By the so called Compromise of 1850 by 66pgoq


									                                       Constitutional Law Outline

I. Introduction / Impeachment
   A. The 27th Amendment- “No law, varying the compensation for the services of Senators and
   Representatives, shall take effect, until an election for Representatives shall have intervened”
       1. History
             a. Initially proposed as the 2nd Amendment, but was not ratified by the requisite nine states
             at the time.
             b. By 1800 had been ratified by six states, and by 1873 seven states.
             c. Rediscovered in the late 1970’s and beginning with Wyoming’s ratification in 1978, it
             was ratified by 32 other states, with Michigan being the necessary 38 th to ratify the 1789
       2. Issue: Is the 27th Amendment valid?
             a. Supreme Court states (Dillon v. Gloss) that there is nothing “which suggests that an
             amendment once proposed is to be open to ratification for all time. “ (pg 2. Supp.) This is
                   1. proposal and ratification are to be treated as succeeding steps in a single endeavor,
                   the inference being that they are not widely to be separated in time.
                   2. It is only when there is deemed a necessity that amendments are to be proposed,
                   the reasonable implication that they are to be considered and disposed presently.
                   3. Since ratification is but the expression of the approbation of the people and is to be
                   effective when had in 3/4ths of the States, there is a fair implication that it must be
                   sufficiently contemporaneous in that number of States to reflect the will of the people
                   in all sections at relatively the same period.
                          a. The Court concluded that the fair inference or implications from Article V is
                          that ratification must be within some reasonable time after the proposal.
                          b. Professor Laurence Tribe believes that the 27th Amendment is valid because
                          Article V says and amendment “shall be valid to all Intents and Purposes as part
                          of the Constitution” when “ratified” by 3/4th s of the states- not that it might face
                          a veto for tardiness.
   B. Justiciability: Judicial Review vs. “Political Questions”
   Marbury v. Madison (1/14/99)
    Just before leaving his presidency, Adams signed a commission for Marbury to become a circuit
        court judge. The commissions were not delivered, & President Jefferson instructed his Secretary
        of State, Madison, to w/hold the commissions.
    Marbury filed suit seeking a writ of mandamus to compel Madison to deliver the commission
    Does Marbury have right to the commission?
         Ct held Marbury had a right to the commission b/c all appropriate procedures were followed
    Do the laws afford Marbury a remedy?
         Ct held that even the President is subject to the law & that every individual has claim to
             protection of the laws when injured
    Can Supreme Court issue the remedy?
         Ct distinguished b/w ministerial acts, where the executive had a duty to perform, & political acts,
             w/in the discretion of the executive
              This is where the Court affords itself the authority to review the constitutionality of
                  executive actions (including a writ of mandamus)
         Marshall finds that the provision in the Judiciary Act of 1789, which grants the Court
    jurisdiction in this matter, is unconstitutional
           Ct held that it could not order the mandamus & that Jefferson did not have to deliver the

   Nixon v. US (1992) (1/14/99)
 Nixon, a former district court judge, was convicted of making false statements to a grand jury
 Since Nixon refused to resign, the Senate imposed its impeachment proceedings in which Nixon &
    others testified
 Nixon filed suit, arguing that the Senate Impeachment Rule violates the constitutional grant of
    authority to the Senate to “try” all impeachments b/c it prohibits the whole Senate from taking part
    in the evidentiary hearings
 Whether this claim is justiciable & determinable by the Court?
 This case involves a “political question,” & the Court has no authority to decide this issue
     The Framers intended this sole impeachment power by the Senate to be a constitutional check on
         the judiciary—judicial review in this matter would be counterintuitive to this purpose
     Relying on the text, Court holds that the word “try” does not provide an identifiable limitation
         on the authority which is committed to the Senate
 White claims that the issue is justiciable & that the Constitution gives broad reign to the Senate

Coleman v. Miller (1/19/99)
 Whether the fact that the legislature had previously rejected the proposal for an amendment barred
    later ratification
 Whether the ratification was ineffective because of lapse of time
 Court cannot prevent ratification of an amendment because of an earlier rejection
 Congress, not the Court, has the final determination of the question whether by lapse of time its
    proposal of the amendment had lost its vitality prior to the required ratifications

1. In determining justiciability, Ct considers the following issues:
   a. Advisory Opinions: S Ct & federal cts do not give while some st cts give advisory opinions to
       the executive—usually have to seek a lawyer or attorney general
       1. Fed cts will grant declaratory judgments—question of difference from advisory opinion
   b. Ripeness: Issue can’t be too contingent (ie: can’t challenge admissions policies while only in
       the 7th grade)
   c. Mootness: S Ct may make an exception if the gestation period of federal t hearing a case is
       longer than gestation period of infant (ie: pregnancy has ended, but suing for refusal of
   d. Standing: Must be someone to claim “I was hurt”
2. Standard for justiciability is whether there is a textual commitment of the issue to other branches
     a. This means not that the function belongs to other branches, but that Constitution seems to
          indicate this issue should be determined by another branch
C. Impeachment (1/20/99)
     1. Suppose Pres was impeached & he argues that the Article was invalid & seeks an injunction
         a. Before Ct gets to the merits, must determine justiciability
               1. Nixon stands in Pres way b/c Ct held case was nonjusticiable
         b. The merits
               1. Not civil or criminal, but political trial
               2. Senate determines rules & Ct will not hold a repeal justiciable
Federalist Papers: 65 & 66 (1/25/99)
    Justification for impeachment for official misconduct must involve the “abuse or violation of
     some public trust” & the abuse must be political
    Dividing the duties of impeachment b/w the two houses avoids the inconvenience of making the
     same persons both accusers & judges

   Jayne: “Eleven 1787 Delegates Who Argued Impeachment: Why Their
   Differences Matter Today”
     Purpose of the Convention was to obtain a balance b/w executive & legislative branches
     Although some delegates wanted to specify the crimes punishable by impeachment, the
      Convention settled on “high crimes & misdemeanors”
       All delegates favored strong executive authority &, therefore, were in favor of restrictive
          impeachment standards
       Reading “high crimes & misdemeanors” to mean any crime or misdemeanor committed by
          any individual in a “high” position gives too broad of a meaning
     “High” should relate to the weight or gravity of the offense, not to the status or identity of those
       who commit them

    Ackerman: “The Case Against Lameduck Impeachment”
    Lameduck Impeachment                       vs.            Holdover Impeachment
    -By Congress                                         -Carry over from House to
   -Valid if by both houses before beginning of new session               next Senate

     Ackerman argues:
       Every other bill dies w/the death of the House & there shouldn’t be an exception for
       If the Framers had forseen the problem of a lameduck House voting to impeach a President, they
            would have taken action to make lameduck impeachment impossible
       In looking at the 20th Amendment, legislature anticipated that a new House, not the old, would
            determine the President—this is the reason for the gap in sessions beginnings for Congress &
            for the President
             Problem in determining whether new managers must be chosen for the Senate trial after the
                 new House is settled b/c, seemingly, the commission of the old managers expires w/the
                 outgoing House
     Precedent supporting lameduck impeachment is weak—only one case in 130 years

II. Historical Review of Constitutional Development
    A. The Marshall and Taney Courts
        1. A first look at federal and state Powers: Judicial Examination of Congress’ Authority to
        Create the Bank (p 19)
             a. McCulloch v. Maryland- Does Congress have the power to incorporate a bank?
                   1. The government of the United States, though limited in its powers, is supreme; and
                   its laws, when made in pursuance of the constitution, form the supreme law of the
                   2. The Constitution does not exclude incidental or implied powers. (It does not
                   profess to enumerate the means by which its conferred powers may be executed).
                   This is the Doctrine of implied powers [ss 121]: in addition to those powers
                   specifically enumerated in the Constitution, certain broad federal powers are to be
                   implied form the Necessary and Proper Clause.
                   3. Necessary and Proper Clause: Article I, Section 8, Clause 18 provides that
                   Congress has the power “[t]o make all laws which shall be necessary and proper for
                   carrying into execution the foregoing powers, and all other powers vested by this
                   Constitution in the Government of the United States, or in any Department or Officer
                   4. Congress may use any appropriate means[122]: Congress is not limited to only
                   those means that are absolutely necessary. Rather it may use any appropriate means
                   to achieve the ends specified in the enumerated powers- i.e., any means not prohibited
                   by the Constitution.
                   5. Thus, Congress does have the power to create a federal bank

b. The States’ Power to Tax the Bank of the United States- McCulloch v. Maryland (the
second question.)
     1. Since the Court determined that the act of incorporating the bank is constitutional,
     is it constitutional to tax that branch?
            a. A state may not exercise its power to tax if it is in its nature incompatible
            with, and repugnant to, the Constitutional laws of the Union. (The power of
            taxing [the bank] by states is the power to destroy)
            b. The question is one of supremacy: the Constitution and the laws made in
            pursuance thereof are supreme; that they control the Constitution and laws of the
            respective States, and cannot be controlled by them.
            c. Summary: “inconsistency” of state law [ss 227]: A state law will be held
            void under the Supremacy Clause if it would retard, impede, burden, or
            otherwise stand as an obstacle to the accomplishment and execution of the full
            purposes of Congress in enacting the federal law.
                  1. It would be illogical to grant power under the Necessary & Proper
                      Clause, but not provide the tools—bank is just a means for carrying
                      out powers/duties
     2. Since bank was a nationally-charged legitimate federal instrumentality, it was
     immune from state taxes

c.    Marshall’s Methods of Constitutional Interpretation
     1. Text: look @ the meaning of the individual clause
     2. The theory and structure of the government established by the Constitution.
                 a. Professor Charles Black argues that Marshall has more general
                 implications underlying his argument than relying strictly on the necessary
                 and proper clause. He comments that “Marshall does not place principal
                 reliance on the necessary and proper clause as a ground of decision;…
                 before he reaches it he has already decided, on the basis of far more
                 general implications, that Congress possesses the power, not expressly
                 named, of establishing a bank;…he addresses the necessary and proper
                 clause only in response to counsel’s arguing it’s restrictive force.”
                 b. Marshall observes that “it is a constitution that we are expounding.” He
                 notes that Article I is a provision “made in a constitution intended to
                 endure for ages to come, and, consequently to be adapted to the various
                 crises of human affairs.”
                 3. Marshal has a very expansive interpretation of the powers granted to the
                 national legislature.
     3. The consequences of decision: the argument reductio ad absurdum- “If
     proposition p is true, then consequences c would follow; c is ridiculous, therefore p
     cannot be true.” Marshall makes this argument when referring to “the exigencies of
     the nation” in rejecting a “construction of the Constitution that would render” the
     performance of government functions “difficult, hazardous, and expensive.”
     4. The history surrounding the adoption of the text.- Judicial references to legislative
     history were virtually unheard of in 18 th century Anglo-American jurisprudence.
     (Marshall does not mention the history of the convention where it had rejected a
     proposal to authorize Congress to chart certain corporations.)
     5. Precedent- Marshall cites no judicial decisions, but invokes as precedent the
     incorporation by Congress in 1791 of the First Bank to support the constitutionality of
     the 1816 decision to incorporate the Second Bank.
d. Note: Uncertainties of Meaning- The language of a provision in a written document is
usually susceptible of more than one meaning; it can be ambiguous, vague, or figurative.
     1. Ambiguity- A word or expression is ambiguous if it admits two or more rather
     different meanings.
           a. Ambiguity is usually undesirable in legal documents.
           b. Language is pervasively ambiguous, but even a very general understanding
           of the purpose of a provision resolves most serious ambiguities.

