I. FEDERAL JUDICIAL POWER
Authority to review federal executive and legislative acts:
Case: Marbury v. Madison – Chief Justice Marshall denies Marbury his justice of the peace commission, thereby giving
political rival Thomas Jefferson a victory, while not only avoiding making the Supreme Court irrelevant (if Jefferson had
ignored the order), but also cannily securing the Court’s power to review the Constitutionality of executive and legislative
acts. Marshall held that though Marbury had a cause of action and was entitled to a remedy, the Court did not have
jurisdiction to give a writ of mandamus because the Federal Judiciary Act of 1789 was unconstitutional in that it gave the
Court more authority than was allowed by the Constitution.
Marbury establishes the ideas that the Constitution is a limiting document, not aspirational, and it binds the
government in what it can do.
Marshall reads the original jx clause of Article III as establishing a ceiling to what the Supreme Court can hear,
however it could also be interpreted as a floor.
Supreme Court can review Constitutional issues relating to both the executive and legislative branches.
The President is not above the law.
Supreme Court has final word on Constitutional issues, whereas their interpretation of a law that is non-
constitutional in nature can be overcome by the legislature’s later amendment of the law.
Review of States: Authority to review state court decisions, state laws, and actions of state executives was established in two
decisions in early 19th century.
Martin v. Hunter’s Lessee (1816) – Supreme court can review state court opinions because if Congress had chosen not to set
up lower federal courts, Supreme Court would have a very limited purpose. Also, recognizes that States will have their own
attachments, prejudices, jealousies and interests.
Cohens v. Virginia (1821) – States cannot be trusted to defend Federal rights because they are beholden to their state
governments and voters. Criminal defendants should be able to seek Supreme Court review if they allege their conviction
violates the Constitution.
Limits on Federal Judicial Power
1. Interpretive Limits
Originalism – judges deciding constitutional issues should confine themselves to enforcing norms that are
stated or clearly implicit in the written Constitution. If Constitution is silent, it is for the legislature
unconstrained by the courts to decide the law.
Evolution should occur only by amendment.
Sub groups: Specific intent vs. abstract intent
Examples of originalism that are already obsolete: equal protection making government-mandated
racial segregation unacceptable, when this was arguably not Framers intent. Same with protecting
women from discrimination.
Non-Originalism – Courts should go beyond that set of references and enforce norms that cannot be
discovered within the four corners of the document. Otherwise the Constitution is static and will not
evolve to meet the needs of a society that is advancing technologically and morally.
Evolution can occur through amendment and interpretation
Sub Groups: Emphases on tradition vs. natural law vs. contemporary values
2. Congressional Limits – debate centers on two constitutional issues
1. What does the language of Article III mean when it says Supreme Court jurisdiction exists subject
to such “exceptions and regulations” as Congress shall make?
a. If Congress chooses to limit the ability of the Court to hear an issue, then it would be left
up to the state courts to decide it for each of the states. If the Court could not hear a
particular hot-button Constitutional issue, the states would essentially be able to disregard
any limit the Constitution might impose regarding that issue (US Supreme could not
2. Does separation of powers limit the ability of Congress to restrict Supreme Court jurisdiction?
The Exceptions and Regulations Clause – three positions:
1. Congress has broad powers to restrict Court
2. Congress only has power to create exceptions to Court’s jx for review of matters of fact, but
3. Even if Congress has power to restrict, this violates other parts of the Constitution.
3. Justiciability Limits – judicially created limits on the matters that can be heard in federal courts. Some are
dictated by Article III (2) of the Constitution, others are “prudential” and based on prudent judicial
administration and can be overridden by Congress.
Cert Process – Only 4 of 9 justices required to grant cert. Need not give reasons.
Avoidance Principles (pg. 41) – self-imposed limits that control when the Court can take up a constitutional
1. Will not do it in a friendly nonadversarial proceeding (no advisory opinion)
2. Will not do it in advance of the necessity of deciding it (ripeness)
3. Will not formulate a rule of Con law broader than is required by the facts of the case
4. Will not do it even in the proper case if there is a separate ground on which case can be decided
5. Will not pass upon validity of state statute upon complaint by one who fails to show he is injured by its
6. Will not pass upon validity of statute at the instance of one who has availed himself of its benefits
7. If court can fairly interpret a challenged statute to avoid a Con question, it will do so.
Justiciability Doctrines – Control getting through the courthouse door
1. Prohibition of Advisory Opinions – must be actual dispute between adverse litigants. Must be a
substantial likelihood that a federal court decision in favor of a claimant will bring about some
change or have some effect. Arises out of “cases and controversies” language.
2. Standing – is the litigant entitled to have the court decide the merits of the dispute or of particular
Constitutional requirements for standing:
i. Injury - Plaintiff must allege he has suffered an injury or will imminently suffer
ii. Causation - Plaintiff must allege the injury if fairly traceable to the defendant’s
iii. Redressability - Plaintiff must allege that a favorable federal court decision is
likely to redress the injury
Prudential requirements for standing:
iv. No Third Party - A party generally may assert only his or her own rights and
cannot raise the claims of third parties not before the court.
v. No General Grievance - A Plaintiff may not sue as a taxpayer who shares a
grievance in common with all other taxpayers.
vi. (Zone of Interest) – Arises almost exclusively in administrative law. Person
must be in the zone of interests protected by the statute in question.
No piece of legislation can increase the jurisdiction of the courts past constitutional
bounds of Article III
Lujan v. Defenders of Wildlife – Challenge to a rule promulgated by Secretary of the
Interior regarding when the federal government can comply with the Endangered Species
Act. Scalia: Plaintiffs have no standing to sue the government for funding it is giving to
overseas development projects that are harming such species. They have visited those
sites in the past, but they have not articulated when exactly they plan on returning,
therefore they cannot claim they have or will imminently suffer injury. Also
redressability is not certain, since foreign projects could go on without US aid.
Criticisms of Causation and Redressability requirements:
a. Merely implements the prohibition against advisory opinions because if a judgment
will not redress an injury then it is simply advisory in the sense that it has no effect.
b. Because standing is determined on the pleadings, causation and redressability
analyses are problematic in that they cannot be made without some judgment of the
3. Ripeness – Overlaps with Injury requirement. Plaintiff must show that review is not premature, ie
that a harm has occurred or immediately will occur. Usually ripeness is specifically concerned
with when a party may seek pre-enforcement review of a statute or regulation (a request for
Declaratory Judgment Act – allows people to avoid having to violate a law in order for
their request for review to ripen.
4. Mootness – Plaintiff must present a live controversy at all stages of federal court litigation.
Anything occurring outside the lawsuit to end the plaintiff’s injury, will cause the case to be
dismissed as moot.
Derived from Article III’s prohibition against federal courts issuing advisory opinions;
also tied to redressability (since such opinions will usually have no effect)
Short Duration Exception – injuries of a short duration that will likely always evade
review and that will likely happen to plaintiff again.
Voluntary Cessation Exception – Case not to be dismissed as moot if the defendant has
voluntarily ceased the allegedly improper behavior.
Class Action Exception – Even if the named plaintiff’s claims become moot, as long as
the members of the class have a live controversy the case can continue
5. Political Question Doctrine – left to the political branches of government to interpret and enforce
and are therefore non-justiciable political questions.
Look for things the Constitution explicitly gives the power to Congress or the President.
Critics: Constitution is meant to insulate matters from the political process. Defenders:
Separation of powers argument; other branches have superior expertise on these
questions and this reduces judicial intrusion.
Examples of political questions
i. Foreign policy
ii. Impeachment process (SCOTUS justice or president)
iii. Expulsion of a member of congress
iv. President’s power to terminate a treaty
v. Political gerrymanders
vi. Political questions that are “too hot to handle”
1. Embarrassment of congress or president for a prior decision is possible.
Malapportionment is justiciable
i. Baker v. Carr – Before this case, the Court had held that cases brought under the
Guaranty Clause of Article IV were political questions, which usually covered
gerrymandering cases (violating the guaranty of a republican form of
government). Supreme Court takes up malapportionment case under the equal
protection and due process clauses of the 14th amendment. Dissent: Court has
never had this power and is destroying sound precedent in taking it. This is up
to the citizens of the states to determine their legislative representation.
In evaluating the Constitutionality of any act of Congress, ask:
1. Can the Court reach this case?
2. Did Congress have the power to establish the law? (Locus of congressional power)
3. Is there some other part of the Constitution that conflicts with Congress supposed power to
establish the law?
II. FEDERAL LEGISLATIVE POWER
Congress and the States
o Congress may act only if there is express or implied authority to act in the Constitution
o Does Congress have the authority under the Constitution to legislate?
o If so, does the law violate another constitutional provision or doctrine (separation of powers, individual
o States may act unless the Constitution prohibits the action (10th Amendment)
o Is a piece of state legislation in violation of the Constitution?
o Police Power: State and local governments have freedom to adopt any law that is not prohibited by the
Constitution (except in case of District of Columbia – which Congress regulates)
o Concerns around federalism:
o Race to the bottom argument
o Lack of unity or cohesion
o Deciding who protects things in interstate travel
McCulloch v. Maryland – State of Maryland sues the Bank of the United States for taxes it levied on the bank for
doing business in the state. Marshall interprets Constitution and states that though no express power was granted to
create such a bank, the Constitution must be interpreted differently from a statute since it cannot be expected to
contain all the detailed powers it will bestow on Congress. Congress should have the ability to use any means
not prohibited by the Constitution to carry out its limited powers, thereby granting Congress almost infinite
options that can be enacted into law. Also, necessary in the “necessary and proper” clause does not mean only
that most simple and direct of means, but any means not prohibited by the Constitution.
The Commerce Power
Court controls the throttle on Commerce Power by:
shifting its interpretation of the elements “commerce,” “among the states”
invoking the 10th amendment as a limit of Congressional power under the Constitution
Gibbons v. Ogden – NY law grants monopoly on ferry service going from NY to NJ, and suit is brought by
preexisting operator who has found himself now violating the monopoly. Held: Congress has the power under
Section 8 of Article I to regulate commerce...
o Congress has power to regulate commerce between the US and foreign nations
o Congress has power to regulate commerce between the states, and as far as commerce affects the states
“generally”, but not those that are completely within a state and do not affect other states.
o Congress power to regulate commerce between a state and a foreign nation.
o The “power” is plenary as to its enumerated objects in section 8 and is “complete in itself, may be exercised to
its utmost extent”
Broadening and Narrowing of Commerce Power:
Late 1800s to 1937: Gibbons was a broad grant of power to Congress, however from the late 19th century until
1937, the Court favored a more laissez-faire approach and very narrowly construed the Commerce power.
1937 to 1990s: In 1937, the Commerce Power broadened again. In the throes of the Great Depression, the Court’s
narrow interpretation of the Commerce clause and the resulting invalidations it had made regarding New Deal
programs made the Court unpopular. Political pressure in the form of changes to the Court’s composition resulted in
a change of position by some of the justices.
Wickard v. Filburn – Farmer fined for harvesting more winter wheat than he was supposed to under the Agricultural
Adjustment Act. Claims Congress has no power to regulate what he grows for his own personal consumption since
this is not related to interstate commerce. Held: his consumption affects the price of wheat that the federal
government is trying to sustain for the good of the country, therefore it has interstate commerce implications.
