine – Election Cases
o In 1875, during the reconstruction era when the radical republicans were in charge, they
passed the 1875 Civil Rights Act prohibiting race discrimination by public places
Court held it unconstitutional (involved 2 important holdings)
1. 14th amendment does not prohibit race discrimination by private parties
2. Congress could not prohibit individual discrimination either (they were
limited by what the 14th amendment said)
o However, a state could have a literacy requirement for voting (is that a violation of the 15 th
amendment)
Lassiter v North Hampton held that this wasn‘t unconstitutional (although it had a
racial impact)
o Congress passes the1965 Voting Rights Act (which made the 15th amendment effective)
prohibited literacy act
S Carolina v Katzenbach - Court upholds it (Congress could make legislation to
enforce the amendment)
o White Primary Cases
Nixon v Condon (1932) - Texas had a law prohibiting Blacks from voting in primary
elections. Since the Democratic party was the sole party in Texas, barring Blacks
from voting in the primary effectively prevented them from political representation.
Court held that it violated the 15th Amendment
In response, Texas has a rule that only whites could be members of the democratic
party
In Grovey v Townsend (1935), the court found no state action because the
Democratic Party was not a state instrumentality and the rules for party
membership were something which was not a state concern.
Overruled in Smith v Allwright (1944) – delegation of a state function to a
party makes that party‘s actions the action of the state
In response, Democratic party created an official ―Jaybirds‖ club that was exclusive
to whites. Although not mandated, only members from this club would become
eligible to run in the primaries.
Terry v Adams (1953) – (8-1) 4 justices held that Allwright was still
controlling because the Jaybirds were essentially Democrats; 3 led by Black
found Texas‘s involvement in the election process was sufficient; and 1
(Frankfurter) found state action because state election officials participated.
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o Rule: When states delegate to private persons the power to perform quintessential public
functions, the actions of the private persons become attributable to the state
Public Function Doctrine – Management of Private Property
o Marsh v Alabama (1946)
Facts: Attempt by a Jehovah‘s Witness to distribute literature in a company town,
Chickasaw, AL, which was owned by the Gulf Shipbuilding Corporation.
Rule: Running a city is a public function, and therefore it must be done in
compliance with the Constitution, whether by the government or a private entity.
o Amalgamated Food Employees Union v Logan Valley Plaza (1968)
Facts: Shopping center prohibited striking laborers from picketing a store within it
Rule: A private shopping center was functionally similar as a commercial center of
town, and thus is subject to compliance with the Constitution.
o Lloyd Corp v Tanner (1972)
Court distinguished Logan Valley on the ground that it involved labor protests
related to the functioning of a store in the shopping center, whereas the speech in
Lloyd was a protest unrelated to the conduct of the business
Note: Supreme Court has long held that the government cannot regulate speech
based on its content, yet here they are distinguishing one from the other based on the
content.
o Hudgens v National Labor Relations Board (1976)
Overruled Logan Valley and held that the First Amendment DOES NOT apply to
privately owned shopping centers.
o Evans v Newton (1966)
Facts: Park had been created in Macon, GA by a testamentary trust in the will of
Senator Augustus Bacon, which required that it be used only by white persons. To
avoid being segregated, the city was removed as a trustee, but still maintained
control of the park. Court held that the city could not avoid desegregating a park by
turning its control over to a private entity
Rule: Running a park is a public function and so must comply with the Constitution
Other examples: Gerard College (Philadelphia had a school for white orphans—court
held that it was state action); Rice University (also found to be state action)
o Jackson v Metropolitan Edison Co (1974)
Facts: a private utility, operating under a state granted monopoly, cut off service for
non-payment. The deadbeat now claims a due process violation.
Rule: In order for there to be state action by a private company where the state has
delegated work, it must be in an area that is traditionally exclusively state or public
Example: Municipality grants a monopoly to a taxi co to run taxi services in
the city, but the taxi cab discriminates. Is there a sufficient nexus? No. But,
if the city council sits on the board of the taxi co., then there is. Also, here,
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the taxi is discriminating in the exact line of work it‘s doing. In Burton, the
contract was just a lease.