         2. Vagueness- Whereas ambiguous meanings tend to differ discretely, vagueness
         involves marginal indefiniteness in the meaning and application of words. (Some
         provisions of the Constitution are designedly vague- the 4th Amendments prohibition
         of “unreasonable search and seizures”)
         3. Nonliteral usage- Interpreters are frequently called upon to determine how literally
         or figuratively to understand a term or how narrowly or broadly to define the concept
         that the term represents.
     e. Note: National Power over Foreign Relations
         1. Prior to the federal Constitution, state lawmaking power was plenary, limited only
         by the states’ own constitutions and (minimally) by prior interstate arrangements such
         as the Articles of Confederation.
         2. The states derive no lawmaking authority form the federal Constitution.
         3. The Constitution actually imposes various restrictions on the limitations of state
         4. The national government enjoys only those powers granted by the Constitution.
         5. Is the national government’s power over foreign affairs, which has always been
         treated as plenary, an exception to 4.?
               a. The relevant grants of power are in Articles I and II.
               b. The Court has referred to a theory proposed by Justice Sutherland in dictum
               in U.S. v. Curtiss-Wright Export Corp.
                     1. Since the states severally never possessed international powers, such
                     powers could not have been carved from the mass of state powers but
                     obviously were transmitted to the United States from some other source.
                     2. The Union, as declared by the Articles of Confederation was the sole
                     possessor of external sovereignty and in the Union it remained without
                     change save in so far as the Constitution in express terms qualified its
                     3. Sutherland maintains that the investment of the federal government with
                     the powers of external sovereignty did not depend upon affirmative grants
                     of the Constitution.
                     4. Thus, Justice Sutherland’s analysis, although open to criticism, at least
                     suggests the spirit in which the particular grants of power to Congress and
                     the executive have been amalgamated to create a whole greater than the
                     sum of its parts.

2. Regulation of the Interstate Economy
    a. Gibbons v. Ogden (p 111)- Robert Fulton the inventor of the steamboat had been
    granted the exclusive right to navigate by steam-propelled vessels from the state of New
    York. Ogden secured a license from Fulton to operate steamboats between New York and
    New Jersey. Gibbons started to operate his own steamboat line between the two states in
    defiance of the New York-granted monopoly, though his boats were licensed to engage in
    the costing trade under an Act of Congress. Ogden secured an injunction in a New York
    court to restrain Gibbons form operating within New York waters. The Supreme Court
          1. Commerce is traffic, but it is something more- it is intercourse. It describes the
          commercial intercourse between nations, and parts of nations, in all its branches, and
          is regulated by prescribing rules for carrying on that intercourse.
          2. The completely internal commerce of a state may be considered as reserved for the
          state itself.
          3. The commerce power is the power to regulate—Congress can regulate that which
          affects interstate commerce
                A. Dormant commerce clause states that even where Congress hasn’t acted
                      under the commerce clause, the fact of the grant of power to Congress
                      alone invalidates states’ attempts to create commercial regulations
                      1. Problem w/this “one only” idea of regulation is that where anything
                      deemed to be in reach of federal power, only federal power can act

     4. The power of Congress comprehends navigation, within the limits of every state in
     the Union; so far as that navigation may be, in any manner, connected with
     “commerce with foreign nations, or a among the several states, or with the Indian
     5. Marshall acknowledges the force of the argument that the word “regulate” implies
     in its nature, full power over the thing to be regulated, it excludes, necessarily, the
     action of all others that would perform the same operation on the same thing.
     However, Marshall says that in exercising the power of regulating their own purely
     internal affairs, whether of trading or police, the states may sometimes enact laws, the
     validity of which depends on their interfering with and being contrary to an act of
     Congress passed in pursuance of the Constitution
     6. Summary: Limitless power? [275]: Virtually every business engages activity that
     affects more than one state- whether as a consumer (or source) of goods or services
     from (or for) interstate commerce (directly or secondarily), or in competing with
     others offering such goods or services. Thus the “national economic effect” theory
     appears to encompass an almost limitless power, permitting Congressional regulation
     of all activities accept those that (I) are completely internal to a single state (Gibbons
     v. Ogden), or (II) so remotely (or trivially) affect other states that to uphold
     Congressional regulations would obliterate our concept of federalism (NRLB v. Jones
     & Laughling Steel Corp.)
b. Discussion of Marshall’s decision in Gibbons
     1. Marshall’s binary view- Marshall say that the Constitution permits both the
     Congress and the states to levy taxes because one does not interfere with the other. It
     is indispensable to both governments and is a power, which, in its own nature, is
     capable of residing in and being exercised by, different authorities, at the same time.
     The power to regulate commerce excludes “necessarily the action of all others that
     would perform the same operation on the same thing.”
     2. The purposes of the commerce power- Marshall refers to “the well settled rule,
     that the objects for which [a power] was given… should have great influence in the
     3. The purposes of congressional regulation
            a. In discussing the allocation of state and national powers under the clause,
            Marshall writes that inspection, quarantine and health laws, “form a portion of
            that immense mass of legislation, which embraces everything within the
            territory of a state, not surrendered to the national government.”
            b. Marshall comments that “No direct general power over these objects
            [mentioned above] is granted to Congress; and, consequently they remain
            subject to state legislation. If the legislative power of the Union can reach them,
            it must be for national purposes.
            c. Summary: This suggests that the scope of national power may depend, not
            only on the substance of the regulation, but also on the purposes for which the
            regulation was adopted- on the congruence between the purposes underlying the
            regulation and the constitutional grant of the power.
     4. State regulation of interstate commerce—substance and purpose. Gibbons holds
     that a valid congressional regulation of interstate commerce preempts inconsistent
     state regulations. But may a state regulate interstate commerce in the absence of
     Congressional legislation? (The Court addressed the constitutionality of state law in
     the absence of a preemptive federal law in Wilson v. Black Bird Creek Marsh Co.
     (1829) (p 121))
            a. Marshall says that the repugnancy of the law of Delaware to the
                 Constitution is placed entirely on its repugnancy to the power to regulate
                 commerce with foreign nations and among the several states; a power which
                 has not been exercised as to affect the question. The act empowering the
                 Black-Bird Creek Marsh company to place a dam across the creek cannot be
                 considered, under all circumstances of the case, repugnant to the power to

                   regulate commerce in its dormant state, or being in conflict with any law
                   passed on the subject.
                   1. Ct refuses that in the absence of federal power, states cannot do
                   2. Marshall tries to reconcile w/Gibbons by stating this is not commerce
               b. Marshall used the language “under all circumstances of the case” in the
                   decision. One possible relevant circumstance could be that the law passed
                   by Delaware was a health law as distinguished from a commercial
               c. Note: Language, Purpose, and Meaning
                    1. Language and Purpose
                          a. One who inquires into “purpose” may not look much beyond the
                          language of the provision, for the language, when read in the context
                          of the generally understood structure and values of a society, will
                          usually indicate the society’s reasons for adopting it.
                          b. One who inquires into “intent” will examine closely the
                          proceedings and debates that led to the provision’s adoption.
                    2. Discovering the Adopters’ Purpose
                          a. Four sets of proceedings bear directly on the original
                          understanding of the constitutional provisions:
                                1. The federal Constitutional Convention held in Philadelphia
                                in 1787.
                                2. The state ratification conventions.
                                3. Congressional proceedings in which amendments were
                                proposed pursuant to Article V.
                                4. The state legislative proceedings in which they were ratified.
                          b. All of these sources are problematic and some of the difficulties in
                          referring to the most frequently cited secret proceedings of the
                          Philadelphia Convention are:
                                1. The notes of the Journal, Acts, and Proceedings of the
                                Convention and Madison’s Debates paint a picture of the
                                proceedings that are generally consistent with the proceedings,
                                but there is no check on the completeness of the proceedings.
                                2. The conceptions of what occurred are really our conceptions,
                                not necessarily accurate.
                          c. The most frequently cited nonofficial source is the Federalist
                                1. Citations to The Federalist Papers in determining the framers
                                intent assumes that the framers, in framing their articles 1)
                                divested themselves of their former protagonistic biases and
                                attitudes, and 2) the Federalist was composed in an atmosphere
                                of calm disinterestedness.
                                      a. Assumption one is only conjecturally possible
                                      b. Assumption two is historically false.
                                            1. The Federalist was composed as an argument on
                                            one side of a bitterly controverted question.
                                            2. It did not even purport to express the intention of
                                            the framers.
                          d. Another source that the Court has cited is enactments of the early

3. Slavery and Prelude to Secession
     a. Historical context of Dred Scott
          1. By the so-called Compromise of 1850, California was admitted to the union as a
          free state; New Mexico, and Utah were organized as territories with the issue of

    slavery being left to future legislation; the slave trade was abolished in the District of
    Columbia; and a more stringent fugitive slave law was adopted.
    2. The Fugitive Slave Act of 1850 (p 191)
          a. Provided for the appointment of federal commissioners, who were authorized
          to issue certificates of removal on the ex parte testimony or affidavits of
          slaveholders or their agents. Testimony by the alleged slave was excluded and,
          as if this were not sufficient to bias the outcome, the act paid the commissioner
          $10 for issuing the certificate, but $5 if he denied it.
          b. The Act was the focus of bitter controversy in the North.
          c. A circuit court rejected a challenge to the constitutionality of the Act in
          Miller v. McQuerry.
          d. In Ableman v. Booth, Chief Justice Taney, in a strikingly nationalist opinion,
          wrote for the Court sustaining the Act and holding that a Wisconsin state court
          could not issue a writ of habeas corpus to free a federal prisoner convicted of
          violating the Act.
                 1. Taney wrote “no State can authorize one of its judges or courts to
                 exercise judicial power, by habeas corpus or otherwise, within the
                 jurisdiction of another and independent Government.
                 2. The holding concerning the relation between federal and state courts
                 was entirely consistent with the principles of federalism developed in cases
                 such as McCulloch v. Maryland; it remains the law today.
b. Dred Scott v. Sanford (p 193)
    1. Dred Scott arose out of the other major legal problem of slavery in a federal
    nation- the status of nonfugitive slaves in free states.
          a. Some Northern states had forbidden visiting slave-owners from bringing their
          slaves with them, and several state courts had freed slaves brought into the
          b. The federal constitutionality of these laws was never conclusively
    2. History of Dred Scott before the Supreme Court:
          a. Dred Scott, alleging federal jurisdiction based on diversity of citizenship
          (Article III, 2), brought the action, in which he claimed that his earlier residence
          in the free state and territory liberated him from slavery. Sanford (the
          administrator of the estate that owned Dred Scott after his owner’s death)
          entered a plea of abatement, contesting the court’s jurisdiction on the ground
          that a “negro of African descent” was not a citizen of Missouri or the United
          b. The Missouri federal court denied the plea but decided for Sanford on the
          ground that, although Scott was entitled to his freedom in Illinois and the
          northern Missouri Territory, his status reattached upon his return to Missouri.
          Scott appealed to the Supreme Court.
    3. The Supreme Court affirmed the ruling in an opinion by Chief Justice Taney.
          a. Justice Taney decided the following three issues:
                 1. As a matter of conflict of laws, Dred Scott’s status was governed by the
                 law of the forum state, Missouri.
                 2. The Missouri Compromise was unconstitutional on the grounds that (a)
                 Article I did not authorize Congress to legislate for the territories once the
                 settlers were able to legislate for themselves and (b) “an act of Congress
                 which deprives a citizen…of his property merely because he came or
                 brought his property into a particular Territory
                       A. Taney did not have to determine the constitutionality of MO
                            Compromise b/c it had already been repealed—he thought it
                            would end all conflict
                            1. Really just inflamed the issue—North felt it had to contend
                            w/southern Congressmen & S Ct