Katzenbach v. McClung & McClung – Court upholds the Civil Rights Act as constitutional because it is authorized
under the Commerce Power. Court holds that racial discrimination affects interstate commerce and the free flow of
products generally. Court also steamrolls through the question of whether the particular restaurant was involved in
interstate commerce, instead simply declaring that the Act is valid and applies to restaurants.
1990—: Court has begun limiting the Commerce Power again through many 5-4 majority opinions
US v. Lopez – Very plural opinion striking down a federal statute outlawing gun possession within 1000 feet of any
school. Rehnquist majority holds this law does not touch on commercial activity at all and arguments that it
“substantially affects” interstate commerce are untenable. Also points out that there is no jurisdictional element
which might limit its reach to a discreet group of violations that are more closely related to interstate commerce.
The states are being denied the opportunity to work out their own solutions, which is part of their role as incubators
Categories of Activity Congress may regulate under the Commerce Power:
1. The use of the channels of interstate commerce
2. The instrumentalities of interstate commerce, or persons or things in interstate commerce, even
though the threat may only come from intrastate activities.
3. Those activities that substantially affect interstate commerce.
Lopez Rule on Federal regulation of intrastate local activity: 1) local activity must be economic in nature and 2) it
must have a substantial effect on interstate commerce.
Dissent: this opinion overturns highly important precedent and will undermine the foundation of many invaluable
federal laws. Guns near schools has a documented effect on interstate commerce. Breyer: inquiry should be
whether Congress was rational in finding a link between the problematic conduct and interstate commerce.
US v. Morrison – strikes down federal civil cause of action statute related to gender based violence (Virginia Tech
student is raped by jock). Same argument by Rehnquist, but this time he notes that Congress has in its record plenty
of data to support a link between interstate commerce and gender based violence. However the Court disregards
this, and states that this does not prove anything. Breyer Dissent: Same again. Asks for a Rationality test. Says
court is using means that are necessary and proper to enforce a broader legislation. Also says that the Court is going
back to formulas in order to re-embrace a Federalist philosophy that will only lead to the same conclusion that was
reached in 1937.
Argument by lawyer to distinguish this from Lopez: this does not touch upon issues of state sovereignty
but national issues.
Note: here the court is demanding something more than a rational basis on the part of Congress. It is
second-guessing Congress more often and more aggressively
Gonzales v. Raich – California couple busted under Federal statute even though California law allowed their
growing and consumption of medical marijuana. Issue: does Commerce clause allow Congress to regulate the
portions of the market for medicinal substances that encompass the local production and consumption of those
Majority: Yes, even this local growing and consumption of small amounts of marijuana has a substantial
effect on interstate commerce. Unlike Lopez and Morrison the CSA is quintessentially economic in nature.
This case is supported by the Wickard precedent (winter wheat case) except that here the idea is to
eradicate the interstate market rather than to control prices. Furthermore, Congress had a rational basis for
believing that such regulation of marijuana cultivation and use would affect interstate commerce.
Scalia: Yes, The “substantial affects” test is actually supported by the “necessary and proper” clause, which
justifies the even regulation of purely intrastate activities even if they do not substantially affect interstate
commerce if it is necessary to avoid undercutting a broader regulation that is economic in nature.
O’Connor/Rehnquist/Thomas: No. This law is not related to commerce, and to say that the “necessary
and proper” clause grants Congress the ability to regulate intrastate commerce that is so local does not
comport with our holding in Lopez. If it were so, we could have just held the reverse in Lopez and simply
justified it with this reasoning. This opens the door to Congress to regulate whatever it wants as long as it
drafts its laws according to this decision. This is denying the states the ability to test policies and allow the
people to decide how to deal with this issue.
Thomas: No. This has nothing to do with interstate commerce and clearly this police power is the
province of the states.
Printz v. US – Challenge by state chief law enforcement officers to a portion of the Brady Act requiring state law
enforcement to help implement a national instant background check system in the interim before full implementation
took effect. They argue that the federal government cannot press them into service and that congressional action
compelling state officers to execute federal laws is unconstitutional.
Scalia Majority: Since the Constitution does not address this specifically, Scalia goes through: 1)
historical understanding and practice 2) structure of the Constitution 3) and in our prior decisions. Scalia
goes with #3 and looks to New York v. US, in which the Court held the Congress could not require the
states to enact legislation providing for the disposal of radioactive waste generated within their borders. He
concedes however that where a statute applies to the states and private citizens it may be allowable (look at
Reno v. Condon).
Figure: Yin and yang of 10th Amendment balance with Commerce clause
Printz exception (no
10th commandeering state
legislative or executive
Reno v. Condon – Unanimous opinion upholding the federal DPPA (Driver’s Privacy Protection Act). Held: this is
different than Printz because it applies to the states AND private individuals. The DPPA does not require the states
in their sovereign capacity to regulate their own citizens, it only regulates them as the owners of databases. It does
not require the state to enact any laws or regulations and it does not require state officials to assist in the
enforcement of federal statutes regulating private individuals.
Notes with Craig:
Federal government cannot compel or force the state legislative or executive branches to carry out federal
program. If state is acting like an individual (like using the databases in Condon) and not as a regulator of its own
affairs then the government can tell it what to do.
The Taxing and Spending Power (Art. I § 8)
Conditions on Grants to state governments
South Dakota v. Dole – SD challenges law allowing federal government to attach condition on highway
money that would withhold a percentage of it if SD allows kids under 21 yrs to purchase or possess
alcohol. Held: Congress has this power, though it is not unlimited. Rehnquist thinks it’s clear that the
statute in question is within this scope, and that it is related to the national interest in keeping the highways
safe. Also, he notes that the state would only lose a small percentage of funds, so an argument that this is
compulsion by the federal government is not convincing.
1. Exercise of spending power must be in pursuit of “the general welfare”
a. In questions of whether an expenditure is intended to serve a general public
purpose, Court should substantially defer to Congress
2. Conditioning must be unambiguous so states know of the consequences of their choice.
3. Cases have suggested that conditions on federal grants should be related to the federal
interest in the particular national program.
4. Other constitutional provisions may be an independent bar
O’Connor: Determining drinking ages is for the states under the 21st amendment. Congress DOES have
the power to attach conditions on grants to states, however the application of the “related to federal
interest” test here is unconvincing and very tangential, opening the door to more federal control of state
Congress’s Powers Under the Reconstruction Era Amendments
Thirteenth Amendment (1865) – Prohibits slavery and involuntary servitude
Fourteenth Amendment (1868) – All persons born or naturalized in the US are citizens and no state can abridge the
privileges of such citizens; due process and equal protections.
Fifteenth Amendment – Right to vote not to be abridged on account of race, color, prior servitude.
Applies only to STATE actors:
Must be aimed at proscribing discrimination by officials which 14AM itself might not proscribe
Means must be congruent and proportional to the injury to be prevented or remedied
Two views of which rights can be remedied:
Narrow view: only those rights the Court recognizes
Rationale: solely Court’s role to decide the rights under 14AM, reserving more governance for the
states to create remedies
Broader view: Congress has ability to create new rights from 14AM but can’t dilute current rights
Rationale: Seeing Congress and Court as having authority to recognize and protect Constitutional
rights, and creating needed national power to protect civil rights and civil liberties
The Civil Rights Cases – remain good law in establishing that provisions of 1 of 14th amendment apply only to
government action, not private conduct. Congress may prohibit private racial discrimination under the 13th
amendment (Jones v. Alfred H. Mayer)
US v. Morrison (revisited) – Rehnquist majority holds that civil damages provision of federal gender violence law is
not constitutional as a use of 14th amendment power. That amendment clearly applies only to state action and the
statute in question fails to specify only state actors.
Breyer Dissent: yes, the 14th amendment applies to state action, however this does not preclude its use
here. The federal government is being called on to fix an inadequacy on the part of a state to provide a
remedy for a crime that is already outlawed by state law. Thus the 14th amendment is being used here to
control state action.
The Scope of Congress’s power
Congress’ power to pass laws under the 14th amendment
Ruling of Smith – the Free Exercise Clause cannot be used to challenge neutral laws of general applicability. As
a result, President Clinton passed the Religious Freedom Restoration Act to overturn the Smith decision. It says
courts should consider free exercise challenges
City of Boerne v. Flores – Church fights state zoning law under a federal religious freedom statute. Court holds the
Act is unconstitutional. Congress can only pass laws under the 14th amendment if those laws are remedial or
corrective in nature and not substantive. Also the law must be proportional to the violation to be remedied.
1. Must show a record of a problem and that a remedy was necessary
2. Must show that the remedy was not excessive
1. Pro Boerne – keeps the court as the ultimate interpreter of the Constitution, otherwise Congress
could change constitutional rights as it wished and this would change with each new political
2. Anti-Boerne – the Ninth Amendment implies that the Constitution is the floor in terms of
protected rights, and that if Congress wants to create more rights it can legislate.
Congress’s Power to Authorize Suits Against State Governments
EXAM: 11th amendment will not be tested
III. FEDERAL EXECUTIVE POWER
Powers explicit in the Constitution – Article II
When the President can act:
INHERENT PRESIDENTIAL POWERS – when can the President act without express Constitutional or statutory
o Youngstown Sheet & Tube v. Sawyer – Prolonged labor dispute in steel industry leads to President ordering the
Secretary of Commerce to take control of the steel mills and operate them in order to avert a production crisis.
Government concedes the President did not have either Constitutional or statutory authority, but instead argues the
President had inherent power as 1) commander-in-chief of the armed forces to protect production of steel for use and
2) he had power under the aggregated powers given to him under Article II. Court holds neither of these gives him
the power to do what he did.
Black: No inherent powers outside Constitutional and statutory authorization. Constitution limits the
President to recommending or vetoing laws, and it is quite clear who is supposed to be making laws.
Douglas: President can act without statutory or Constitutional authority as long as no usurpation of
core power of another branch of government. President is in effect making a seizure under the 5th
Amendment and he does not have the power to do this since he has no power to raise revenues
Jackson: President can act without stat or const authority as long as Congress has not said no.
Even though he is commander-in-chief, the power to seize property is for our lawmakers, not military
History shows that Congress considered giving the executive this power in times of emergency but
deliberately decided against it.
Dissent: President was acting in accordance with his duties to take care the laws are faithfully executed,
since Congress supports the war in Korea for which the steel was being used. President could not have
avoided the seizure by allowing price concessions either, since this would have undercut the price
stabilization program also enacted by Congress. History shows that Presidents have commonly dealt with
national emergencies in the absence of statutory authorization, and in those cases the judiciary has been
o Issue of Executive Privilege – the ability of the President to keep secret conversations with or memoranda to or
Not mentioned by the Constitution, but Presidents have claimed it throughout American history
US v. Nixon – Unanimous opinion. Nixon tries to quash a subpoena duces tecum requesting documents and
recordings. Supreme Court held:
Justiciability - it had the power to hear the case because it was not an ordinary “political
question” case but an out of the ordinary delegation of authority from the Attorney General to a
special prosecutor, and his power must be respected and enforced by the three branches of
government. President had tried to argue that since he has broad powers to run the executive
branch, he has absolute power over this.
o Also Court has the responsibility to protect the rights of the accused to have all
adversarial evidence provided.