Rule: Govt regulation was not sufficient to create state action
Public Function Doctrine – Running and Regulating Schools
o Rendell-Baker v Kohn (1982)
Facts: Private school that received almost all of its funding from the state fired a
teacher because of her speech. No state action found.
Rule: Question is not whether a school provides a ―public function,‖ but whether this
was traditionally the exclusive prerogative of the state
Rule: State aid is also no sufficient for there to be ―entanglement‖ with the state if
the school‘s actions were not compelled or even influenced by any state regulation.
o Brentwood Academy v Tennessee Secondary School (2001)
Facts: Private association of high schools (84% are public schools) – is this state
action? Court says yes.
Rule: State action may be found only if there is such a close nexus between the state
and the challenged action that seemingly private behavior may be fairly treated as
that of the state itself.
―It‘s state action if it ought to be; if it ought to be regulated then it is a state
action‖ – Graglia‘s interpretation of Souter‘s definition of ―entwinement‖
Only thing state about this is that the meetings take place in public schools
Entanglement
o Constitution applies if the government affirmatively authorizes, encourages, or facilitates
private conduct that violates the constitution
o Judicial and Law enforcement actions
Shelley v Kraemer (1948)
Facts: Black family moves in to a house with a restrictive covenant limiting
homeownerships to whites. Can a court enforce this contract?
Rule: State courts are not permitted to enforce contracts that are violative of
the constitution
Note: Remains controversial because ultimately everything can be made
state action under it. If any decision by a state court makes it state action,
then all private actions must comply with the Constitution.
Bell v Maryland (1964)
Facts: Nine Black students were convicted in Maryland state court of
criminal trespass as a result of their participation in a sit-in at a restaurant
that refused to serve blacks.
Although the Court avoided the constitutional question, the issue arises
whether the state enforcement of trespass laws is inherently state action.
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Douglas – broad reading of Kraemer that should invalidate a state
action like this.
Black – narrow reading of Kraemer where state action was
involved only where both the buyer and seller wanted the
transaction but for a discriminatory, unconstitutional law.
Lugar v Edmonson Oil Co (1982)
Facts: Creditor had the sheriff seize property from the debtor to prevent the
debtor from getting rid of it. Debtor claims due process violation by a state
actor. Court found that this was a state action.
Rule: Court articulated a two-part test for state action:
1. Deprivation must be caused by the exercise of some right or
privilege created by the state
2. The party charged with the deprivation must be a person who
may be fairly said to be a state actor
Differs from Flagg Brothers : here, a state sheriff seized the property; in
Flagg Brothers, a private individual enforced the repossession.
Difference is more a matter of degree than of kind. In both cases,
state law provided the procedures for the debtors‘ action.
Reitman v Mulkey (1967)
Facts: A ballot initiative adopted by the voters declared that the state may
not enact anti-discrimination laws in housing and was thus enacted into the
state constitution. This was in response to state legislation that outlawed
discrimination.
Rules: Because the right to discriminate (including on racial grounds) was
now enshrined in the Constitution, and was immune from any intervention
by the government, it was deemed unconstitutional because it amounted to
state authorization and promotion of discrimination.
Does this then mean that any repeal of an antidiscrimination law
(which was never required) is impermissible encouragement of
discrimination?
o This was more than a repeal – it was a constitutional
amendment. Judicial activists = bad.
o Government licensing and regulation
Burton v Wilmington Parking Authority (1961)
Facts: Wilmington, DE operated a parking garage that leased space to a
private restaurant that denied service to Blacks.
Rule: Government was so entangled when there was a symbiotic
relationship sufficient to create state action.