           3. The federal court lacked jurisdiction over Scott’s claim because blacks
           were not “citizens” within the meaning of the diversity jurisdiction clause
           of Article III.
                 a. Taney writes, “[W]e must not confound the rights of citizenship
                 which a State may confer within its limits, and the rights of
                 citizenship as a member of the Union. It does not by an means
                 follow, because he has all the rights and privileges of the citizen of a
                 State, that he must be a citizen of the United States…Each State may
                 still confer [rights and privileges] upon an alien, or any one it thinks
                 proper; yet he would not be a citizen in the sense in which that word
                 is used in the Constitution of the United States, nor entitled to sue as
                 such in one of its courts, nor to the privileges and immunities of a
                 citizen in the other States. The rights which he would acquire would
                 be restricted to the State which gave them.”
                 b. Taney further explained: “In the opinion of the court, the
                 legislation and histories of the times, and the language used in the
                 Declaration of Independence, show, that neither the class of persons
                 who had been imported as slaves, nor their descendants, whether they
                 had become free or not, were then to be acknowledged as part of the
                 people, nor intended to be included in that memorable instrument.”
4. Dred Scott is of limited continuing doctrinal importance.
     a. Restrictions on congressional power to bar slavery in the territories were
     rendered irrelevant by the 13th Amendment.
     b. The holding denying citizen status to native-born blacks was overruled by
     section 1 of the 14th Amendment.
     c. There is, however, a common thread between Dred Scott and modern
     constitutional law.
           1. A key move in Taney argument was the bifurcation of citizenship into
           two kinds of citizenship: state citizenship and national citizenship. This
           dichotomy of state and national citizenship is still part of our law today.
           2. You can now be a citizen of the United States without being a citizen of
           a state. (see pg 204). However, the converse is a legal impossibility after
           the 14th Amendment. (You cannot be a citizen of a state without being a
           citizen of the United States)
5. Note: Radical Interpretation
     a. Frederick Douglas, the leading black Abolitionist, disputed the conventional
     interpretation that the Constitution sanctioned slavery.
     b. Douglas denies that the Constitution guarantees the right to hold property in
     other men. He states, “[I]t should be borne in mind that the mere text, and only
     the text, and not any commentaries or creeds written by those who wished to
     give the text a meaning apart from its plain reading, was adopted as the
     Constitution of the United States. It should also be borne in mind that the
     intentions of those who framed the Constitution, be they good or bad, for slavery
     or against slavery, are to be respected so far, and so far only, as will find those
     intentions plainly stated in the Constitution.” (See pg 207).
6. Lincoln-Douglas Debates
     a. Lincoln
          1. Claimed every officer has an obligation to act under the Constitution
          2. Wasn’t really opposing Dred Scott
               A. Claimed that since he was a senator, he was not bound by that
          3. Promised that, if elected, he would stop slavery in the territories
          4. He’ll appoint justices whose views are known to reverse the decision
     b. Douglas
          1. How will you know judges views? Fair to ask how they would vote?
     c. Corwin Amendment: passed both houses & Pres Buchanan signed

                    1.   Lincoln did not object though it protected slavery where it existed &
                         said the amendment was unremovable
                    2.   Is unamendable amendment constitutional?
                         A. Civil War was unique situation b/c afraid states would secede
                         Senator Benjamin’s Response to Lincoln’s Inaugural
                         Address (on page 216) (2/3/99)
                             The states entered into a contract w/federal government—they may
                              leave if they determine their rights have been violated
          7. The American Civil War As A Constitutional Crises
               a. Because the Union could be, and frequently had been, viewed as not more
               than a compact among sovereign states, the dissolution of the compact was a
               conceivable thing.
               b. The crisis of slavery stemmed directly from the fact that slavery was not a
               static and local institution; it was a prodigiously expanding one.
                     1. In effect, the strategy adopted for dealing with slavery was one of
                     “containment.” Lincoln traced it to the founding fathers themselves. They
                     had, he asserted, put into effect a twofold policy with respect to slavery:
                     “restricting it from the new Territories where it had not gone, and
                     legislating to cut off its source by abrogation of the slave trade”
                     2. Defenders of slavery regarded the policy of containment as so
                     dangerous to their interest that they interpreted it as signifying “that a war
                     must be waged against slavery until it shall cease throughout the US”
               c. The broad interpretation that John Marshall gave to the commerce clause in
               Gibbons represented a strengthening of federal power in only one of its two
               possible dimensions.
                     1. The decision upheld the power of Congress to sweep aside every
                     obstruction to the free flow of interstate commerce. Not until the end of
                     the 19th century, however, did the commerce power begin to be used
                     extensively for the purpose of regulation in the modern sense, that is to
                     say, restrictive regulation…
                     2. It is a dramatic illustration of the difference between 19 th and 20th
                     century views of the Constitution that … the commerce clause was never
                     seriously invoked in connection with the slavery dispute. The same fact
                     illustrates how adverse to innovation in constitutional matters the
                     antislavery forces actually were.

4. The Civil War
    a. The President as Commander-in-Chief in Behalf of Preservation of the Union
         1. Lincoln stated that “in legal contemplation, the Union is perpetual, confirmed by
         he History of the Union itself”
              a. The Union is older than the Constitution.
              b. Because the goal of the Constitution was to form a more perfect union, no
              state upon its own mere motion, can lawfully get out of the Union. (This is
              because if the Union lacked the vital element of perpetuity it would be less
              perfect then before the Constitution.)
         2. The Authority of the President to Repel Attacks on the Union- The Prize Cases-
         (p 217) On April 19 and 27, 1861 Lincoln issued proclamations blockading
         Confederate ports and authorizing the seizure of ships caught carry goods to them.
         The shipowners sued, claiming that this was beyond the President’s authority in the
         absence of a declaration of war, which did not occur until July 13.
              a. The Supreme Court upheld the Proclamation in a 5 to 4 decision.
              b. Commitment of armed forces [ss 188]: In the event of insurrection or
              invasion, the President may deploy military forces against any enemy, foreign or
              domestic, without waiting for a Congressional declaration of war.

          3. Lincoln and the Suspension of Habeas Corpus- On April 27, 1861, President
          Lincoln authorized Commanding General Winfield Scott to suspend habeas corpus
          (by which people deprived of liberty can challenge the legality of their detention in a
          court). On May 25, military troops arrested John Merryman for participating in the
          destruction of railroad bridges following an antiwar riot in Baltimore. The
          Constitution specifically authorizes the suspension of habeas corpus “when, in cases
          or rebellion or invasion, the public safety may require it” (Article I, Section 9) The
          question is: Who can make such a determination?
                a. Chief Justice Taney on the Exclusive Authority of Congress- “The
                President, under the Constitution and laws of the United States, cannot suspend
                the privilege of the writ of habeas corpus, nor authorize any military officer to
                do so”
                      1. Article I, Section 9 is “devoted to the legislative department of the
                      United States, and has not the slightest reference to the executive
                      2. “If he [the President] takes upon himself legislative power, by
                      suspending the writ of habeas corpus, and the judicial power also, by
                      arresting and imprisoning a person without due process of law… he
                      certainly does not faithfully execute the laws.”
                c. The President Asserts Executive Authority- Lincoln asserted that it is more
                     important to preserve the government through disregarding a single law,
                     than to let the government be overthrown and obey that law—calling
                     Congress to session would have taken too long
           President’s claim to suspend habeas corpus & command the militia are
               questionable—violation of separation of powers?
          4. Lincoln: The Great Emancipator
                a. On January 1, 1863, Lincoln issued the famous Emancipation Proclamation.
                     1. The Emancipation Proclamation is not a general declaration of freedom.
                     It freed only slaves in rebel states.
                      2. As late as July 1864, Lincoln reiterated that he was “unprepared… to
                     declare constitutional competency in Congress to abolish slavery in [the]
                      3. Instead of a goal to free the slaves Lincoln emphasized the President’s
                     power as commander-in-chief to take actions warranted by “military
                     necessity.” He wrote, “I felt that measures otherwise unconstitutional might
                     become lawful by becoming indispensable to the preservation of the
                     Constitution through the preservation of the nation.”
                b. Note: Former Justice Curtis Dissents
                      1. The Emancipation Proclamation scarcely received universal support,
                      even from the North.
                      2. In October of 1862, former Supreme Court justice Curtis published a
                      pamphlet on “executive power” that expressed strong reservations about a
                      number of Lincoln’s actions including the Proclamation: “It is among the
                      rights of all of us that the executive power should be kept within its
                      prescribed constitutional limits, and should not legislate, by its decrees,
                      upon subjects of transcendent importance to the whole people.”

5. An aside: Separation of Powers in the Modern Era-
    a. The Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer) ( p 482)- The
    problem of inherent Presidential power received its most detailed consideration in the Steel
    Seizure case. It arose out of President Truman’s order directing seizure of the nation’s
    steel industry. The President had acted to head off a steel strike. The seizure, he declared,
    was necessary to ensure the continued availability of steel and to avoid the adverse effects
    upon national defense and the economy that a steel stoppage would entail. Though Truman
    had been motivated by his conception of public interest, he had acted without specific

authorization, statutory or otherwise. Did the President have the inherent power to seize a
basic industry to prevent a stoppage caused by a labor dispute?
     1. Limitation- Congressional denial of authority [ss 190]- In the Youngstown case,
     President Truman’s executive order seizing the steel mills to keep them operating
     during the Korean War was held to be a legislative act and thus beyond his power.
     Whether he had “inherent emergency power” in this situation was not directly
     answered because some Justices read congressional statutes as denying the President
     the power of seizure.
           a. However, under Justice Black’s view, there is no power in the President
           alone to deal with an emergency: if the Presidential act is one that Congress
           could have authorized, then, in the absence of a Congressional grant of
           authority, he cannot do it on the plea that emergency requires it. [UCL 5.06, pg
           b. The other majority Justices indicated that the issue was not baldly presented.
           In their view, the Presidential seizure was incompatible with the expressed will
           of Congress. Indeed two of the majority Justices (Clark and Jackson) appeared
           to assume that, in the absence of Congressional restrictions such as those
           imposed by Taft-Hartley, the President does possess inherent power to deal with
           national emergencies.
     2. Justice Jackson’s concurring opinion in the Steel Seizure case contains a useful
     analysis of situations involving exercises of Presidential power. According to the
     Jackson analysis, there are three separate categories, with different legal
     consequences: [UCL 5.06, pg 136]
           a. Presidential action pursuant to Congressional authority—“When the
           President acts pursuant to express or implied authority of Congress, his authority
           is at its maximum, for it includes all that he possesses in his own right plus all
           that Congress can delegate.”
           b. Presidential action where Congress is silent—“When the President acts in
           absence of either a congressional grant or denial of authority, he can only rely
           upon his own independent powers, but there is a zone of twilight in which he
           and Congress may have concurrent authority, or in which its distribution is
           c. Presidential action contrary to Congressional directions—“When the
           President takes measures incompatible with the expressed or implied will of
           Congress, his power is at its lowest ebb, for then he can rely only upon his own
           constitutional powers minus any constitutional powers of Congress over the
     3. Notes on Justice Jackson’s categories-
           a. The second category, with its suggestion of a twilight zone where both
           executive an legislative power may act, assumes the existence of inherent
           Presidential power. The existence of this power is subject to two inherent
                  1. The first is one that applies to all government powers under the
                      Constitution- that they may not be exercised in violation of other
                      constitutional provisions
                  2. The second basic limitation upon Presidential inherent power is that it
                      is subordinate to statute.
     4. Dissent takes a consequentialist view—look @ what will happen if President
     doesn’t do this
     5. Constitutional Interpretation
           a. Professor Philip Bobbit characterizes Justice Black’s method of constitutional
           interpretation as paradigmatically “textual” based on the notion that the
           Constitution’s commands can be ascertained from the plain meaning of the text.
           b. Bobbitt contrasts this to a quite different “prudential” approach, which he
           defines as “constitutional argument actuated by the political and economic
           circumstances surrounding the decision. Thus, prudentialists hold that in times

           of national emergency even the plainest of constitutional limitations can be
           ignored if it is in the public interest to do so.
           c. One way to tell the difference between a “textualist” and a “prudentialist” is
           by reference to the importance they assign to the specific facts of a case. A
           “prudentialist” will usually provide far more information in the description of
           the case. How constitutionally relevant is the additional information is an
           important question to ask.
b. Modern Presidential Limitations- In 1973, in the aftermath of the Vietnam War,
Congress passed The War Powers Resolution over President Nixon’s veto.
     1. Its central purpose was to increase Congress’ role in decision making regarding the
     commitment of American troops.
           a. In the absence of a declaration of war, where the armed forces are introduced
           into hostilities or foreign territory, the President shall report to Congress within
           48 hours.
           b. The used of armed forces must be terminated within 60 days thereafter unless
           Congress has declared war or specifically authorized the use.
     2. Every President since Nixon has argued that the Act is unconstitutional because it
     does not provide an opportunity for Presidential veto. It may also be an infringement
     upon the powers vested by Article II in the Commander in Chief.
           a. Congress has not yet attempted to use the War Powers Act to limit
           Presidential action.
           b. Dramatic examples of practical irrelevance of the Act involved President
           Reagan’s and Bush’s commitments of American military forces to the Persian
           c. “Consultation provision” in which President must consult w/Congress about
           sending troops is now deemed unconstitutional
                 1. INS v. Chadha: legislative veto allows veto by two houses, one house,
                      or committee to prevent President or agency from doing something
                      they’re authorized to do
                      A. S Ct held these vetoes are unconstitutional & that legislative
                            vetoes have to go through full procedure of all bills (bicameralism
                            & presentment)
c. Separation of Powers: Line Item Veto Act
Clinton v. City of New York (1998) (2/8/99)
  Suit was brought against the President (for declaratory judgement that the Line Item
    Veto Act was unconstitutional, not for injunctive relief against the President) after he
    exercised his authority in canceling three provisions in two separate bills
     President has the authority to cancel in whole only three types of provisions:
        (1) any dollar amount of discretionary budget authority
        (2) any item of new direct spending
        (3) any limited tax benefit
     President must make findings & provide a purpose for the cancellation, which
        (1) reduce the Federal budget deficit
        (2) not impair any essential Government functions
        (3) not harm the national interest
     President’s cancellation prevents the item from having “legal force or effect”
        while the remaining provisions have the same effect as when signed into law—
        this happens after the bill becomes law
         This differs from a “veto” in which the President returns the entire bill to
             Congress where it may be overridden by 2/3 vote in each house—this
             happens before the bill becomes law
     President is no where given constitutional authority to enact, amend, or repeal