Claim of Privilege – Court denies reading an absolute privilege, citing Marbury v. Madison that it
is the judicial branch’s duty to say what the law is.
o Generalized Claim of Public Interest in Confidentiality – Court rejects this basis for
privilege saying it would upset the Constitutional balance of a workable government and
impair the Article III role of courts.
Possible if this was a claim of military, diplomatic, or sensitive national security
interests in confidentiality the Court would have given greater deference?
o Court points to a conflicting Constitutional right to production of all evidence at a
criminal trial (6th Amendment)
Exceptions to Nixon - In Cheney v. US – Supreme Court distinguishes Nixon because Cheney involved a
civil suit and not a criminal proceeding, therefore there weren’t the same “constitutional dimensions” at
THE CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE
o Federal Administrative Agencies – exercise all powers of government
Legislative – possess the authority to promulgate rules that have the force of law
Executive – they are responsible for bringing enforcement actions against those who violate the relevant
federal laws and regulations
Judicial – they employ administrative law judges who hear cases brought by agency officials against those
accused of violating the agency’s regulations
o Prior limits: Non-Delegation Doctrine – Congress could not delegate legislative power to administrative agencies.
o Why Congress would allow delegation to agencies:
Agency ability to specialize on that issue
Political accountability transfers to the agency
Enforcement is delegated, which is more in line with Executive Branch
o Checks on administrative agency power
Appointment and removal power
Congress delegating authority to itself
SEPARATION OF POWERS AND FOREIGN POLICY
o Area of law where reliance on framer’s intent is very difficult (little to go on)
o Are Foreign Policy and Domestic Affairs Different?
Does the Constitution allow the President more inherent powers as to foreign policy?
US v. Curtiss-Wright Export – Congress had passed a resolution authorizing the President to stop
sales of arms to countries involved in the Chaco border dispute. Note that this was with
Congress’ authorization. Roosevelt immediately issued an order prohibiting munitions sales to
those warring nations.
The statement that the federal government can exercise only those powers
enumerated in the Constitution, leaving the rest to the states only holds true for
The investment of the federal government with the powers of external
sovereignty did not depend on the affirmative grants of the Constitution. Even if
they had never been mentioned, they would have vested in the federal
government as necessary concomitants of nationality
The President is the sole negotiator in making treaties, even though he does so
with the advice and consent of the Senate.
President’s authority is derived not only from an exertion of legislative power,
but with also the plenary and exclusive power of the President as the sole organ
of the federal government in the field of international relations. However this
power still must be in subordination to the Constitution.
PRESIDENTIAL POWER AND THE WAR ON TERRORISM
o Hamdi v. Rumsfeld – two issues taken up by the Court:
1. Issue 1: Does the federal government have the authority to hold an American citizen apprehended in a
foreign country as an enemy combatant?
5-4 yes. O’Connor, Rehnquist, breyer, Kennedy: Hamdi can be held by the government pursuant to
the Authorization for Use of Force, which was enacted after 9/11. This allows the detention to be valid
under the Non-Detention Act, which states “no citizen shall be imprisoned or detained by the US
except pursuant to an act of congress.”
Thomas concurring: President can do it under his inherent power as Commander-and-Chief
Dissenters: there is no authority to hold an American citizen in the US as an enemy combatant without
charges or trial, unless Congress expressly suspends habeas corpus.
Souter/Ginsburg: Congress did not expressly authorize this, therefore it is in violation of the Non-
2. Issue 2: What process, if any, must be accorded to Hamdi?
8-1 Hamdi must be accorded due process.
O’Connor: hamdi is entitled to have his habeas corpus petition heard in federal court and that
imprisoning is the most basic form of deprivation of liberty, thus due process is required and the
procedures are to be determined by applying the 3part Mathews. V. Eldridge test:
I. Weigh the importance of the interest to the individual
II. Ability of additional procedures to reduce the risk of an erroneous deprivation
III. Government interests
Hamdi must be given a meaningful factual hearing, including:
I. Notice of the charges
II. Right to respond
III. Right to be represented by an attorney
IV. Hearsay evidence might be admissible
V. Burden of proof might switch to Hamdi
Court remanded for a determination of the procedural due process requirements in this situation
Thomas: accepts the government’s argument that President could detain enemy combatants without
Souter: doesn’t touch this because he considers the detention unlawful.
o Hamdan – Executive can set up procedures as long as they are in conformance with federal statutes and the
Constitution. Court applied Youngstown Steel to an international case. President’s power was at its lowest ebb
because he was in contradiction with the will of Congress.
o Boumediene v. Bush – Supreme Court rules as unconstitutional that portion of the MCA denying the writ of habeas
corpus to alien detainees classified as enemy combatants and held abroad. The MCA was enacted in response to the
Court’s holding that the DTA’s prohibition on federal courts entertaining habeas writs did not apply to cases
pending at that time. If the portion of the MCA denying federal jx had been valid, Supr Ct would have had to
dismiss the cases. Government argues they had put in place adequate alternative procedures for challenging
detentions (DC circuit court)
Majority: the Writ is such a fundamental right in our Constitution that the Framers made its
suspension possible only in very specific circumstances, which have not occurred here.
Court concedes: “it likely would be both an impractical and unprecedented extension of
judicial power to assume that habeas corpus would be available at the moment the prisoner is
taken into custody
If and when habeas corpus jx applies, then proper deference can be accorded to reasonable
procedures for screening and initial detention under lawful and proper conditions of
confinement and treatment for a reasonable period of time.
However: these detainees have already been held for several years.
Factor: relevant consideration in determining Court’s role is whether there are
suitable alternative processes in place to protect against the arbitrary exercise of
Domestic exigencies might also impose such onerous burdens on the Government that the
judicial branch would be required to devise sensible rules for staying habeas proceedings until
the Gov’t can comply with its requirements in a responsible way.
Dissent: the DTA provides adequate procedural safeguards, and the Court is here overruling
both the Executive and the Congress’ intent here! Scalia’s flip here is justified by his position
that the Constitution should not apply to these non-citizen enemy combatants and therefore
our Constitutional principles are not at stake. The Court has no place doing this since it is the
most ignorant of the reality in this situation. Allowing writs of habeas results in many
dangerous detainees being freed and returning to the battlefield.
FOR EXAM: you don’t have to understand the statutory details in the Hamdi and Boumediene cases, or details of post 9/11
Analysis of Executive Power:
Standing and other justiciability issues addressed.
2. What is the power of the president?
AUMF – granted president ability to detain
3. Are there independent limits on that presidential power?
Yes, there are due process limitations that must be followed
Checks on the President
Suing and Prosecuting the President
Two Primary formal mechanisms:
Civil suits and Criminal Proceedings
Nixon v. Fitzgerald – P sues president Nixon after he has left office for his politically motivated firing.
Held: the President has absolute immunity from civil suits arising from his actions in office. This doesn’t
mean the President is above the law: he can still be impeached, he is scrutinized by the press, he has to
think about reelection. The unique requirements of the job support immunity because to allow him to be
vulnerable to civil suits would cripple his ability to lead the country fearlessly, which would have far graver
consequences for the public.
Dissent: Why are we giving an unqualified Presidential immunity here? The Court here is making
a policy choice with little substantial support. The reach and import of this decision is also ambiguous.
Marbury v. Madison held that the legality of an act of the head of a department can be examinable in a
court of justice depending on the nature of the act.
Clinton v. Jones – civil suit related to actions before Clinton was President. Court rejects the argument that
a stay of the judicial proceedings until he leaves office is proper in order to preserve the office. Court says
this is unsupported by the caselaw, and the Constitution’s separation of powers. If the judiciary can go so
far as to review the legality of the President’s official conduct, and it can direct appropriate process to him,
then it follows that federal courts have power to determine the legality of his unofficial conduct. Policy-
wise, the Court reasons that a deluge of litigation is unlikely to descend upon the President if we allow him
to be sued while in office for prior actions, also the District Court judges are capable of taking into account
the sensitive issues in such a case.
IV. LIMITS ON STATE REGULATORY AND TAXING POWER
1. Background: States have the Police power to enact laws concerning all local activities. States can do whatever they
want to as long as it doesn’t conflict with the Consitution
2. Approaching the Analysis: You can jump straight from justiciability to Constitutional conflict (skip Congressional stuff
because it obviously doesn’t apply)
When you see a state law, ask:
Is it in conflict with Congressional action or Constitution? (preemption)
Is there a dormant commerce clause issue?
3. Preemption – If Congress has legislated, question becomes whether the federal law preempts the state or local law.
a. Express preemption (you smoke you die example of express preemption)
b. Implied preemption (Congress has not explicitly said you can do the thing, but in reality you can’t satisfy both
the federal and state statutes – therefore state law gives way)
c. Field Preemption – there is no room for a state law because the field is so controlled by the federal laws (eg.
4. The Dormant Commerce Clause – the principle that even if Congress has not acted, state and local laws are
unconstitutional if they place an undue burden on interstate commerce.
a. Alternative Challenges – if State or local government discriminates against out-of-staters with regard to
fundamental rights or important economic activities, challenge can be brought under the Privileges and
Immunities Clause of Art. IV § 2. Also, laws against out-of-staters can be challenged under Due Process of
b. Why a Dormant Commerce Clause?
i. Crucial Issue: can the judiciary, in the absence of Congressional inaction, invalidate state and local
laws because they place an undue burden on interstate commerce?
ii. Counter-Argument to DCC - Scalia and Thomas: it has no express recognition in the Constitution,
also this is not something for the judiciary to be deciding. Congress itself should have the duty to
invalidate state laws that unduly burden interstate commerce.
c. Determining When A Law is Discriminatory –
i. Threshold question: is the law discriminatory against out-of-staters?
ii. If discriminatory then law will only be upheld if it is necessary to achieve an important purpose
1. Burden falls on state to justify it both in terms of the local benefits flowing from the statute
and the unavailability of non-discriminatory alternatives adequate to preserve the local
interests at stake
iii. If not discriminatory it will be upheld unless the laws burdens on interstate commerce outweigh its
1. Maine v. & US – Challenge to Lacey Act, Maine law banning the import of live baitfish.
Held: The limitation imposed by the Commerce Clause on state regulatory power is not
absolute, and the states retain authority under their general police power to regulate matters of
“legitimate local concern” even if it affects interstate commerce. Court distinguishes
a. State statutes that burden interstate commerce incidentally
i. Violate the Commerce Clause only if the burdens they pose on interstate
trade clearly outweigh any putative local benefits.
b. Those that affirmatively discriminate against such transactions
i. Subject to more demanding scrutiny. Once it’ determined to be
discriminatory, state must show a legitimate public purpose and that this
purpose could not be served as well by available nondiscriminatory means.
Maine showed both an important purpose and a lack of nondiscriminatory alternatives.
Where the statute regulates even handedly to effectuate a legitimate local public interest, and
its effects on interstate commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the putative local benefits.