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By this reasoning, everything is state action. All corporations
chartered or everyone licensed by the state would have to comply
with the Constitution. Courts later clarified that there must be
some benefit conferred to the state for this to count. In Burton, the
state promotes the racism by giving that restaurant a competitive
advantage, and thereby using that parking more frequently.
Congressional Power to Enforce Constitutional Rights
―The Congress shall have power to enforce this article by appropriate legislation‖
o Appears in 13th, 14th, and 15th amendments (and later ones too)
The Scope of Enforcement Power: Public or Private
o The Civil Rights Cases (1883)
Background: Federal Civil Rights Act of 1875 prohibited private racial
discrimination in public accommodations and subjected violators to civil liability and
criminal penalties. Court found this unconstitutional.
Rule: The 14th Amendment prohibits state action of a particular character. Individual
invasion of individual rights is not the subject matter of the amendment.
Court also debunks the 13th amendment theory: that Congress can enact all
legislation to stop slavery. It‘s too much of a stretch to call all
discrimination ―slavery‖
Graglia – privacy interest is less though when it comes to hotels when
compared to private houses
Harlan (dissent) – discrimination is a vestige of slavery, so if Congress can enact all
legislation to end slavery, they should have the authority to enact this.
Hotels are providing a public function (so it goes into the State Action idea)
14th amendment also creates a right of citizenship- that doesn‘t involve the
states, so a right of citizenship is to not be discriminated against
o United States v Guest (1966) – held that Congress could regulate private conduct under §5 of
the 14th amendment.
o United States v Morrison (2000)
Facts: Virginia Tech girl got raped; sued under Mann Act.
Rules: Congress cannot regulate non-economic activity based on a cumulative
impact on interstate commerce
Note: the Court expressly reaffirmed the Civil Rights Cases and disavowed the
opinions to the contrary in Guest.
Nationalist Perspective of §5: Katzenbach v Morgan
o Katzenbach v Morgan (1966)
Facts: Congress passed the Voting Rights Act (1965) which regulated the literacy
tests used by states. It struck down most literacy tests, but kept an exception for NY
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which had a caveat for those with a 6th grade Puerto Rican school level of Spanish
skills. Constitutional?
Note: The Supreme Court in Lassiter v Northampton Election Board (1959) upheld
the constitutionality of English literacy requirements for voting
Rule: Court offered two reasons
1. Congress could conclude that granting Puerto Ricans the right to vote would
empower them and help them to eliminate discrimination against them. The
law was constitutional because it was a remedy for discrimination.
2. Congress could find that the literacy test denied equal protection, contrary
to the Court‘s prior holdings.
i. This in effect accords Congress the authority to define the meaning
of the Fourteenth Amendment and disregard the Court‘s
interpretation.
ii. Brennan: §5 does not grant Congress the right to dilute equal
protection, but to further it.
City of Rome v United States (1980)
Facts: DOJ restricts changes that a city adopted after the Voting Rights Act was
enacted in 1965. The city annexed surrounding areas to dilute the racial make-up,
although claims that it was not racially motivated. Can Congress govern this?
Rule: Court suggested that Congress has the authority under §2 to interpret the
meaning of the 15th amendment
Even though the Court's Equal Protection Clause jurisprudence teaches that
the Clause prohibits only purposeful discrimination, not actions with
discriminatory effects, the Court found Congress to have been acting within
its § 2
o City of Mobile v Bolden (1980)
Facts: Mobile adopted an at-large election system that had a discriminatory impact.
Rule: At-large election systems are constitutional unless there is proof of a
discriminatory purpose.
Note: Although Mobile held that proof of a discriminatory intent was a prerequisite
to finding a constitutional violation, Rome concluded that Congress could prohibit
changes that have a discriminatory impact.
Rome could be read broadly or narrowly
Broad reading: authorizes Congress independently to interpret the
meaning of the 15th amendment contrary to that of SCOTUS
Narrow reading: approving a remedy for violations of voting rights
Federalist Shift of §5: Boerne v Flores
o City of Boerne v Flores (1997)
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Facts: Religious Freedom Restoration Act was adopted in 1993 to overturn a recent
Supreme Court decision that had narrowly interpreted the free exercise clause of the
First Amendment. Court held it unconstitutional.