             Is the Line Item Veto Act constitutional?
            ANALYSIS & HOLDING
             Ct held that federal Line Item Veto Act was unconstitutional b/c the President’s action
              amounted to a cancellation rather than a mere return of the bill, which undermines the
              deliberation process underlying the Presentment Clause (Article I, §7, cl. 2) of the
             Although Raines stated that individual members of Congress do not have standing, this
              Court held that the members had standing to challenge the constitutionality of the Act
             Ct rejected claims that this was merely an exercise of discretionary authority & that it
              is no different from the power of declining to spend specified sums of money or to
              decline to implement specified tax measures
             Majority claims President could knock out individual Congressman’s piece of the bill
              & create a loss of power by the individual members
             They also claim this law allows Pres to change the text of statutes
             Scalia argued that title was misleading—President’s action is not the same as state line
              item veto &, therefore, not a violation of Article I, §7
             Breyer argued this relates to the “nondelegation doctrine” which does not allow
              Congress to give a “blank check” when delegating powers to agencies
             In canceling, the President did not repeal or amend any law—he simply followed the
              law, leaving the statutes, as they are literally written, intact
             This Act does not allow President to encroach upon Congress’ power b/c Congress
              retained the power to insert, by simple majority, into any future appropriations bill, a
              provision that says the Act will not apply
             Resembles the power (impoundment authority) traditionally given to Pres to change
              taxes under very broad standards, as in raising tariff rates in Field v Clark

B. From the Civil War to the Depression
    1. The Fourteenth Amendment Adopted and Limited
         a. History
              1. In 1865, shortly before the close of the Civil War, the 38 th Congress proposed and
              adopted the 13th Amendment, which was ratified in December of 1865. Although the
              Amendment abolished slavery, the Black Codes adopted by many southern states
              immediately after the war, threatened to restore freedmen to their antebellum status.
              The Codes:
                    a. Created many discriminations in the criminal law by applying unequal
                    penalties to Negroes for recognized offenses and by specifying offenses for
                    Negroes only.
                    b. Post-war black codes hedged in the Negroes with a series of restraints on
                    their business dealings of even the simplest form. (For example, Mississippi put
                    sharp limitations on the right of the Negro to acquire property.)
              2. Thus it remained for the 39th and later Congresses to go beyond the formal
              abolition of slavery and to guarantee other basic rights to the freedman.
              3. Any inquiry to determine what basic rights its framers sought to guarantee must
              begin with the Civil Rights Act of 1866:
                    a. A key phrase in the dispute over the scope of the 39 th Congress’ concern with
                    the racial discrimination was the prohibition of discrimination in “civil rights or
                    immunities”—the “civil rights formula” - which first appeared in the ill-fated
                    Freedman’s bureau bill and reappeared in the Civil Rights Bill, introduced in the
                    Senate in January 1866. Section 1 of the Civil Rights Bill provided:
                    That there shall be no discrimination in civil rights or immunities among the
                    inhabitants of any State or Territory of the United States on account of race,
                    color or previous condition of slavery; but the inhabitants of every race and
                    color, without regard to any previous condition of slavery or involuntary

             servitude…shall have the same right to make and enforce Ks, to sue, be parties,
             and give evidence, to inherit, purchase, lease, sell, hold, and convey real and
             personal property, and to full and equal benefit of all laws and proceedings for
             the security of person property, and shall be subject to like punishment, pains,
             and penalties, and none other, any law, statute, ordinance, regulation, or custom
             to the contrary notwithstanding.
             b. Supporters of the bill asserted that the only rights it secured were those
             specifically enumerated in section 1 and that a broader construction was not
             intended. There was disagreement about the breadth of the language (see pg
             233-234) in the House and Senate.
                   1. The Senate leadership finally acceded to an amendment “that nothing in
                   this act shall be construed as to affect the laws of any State concerning the
                   right of suffrage.”
                   2. In addition to the substantive objections to the breadth of the language
                   of the Civil Rights Bill, many congressmen doubted whether the 13 th
                   Amendment, which only abolished slavery, empowered Congress to enact
                   the measure.
                   3. The House and Senate passed the amended Civil Rights Act of 1866
                   (amended because the general terms relating to civil rights were struck
                   from the Act because they might have given warrant for a latitudinal
                   construction not intended) and overrode a presidential veto. The amended
                   text read:
                   citizens of every race and color…shall have the same right, in every State
                   and Territory in the U.S., to make and enforce contracts to sue, be parties
                   and give evidence…(pg 235).
b. The Fourteenth Amendment
      1. The Joint Committee on Reconstruction began to consider the Fourteenth
      Amendment after the Civil Rights Act of 1866.
      2. In drafting section 1 of the Fourteenth Amendment, the Committee vacillated
      between the civil right formula and Bingham’s language, finally reporting the latter:
      “No state shall make or enforce any law which shall abridge the privileges or
      immunities of citizens of the United States; nor shall any state deprive any person of
      life, liberty or property without due process of law, nor deny to any person within its
      jurisdiction the equal protection of laws.”
             a. The House and Senate debates paid little attention to section 1. Other
             provisions of proposed amendment, disfranchising much of the white southern
             electorate were more controversial. (These culminated in section 2 of the 14 th
             b. Apparently most legislators identified section 1 with the Civil Rights Act,
             which they had only recently enacted after lengthy debate.
             c. Many Republicans asserted that section 1 merely constitutionalized the Civil
             Rights Act. Only a few congressmen insisted that the amendment granted too
                   1. The vague terms of the 14th Amendment had been employed by the
                   abolitionists to encompass an undefinable variety of rights and had no
                   settled meaning.
                   2. During the debates on section 1 of the 14 th Amendment a number of its
                   proponents made remarks inconsistent with an assumption that its broad
                   language was strictly limited to the enumerations of the Civil Rights Act.
                   3. The 14th Amendment was sent to the country on June 13, 1866, and
                   section 1 received as little attention in the ensuing election campaign and
                   ratification proceedings as I had in Congress.
c. The Fourteenth Amendment Limited What States Could Do to People- The central
question posed to constitutional interpreters of the 14 th Amendment was what comprised
the rights and freedoms presumably guaranteed. (For example, did it protect the former
slaves by preventing only discriminatory treatment of them (and other blacks) relative to

the majority population? Or, instead, did it guarantee to blacks (and the general
population, including nonblacks) a substantive set of rights that were protected against
governmental interference?)
     1. The Court readily decided that the Amendment did not protect the political rights
     of access to the ballot box. (but this was a different question from what constituted
     the “civil” rights that all parties to the debated conceded, at least in the abstract, were
     to be protected by the new constitutional language.)
     2. The Slaughter-House Cases (p 263)- The controversy in Slaughter-House arose
     out of a law passed in New Orleans that granted exclusive monopoly rights to
     slaughter animals in the New Orleans area to the Slaughter-House Company. The
     plaintiffs were butchers in the New Orleans area whom the monopoly law prevented
     form practicing their trade.
           a. The butchers raised four constitutional challenges to the monopoly law.
           They claimed that it:
                 1. created involuntary servitude prohibited by the 13 th Amendment;
                 2. abridged the privileges and immunities of the citizens of the United
                 States in violation of section 1 of the 14th Amendment;
                 3. denied the butchers the equal protection of the laws in violation of
                 section 1 of the 14th Amendment;
                 4. deprived the butchers of their property without due process of the law in
                 violation of section 1 of the 14th Amendment.
           b. The Court rejected all four constitutional challenges to the law, relying
           heavily on its interpretation of the history and purpose of the post-Civil War
           Amendments. [UCL 6.01, pg 157].
                 1. The Court believed that the “prevailing purpose” of the Amendments
                 was to free the slaves, and that fact had to be taken into account in any fair
                 and just construction” of them. (The Court rejected or ignored the Civil
                 War’s other purpose of asserting the power of the national government
                 over the several states in matters of individual rights)
                 2. The Court reject the butcher’s claim (1)and said that the 13 th
                 Amendment was limited to slavery and similar forms of involuntary
                 3. The Court rejected equal protection challenges (3) by relying on the
                 history and purpose of the Amendments, holding that the Equal Protection
                 Clause was only intended to apply to discrimination against the ex-slaves,
                 although it might eventually be extended to prohibit other forms of racial
                 4. In dismissing the due process challenge (4), the Court refused to
                 construe the clause to extend substantive due process protection for the
                 butchers. The Court reasoned that no previous interpretation of the Due
                 Process Clause of the 5th Amendment ever held that a restraint on the
                 exercise of a person’s trade was a deprivation of property, thus the 14 th
                 Amendment should not do so.
                 5. Perhaps the most important part of the Courts opinion was the rejection
                 of butchers’ challenge that the law violated the Privileges and Immunities
                 Clause of the 14th Amendment. In rejecting the butchers’ privileges and
                 immunities challenge (2), the Court relied on the distinction between the
                 definition of a citizen of the U.S. and a citizen of a state.
                       a. The Court cited the first sentence of section 1 of the 14 th
                       Amendment to support the distinction.
                       b. Such differentiation was highly relevant to the Court’s
                       construction of the Privileges and Immunities Clause because the
                       Amendment spoke only of the privileges and immunities of citizens
                       of the U.S. and not of privileges and immunities of citizens of the

                 c. Thus, the Court concluded that the 14th Amendment only protected
                 the privileges and immunities of citizens of the U.S. Consequently,
                 the clause only prohibited state interference with certain privileges of
                 national citizenship. Protection of “fundamental” property and civil
                 rights was within the jurisdiction of the several states not the federal
                       1. Federal privileges and immunities were limited to those
                       rights “which owe their existence to the federal government, its
                       National character, its Constitution, or its laws.” (Such as the
                       right to “demand the care and protection of the federal
                       government over his life, liberty, and property when on the high
                       seas or within the jurisdiction of a foreign government.”)
                       2. This construction of the Privileges and Immunities Clause of
                       the 14th Amendment rendered the clause meaningless. The
                       privileges and immunities of national citizenship that the
                       majority addressed were already protected against state
                       infringement by the Supremacy Clause.
d. Summary of the Slaughter House Cases.
     1. The fundamental rights protected against federal action by the first eight
     amendments to the Constitution were not “privileges and immunities of national
     citizenship” so as to be protected form state action under the 14 th Amendment
     Privileges and Immunities Clause.
     2. Effect: The decision rendered the 14th Amendment Privileges and
     Immunities Clause largely a dead letter in protecting individual rights from state
     abridgement. Subsequently, the Court has relied on the 14 th Amendment Due
     Process and Equal Protection Clauses to provide basic protection of individual
     rights against state action.
     3. The majority’s decision in Slaughter-House is still good law today. The
     Privileges and immunities Clause of the 14th Amendment remains essentially
     written out of the Constitution by the decision. Although the Privileges and
     Immunities Clause remains a potential source of constitutional protections, its
     role has been filled by other constitutional provisions.
     4. “Due Process”- The due process clause of the 14th Amendment is identical to
     the due process clause of the 5th Amendment. The 5th Amendment clause, as
     its language implies, was generally understood to address the procedure by
     which individuals’ rights and liabilities were adjudicated. Procedural due
     process is not concerned with the validity of laws that deprive people of life,
     liberty, or property under specified conditions, but rather with the procedures
     that must be followed in determining whether those conditions in fact exist.
     Plaintiffs in the Slaughter-House Cases were not attacking an adjudicatory
     procedure but rather the substantive appropriateness or fairness of the
     slaughterhouse monopoly.
     5. Slaughter-House and bifurcated citizenship- Professor LaRue sees “ a clear
     continuity, on a question of citizenship, between Dred Scott and the Slaughter
     House Cases.” By stating that “the distinction between citizenship of the U.S.
     and citizenship of a State is clearly recognized” by the 4 th Amendment, Justice
     Miller “preserved one of the most important features” of the earlier case. He
     holds “that the privileges and immunities of the two types of citizenship are
     different, and that the U.S. Constitution protects only the national privileges”
     which are in fact of limited import.
     6. Justice Bradley dissented in Slaughter House. He would have struck down
     the law because it deprived the butchers of their liberty to choose lawful
     employment without due process of law. This view was significant because it
     was marked acceptance of substantive due process which later became
     prominent for a time in economic rights cases, and now underpins the right to