Challenger to law has burden of proof
2. Loren J. Pike v. Bruce Church – Company harvesting cantaloupes in Arizona is barred by an
Arizona Fruits and Vegetable Standardization Act from sending them to a packing facility in
California. The purpose of the Act is to enhance the reputation of growers in Arizona, which
the Court declares as a legitimate local interest. However, barring the fruits will result in their
destruction, and the requirement that the company set up a packing facility in Arizona is a
burden unjustified by the state’s interest as stated. The Court views with particular suspicion
state statutes requiring business operations to be performed in the home State that could more
efficiently be performed elsewhere, even if the state is pursuing a clearly legitimate local
V. THE CONSTITUTION’S PROTECTION OF INDIVIDUAL RIGHTS
a. Introduction – Very little about individual rights in the Articles of the Constitution, most likely because the
Framers saw their creation of a government of limited powers as already conducive to blossoming individual
liberties. Also, they were afraid that enumerating liberties would result in leaving some out.
b. Bill of Rights as it applies to the States – Supreme Court initially held that the Bill of Rights only applied to the
Federal government. The Court continued to deny that the Bill of Rights extended to the states until the early 20th
century when Due Process arguments succeeded in gradually applying different liberties to the states.
c. Application to private parties
i. Employee handbook example in class: employee handbook bars certain “water cooler talk”. Constitutional
protections do not apply here unless you can establish that the employer is providing a public service or is
“so enmeshed in the government” that the employer should be reached.
VI. EQUAL PROTECTION
a. INTRODUCTION – Equal protection applies to the states through the 14th Amendment, and to the federal
government through the Due Process clause of the 5th Amendment.
i. Framework for Equal Protection Analysis:
1. STATE ACTION???
2. What is the classification?
a. Classification is facially apparent from the law
b. Facially neutral law, but discriminatory impact or discriminatory administration
(must prove a discriminatory purpose)
3. What is the appropriate level of scrutiny?
a. Strict Scrutiny – race, national origin and other grounds which the individual cannot
control (except gender).
i. Government has burden of proof
ii. Must show that law is necessary to achieve a compelling governmental purpose
AND THE PURPOSE GIVEN MUST BE THE ACTUAL PURPOSE.
Government must have a truly significant reason for discriminating and it must
show that it cannot achieve its objective through any less discriminatory
b. Intermediate Scrutiny – gender discrimination, non-marital children.
i. Government has burden of proof
ii. Law is upheld if it is substantially related to an important governmental purpose.
iii. The means used must have a “substantial relationship” to the end being sought,
though means need not be “necessary”
c. Rational Basis test
i. Challenger has burden of proof. This standard is very deferential to the
ii. Law will be upheld if it is rationally related to a legitimate government purpose.
1. Court can speculate as to the legitimate purpose – state doesn’t
have to show it’s stated purpose is the actual purpose.
iii. Means chosen need only be a rational way to accomplish the end.
d. Classification Factors in deciding which standard to apply:
i. Is the classification based on immutable characteristics?
ii. Does the classification basis have any relation to the right infringed or denied?
1. Nice says this is usually determinative
iii. The ability of the group to protect itself through the political process (women,
iv. Numerical minority (under political powerlessness)
v. History of discrimination against the group also is relevant to the Court
vi. Likelihood that the classification reflects prejudice as opposed to a permissible
e. Criticisms of these rigid levels of scrutiny:
i. Arbitrary boundaries, the Court actually applies this standard along a continuum.
4. Does the government action meet the level of scrutiny?
a. Court evaluates both the law’s ends and means.
b. Over-inclusive vs. under-inclusive laws
i. Court looks at inclusiveness in evaluating the fit between the governments
means and its ends
1. Strict Scrutiny – must be least discriminatory means
2. Intermediate Scrutiny – closer fit than rational basis test
5. Protection of Fundamental Rights under Equal Protection
a. Sometimes equal protection is used if the government discriminates among people as to
the exercise of a fundamental right.
b. THE RATIONAL BASIS TEST
1. Ends (goal): legitimate
2. Means (statute): loosely related, rational/reasonable
ii. Ends: Does the law have a legitimate purpose?
1. What constitutes a legitimate purpose?
a. Anything that advances a traditional “police” purpose: protecting safety, public health, or
b. Virtually any goal that is not forbidden by the Constitution (French Quarter pushcart
2. Must it be the actual purpose or is a conceivable purpose enough?
a. Actual purpose is irrelevant, only need to show conceivable legitimate purpose.
iii. Means: Is the law rationally related to achieving it?
1. The Requirement for a “Reasonable Relationship”
a. Is the classification drawn in a statute reasonable in light of the statute’s purpose?
b. Very tolerant of over and under inclusiveness.
c. Railway Express Agency v. New York – NY ordinance banned advertising on vehicles
unless the ad was for the vehicle owner’s business. Appellant argued that the
classification was irrational as a way to achieve the government’s purpose of decreasing
distractions for drivers and promoting traffic safety. Held, the local government might
have perceived some difference among the ads and we are going to give them great
deference here, even if they did not get rid of many larger and more distracting ads.
i. Acknowledges that states can move one step at a time
d. NYC Transit Authority v. Beazer – NY Transit Authority refuses to employ persons using
Methadone. District Court ruled it a violation of EP. Held, this is a rule of general
applicability and if it is changed to allow some methadone users at an intermediate stage
of their use, the rule will become more under inclusive, not less. The classification is not
based on prejudice, but is made with safety and efficiency in mind. The means to the end
may not be a wise policy for the TA, but that is a personnel policy choice, not something
protected by the EP clause.
Dissent – Such an arbitrary assignment of burdens among classes that are similarly
situated with respect to the proffered objectives is the type of classification forbidden by
e. Arbitrary and Unreasonable laws that fail the rational basis review –
i. Denial of strict scrutiny in the following 3 cases may have stemmed from
concern regarding cases coming down the pike, and adding groups to the
strict scrutiny category.
ii. US Dept. of Agriculture v. Moreno – Food stamps denied to households in
which all of the occupants are not related to each other. Goal of the Food Stamp
act is to alleviate hunger and to spur agricultural growth. Then it is amended to
add the household relation aspect. Held, Brennan and majority are looking at
the actual purpose of the legislation, which was to target hippies, and applying a
more aggressive “rational basis” test. The means here are not necessary because
the concern over food stamp fraud is addressed in other provisions of the Act.
iii. City of Cleburne v. Cleburne Living Center - Court declares unconstitutional an
ordinance that required a special permit for the operation of a group home for
the mentally disabled. The Court held, rational basis review was the appropriate
standard for government actions discriminating against the mentally disabled
because it may be necessary to classify here based on the assistance these people
require. Also, in terms of political power, even though the mentally disabled
themselves have little power they have many who lobby for their interests.
Court rejected city’s argument that it had legitimate purposes and held that the
ordinance was not a reasonable way of accomplishing the goals. City’s concern
over how people would react to the disabled was in a sense indulging such
prejudices and not a legitimate interest. Also rejected flood plain argument and
number who would live there, since other businesses were not barred.
iv. Romer v. Evans – Court overturns Colorado state constitutional amendment that
was enacted through a voter referendum. Amendment denied any special
protections against discrimination under modern anti-discrimination laws to
homosexuals in the state. Held, this law is at once too narrow and too broad, the
classification refers to a single difference but affects a broad array of rights.
This is literally a denial of equal protection of the laws. If the Court is using the
rational basis test they are using the one with bite because they sense deep
prejudice here. Dissent: this law does not deny equal protection, it is denying
preferential treatment based on sexual orientation. This contradicts our decision
in Bowers v. Hardwick allowing states to consider homosexual conduct a crime.
The people and the legislature have spoken here and this decision is judicial
c. CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN
i. Race discrimination and Slavery before the 13th and 14th Amendments – Court upheld the Fugitive
Slave Clause and prevented Northern states from protecting fugitive slaves and allowed states to punish
those who harbored slaves.
1. Dred Scott v. Sandford – Dred Scott was a slave owned by a Missouri citizen is taken to Illinois, a
free state. After owner dies, Scott sues the executor in federal court, claiming his residence in
Illinois made him free. Issue: are descendants of slaves, when emancipated or born to parents who
were freed before their birth, citizens of a state in the sense in which the word is used in the US
Constitution? Court says no and dismisses on grounds that Scott is not a citizen under the US
Constitution and therefore cannot sue in federal court. Court claims it is not its place to decide
justice or injustice of the laws, but to simply interpret them. Court reasons that enslaved Africans
were not intended to be covered by the declaration of independence nor the Constitution. Court
invalidates the Missouri Compromise as violating the Constitution’s protections of citizens’
2. The Post-Civil War Amendments
a. Thirteenth Amendment – 1865
b. Fourteenth Amendment – 1868 (section 1 overrules Dred Scott decision)
ii. Strict Scrutiny for Discrimination Based on Race and National Origin
1. Upheld only if gov’t proves it’s necessary to achieve a compelling government purpose
2. Standard was established in Korematsu v. US (upholding internment)
3. Fourteenth Amendment primary purpose was to protect African Americans, and that racial
classifications likely based on prejudice
4. Political powerlessness of these groups
5. Immutable trait
iii. Proving the Existence of a Race or National Origin Classification
1. Racial Classification on Face of Law
a. Race-Specific Classifications That Disadvantage Racial Minorities
i. Korematsu v. US – Court upholds executive order authorizing the internment of
those of Japanese ancestry (citizens, aliens, etc). Court declares that racial
classifications curtailing civil rights of a single racial group are immediately
suspect, however the government here has a compelling purpose in protecting
the country from possible sabotage and espionage during a time of war. The
military has established that there is no less discriminatory way of solving this
problem. Dissent: Though it should not be rejected summarily, military
discretion must have some limits where martial law is not declared, and this is a
judicial question. Only if the public danger is so “immediate, imminent and
impending” that delay and Constitutional intervention will worsen the danger
should such laws be allowed. This is a broad deprivation of many rights, and
yet the order seems to be based on prejudice rather than a real necessity. No
evidence the military can’t individually screen the disloyal from loyal.
b. Race Classifications Burdening Both Whites and Minorities
i. Typically these come in the form of miscegenation statutes (outlawing
interracial marriage, cohabitation)
ii. Loving v. Virginia – Strict Scrutiny. Court overturns Virginia law banning
racial intermarriage. State supreme court tried to defend the law by claiming the
state’s legitimate purpose was to preserve the racial integrity of its citizens, and
other white supremacist principles. Also argues that the law doesn’t violate
equal protection because it punishes both Caucasians and minorities equally.
Held, rejected. White supremacist objectives are not legitimate purposes (law
only bans white intermarriage), and “equal application” will not take racial
distinctions out from under the equal protections clause.
c. Laws Requiring Separation of the Races
i. Post Reconstruction 1880s Rutherford B. Hayes elected in exchange for end of
military rule in the South.
ii. Court overturns Civil Rights Act of 1875 as an unconstitutional attempt by
Congress to regulate private conduct under the 14th amendment (which only
applies to state action).
iii. Plessy v. Ferguson – Court upholds separate but equal on the basis that any
arising inequality or inferiority does not arise from Jim Crow laws themselves,
but arises because African Americans choose to put that construction upon them.