Rule: Congress under §5 of the 14th amendment may not create new rights or expand
the scope of rights; rather Congress is limited to laws that prevent or remedy
violations of rights recognized by the Supreme Court
o Legislation that alters the meaning of the Free Exercise Clause cannot be said to be enforcing
the clause
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Exam Review 4/12/2011 6:11:00 PM
Approach it as if some, deeply interested person really wanted to know about the topic.
Carjacking Problem
Inform him that it‘s a congress of limited powers (federalism)
o Not necessary for congress to list the reasons, but it would be helpful to use the Lopez
standard
o He‘s relying on the bar theory
o Is that a basis for regulation?
Sullivan Case (once it crosses state line, Congress can regulate it)
Katzenbach v Morgan (supports both theory)
Scarborough Case (crime for felon to possess a gun once it crosses interstate
commerce)
Darby – bootstrap theory (even if they couldn‘t regulate the wages of the people
directly, they could affectuate the shipment, but after they effectuate the shipment,
they could then regulate the wages)
However, nothing solidly gives authority to Congress to do this.
nd
o 2 theory: use spending/taxing power to incentivize states to do things that the federal
government can‘t do
Restrictions on that power
SD v Dole – 4 limits:
Must be for the general welfare
o What is or isn‘t general welfare, Congress can decide
Condition must be clear and specific
o State must be aware that it is accepting this condition
Condition must bear some relation to the grant
o Only real restriction, if there is a restriction
When it gets to be 50%, it comes to look like coercion
Possession of Childhood pornography
Perez – the anti-loan sharking federal statute
o Why? Because loan sharking supports organized crime, and organized crime affects interstate
commerce
o Does it apply?
There it refers to direct support of organized crime
Here, it‘s referring to possession of childhood pornography…how does this
contribute to organized crime
Congress has no right to protect the mental help
Congress isn‘t fully understanding its federal limitations
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Language of ―beyond the scope‖ – in Madison‘s original draft, but not included in the Constitution,
instead you have enumerated powers
Arson problem
Private home using gas – dubious connection
Intent of the statute was to prevent arson to commercial buildings
Privileges & Immunities
Got stayed out from the Slaughterhouse Cases
Has had no significance constitutional significance
Due Process
What it was supposed to mean: you cannot just grab people and throw them in dungeons
o You must first use the established legal procedures
Substantive Due Process – every deprivation of liberty must be reasonable, every law must be
reasonable (an appeal to natural law)
o A power transferring provision – the court can be the final arbiter on any issue it pleases
They just don‘t care about businesses
But if they do care (TX sodomy law, abortion)
―I‘d rather be ruled by the first 2000 names in the phonebook than the
Harvard faculty‖
Equal Protection
Makes sense that what it means (the main word is protection)
o The laws must be administered fairly according to their terms, but then there‘d be no
restriction on the substance of the law
o Since every law discriminates, distinguishes, then every law can be challenged on equality
grounds
Then the only basis would be that it be reasonable
Another instance Policy Transferring power
SC v Lucas (Rehnquist: takings, affirmative action, federalism)
Regulatory taking rule created by Scalia
o If regulation totally removes economic usefulness
o He incorporates nuisance laws
If regulation deprives property owner of what was already deprived by nuisance
laws, then there is no taking
Direct/Indirect Test
Frequent move in law to find some way of limiting
Louderman
―bitter with the sweet‖ – when the government grants you a benefit and it says that that benefit can be
cut off without any notice or hearing in certain circumstances…then that‘s the total grant
o the sweet – you‘ve been granted a benefit
o bitter – it can be cut off
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but it‘s all part of the grant
procedural due process is a departure from that
o Brennan: No…the government grants some benefit, and they can‘t take away
o
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