                choose an abortion and other personal rights not specifically enumerated in the
                Bill or Rights.
                7. In the 120 years since Slaughter-House, the Court has expanded its
                protections of “fundamental” rights and applied many of the Bill of Rights
                protections against the states by using the Equal Protection Clause and Due
                Process clauses.
                     a. Using the Due Process Clause of the 14th Amendment, the Court has
                     incorporated most of the Bill of Rights against the states.
                     b. By expanding the meaning of “liberty” in the Due Process Clauses of
                     the 5th and 14th Amendments, the Court has fashioned procedural and
                     substantive due process protections against both national and state
                     c. The Court has expanded the Equal Protection Clause to apply
                     discrimination based on ethnicity, gender, and certain other impermissible
            e. Why didn’t the Privileges & Immunities Clause expand?
                1. Due process clause expanded judicial power
                2. Corporations weren’t “citizens” in terms of P & I clause, but are under Due

2. The Rise of Substantive Due Process
    a. Pressures for Intervention and the Rise of Substantive Due Process, 1874-1890
       1. By 1890 the Court essentially embraced the theory of Justice Bradley’s dissent in the
            Slaughter-House Cases.
             a. The decades following the Civil War were times of widespread social protest,
            stemming from the great pace of industrialization and, more particularly, the swift
            concentration of economic power in the large corporation.
             b. After the Slaughter House Cases corporations could not expect aid form the
            privileges and immunities of the 14th Amendment.
             c. Although not all state courts were so hostile to social legislation and some were
            avowedly sympathetic, decisions against social legislation (such as laws requiring
            mining and manufacturing companies to pay wages in cash) became increasingly
             d. Early pressures for federal judicial intervention came mostly from regulated
            industries, and the Court first intervened in 1890, not against social legislation but
            against railroad rate regulation. The following cases trace the growth of the federal
            doctrine of substantive due process.
                  1. Munn v Illinois (p 282) upheld a state law limiting the rates charged by
                  Chicago grain-storage warehouses.
                         a. The Court asserted that a state had inherent authority—the “police
                         power” -- to regulate “the conduct of its citizens one towards another, and
                         the manner in which each shall use his property, when such regulation
                         becomes necessary for the public good”
                                May regulate that which is affected w/a public interest
                         b. Chief Justice Waite then noted that “it is apparent that…it is not
                         supposed that statutes regulating the use, or even the price of the use, of
                         private property necessarily deprived an owner of his property without due
                         process of law. Under some circumstances they may, but not under all.”
                         c. The “principles upon which this power of regulation rests” is that
                         private property may be regulated when it is “affected with a public
                         interest” and that property becomes “clothed with a public interest when
                         used in a manner to make it of public consequence, and affect the
                         community at large.”
                   2. The Court reaffirmed Munn in the Railroad Commission Cases (1886) which
                   upheld state regulation of railroad tariffs (notwithstanding a provision in the
                   railroad’s 1884 charter empowering it to set its own charges)

                 a. Chief Justice Waite wrote that the reasonableness of rates was a
                 legislative question.
                 b. The same year the Court held that the word “person” encompassed
                 artificial persons, i.e., corporations.
           3. Viewed in retrospect, these decisions indicate a gradual weakening of the
           Court’s rejection of substantive due process in the Slaughter-House Cases.
                 a. Waite’s opinion in Munn implied that the Constitution might forbid
                 state regulation of matters that were not “affected with a public interest”
                 b. The Railroad Commission Cases explicitly suggested that in extreme
                 cases “reasonableness” might be meet for judicial inquiry.
                 c. The Courts definition of “persons” opened the way for direct challenges
                 to regulations by corporations.
                 d. In 1890, in the Minnesota Rate Cases (p 283), the Court struck down a
                 statue granting a state railroad commission unreviewable authority to set
                        1. Only Field, Bradley, and Miller, who had participated in the
                        Slaughter-House Cases, remained on the Court in 1890.
                        2. Justice Blatchford wrote that the reasonableness of rates “is
                        eminently a question for judicial investigation, requiring due process
                        of law for its determination”: “If the company is deprived of the
                        power of charging reasonable rates for the use of its property, and
                        such deprivation takes place in the absence of investigation by
                        judicial machinery, it is deprived of the lawful use of its property, and
                        thus, in substance and effect, of the property itself, without due
                        process of law.”
                        3. At first glance, the Minnestoa Rate Cases seem to build on the
                        tradition of procedural due process to require notice and an
                        opportunity to be heard in the courts before rates could be imposed on
                        the railroads. But the opinion implied that the judiciary’s role was
                        not simply to review the application of legislative criteria to particular
                        cases but to determine—independent of any legislative or
                        administrative criteria – whether the rates established were
                 e. Within a decade, the Court expanded its inquires beyond rate regulation
                 to review the substantive validity of legislation of almost every sort.
                 Economic and social theories largely abandoned in the academies and
                 legislative chambers found their last refuge in the judiciary.
                 f. Note: Incorporation of the Eminent Domain Clause
                        1. In Pumpelly v. Green Bay Company (1871) Justice Miller wrote
                        for the Court that “though the Constitution of the U.S. provides that
                        private property shall not be taken for public use without just
                        compensation, it is well settled that this is a limitation on the power
                        of the Federal government, and not on the States.” This reaffirmed
                        the holding of Barron v. Baltimore (1833) that the Bill of Rights did
                        not apply to the states, and, like the Slaughter-House Cases two years
                        later, declined to hold that the 14th Amendment “incorporated any
                        portion of the first ten amendments.
                        2. Ironically, the first clause of the bill of Rights in effect made
                        applicable to state legislation was the 5th Amendment right to just
                        compensation for property taken by the State.
b. The Heyday of Judicial Activism, 1890-1934
     1. Lochner v. New York (p 285)- The owner of a bakery challenged a New York
     statute that prohibited the employment of bakery employees for more than 10 hours a
     day or 60 hours a week. Although the statute restricted liberty of K between the
     employees and the employers, the bakery owner claimed that the statute violated the
     employer’s and employee’s liberty of K to purchase and sell labor.

a. The liberty of K right being asserted in Lochner was a substantive due
process concept based on the Liberty Clause of the 14 th Amendment, not the K
Clause from Article I, section 10 of the Constitution.
b. New York claimed that the statute was valid exercise of its police power, that
is, its right to regulate the safety, health, morals, and general welfare of the
citizens of the citizens of New York. The state had to exercise its police power,
however, within the boundaries of the 14th Amendment. When a state acts under
its police power, the 14th Amendment requires that the statute have “a more
direct relation, as a means to an end, and the end itself must be appropriate and
c. Applying this test, the Court ruled that the New York statute was
unconstitutional because it did not have an “appropriate and legitimate” end.
       1. The Court identified two possible ends for the statute: 1) enforcement of
       the labor law and 2) protecting the health of the bakers.
             a. Quickly dismissed was the labor justification: “There is no
             reasonable ground for interfering with the liberty of person or the
             right of free K, by determining the hours of labor, in the occupation
             of a baker.” The only legitimate police power end was the protection
             of the safety, morals, or general welfare of the public. Since the
             healthiness of bread was not affected by the number of hours worked
             by the bakers, the health of the bakers themselves was the only end
             the Court was willing to explore.
             b. The Court then rejected protecting the health of the bakers as a
             legitimate end. The health of the bakers did not need protection
             because baking was not an unhealthy trade, a fact supported by
             statistics, the common understanding of the baking trade, and the idea
             that all occupations were unhealthy in some way. “If this statute be
             valid…there would seem to be no length to which legislation of this
             nature might not go.” The majority feared that sustaining regulate
             would lead down a slippery slope of allowing the state to regulate
             other professions. Fearing legislative invasion into all aspects of
             private life, the Court used substantive due process to prevent
             legislatures from enacting laws that drew lines, with respect to
             individual’s freedom, that the Court considered arbitrary.
       2. The dissent
             a. Justice Holmes- Criticized the majority’s holding that labor was
             not a legitimate legislative end. He emphasized that the bakery
             employees were not equal to owners in bargaining power.
             Consequently labor laws were a legitimate and appropriate legislative
                   1. To avoid infusing the Constitution with the Court’s personal
                   predilections, Justice Holmes would apply a reasonableness test
                   to the means and ends of the statute. He would utilize a stricter
                   standard only when “a rational and fair man necessarily would
                   admit that the statute proposed would infringe fundamental
                   principles as they have been understood by the traditions of our
                   people and our law.”
                   2. This approach was an early expression of the “two-tiered”
                   methodology of rationality and strict scrutiny that later became
                   the basis for much of the modern Court’s constitutional
             b. Justice Harlan- Driven by concerns of separation of powers and
             federalism, he argued that the courts should not inquire into the
             wisdom of legislation. Instead, the Court’s scrutiny should be limited
             to whether there is a “real or substantial relation between the means

                  employed by the state and the end sought to be accomplished by its
2. Summary: Lochner held that a law limiting the number of hours that bakers could
work unreasonably interfered with “the freedom of master and employee to K in
relation to their employment”
      Rationale: The freedom to K may be restricted through the state’s police power
      to protect public health, safety, welfare, or morals, but means used by this
      statute (limiting baker’s hours) were not reasonably regulated to such ends.
      Rather, this was “purely a labor law,” and government had no legitimate
      purpose in this type of regulation (“We do not believe in the soundness of the
      views which uphold this law”).
3. The Transformation of Federalization of General Constitutional Law- Lochner
(which is an example of the jurisprudence of constitutional rights of the period from
1890-1934) expanded the scope of federal jurisdiction by, in effect, federalizing the
principles of “general constitutional law,” which federal courts had previously been
able to invoke only in diversity cases.
      a. This might not have been of great practical consequence were it not for an
      accompanying change in the content of those principles.
            1. Throughout the Marshall and Taney eras, the core of general
            constitutional law was the vested rights doctrine, which assumed the
            validity of a given legal regime for the most part, but protected individuals
            against the retroactive impairment of rights acquired under the regime.
            The jurisprudence of general constitutional law also established the
            legitimate bounds of the legislature’s police, taxing, and eminent domain
            powers, but the police power in particular was though to be of broad scope.
            2. Lochner signal a restricted view of the police power. The court during
            this era viewed individual autonomy and the government police power as
            two mutually exclusive, nonoverlapping domains. The Court conceived its
            own mission to be the policing of the boundaries between them.
4. The Meanings of “Liberty,” “Property,” and “Process”
      a. Liberty- Justice Peckham asserted in Lochner: “The general right to make a
      K in relation to his business is part of the liberty protected by the 14 th
      Amendment of the Federal Constitution…the right to purchase or to sell labor is
      part of the liberty protected by this amendment, unless there are circumstances
      which exclude the right.” The Court’s adoption of this “notion” of liberty was
      aptly described in Allgeyer v. Louisiana (1897): The “liberty” mentioned in the
      [14th Amendment] means, not only the right of the citizen to be free from the
      mere physical restraint of his person, as by incarceration, but the term is deemed
      to embrace the right of the citizen to be free in the enjoyment of all his faculties;
      to be free to use them in all lawful ways; to live and work where he will; to earn
      his livelihood by any lawful calling; to pursue any livelihood or avocation, and
      fort that purpose to enter into all Ks which may be proper, necessary and
      essential to his carrying out to a successful conclusion the purposes above
      b. Property- Even if the word “liberty” were construed narrowly, the due
      process clause also explicitly protects “property.” The Coppage Court held
      unconstitutional “yellow dog” K (Ks forbidding employees to join labor unions)
      and wrote: “Included in the right of personal liberty and the right of private
      property is the right to make Ks.” Other substantive due process cases have
      similarly relied on the deprivation of property”
      c. Process- Even if “liberty” and “property” may be read expansively what
      about process?
5. The Scope of the Police Power: Permissible and Impermissible Objectives
      a. The court notes at the outset of Lochner that “the statute necessarily
      interferes with the rights of K” but also asserts that “property and liberty are
      held on such reasonable conditions as may be imposed by the governing power