Equal protection does not require integration, it allows separation as long as the
facilities are equal.
iv. Brown v. Board of Education – Court overturns prior decisions accepting
separate but equal. Specific issue is segregation in public schools. Court finds
there are psychological repercussions from segregation.
2. Facially Neutral Laws with a Discriminatory Impact or Administration
a. Rational Basis is the standard where law is facially neutral and discriminatory purpose is
b. The Requirement for Proof of a Discriminatory Purpose
i. Court is looking at:
1. The evidence of discriminatory impact
2. Is the state’s purpose legitimate
ii. Controversy over the need to show a discriminatory purpose splits between two
1. Equal Protection should be limited to equal treatment by the
2. Equal Protection should be concerned with equal results (avoiding
perpetuation of discrimination that arises through indifference toward
suffering through discrimination).
iii. Big evidentiary difficulties, obviously
iv. Consideration of laws that benefit minorities as a counter weight.
v. Washington v. Davis – Two metro DC police officer trainees sue Commissioner
of city alleging that administration of federal service “test 21” had a
discriminatory impact against blacks. No claim of intentional discrimination or
purposeful discriminatory acts, only that the test bore no relation to job
performance. Held, a law, neutral on its face and serving ends otherwise
within the power of government to pursue, is not invalid under the Equal
Protection Clause simply because it may affect a greater proportion of one
race than of another. Discriminatory purpose can be inferred from the totality
of the relevant facts, but here the facts are not persuasive because the test looks
neutral. Even though Title VII says proof of discriminatory purpose need not be
proven in some cases, we will not use that standard in applying the 5th and 14th
amendments. Dissent: should have required the government to show a
relationship between the written test and job performance.
vi. McClesky v. Kemp – Death row inmate challenges state capital punishment
statute as having a discriminatory purpose, and that the state itself is acting with
a discriminatory purpose. Shows complex statistical evidence of disparate
impact. Held, not enough to show discriminatory purpose. Court seems to
require testimony from jurors and prosecutor as evidence of discriminatory
administration of the death penalty system. Because of the wide deference to
states to police themselves, the requirement of clear evidence is strong here and
this fails. Dissent: eloquent dissent by Brennan, pointing out the weight of
evidence that there is discriminatory impact of such a kind in Georgia that
purpose should be inferred.
c. How is a Discriminatory Purpose Proven?
i. ARLINGTON HEIGHTS FACTORS:
1. Must prove more than simple awareness of discriminatory impact as a
2. Sensitive inquiry into circumstantial and direct evidence of intent
a. Clear pattern of state action that is unexplainable except as
racially motivated (Yick Wo)
b. Historical background of official actions in that area
c. Legislative or administrative history of statute
i. Minutes of meetings, reports
ii. Once racial discrimination is shown to be a substantial or motivating factor
behind an enactment of law, the burden shifts to law’s defender to show it would
have been enacted without this factor.
iii. Defense of this test: Very difficult to draft a law that doesn’t have a disparate
impact, if we allow strict scrutiny easily then we are bringing the gears of
legislation to a halt.
iv. Personnel Admin. Of Mass v. Feeney – Discriminatory purpose implies more
than intent as volition or intent as awareness of discriminatory impact as a
consequence, it implies that the decisionmaker selected a particular course of
action at least in part “because of,” not merely “in spite of,” its adverse effects
upon an identifiable group. Despite impact against women, this statute is really
about preferences for vets over non-vets, it doesn’t discriminate against female
vets, and it has a legitimate purpose in helping vets reengage.
v. Village of Arlington Hghts v. Met Housing Dev Corp-Zoning permit denied to
low income housing development. Impact on minorities. Held, Court could not
find enough evidence of suspicious state action from the history of the area or
3. Affirmative Action
a. Interests Recognized by the Court
i. Remedial interest: correcting past discrimination that had a negative effect.
ii. Educational interest:
b.Grutter v. Bollinger – Michigan Law school case. Ends: the benefits of diversity in
public school through a “critical mass” of underrepresented minorities is a compelling
state interest. Means: the means are a tight fit in that alternative means of getting a
diversified student body would reduce the quality of the law school. Racial quota
systems are unconstitutional, however here the law school is simply using race as another
factor (or “plus”) in evaluating an application. Eventually affirmative action will have to
i. Scalia concur/dissent: if this sham for racial quotas is upheld on the basis that it
provides better citizens then this will support similar programs in the state civil
service and perhaps even private employers. Does not look forward to future
suits testing the boundaries of this mushy standard.
ii. Thomas’ dissent: This is a marginal benefit at the cost of perpetuating racial
discrimination. Court is quick to find a compelling state interest, however there
is no compelling state interest in the school’s existence, let alone it’s self-
imposed elite status.
iii. Rehnquist: Mich is not proving its critical mass argument here. Numbers show
disparities among admitted minority groups that are not explained. No
explanation of why “critical mass” is meaningful and applied differently among
iv. Kennedy dissent: strict scrutiny as a standard is being diluted here. To meet
strict scrutiny under Bakke, the school needs to be considering race as one factor
among many others, but here race is being given weight such that it is outside
Bakke’s scope. Also, no empirical evidence is being offered that this approach
c. Parents Involved in Community Schools v. Seattle School District – Roberts opinion.
Court overturns programs by two school districts in which students at oversubscribed
high schools in Seattle and Louisville are redirected to schools based solely on race.
Held, this is bald racial balancing, with no compelling interest in correcting prior effects
of segregation therefore this is unconstitutional. Roberts sees this as identical to Brown
in that differential treatment is being accorded on the basis of race. We need not get to
the supposed benefits of this system since its classifications are not narrowly tailored.
d. Kennedy concurrence: Diversity is a compelling state interest that can be pursued, and
the majority is mistaken in thinking that state/local authorities have to accept racial
isolation in schools. However, school districts must use race-conscious measures to
address the problem in a general way and without treating students differently solely on
basis of race. Examples of alternatives: school placement, recruiting. These mechanisms
are race conscious but do not lead to different treatment based on a classification that tells
each student he/she is to be defined by race. The dissent’s conclusions have no
principled limit and would result in broad acceptance of governmental racial
classifications in areas far afield from schooling. Dissent is using “permissive strict
scrutiny” that looks a lot like rational basis.
e. After the Seattle case, Grutter is “sitting on an island” in that this diversity program
is allowed only at graduate school level.
d. CLASSIFICATIONS BASED ON GENDER – Intermediate Scrutiny
i. 19th Amendment (vote) – 1920
1. But this did not give equal protection to women explicitly.
ii. Level of Scrutiny
1. Arguments for strict scrutiny for gender:
a. Immutable trait
b. Immediately visible trait
c. Lack of political power
d. History of discrimination
2. Arguments for intermediate scrutiny:
a. Applying strict scrutiny will make affirmative action programs for women more difficult
b. Biological differences between men and women as justification for many laws.
iii. The Lochner Era (1900 - 1937): Supreme Court approves gender discrimination.
iv. Emergence of Intermediate Scrutiny:
1. “Exceedingly Persuasive Justification” Standard: Classifications by gender must:
a. Serve important governmental objectives and
b. Must be substantially related to achievement of those objectives
2. Reed vs. Reed (1971) (struck down law ranking hierarchy of estate administrator candidates –with
males preferred over females)
3. Craig v. Boren – Court strikes state law prohibiting consumption of non-alcoholic beer by males
18-20. Though drunk driving is an important governmental objective, statistical evidence did not
support the gender classification used to address the problem. Statute is a poor fit because it only
prohibits the SALE of 3.2 beer, so their girlfriends could buy it for them, and the statute’s purpose
of curtailing drunk driving is called into doubt by the fact the legislature refers to 3.2 beer as
4. No state statute allowing gender-based enrollment policy for state supported schools
5. Miss. Univ. for Women v. Hogan (1982) – Overturns policy of Miss. Nursing school that enrolls
only women. “if the statutory objective is to exclude or protect members of one gender because
they are presumed to suffer from an inherent handicap or to be innately inferior, the objective
itself is illegitimate, but a state can evoke a compensatory purpose to justify an otherwise
discriminatory classification only if members of the gender benefited actually suffer a
disadvantage related to the classification. The state of Miss. Cannot show that women lacked
opportunities to train in nursing, in fact the opposite is true. Two failings by the state: Though
the state has recited a benign, compensatory purpose, it failed to establish that the alleged
objective is the actual purpose underlying the discriminatory classification. State also failed to
show the gender-based classification is substantially related to its proposed compensatory
6. US v. Virginia (1996) – Court overturns all male military school in VA. School had proposed a
remedy in opening a sister school that was substantially dissimilar in all respects. Court: state
does not have an important gov’t objective in excluding women from this type of education,
and the actual state purpose in exclusion is not what the state claims (diversifying the educational
options in the state). Perpetuating stereotypes is not an appropriate objective for the
government. Also, the state’s goal is not substantially advanced by women’s categorical
exclusion. Remedy is not adequate because it must closely fit the constitutional violation and
must place persons who are deprived in the position they would have had without the violation.
Here that particular group of women is those who are willing and capable of participating in
VMI’s program, and this remedy falls short of their needs.
7. Nguyen v. INS – Court affirms federal immigration statute conferring citizenship on children born
to unwed parents outside US, depending on whether the sole US citizen parent is mother or father.
Majority finds important gov’t interest in 2 ways: ensuring actual parenthood before transferring
citizenship, and ensuring the child and citizen parent have some demonstrated opportunity for a
meaningful relationship. Seems to be grounded on gender stereotypes. Doesn’t really get to how
this is substantially related to achieving the gov’t purpose. Dissent: this opinion is an aberration.
Court fails to show how these interests are important to the government, nor does it prove these
are the actual reasons behind the statute itself. Also, fit between ends and means is weak. There is
no requirement that mother prove her relationship with the child, unlike for the father. Note:
Kennedy’s opinion seems to be
8. Equal protection claim is brought against federal law in nguyen under the due process clause
of the 5th Amendment
e. ALIENAGE CLASSIFICATIONS
i. 14th applies to non-citizens. Equal Protection clause reads “no person shall...”
ii. Preemption – also used with 14th amendment challenges to strike down state laws that are discriminatory
(federal immigration law controls immigration absolutely).
iii. Standards of review
1. Strict scrutiny for evaluating discriminatory laws
2. Rational basis for alienage classifications related to self-government and the democratic process
3. Rational basis for federal laws that discriminate against aliens – deference for immig. & foreig pol
iv. Framework for analysis
1. Who is the defendant?
a. Legal or illegal alien
2. Who is the plaintiff?
a. Legal or illegal alien
3. What is the nature of the deprivation?
a. Prohibit involvement in democrative, governmental activities or something else
i. When its state law applied to legal aliens it will be strictly scrutinized
1. Exception: state can pass laws that will limit involvement in
government of the state (eligibility for governor is valid, but not
ineligibility for the bar exam)
ii. Federal law it will be rational basis
iii. State law applied to illegal aliens will be
f. DISCRIMINATION AGAINST NON-MARITAL CHILDREN
i. Intermediate scrutiny used
ii. Laws that provide a benefit to all marital children, but no non-marital children always are declared
iii. Laws that provide a benefit to some non-marital children while denying the benefit to other non-marital
children, are evaluated on a case-by-case basis under intermediate scrutiny
iv. Wealth and age are both scrutinized under Rational Basis
VII. FUNDAMENTAL RIGHTS UNDER DUE PROCESS AND
i. Fundamental Rights – Supreme Court has said some rights are so fundamental that government
infringement will automatically require the court to apply strict scrutiny in evaluation (necessary to achieve
a compelling purpose)
1. Other rights will be evaluated using rational basis
ii. Equal Protection vs. Due Process – some rights protected solely under one, or both. Not a big difference
between the two, except in terms of phrasing the argument.