                of the state in exercise of [its police] powers.” What are the proper ends for
                which the police power may be exercised and what objectives lie beyond it?
                       1. When we speak of the reserved power of the states, we refer primarily
                       to the police power. [UCL 2.02, pg 42]
                       2. In Coppage v.Kansas (p 293) the Court explained: “The police power
                       is broad, and not easily defined, but it cannot be given the wide scope that
                       it is here asserted for it [to deprive a person of liberty or property without
                       due process of law], without in effect nullifying the constitutional guaranty
                       [of the 14th Amendment]. We need not refer to the numerous familiar
                       cases in which this court has held that the power may properly be exercised
                       for preserving the public health, safety, morals, general welfare, and that
                       such police regulations may reasonably limit the enjoyment of personal
                       liberty, including the right to make Ks…An evident and controlling
                       distinction is this: that in those cases [where the police power has been
                       properly exercised] it has been held permissible for the States to adopt
                       regulations fairly deemed necessary to secure some object directly
                       affecting the public welfare, even though the enjoyment of private rights
                       liberty and property be thereby incidentally impaired…”
                       3. Muller v. Oregon (p 295): Ct upheld progressive, social legislation of
                       regulating women’s work hours b/c it believed women could not bargain
                       for themselves
          6. Burdens of Proof and Questions of Degree
               a. Justice Peckham (in Lochner) considers whether the New York statute can be
               upheld as a regulation protecting the health of bakery employees or consumers in
               terms of the standard: “There must be some fair ground, reasonable in and of
               itself, to say that there is a material danger to the public health, or to the health of
               the employee, if the hours of labor are not curtailed.”
                      1. This sounds very similar to Justice Harlan’s criterion in his dissent. One
                      possibility is that the majority and dissent apply essentially the same
                      standard, but with different burdens of proof or with the burden of proof on
                      different parties.
                       2. Another possibility, not inconsistent with (a) lies in their different
                      concepts of the nature of permissible state regulation—of the “police
                              a. Peckham’s opinion for the majority has an air of categorizing
                              occupations as intrinsically hazardous or not, rather than weighing or
                              balancing along a continuum.
                              b. Harlan’s seems more pragmatic and empirically based.
          7. A Survey of the Court’s Work- Justice Frankfurter remarked that “Basic human
          rights expressed by the constitutional concept of “liberty” were equated with theories
          of laissez-faire. The result was that economic views of confined validity were treated
          by lawyers and judges as though the Framers had enshrined them in the Constitution”
                a. Between 1890 and 1934, the Supreme Court struck down some 200 statutory
                and administrative regulations, mostly under the due process clause of the 14 th
                b. However, the Court sustained at least as many regulations as it invalidated,
                and it declined to review many others. Holmes and Brandeis—the progressive
                heroes of the period—did not invariably dissent form substantive due process
                invalidations or always agree with each other.
                c. The Court let stand most laws that appeared to protect the health, safety, or
                morals of the general public or to prevent consumer deception.

3. Congressional Regulation of the National Economy- In the post Civil War period,
adjudication over the scope of Congress’ legislative powers has been important.
     a. Three doctrinal issues recur throughout the cases of this period.

      1. Whether the particular subject of congressional regulation is “interstate
      commerce” as distinguished from some local activity.
      2. Is the purpose of a regulation consistent with the purposes for which Congress was
      delegated the power to regulate interstate commerce?
      In his “pretext” statement in McCulloch, Marshall state: “Should congress, under the
      pretext of executing its powers, pass laws for the accomplishment of objects not
      intrusted to the government, it would become the painful duty of this tribunal to say
      that such an act was not the law of the land.” Consider these points three points:
            a. General legislative authority resides in the states.
            b. Lawmaking authority is delegated to the national government to achieve
            certain objectives.
            c. There is no justification for exercising authority beyond the scope of the
            purposes for which it is given.
      3. Whether, independent of issues (1) and (2), a particular instance of congressional
      regulation of interstate commerce runs afoul of the reservation of powers to the states
      recognized by the 10th Amendment.
b. Champion v. Ames (p 312)- This case involved an Act of Congress prohibiting the
interstate transportation of lottery tickets.
      1. The law was upheld and the view that the power to regulate could not include the
      power to forbid was rejected. Regulation may appropriately assume the form of
      prohibition, at least where Congressional power is exerted to prevent the pollution of
      commerce by noxious articles.
      2. This holding has been repeatedly applied to federal laws closing the channel of
      commerce to commodities that are themselves dangerous or harmful or that have an
      adverse effect. The anticipated level may proceed from something inherent in the
      commodity itself (diseased livestock). Or the evil may lie in the purpose of the
      transportation, as is true with lottery tickets (women transported for immoral
      purposes, stolen vehicles, etc.)
       Ct more willing to uphold regulations that involve morals
      3. Harlan (dissent) feared plenary power—Congress could stand on state lines &
      reject travelers b/c it doesn’t like what they’ll be doing
c. Hammer v. Dagenhart (p 317)- Congress had passed a federal statute that prohibited
transportation in interstate commerce of goods made in factories that employed child labor.
Holding was eventually reversed
      1. The Supreme Court interposed a fundamental barrier to the full exertion of
      Congressional prohibitory authority.
      2. On its face the law merely imposed a bar upon interstate transportation. Yet there
      is no doubt that the real purpose was to suppress child labor.
            a. The court held that the Congressional purpose rendered the law invalid.
            b. Congress could not, even by a statute whose terms were limited to interstate
            commerce, use its power to exert regulatory authority over matters like
            manufacturing that were not, within the then prevailing law, commerce.
      3. The Court said the goods themselves were harmless. Nor was any evil
      accomplished by their interstate transportation since the evils involved in child labor
      had already occurred before they were sent into commerce.
            a. This distinction is unconvincing, though, because earlier decisions had
            concerned articles themselves harmless.
            b. The holding actually turns not upon the intrinsic nature of the articles
            excluded from commerce, but upon the motives that induced enactment of the
            prohibitory law. The commerce power was employed to accomplish, by
            prohibition, what could not be achieved by direct regulation, under the then-
            prevailing concept of commerce. What was ostensibly a regulation of interstate
            transportation was condemned because its underlying motive was beyond the
            direct powers of Congress.
d. Note: Binary Oppositions and Congressional Ability to Invoke Its Power Under the
Commerce Clause

      1. Hammer illustrates the importance of binary oppositions deemed crucial to
      ascertaining whether Congress had the power to act under the Commerce Clause.
            a. The Court distinguishes between inherently dangerous and harmless goods.
            b. The Court also refers to another important opposition central to many cases
            of this period: “manufacture” versus “commerce.”
                  1. Linked to this distinction was the distinction between “direct” and
                  “indirect” effects on commerce.
                  2. Justice Sutherland suggested that “the word “direct” implies that the
                  activity or condition invoked or blamed shall operate proximately –not
                  mediately or collaterally--to produce the effect. It connotes the absence of
                  an intervening agency or condition.” The dichotomy was categorical
                  rather than one of degree: “The matter of degree has no bearing upon the
                  question… [the question is] what is the relation between the activity or
                  condition and the effect.”
      2. All of these categorical distinctions disappeared in the maelstrom of the post-1937
      transformations of the commerce clause.
e. Taxing Power: Bailey v. Drexel Furniture Co. (p 323): Ct struck down tax on companies
which employ children below specified ages
      1. Although Congress has the power to lay taxes, this situation is beyond the scope
           of federal power b/c it’s more prohibitory than regulatory
      2. Argument against is that legislature does get to choose what it wants to tax—
           even to the point of discrimination
           A. McCray (p 324): not all margarines have to be taxed the same
f. Note on the Spending Power- The question of Congress’ power to spend federal funds
in the pursuit of ends not within the numerated powers of Article 1, section 8, was
addressed most importantly in U.S. v. Butler.
      1. U.S. v. Butler (p 325)- The Agricultural Adjustment Act of 1933, designed to raise
      farm prices by reducing surplus production, authorized the secretary of agriculture to
      spend federal funds as consideration for the contractual agreement of farmers to
      reduce their productive acreage.
            a. The Court rejected Madison’s assertion that the general welfare clause
            amounted to no more than a reference to the other powers enumerated in the
            subsequent clauses of the same section; that, as the U.S. is a government of
            limited end enumerated powers, the grant of power to tax and spend for the
            general national welfare must be convinced to the enumerated legislative field
            committed to Congress.
            b. The Court accepted the Hamilton’s opinion that the general welfare clause
            confers powers separate and distinct from those later enumerated, [and] is not
            restricted in meaning by the grant of them--Congress consequently has a
            substantive power to tax and to appropriate, limited only by the requirement that
            it shall be exercised to provide for the general welfare of the U.S.
                  1. While the power to tax is not unlimited, its confines are set in the clause
                  which confers it, and not in those of sec 8 which bestow and define the
                  legislative powers. It results that the power of Congress to authorize
                  expenditure of public moneys for public purposes is not limited by the
                  direct grants of legislative power found in the Constitution.
                  2. The Court, however, held that an expenditure by Congress to attain an
                  end that could not be directly attained by that body is invalid. “The act
                  invades the reserved rights of the state. It is a statutory plan to regulate and
                  control agricultural production, a matter beyond the powers delegated to
                  the federal government.”
            c. Stone, Brandeis and Cardozo dissented, but accepted the Hamiltonian view-
            “The present is held invalid, not for any ant of power in Congress to lay such a
            tax to defray public expenditures, including those for the general welfare, but
            because the use to which the proceeds are put is disapproved…The power of

                       Congress to spend is inseparable from persuasion to action over which Congress
                       has no legislative control”
                        Can put conditions on putting $$ into your hands b/c it is not trying to alter
                           what you produce