1. Equal Protection – Law denies a right to some, while allowing it to others (eg. right to travel,
right to vote (partially)
2. Due Process – Law denies a right to everyone. (eg. right to refuse medical treatment)
3. Both – state laws restricting access to contraceptives (Equal protection violated, as well as right to
iii. Federal Equal Protection is used when a state creates a right but doesn’t apply it equally (?)
iv. Ninth Amendment – Not a source of rights. Used to provide a textual justification for the Court to protect
unenumerated liberties, such as the right to privacy. Controversy exists as to whether 9th Amendment is
meant to give federal gov’t or state the power to create new rights.
v. Procedural Due Process – existence of a fundamental right triggers two requirements:
1. Substantive – government must show an infringement is justified in that it is sufficiently related
to an adequate justification
2. Procedural – when government takes “life, liberty, or property” it must provide adequate
procedures (notice, a hearing, etc)
vi. Framework for Analyzing Fundamental Rights
1. Is there a fundamental right?
a. If you are arguing against fundamental right status, characterize the right VERY narrowly
(like Scalia in Footnote 23 below)
b. Arguing for fundamental right, characterize the right very broadly
2. Is the right infringed?
a. “the directness and substantiality of the interference”
3. Is the government’s action justified by a sufficient purpose?
4. Are the means sufficiently related to the goal sought?
b. ECONOMIC SUBSTANTIVE DUE PROCESS – Do economically restrictive laws serve an adequate
i. Corporations as persons under 5th and 14th Amendments
ii. The Rise of Laissez-Faire values
iii. Lochner v. New York – Court overturns NY state statute limiting hours bakers can work during the week.
Held, states can limit workers’ and employers’ freedom to contract if it is within the legitimate use of
police power (safety, health, morals, general welfare of the public), but such a law applying to bakers has
no connection to police powers. Majority thinks the actual objective is to create labor laws. Holmes
Dissent: History is full of state laws regulating life in many ways and interfering with the right to contract
(Sunday laws, usury law). The court is enshrining a laissez-faire philosophy into the Constitution. This
state statute is not addressing a fundamental right, so it should be allowed if a reasonable man would think
it a proper measure for health. Harlan Dissent: the statistics showing the hazards of bakery work provide
grounds for considering this law as protecting the general welfare and therefore within the state’s police
iv. West Coast Hotel v. Parrish – Court upholds minimum wage law for women. Expand the number of
acceptable rationales (equalizing bargaining power).
v. US v. Carolene Products – Filled milk case. Court says when basic contractual rights are being infringed,
it will apply a rational basis test.
1. Footnote 4: stricter scrutiny will be applied to those fundamental liberties within the Bill of
Rights, and legislation based on discrimination against minorities or religious groups.
vi. Williamson v. Lee Optical – Court upholds OK law requiring a licensed optometrist or opthalmologist to fit
lenses to a face or in a frame. Opticians had brought challenge. It is enough that the state legislation might
have had a rational reason for passing this law Court sees the political lobbying aspect of this case and
declares the Due Process clause will no longer be used for overturning these economic regulations.
Opticians get their own lobby together.
c. REPRODUCTIVE AUTONOMY
i. The Right to Procreate
1. Skinner v. Oklahoma – Court overturns Oklahoma’s Habitual Criminal Sterilization Act on the
basis that ability to have offspring is a fundamental civil right of man, and this statute results in
permanent deprivation of this right. The state also did not show how the law was necessary to
achieving its purpose, that those who commit felonies involving moral turpitude have biologically
inheritable traits lacked by those who commit other serious crimes. Stone Concur: Equal
Protection is misplaced here, should be Due Process since it’s a wholesale condemnation of a
Due Process_____________Equal Protection
Fundamental rights | Classification
| Fund. Rights (w/ classif.)
ii. The Right to Purchase and Use Contraceptives
1. Griswold v. Connecticut – Right to Marital Privacy (grounded in the Bill of Rights and its
penumbras) Two directors of CT planned parenthood arrested for counseling couples on
contraception. State argues banning contraceptives curtails extra-marital and illicit sexual
relationships. However contraceptives for prevention of disease are allowed. Majority: Marital
privacy (spatial privacy especially) is not protected by the Due Process clause, but is implicit in
the zone of privacy bounded by several specific provisions of the Bill of Rights. This statute is too
broad in its sweep in that it bans all use of contraceptives instead of regulating their use.
Goldberg concur: Marital privacy is entitled to even more protection than the majority claims,
since it is protected under the 9th Amendment (despite not being explicit elsewhere in the
Constitution). Even applying the “Fundamental Right” analysis and looking at traditions and
conscience of the people, marital privacy is fundamental. Harlan concur: Proper inquiry is
whether the Due Process clause is being infringed, though it may be aided by looking at the Bill of
Rights and its “radiations”. White Concur: This is deprivation of liberty without Due Process.
CT’s stated purpose bears no relation to the means employed in the statute. It is underinclusive in
that illict relationships and extra-marital affairs will still happen. Black Dissent: No right of
privacy inherent in the Bill of Rights or its radiations. Also, 9th amendment and Due Process are
not a basis for a invalidating this law because the scheme the fiction that the Court can divine what
liberties are “fundamental” is a license for the Court to go around invalidating state legislation on
its own whim. The Legislature is the proper place for citizens to demand an amendment
recognizing such a right.
2. Eisenstadt v. Baird – Right to purchase and use contraceptives based on a right of individuals
to make decisions concerning procreation. Court overturns MA law restricting contraceptive
distribution to married couples and outlawing it for unmarried persons (except to prevent disease).
Majority: the issue is whether there is some ground of difference that rationally explains the
different treatment accorded to married and unmarried persons. We don’t believe the law’s
purpose is to discourage premarital sex, since its punishment is disproportionate with a
misdemeanor. The law also cannot simply be upheld as a prohibition on contraception, since it
would need to apply equally to married and unmarried persons. Though Griswold recognized a
right to marital privacy, we are broadening that to an individual right to decide whether to bear or
beget a child.
iii. The Right to Abortion
1. Carey v. Population Svcs – restricting contraceptives from teens will not keep them from having
sexual intercourse, and will impose a harsh penalty.
2. Roe v. Wade - 1973 – Court recognizes a fundamental right to privacy in the 14th Amendment
that encompasses a woman’s decision whether to terminate her pregnancy, however it is not an
absolute right. The state has two compelling state interests: protecting the health of the mother
and the life of the viable fetus. Roe trimester scheme:
a. 1st tri: abortion decision must be left to the mother and the medical judgment of mother’s
attending physician. NO STATE INVOLVEMENT
b. 2 tri to viab: state may regulate in ways reasonably related to maternal health
c. upon viab: state may pursue interest in protecting the fetus by regulating and even
proscribing abortion except where necessary for the preservation of the life or health of
3. In-Class Exercise: state law requiring mother to sign an affidavit that she has considered the
options and that she is not getting an abortion for convenience. For 1st two trimesters it is
clearly unconstitutional, but for the 3rd it would be unconstitutional if it did not take into
account possible health considerations of the mother.
4. Webster v. Reproductive Health Svcs – Court upheld MO law without a majority opinion.
5. Planned Parenthood v. Casey – 1992 – Court upholds provisions of Penn. Abortion control Act,
requiring 24 hour wait period in which a woman must give her informed consent after being given
information regarding other option. Court upholds central ruling of Roe (viability as bright line),
but retreats from the trimester framework. Two underlying concerns in affirmation of Roe: (1)
stare decisis and reliance, (2) viability is the most workable line (fair and clearly delineating both
the mother and the state’s interests). Blackmun: dissenters argue this should be left to the states
as a political question but this right is too important to be left to the whims of an election.
a. Until viab: State may pursue its interests in protecting potential human life by informing
the mother of alternatives to abortion, however the legislation cannot be an UNDUE
BURDEN on her exercising her right to choose. These laws must be reasonably related
to this goal. At same time, state may enact regulations to further the mom’s health and
safety, but, unnecessary health regulations may become undue burden (parental consent
upheld, 24 hour waiting period upheld).
b. Upon viab: state still may regulate or even proscribe abortion in order to pursue its
compelling interest in protecting fetus.
6. Planned Parenthood v. Casey (Spousal Notification issue) – Court determines it is a substantial
obstacle to the woman’s right. (domestic violence, privacy concerns).
7. Cases regarding Government Regulation of Abortion
8. Gonzales v. Carhart – Court upholds federal partial birth abortion ban. Held, this statute is not
void for vagueness because it is clear in what it proscribes, unlike the Stenberg statute (which
banned both intact D&E as well as regular D&E). Also, even though this statute does not allow
use of intact D&E where necessary in the medical judgment to preserve the health of the mother,
there is medical uncertainty as to whether it is safer than the alternatives. Majority discusses “as-
applied” challenges versus a “facial” or pre-application attack. Dissent: government’s purpose is
perpetuating a stereotype of women. It’s means of accomplishing its goal is suspect because if
moral concerns are at work
9. QUESTION FOR CLASS: if the health of the mother and child are no longer the interests
for upholding regulations of abortion, what are the new interests in Gonzales?
10. Maher v. Roe – Existence of Constitutional right to abortion doesn’t create a duty on the part
of the government to provide the means to exercise the right. Court upholds state financial
support of childbirth and not for abortion. Held, rational basis application since wealth
classifications are not a suspect class under an equal protection analysis. Under a due process
analysis this is not an undue burden because it does not present an obstacle, only allows state to
assist one over the other.
d. MEDICAL CARE DECISIONS
i. The Right to Refuse Treatment – Fundamental Right
1. Cruzan v. Director, Missouri Dept. of Health – Cruzan in vegetative state after car crash. Parents
wish to terminate food and hydration, state intervenes
a. Three parts to the majority holding:
i. In some instances, competent adults have a constitutional right to refuse medical
care (everyone but Scalia agrees)
1. Rehnquist assumes the right exists and can be inferred from prior
2. O’Connor and four dissenters argue a fundamental right exists to be
free of unwanted nutrition/hydration
3. Scalia: US law has always given state the power to prevent suicide.
ii. State may require clear and convincing evidence that a person wanted treatment
terminated before it is cut.
1. Rehnquist: state has important interest in protecting life, brings up
tradition in battery law, which will become an issue in Glucksberg
2. Scalia: even if evidence is clear and convincing, there is no right to this.
iii. State may prevent family members from terminating treatment for another.