C. The Decline of Judicial Intervention and the Current Doctrine of Federalism- In 1934 the
nation was in the midst of a disastrous economic depression. This section chronicles the end of
judicial intervention against state and federal economic regulation.
      1. State Regulation: The Retreat from Intervention Against State Economic Regulation
            a. 1934- Two decisions presaged the Court’s withdrawal form intervention against state
            economic regulation. The first rejected a conventional substantive due process challenge to
            a price regulation; the second involved not due process, but the contract clause.
                  1. Nebbia v. New York (p 341)- Nebbia, a grocery store owner, was convicted of
                  selling milk below the price established by the New York Milk Control board. New
                  York had created the Board in an attempt to save its failing dairy industry by
                  regulating prices. Nebbia brought a 14th Amendment challenge to the New York
                  Milk Control Law, claiming that it violated both the Due Process and Equal
                  Protection Clauses of the 14th Amendment.
                        a. The Court upheld the regulation as a valid exercise of the state’s police power
                        to protect public welfare.
                              1. Roberts stated that “the guaranty of due process.. demands only that the
                              law shall not be unreasonable, arbitrary or capricious, and that the means
                              selected shall have a real and substantial relation to the object sought to be
                              2. Justice Roberts then turned to the appellant’s contentions, supported by
                              prior decisions of the Court, that price fixing was per se unconstitutional
                              except in “businesses affected with a public interest” and that these were
                              limited to franchised public utilities and monopolies.
                                    a. Conceding that the milk industry did not fit this description,
                                    Justice Roberts noted that the industry was nonetheless subject to
                                    some sort of regulation in the public interest: “It is clear that there is
                                    no closed class or category of businesses affected with a public
                                    interest…The phrase “affected with a public interest” can, in the
                                    nature of things, mean no more than that an industry, for adequate
                                    reason, is subject to control for the public good”
                        b. The dissent maintained that the milk industry was not affected with a public
                        interest. “this is not regulation, but amounts to the deprivation of the
                        fundamental rights which one has to conduct his own affairs honestly and along
                        customary lines”
                        c. The language of the opinion by Justice Robert seemed to signal increased
                        legislative discretion with a narrow and more deferential standard of review:
                        when a state passes laws which are “seen to have a reasonable relation to a
                        proper legislative purpose, and are neither arbitrary nor discriminatory, the
                        requirements of due process are satisfied. Justice Roberts concluded that the
                        New York Milk Control Law satisfied this requirement.
                   Comparing the Nebbia Court’s reasonableness standard with the much stricter
                       scrutiny test in Lochner, it is easy to see why many observers felt that Nebbia
                       marked a shift to a more deferential review of economic legislation. During the
                       next two years however, the Supreme Court used federalism and substantive due
                       process rationales to strike down many key provisions of the New Deal
                  2. Home Building & Loan Association v. Blaisdell (1934) (p 343)- The constitutional
                  jurisprudence of Lochner, while not permitting government regulation of wages in the
                  “private” relationship between employer and employee, did allow regulation (albeit
                  judicially supervised) of certain “ businesses affected with a public interest,” such as
                  railroads. If Nebbia took a relatively expansive view of this category, it did not
                  constitute a sharp break with existing doctrine. The decision in Minnesota Mortgage

     Moratorium Case (Blaisdell), however, seems more clearly incompatible with the
     spirit of Lochner.
           a. Facts- In 1933, the Minnestota legislature enacted the Mortgage Moratorium
           Law, an emergency measure, which expired in May 1935, granting temporary
           relief from mortgage of foreclosures and execution sales of real estate. The
           particular section involved here authorized a court to extend the period during
           which a defaulting mortgagor might redeem his property following a foreclosure
           execution sale. During the period of extension, the mortgagor was required to
           pay all or a reasonable part of the reasonable rental value of the property as
           determined by the court, including taxes, insurance, and mortgage interest. The
           statute did not affect the right of a mortgagee to title in fee, or his right to obtain
           a deficiency judgment, if the mortgagor failed to redeem within the prescribed
           b. The Court upheld the Constitutionality of the of the Minnesota law.
                 1. The Court expressly rejected the argument that the law impaired the
                 obligations of Ks in violation of Article I, sec 10. “[The] police power
                 may be exercised—without violating the true intent of the provision of the
                 Federal Constitution—in directly preventing the immediate and literal
                 enforcement of contractual obligations, by a temporary and conditional
                 restraint, where vital public interest would otherwise suffer.”
                  This was not a case of freedom to contract, but of obligation of
                 2. Even thought the case focused on the K clause and not substantive due
                 process, it indicates the Court’s increasing willingness by 1934 to defer to
                 government economic regulations.
                 3. The dissent emphasized a framers’ intent argument: “[The K clause]
                 was meant to foreclose state action impairing the obligation of Ks
                 primarily and especially in respect of such action aimed at giving relief to
                 debtors in time of emergency”
           c. Summary: A law that “impairs” is one that substantially invalidates, releases,
           or extinguishes the obligations of a K, or that derogates substantially K rights.
           The more substantial the impairment, the greater the justification that must be
           shown by the state.
b. 1935-1937- Despite these 1934 decisions, the substantive economic due process of the
Lochner era was not over until 1937.
     1. The makeup of the Supreme Court
           a. The Court that decided Nebbia and Blaisdell consisted of three progressives
           (Stone, Brandeis, and Cardozo), the reactionary “four horsemen” (Van
           Devanter, McReynolds, Sutherland, and Butler), and two swing members
           (Roberts and Chief Justice Hughes). Roberts wrote Nebbia and Blaisdell, but
           “as the New Deal was revealed in all its terrifying dimensions to the
           conservatives of the nation, he became ready for persuasion. Chief Justice
           Hughes was neither clearly liberal nor stubbornly conservative, but he seemed to
           be much concerned for the Court’s own dignity and was likely sometimes to
           swing with a conservative majority to avoid the criticism that might follow a 5
           to 4 decision”
           b. In 1935, the majority shifted, and for two busy terms the Court waged what is
           surely the most ambitious fight in is long and checkered history.
     2. In 1936, in Morehead v. Tipaldo (p 352), the Supreme Court declared
     unconstitutional a New York law that set a minimum wage for women. The Court
     flatly declared: “[T]he State is without power by any form of legislation to prohibit,
     change, or nullify Ks between employers and adult women workers as to the amount
     of wages to be paid.”
     3. Also in 1936, the Court continued to declare unconstitutional federal economic
     regulations exceeding the scope of congress’s commerce power and for violating

     4. After Roosevelt was reelected to his second term in June of 1936, he revealed a
     “court packing” plan to appoint six new Supreme Court justices, and thus insure
     approval of the New Deal program.
     5. The Courts dramatic shift began 1937. In two cases—one involving substantive
     due process and one involving the scope of Congress’s commerce power—Justice
     Roberts switched sides and cast the fifth vote to uphold the law. Perhaps this was a
     reaction to the court packing Plan or perhaps he made up his mind in these cases
     before even learning about that threat. Regardless, in these two decisions, the Court
     signaled the end of laissez-fire jurisprudence that had dominated constitutional law
     for several decades.
           a. In West Coast Hotel v. Parrish (p 353), the Supreme Court upheld a state law
           that required a minimum wage for women employees and expressly overruled
           Adkins v. Children’s Hospital and Morehead v. Tipaldo.
                 1. Chief Justice Hughes, writing for the Court, made it clear that the Court
                 was abandoning the principles of Lochner v. New York. He noted that the
                 minimum wage law was challenged as interfering with freedom of K and
                 he replied: “What is this freedom of K? The Constitution does not speak
                 of freedom of K. It speaks of liberty and prohibits the deprivation of
                 liberty without due process of law…[R]egulation which is reasonable in
                 relation to its subject and is adopted in the interests of the community is
                 due process.:”
                 2. Moreover, the Court was emphatic that the government was not limited
                 to regulation only to advance public safety, public health, or public morals.
                 The Court said: “There is an additional and compelling consideration
                 which recent economic experience has brought into a strong light. The
                 exploitation of a class of workers who are in an unequal position with
                 respect to bargaining power and are thus relatively defenseless against the
                 denial of a living wage is not only detrimental to their health and well
                 being but casts a direct burden for their support upon the community.
                 3. In these paragraphs, the Court unequivocally declared that it no longer
                 would protect freedom of K as a fundamental right; that government could
                 regulate to serve and legitimate purpose; and that the judiciary would defer
                 to the legislature’s choices so long as they were reasonable.
           b. West Coast was followed by decisions upholding New Deal legislation under
           the commerce and spending powers.
c. The Modern Doctrine of Economic Due Process
     1. The Case Law
           a. The year after West Coast Hotel, in U.S. v. Carolene Products Co.(1938) (p
           545), the Court rejected a due process challenge to a federal enactment
           prohibition the interstate shipment of “filled milk. Justice Stone wrote: “We
           may assume for present purposes that disproof in judicial proceedings of all
           facts which would show or tend to show that a statute had a rational basis
           [would invalidate the statute]…But the existence of facts supporting the
           legislative judgment is to be presumed, for regulatory legislation affecting
           ordinary commercial transactions is not to be pronounced unconstitutional
           unless in the light of the facts made known or generally assumed that it rests
           upon some rational basis within the knowledge and experience of legislators.”
            Footnote 4 claimed that stricter scrutiny was needed for legislation that
                taints the political process & when aimed @ discrete & insular minnorities
           b. Between 1937 and 1941 the Court’s composition changed radically. The
           progressive justices were succeeded by other progressives, and the old
           conservatives (Van Devanter, McReynolds, Butler, Sutherland) were replaced
           by New Dealers.
     2. It became increasingly doubtful whether economic regulations had to meet even
     the minimal requirements suggested by West Coast Hotel and Carolene Products.
     3. Since 1937, not one state or federal economic regulation has been found

           unconstitutional as infringing liberty of K as protected by the due process clauses of
          the 5th and 14th Amendments. The Court has made it clear that economic
          regulations—laws regulating business and employment practices—will be upheld
          when challenged under the due process clause so long as they are rationally related to
          serve a legitimate government purpose.
                a. The government’s purpose can be any goal not prohibited by the
                Constitution. In fact, it does not need to be proven that the asserted purpose was
                the legislature’s actual objective. Any conceivable purpose is sufficient. The
                law only need seem a reasonable way of attaining the end; it did not need to be
                narrowly tailored to achieving the goal.
                b. The reality is that virtually any law can meet this requirement.
          4. The Carolene Products footnote
                a. The Court’s retreat from intervention after 1937 was accompanied by a
                significant shift of power from the states to the national government.
                      1. In the years following World War II, the Court regained its institutional
                      confidence, and its interventions followed the centralizing spirit of the
                      times: The Court again began to nationalize individual rights, though it
                      focused on a different cluster of rights than those favored during the
                      Lochner era.
                      2. In Carolene Products (1938), an otherwise inconsequential decision
                      upholding a regulatory statute against a substantive due process attack,
                      Justice Stone emphasized the “presumption of constitutionality” to be
                      accorded statutes of this sort.
                b. However, in footnote 4 of the decision, Justice Stone remarked:
                      1. “There may be narrower scope for operation of the presumption of
                      constitutionality when legislation appears on its face to be within a specific
                      prohibition of the Constitution, such as those of the first ten amendments,
                      which are deemed equally specific when held to be embraced within the
                      14th Amendment.”
                      2. “It is unnecessary to consider now whether legislation which restricts
                      those political processes which can ordinarily be expected to bring about
                      repeal of undesirable legislation, is to more exacting judicial scrutiny under
                      the general prohibitions of the 14th Amendment than are most other types
                      of legislation.”
                      3. “Nor need we inquire whether similar considerations enter into the
                      review of statutes directed at particular religions, or racial minorities;
                      whether prejudice against discrete and insular minorities may be a special
                      condition, which tends seriously to curtail the operation of those political
                      processes ordinarily to be relied upon to protect minorities, and which may
                      call for a correspondingly more searching judicial inquiry.” (See the
                      second half of the Outline)