Right to end treatment is individual and state can prevent another from making
1. Due Process doesn’t require State to give judgment to anyone other
than patient. Family could have other motives.
i. No articulation of a level of scrutiny. Majority did not mention if it was a
ii. No articulation of what is clear and convincing proof
1. Oral testimony typically barred
2. Living will might suffice
iii. Court did not address situation of competent person designates a guardian to
make the choice. Rehnquist footnote.
ii. Physician-Assisted Suicide (not a fundamental right under Glucksberg)
1. Assisted suicide – doctor gives patient a prescription, which they they can choose to take or
2. Washington v. Glucksberg – Court overturns Ninth Circuit holding that Washington law
prohibiting assisted suicide violated a fundamental right under the Due Process clause. Rehnquist
states that a right is fundamental only when supported by history or tradition, and both have
punished assisted suicide for several hundred years. Also, it is important to carefully define the
right being asserted. Further, 49 states have such prohibitory statutes, showing a considered
policy choice of each state. Rational Basis test will be applied since the right is not fundamental,
and the law reasonably serves many legitimate state interests, such as protecting life, the integrity
and ethics of medical profession, and protecting vulnerable groups and avoiding involuntary
a. Doors left open in Glucksberg:
i. States can enact laws protecting a right to assisted suicide
1. Oregon “Death with Dignity” statute
2. Possibility that laws prohibiting physician-assisted suicide might be
unconstitutional as applied in specific cases
a. State law preventing giving pain-relieving medication likely to
hasten patient’s death – no state interest in prolonging
b. Patient’s pain is so severe that it can’t be relieved by
3. Vacco v. Quill – assisted suicide doesn’t trigger strict scrutiny either under equal protection or
under due process. Rehnquist: everyone who is competent is being treated equally. The
distinction between assisted suicide and refusal of treatment is the requirement in the former that
the doctor take on the intent to make the patient dead, whereas refusing treatment keeps the intent
with the patient who has the right.
i. Debate: which part of the government is best positioned to make determinations as to equal schooling:
local governments and school districts versus the Court.
ii. San Antonio Indep. School v. Rodriguez – Challenge to Texas system of funding public schools. Poor areas
tax at higher rate than wealthy areas, but still spend less money per student. Two grounds of P’s challenge:
1. Violation of equal protection – rejected, wealth is not a suspect classification, therefore rational
basis will apply to this system.
2. Denied fundamental right to education- rejected, key to determining if education is fundamental
right is not by comparing it to other established rights, but assessing if right is explicitly or
implicitly guaranteed by the Constitution. State was not depriving students of education.
f. FAMILY AUTONOMY
i. Right to Marry – Fundamental Right
1. NOTE: Direct and substantial interference with the right to trigger heightened scrutiny
2. Origins of Protection – Since Meyer v. Nebraska in 1923, Supreme Court has held the following
aspects of family autonomy are fundamental rights (STRICT SCRUTINY):
a. Right to marry
b. Right to custody of one’s children
c. Right to keep the family together
d. Right to control the upbringing of one’s children
3. Loving v. Virginia – Court overturned on both Equal Protection and Due Process grounds.
Marriage is a vital personal right and fundamental to our very existence.
4. Zablocki v. Redhail – Equal Protection Analysis: Court overturns WI law requiring proof to a
court of payment of all child support to prior children before the granting of a marriage license.
Held, our prior cases have recognized the importance of the institution of marriage, and since we
have deemed other related rights (abortion, contraceptive use) as fundamental rights, it would
make no sense to exclude the right to marry itself. Not every law that somehow relates to
marriage will receive strict scrutiny, however this one sufficiently interferes with the right to
require that the government show a compelling purpose and that the law is necessary because no
other less violative alternative can work. Here, we will assume the state interests are valid, but the
law is both underinclusive (only keeps deadbeat from new spending related to new marriage) and
overinclusive (keeps deadbeat from potentially marrying someone who can help them pay). Also,
this law violates marriage rights without helping out the prior children. There are other
mechanisms that would work better. Due Process Concurrence: Stewart says this is not a
problem of discriminatory classifications, though he doesn’t like its effects on the truly indigent,
and that there is a constitutional right to marry, since the states have the ability to regulate and
limit it. Rehnquist Dissent: rejects marriage as a fundamental right, says rational basis should
apply. “I would view this legislative judgment in the light of the traditional presumption of
ii. Right of Parents to Control Upbringing of Children
1. Meyer v. Nebraska – (Lochner Era) Within the liberty of the amendment is the right of the German
teacher to teach and of the parents to engage him to teach their child. State has shown no
2. Michael H v. Gerald D. [footnote 23 on page 961] – Scalia criticizes Brennan for not adopting a
traditionalist view of fatherhood rights or something like that.
g. SEXUAL ORIENTATION AND SEXUAL ACTIVITY
i. Right to sexual activity under Lawrence v. Texas is not expressly a “fundamental right” because the
court did not articulate a level of scrutiny, however it is a fundamental aspect of personhood and
therefore constitutionally protected.
ii. Bowers v. Hardwick – 1986 – Court upholds Georgia sodomy law on the basis that prior decisions
protecting privacy pertained to matters of family and reproduction—not to homosexual activity. White
says not a fundamental right because it has no express basis in the Constitution.
iii. Lawrence v. Texas - Texas sodomy case; Lawrence challenged the constitutionality of a Texas law
prohibiting sodomy- he raised due process, privacy and equal protection challenges;
1. Kennedy (majority) uses Due Process instead of Equal Protection because he is concerned with
this right being infringed for all. He decides to go against precedent for two reasons:
a. Facts have changed
b. Decision is an anachronism
c. Precedent was wrongly decided
i. Kennedy is finding a very broad liberty interest, but can it be read narrowly? It
could be if you limit it to two consensual adults in privacy of home, maybe add
a non-commercial limitation to exclude prostitution.
ii. Bowers misapprehended the claim of liberty, it should not have been whether
there is a fundamental right to consensual sodomy, but whether there is a liberty
interest that encompasses intimate conduct
iii. Majority also reasons that there are liberty interests at issue, and that there was
no legitimate state interest
iv. Also reasons that you can’t criminally punish conduct viewed by the majority as
immoral; cites to history of oppressing minorities on the basis of perceived
v. Victimless Crime
2. O’Connor concur: Would use equal protection instead. Scalia criticism: this is inconsistent since
states already discriminate in denying the right to marry to homosexuals
3. Scalia dissent: There is no fundamental right to this activity, so the state doesn’t need to meet
heightened justification for infringing
a. There is a legitimate state interest, which is why they criminalized it in the first place
b. Of course we can criminalize immoral conduct- it’s why adultery / incest are criminal
c. Concerned that decision takes away the wishes of the Texas voters
d. If times truly have changed, the Legislature and voters should handle it
4. Level of Scrutiny Note: Lawrence does not dictate a level of scrutiny, however it seems to use a
heightened scrutiny level since it overrules Texas’s “moral judgment” rationale for the statute
(which is usually enough to meet rational basis test).
h. RIGHT TO VOTE
i. Fundamental right – strict scrutiny
ii. 24th amendment bans poll taxes on federal elections
iii. Two forms of issues:
1. Laws denying some citizens right to vote
a. Strictly scrutinized: poll taxes (Harper), property ownership requirements, durational
i. Harper – Court overturns poll tax law in reasoning couched in equal protection
terms, however it still is talking about a fundamental right. Because the right is
fundamental court says wealth has no relation to voting right. This seems to go
against wealth not being suspect class, however that has not developed into an
acceptance of wealth as a suspect class.
b. Restrictions upheld: literacy tests, bar on felons, photo ID
2. Laws diluting voting power of some citizens
a. Crawford v. Marion County – 3-3-3 plurality.
i. Court is applying a balancing test weighing the burden imposed versus the
ii. Stevens Majority – not a significant burden, therefore we will not look very hard
at the state’s interest. Stevens looks at who is affected but nonetheless
concludes that the burden is not so bad. Scalia wouldn’t even look at it in this
case by case basis.
b. Reynolds v. Sims – state legislature districts had to be roughly equal in population.
c. Bush v. Gore – challenge was that recount was a dilution of voting rights. Court said this
should not be considered strong precedent because it opens up an issue with dilution and
the differences in voting machine accuracy.
i. Justiciability concerns: Some said Court shouldn’t have taken case or at least
should have remanded.
1. Did Bush have standing? Was his voting right diluted?
ii. State’s Rights concerns:
i. RIGHT TO BEAR ARMS
i. Heller v. DC – Court overturns DC law banning the carrying, registration of handguns, and requiring
trigger locks or disassembly of lawful guns in the home. Scalia uses textual interpretation, original
meaning of Con language, intent of the framers, post-civil war interpretation, Court precedent. Scalia
concedes that the right to bear arms is not absolute, certain people have no right to guns, and there is no
right to guns in certain places.
VIII. PROCEDURAL DUE PROCESS
PROCEDURAL DUE PROCESS
a. Procedures the government must follow before it deprives a person of life, liberty, or property.
i. Look at the remedy sought
1. Sub. DP - Want law deemed unconstitutional because of violation of constitutional right
2. Proc. DP - Want law deemed unconstitutional because of lack of adequate safeguards, such as
notice and a hearing.
i. Has there been a deprivation?
ii. Is it of “life, liberty, or property”?
iii. Is it without “due process of law”?
i. Adler talked about DNA evidence being denied to a prisoner even when he offered to pay for it.
ii. Elected judge refusing to recuse himself from a case involving a significant donor to his campaign-
Procedural due process violation found.
IX. FIRST AMENDMENT: FREEDOM OF EXPRESSION
1. What is the role of the government? (if not a regulator then government is freer to limit)
d. Proprietor of property
2. Is the regulation content based or viewpoint based?
a. If yes, strict scrutiny will apply
b. If content-neutral use intermediate scrutiny (Ward v. Rock Against Racism)
i. Exceptions to content rule: speech so odious...
2. Fighting words
3. Intimidating speech
ii. Freedom from Government abridgement of Speech
1. Determining when the government is sponsor or speaker
iii. Justifications for free speech as a fundamental right
1. Self Governance – political speech as a check on government
2. Discovering Truth – the “marketplace of ideas”
a. Criticisms- wealthier voices heard more; emotion can trump reason
3. Advancing Autonomy – self-expressive use of speech, independent of any effective
communication to others, for self-fulfillment or self-realization.
4. Promoting Tolerance – protecting unpopular or distasteful speech is an act of tolerance and is
iv. Adler says most First Amendment analysis comes down to balancing the rights interest versus the possible
v. Not an absolute right
1. Government can regulate speech in certain circumstances
c. Perjury laws
d. Sexual harassment
b. THE ROLE OF GOVERNMENT
i. Methods of control of speech
1. Substantial infringements
a. Criminal sanctions on speech
2. Lesser Infringements
a. Unconstitutional conditions
b. Liability for civil damages
ii. Equal Protection and First Amendment
1. Distinguishing ban on republican billboard versus ban on billboard put up by latinas
iii. The government in non-typical roles (speaker, sponsor, proprietor, administrator)
1. Unconstitutional Conditions Doctrine
2. Speiser v. Randall – To get veteran tax exemption under California law, veterans have to sign oath
to not advocate overthrow of gov’t, or support foreign government in event of hostilities. Held,
impermissible penalization of individuals for engaging in certain speech. Coercive effect.
3. Rust v. Sullivan – Court upholds regulations on ability of family-planning services to obtain Title
X funds, requiring them to not provide abortion counseling or referrals. Court holds government
has discretion to decide what it wants to fund, and is not infringing the right to get an abortion.
Case is much criticized since government funding is being conditioned on health professionals
relinquishing their right to talk about abortion. Blackmun Dissent: The Court has never upheld
viewpoint based suppression of speech, and that is what this is. Argument that this simply
implicates the government’s funding decisions begs the question why they suddenly can
discriminate on viewpoint when they obviously couldn’t do it on the basis of race, etc.
iv. Government as Administrator – eg, prison warden or school administrator. Court will give more deference
to administrators to enact moderate restrictions on speech.
1. Perry Education Assoc. v. Perry Local Educators – Court upholds ability of school to allow
exclusive use of interschool mail system to one teacher association.
a. Public Forums
i. Content-based regulation – Strict scrutiny
1. Viewpoint based
2. Subject Matter based – banning an issue regardless of view
ii. Content-neutral regulation – Intermediate Scrutiny
1. Time, manner, place restrictions – requirements:
a. Must be content neutral
b. significant governmental interest
c. must be narrowly tailored and not burden substantially more
speech than is necessary to further the interest
i. but doesn’t need to be the least restrictive of
alternatives (Ward v. Rock Against Racism)
d. leaving open alternative channels for communication of the
b. Limited Public Forums
i. When forum is opened to public, same stds from Public Forum applies
ii. Time, place, manner regulations can be imposed
c. Non-public forums (schools, army base, federal buildings)
i. On top of time, place, and manner regulations, controller of forum can reserve
the forum for itself as long as regulation on speech is reasonable and not just
because of opposition to the viewpoint.
2.Schools may regulate expression that could reasonably be seen as promoting illegal drug use
a. Morse v. Frederick – Bong Hits case. Ambiguous drug reference in banner is confiscated
and student suspended. Held, though Tinker held that students do not surrender First
Amendment at the door of school, it is limited by school’s concerns. Here, it was
reasonable to think that the banner was advocating drug use as oppose to a political
message about drug policy, therefore the principal was reasonable in suppressing it.
v. Government as Regulator
a. Time, Manner, and Place Restrictions
i. Hill v. Colorado – When is a regulation content-neutral or content-based?
no approaching within 8 feet without consent within 100 feet of entrance to any
health care facility. Still allows for verbal communication and signs outside that
radius. Held, state is using its police power, and here there is a distinction
between restricting a speaker’s right to expression and an unconsenting
listener’s right to be left alone. Court finds this is content neutral since the
statute applies to anyone approaching to hand out leaflets or provide unwanted
counsel in that vicinity. Scalia and Kennedy dissent saying that all the factors
together point that this is directed toward abortion protestors, and is therefore de
ii. Ward v. Rock Against Racism – NYC central park noise ordinance upheld.
Ordinance is content neutral, city has significant interest in reducing unwanted
1. This is actually an application of intermediate scrutiny
(government regulating via content neutral limitations), not strict
scrutiny, despite the talk of “necessary to achieve a purpose...”
2. What if this had been a ban
2. Form of Regulation
a. Prior Restraints, licensing, and permits
i. Prior Restraints – court looks very carefully at these
1. Acceptable: gag orders, injunctions stopping publication (??)
a. Must show imminent harm to justify
ii. Licenses to speak in public forums:
1. Must be important reason for licensing
2. Clear criteria minimizing discretion of licensing authority
3. Procedural safeguards (prompt determination of requests and judicial
review of denials)
iii. Faulty systems
1. Official granting license has discretion to determine licensing fee or
who gets a license
b. Vagueness and overbreadth – laws regulating speech can be challenged as facially
unconstitutional that they are unduly broad or vague.
i. Facial invalidation – entire law is stricken
ii. As-Applied invalidation – certain applications of law are unconstitutional
1. Vagueness – reasonable person must be able to tell what speech is
prohibited and what is permitted.
a. Otherwise police can use their own discretion
2. Overbreadth - if a regulation of something like obscenity goes too far
in regulating speech, a person who can be punished under that law has
standing to challenge how the law would be applied to others. (if you
are convicted for reading an obscene passage on a street corner, even
though your action is not protected you can challenge the statute for
being overbroad in how it might apply to others).
a. Test: is protected speech swept up under the law?
3. Regulation of Conduct the Communicates
a. When is conduct communicative?
i. Intent to convey a particularized message
ii. Substantial likelihood message would be understood by those receiving it
1. Examples: black armband to protest war (Tinker)
b. When may the government regulate conduct that communicates?
i. The O’Brien Test – Where “speech” and “nonspeech” elements are combined
in the same course of conduct, regulation of the non-speech element can justify
incidental limitations on the First Amendment where
1. Regulation is within the constitutional power of the government
2. Regulation furthers an important or substantial governmental interest
3. The governmental interest is unrelated to the suppression of free
4. Incidental restriction on the alleged First Amendment freedom is no
greater than is essential to the furtherance of that interest.
ii. US v. O’Brien – Univ. Military Training and Svc Act bans knowing mutilation
or destruction of selective service registration certificates. D and friends burned
cards on steps of Mass. Courthouse. Parties agree the statute does not abridge
free speech on its face, but D argues it is invalid as applied to his conduct as it is
protected speech. Held, O’Brien test used and substantial gov’t interest exists
and statute is appropriately narrow in condemning only noncommunicative
impact. Court rejects argument statute is unconstitutional because congress’
intent was to suppress protected speech, purpose is not a ground for finding this
iii. Application of O’Brien to Flag Desecration cases:
1. Street v. NY – flag burning law overturned because it was unclear
whether D had violated it through burning flag or his contemptuous
speech about the flag.
2. Smith v. Goguen – flag defacement statute overturned as void for
vagueness when D sews flag to seat of jeans.
iv. Texas v. Johnson – Flag burner tried and convicted in Texas for destruction of a
venerated object. Brennan majority reverses conviction.
a. Was D’s action expressive conduct, allowing him to use 1st
amendment to challenge conviction (court says yes)
b. If conduct was expressive, then decide if state’s regulation is
related to the suppression of free expression
i. If not apply O’Brien test
c. Court concludes this law regulated expression and therefore
must pass “the most exacting scrutiny”. D’s political
expression was restricted because of the content (and arguably
2. Rehn. Dissent: Burning the flag is not a sophisticated method of
communicating an idea, but simply a method of antagonizing others. It
was D’s use of this particular symbol that results in his punishment, not
the idea he sought to convey by it.
3. Stevens Dissent: The enlargement of the market for free expression
does not necessarily always justify the costs, especially when there are
available alternatives that are effective.
v. Flag Protection Act of 1989 invalidated by Court in US v. Eichman with same
plurality. Even though law banned burning flag for ANY reason, majority
invalidates on ground that the law’ primary purpose was to keep the flag from
being used to communicate protest or dissent.
1. How is using “primary purpose” of Congress to void this different then
doing the same in O’Brien?
c. Regulation of Speech
i. Incitement of Illegal Activity
1. During 20s and 30s rational basis was enough to justify limitations of
2. Schenck v. US – guy circulates flier in opposition to the draft during
WWI. Held, where normally protectable speech is used in
circumstances in which a clear and present danger is created, the
Congress can prevent the resulting evils by proscribing such speech.
Court seems to be getting at a likelihood of imminent harm requirement
3. Brandenburg introduces test that is most protective of speech
ii. Fighting Words and Racist Speech
1. Chaplinsky v. New Hampshire
a. Never overruled. Instead Court uses three tactics to invalidate
fighting words laws:
i. Narrow scope so it only applies to speech directed at
another that is likely to produce a violent response
ii. Finds laws vague or overbroad (Gooding)
iii. Finds the law to be an impermissible content-based
2. Gooding v. Wilson
3. R.A.V. v. City of St. Paul -
iii. Intimidating Speech
1. Virginia v. Black –
b. FREEDOM OF RELIGION
i. Tension between:
ii. Establishment Clause
1. EVALUATE THE STATE ACTION IN ITS CONTEXT!
2. Competing theories
a. Strict Separation (Jeffersonian)
b. Neutrality View
i. Gov must be neutral – cannot play favorites (religion v. religion AND religion v.
ii. Symbolic Endorsement Test
1. Gov violates this test if it symbolically endorses a particular religion or
if it generally endorses either religion or secularism.
a. O’Connor: hypothetical observer presumed to possess a
certain level of information that all citizens might not share.
REASONABLE observer aware of history and content of the
community and forum in which the religious display appears.
b. Stevens/Ginsburg: Symbolic endorsement if a reasonable
person passing by would perceive gov support for religion
c. Scalia: rejected using the test at all where the issue is
private speech on gov property.
c. Accomodationist View (Rehnquist, Scalia, Thomas, Kennedy)
i. Only way to violate 1AM is to give direct benefits so as to establish a de facto
state religion or coerce religious participation.
ii. Recognition of importance of religion in society
1. Kennedy: clergy delivered prayers at school grad = coercive. Pressure
to come and stay.
2. Blackmun/Stevens/O’Connor: Violation without coercion. Gov can’t
compel or PRACTICE.
3. Souter/etc?: violations can exist without coercion if there is
4. Scalia/Rehnquist/White/Thomas: narrow definition; only exists if the
law PUNISHES or REQUIRES the failure to engage in religious
iii. Free Exercise Clause
1. Government is allowed to regulate action but not belief
2. Prior Case History
a. Reynolds – uphold state law against plural marriages. Action can be regulated and to
allow this would subjugate the law of the land to the personal religious practices of the
b. Cantwell – overturns state licensing scheme that precluded Jehovah’s W’s from soliciting
money. Seems like there was discretion to target a particular group.
3. RULE from Smith:
a. A valid and neutral law of general applicability will receive rational basis review even
if it incidentally burdens the free exercise of religion.
i. Laws that fail to be neutral or of general applicability will receive strict
1. Church of Lukumi Babalu
a. City ordinances fail because they were tailored only to outlaw
the kind of religious sacrifice the Santeria were making.
i. Not neutral because the drafting targeted only
religious killing, but exempted kosher slaughter
ii. Not generally applicable despite city claims of an
interest in public health and animal cruelty, since this
is underinclusive and doesn’t cover stated goals.
b. If you want a remedy, go to the legislature to get an exemption
4. Employment Division v. Smith
a. Majority: Valid and neutral laws of general applicability that burden the exercise of
religion will receive rational basis review
1. It infringes another protected right (hybrid cases)
2. It targets a particular religious group and their practices
1. This is not communicative activity (1AM) (but it is free exercise)
2. Chaos will ensue if anyone can claim that a law infringes a central tenet
of their religion.
b. Concur: SS applies here, but the state HAS shown a compelling interest.
c. Dissent: our precedents have clearly established that strict scrutiny applies when a state
statute burdens religion. Here there is no showing of a compelling government interest
on the part of Oregon, since it has not been shown that religious use of peyote has harmed
anyone. This law is overinclusive and not narrowly tailored since it could make religious
d. Aftermath: RFRA see City of Boerne v. Flowers