2. An aside: a modern return to substantive due process doctrine?
    a. Roe v. Wade- Involved the challenge to a Texas law that prohibited all abortions except
    those necessary to save the life of the mother. The Court held:
          1. A woman has (prima facie) right to abort her pregnancy, which can only be
          defeated by a compelling state interest.
          2. During the first two trimesters, the state’s interest is limited to protecting the
          woman’s health: During the first, the state can require that a physician approve and
          perform the abortion; during the second, it may require other health-related measures.
          3. During the third trimester, an interest in the “potentiality of human life” emerges
          and justifies restricting the decision to abort.
    b. Roe is critical to the Court’s modern substantive due process jurisprudence
          1. Justice Blackmun premised the right to choose an abortion on the constitutional
          right of privacy which derived from the concept of personal liberty in the Due Process
          Clause. In describing the scope of modern substantive due process, the Court relied

          on the Palko v. Connecticut formulation of rights that are “fundamental” or “implicit
          in the concept of ordered liberty.” The ambit of these rights extended to marriage,
          procreation, contraception, family relationships, child rearing, and education.
          2. Justice Douglas concurred, but relied more heavily on tradition, the 9 th
          Amendment, and the Due Process Clause of the 14th Amendment.
          3. Against this due process privacy or liberty right of the woman to choose to have an
          abortion, the state asserted an interest in protecting the rights of the fetus.
                a. Blackmun rejected the argument that the fetus was a person for purposes of
                the 14th Amendment protection.
                      1. Relying on various provisions including the definition of citizens in the
                      14th Amendment, the census provisions, and the qualification for various
                      elected officials, Justice Blackmun concluded that the constitution only
                      protected those who were already born.
                      2. By focusing on the legal personhood, the Court avoided the question of
                      when life begins, a question on which medicine, philosophy and theology
                b. The Roe Court did not reject the state’s interest in preserving fetal life
                altogether, however.
                      1. At the point of viability, which occurs at approximately the start of the
                      third trimester, the state could regulate or even forbid abortion except to
                      protect the mother’s life or health.
                      2. The trimester system of Roe represented the Court’s attempt to balance
                      the woman’s interest in choosing an abortion ad in controlling her body,
                      against the state’s interest in protecting maternal health and the potential
                      life of the fetus.
          4. In separate dissents, Justices White and Rehnquist criticized the Court for
          engaging in a brand of social policy analysis reminiscent of Lochner. Both Justices
          would have imposed a rationality standard of review.
                a. Justice Rehnquist’s dissent noted that the majority of states had restricted
                abortion for over a century.
                b. Rehnquist stated that “the asserted right to an abortion is not ‘so rooted in the
                traditions and conscience of our people as to be ranked as fundamental’ ”

3. National Regulation
    a. The Commerce Power- From 1934 to 1937 the court struck down the National
    Recovery Act of 1933, The Bituminous Coal Conservation Act of 1936, the Agricultural
    Adjustment Act for 1933, and the Railroad Retirement Act. The abandonment of judicial
    constraints on the exercise of congressional powers was not so clearly signaled (as it was
    judicial abandonment of substantive due process), but it was no less complete.
          1. The watershed case was NLRB v Jones & Laughlin Steel Corp (1937) (p 379)-
          The constitutionality of the National Labor Relations Act of 1935 was at issue. The
          Act prohibited employers “form engaging in any unfair labor practice affecting
          commerce.” The Act was intended to apply to economic activities throughout the
          nation- to those engaged in production and manufacture, as well as to those engaged
          in interstate commerce, strictly speaking.
                a. Chief Justice Hughes wrote: “ The fundamental principle is that the power
                to regulate commerce is the power to enact ‘all appropriate legislation’ for its
                protection and advancement… That power is plenary and may be exerted to
                protect interstate commerce ‘no matter what the source of the dangers which
                threaten it’. Although activities may be intrastate in character when separately
                considered, if they have such a close and substantial relation to interstate
                commerce that their control is essential or appropriate to protect that commerce
                from burdens and obstruction.”
                b. Chief Justice Hughes qualified his expansive statement: “[T]he scope of this
                power must be considered in light our dual system of government and may not
                be extended so as to embrace effects ;upon interstate commerce so indirect and

           remote that to embrace them…would effectively obliterate what is national and
           what is local and create a completely centralized government.”
           c. Summary: Chief Justice Hughes stated that the fact that employees were
           engaged in productions was not determinative. The crucial element was the fact
           that the production plainly affected interstate commerce. Jones represents a
           repudiation of the limited connotation of commerce that had previously been
           relied on by the Court.
     2. U.S. v. Darby- At issue was the Fair Labor Standards Act, which provides for
     federal fixing of minimum wages and maximum hours. It goes on to prohibit the
     shipment in interstate commerce of goods manufactured by employees whose wages
     are less than the prescribed minimum or whose hours of work are more than the
     prescribed maximum.
           a. The Act was challenged on the ground that, while the prohibition was
           nominally a regulation of commerce, its motive was really regulation of wages
           and hours. The Court candidly recognized that was in fact the case. It upheld
           the Act saying that the end toward which a Congressional exercise of power
           over commerce is directed is irrelevant.
                 1. This is contrary to the Hammer v. Dagenhart thesis that the motive of
                 the prohibition or its effect to control production within the states could
                 operate to deprive Congressional regulation of its constitutional validity.
                 2. This returns to Marshall’s view of the power to regulate under the
                 Commerce Clause as a complete one.
                 3. Under Darby, the sole question is whether a challenged law does
                 prescribe a governing rule for commerce. If it does, it is valid, regardless
                 of the ends that may have induced its enactment.
                 4. The Darby decision marks the culmination in the development of the
                 Commerce Clause as the source of a national police power, which had
                 begun with Champion v. Ames (the Lottery Case).
                 5. Hammer v. Dagenhart (the Child Labor Case) constituted a significant
                 rebuff to that development, and Darby removes whatever limitation it
                 6. Under Darby, Congress can utilize its commerce power to suppress any
                 commerce contrary to its broad conception of public interest.
                 7. The national police power (as this aspect of the commerce power may
                 termed) is the plenary power to secure any social, economic, or moral ends,
                 so far as they may be obtained by regulation (including) suppression) of
                 8. Darby ties together the two key words in the Commerce Clause (the
                 noun commerce and the verb regulate) in a manner which gives Congress
                 an instrument to extend its authority virtually as far as it wishes.
     3. Wickard v. Filburn (p 384)- The Court sustained the Agricultural Adjustment Act
     of 1938 which extended federal regulation of agricultural production to produce
     intended wholly for consumption on the farmer farm. Chief Justice Rehnquist later
           “[T]he Court expanded the scope of the Commerce Clause to include the
           regulation of acts which taken alone might not have a substantial economic
           effect on interstate commerce, such as a wheat farmer’s own production, but
           which might reasonably be deemed nationally significant in their cumulative
           effect, such as altering the supply-and-demand relationships in the interstate
           commodity market.”
b. The Taxing Power- The post 1937 taxing power cases are no different in tone or
outcome from the earlier cases which gave Congress a broad authority to tax and spend for
the general welfare. Justice Stone commented in Sonzinsky v. U.S. (1937) (p 386):
     1. Every tax is in some measure regulatory. To some extent it interposes an
     economic impediment to the activity taxed as compared with others not taxed. But a
     tax is not any less a tax because it has regulatory effect; and it has long been

                     established that an Act of Congress which on its face purports to be an exercise of the
                     taxing power is not any less so because the tax is burdensome or tends to restrict or
                     suppress the things taxed.
                     2. Inquiry into the hidden motives which may move Congress is an exercise of a
                     power constitutionally conferred upon it is beyond the competency of courts.
               c. The Spending Power- The major post- 1937 challenge to Congress’ spending power
               involved the unemployment compensation scheme created by the Social Security Act of
               1935, upheld in Steward Machine Co. v. Davis (1937) (p 386): If the courts will not look
               behind a tax law to see that it was not motivated by an improper purpose, the same should
               be true where spending revenue is concerned.
                     1. Funds disbursed to promote what Congress deems the general welfare cannot be
                     condemned because the money is being spent to induce action in an area that
                     Congress may not be able to control directly.
                     2. the basic principle is that congress has power to fix the terms on which its money
                     shall be disbursed. This means that the power of the purse can be utilized for
                     whatever purpose Congress chooses, including the attainment of regulatory
                     objectives. [UCL 3.04, pg 68]
               d. The National Powers Today: Some Normative Questions
                     1. In the literal sense, the 10th Amendment is, indeed, a tautology, and any argument
                     for constitutional limitations based on it is logically defective.
                     2. In the exercise of its delegated powers, should Congress be constrained by any
                     constitutional limitations implicit in the “spirit” or structure of the federal system?
                           a. The Court’s withdrawal of judicial supervision since 1937 may reflect its
                           view that, so long as Congress is regulating matters affecting interstate
                           commerce to any extent or is taxing and spending, it has plenary authority to
                           pursue any objectives whatsoever. Language in commerce clause decisions like
                           Darby suggests this.
                           b. The Court’s withdrawal is also consistent with the position that, even thought
                           the judiciary is institutionally incapable of enforcing implicit constitutional
                           limitations, Congress may be constrained by them. Language in some of the
                           opinions supports this position as well.
                           c. The Supreme Court’s noninterventionist posture, far from relieving Congress
                           and the President from the duty of considering the constitutionality of their act,
                           makes the fulfillment of this duty more crucial.

III. The Current Doctrine of Federalism
A. Scope of National Powers
B&L 390-396, S 82-108, 137-139, L 294-312

1) The scope of the commerce, taxing and spending powers
   a) Katzenbach v. McClung (p 390)
       i) Facts- A restaurant that has never served blacks gets taken to court in order to inquiry the
           constitutionality of Title II of the Civil Rights Act as it applies to restaurants. The
           constitutional validity of this Title has already been confirmed as it applies to hotels and
           motels in Heart of Atlanta Motel v. U.S.
       ii) “On the merits, the District Court held that there must be a close and substantial relations
           between local activities and interstate commerce which requires control of the former in the
           protection of the latter.” However, the court found that there was no demonstrable connection
           between food purchased in interstate commerce and sold in a restaurant.
           (1) Section 201 of Title II clearly applies to the restaurant in this case and so the “sole
                question, narrows down to whether Title II as applied to a restaurant annually receiving
                about $70,000 worth of food which has moved in commerce, is a valid exercise of the
                power of Congress.”
           (2) The court, looking to the congressional hearings on the topic found that, ‘discrimination
                imposed an artificial restriction on the market and interfered with the flow of
                merchandise.’ The circuit court then criticizes the district court opinion saying ‘the

             district court was in error in concluding that there was no connection between
             discrimination and the movement of interstate commerce.”
        (3) So how far can the power of congress reach into the regulation of local activities such as
             restaurants? The test reminds that, ‘even if the activity be local and though it may not be
             regarded as commerce, it may still, whatever its nature, be reached by Congress if it
             exerts a substantial economic effect on interstate commerce’ Wickard v. Filburn. On the
             flip side, “the activities that are beyond the reach of Congress are those which are
             completely within a particular State, which do not affect other states and with which it is
             not necessary to interfere, for the purpose of executing some of the general powers of the
             government” Gibbons v. Ogden.
        (4) But does the court have to ask whether congress has adequately shown a connection
             between the activity in question and its powers to regulate those activities which deal
             with interstate commerce? The answer is, “Sometimes congress itself has said that a
             particular activity affects the commerce, as it did in the present act…in passing on the
             validity of legislation of the class…the only function of the courts is to determine
             whether the particular activity regulated or prohibited is within the reach of the federal
             power.” The court goes on to say, “Of course, the mere fact that congress has said when
             an activity shall be deemed to affect commerce does no preclude further examination by
             this court. But where we find that the legislators in light of the facts and testimony before
             them, have a rational basis for finding a chosen regulatory scheme necessary to the
             protection of commerce, our investigation is at an end.”
             (a) The court concludes, “The power of congress in this field is broad and sweeping;
                   where it keeps within its sphere and violates no express constitutional limitation it
                   has been the rule of this court not to interfere.” (394).
b) The substantiality of the effect on Interstate commerce.
   i) The Wickard test for how much an activity has to affect interstate commerce is a type of
        aggregating doctrine that says Congress can reach an individual activity, the isolated effect of
        which is minimal, if the aggregate of the all such activities is not insignificant.
   ii) Daniel v. Lake Nixon Club applies the Civil rights act to a park which serves a few foods (hot
        dogs, etc.), which have ingredients that were probably part of interstate commerce at one
        time. (Friedman thinks this seems a bit manipulative)
   iii) Perez (p 395): Congress can reach people who are members of a class which engages in a
        class of activities covered by the commerce clause--overinclusive
   iv) In Hamm v. City of Rock Hill, Title II was construed to apply retroactively to pending
        trespass suits that were initiated because of sit-ins that were about discriminatory action.
c) Are there limits to the congressional power after all?
   i) United States v. Lopez (limits commerce clause power—entirely underinclusive - 1995)
        (1) Facts- A High School Senior brings a concealed weapon to school. State charges were
             dropped in favor of applying the federal ‘Gun-Free School Zones Act’ which made it a
             federal offense to carry a weapon into school. The Supreme Court ultimately reverses the
             conviction of Lopez that occurs in the district court.
        (2) The Supreme court goes through a lengthy history of the commerce clause, and writes,
             “The Gibbons v. Ogden court acknowledged that limitations on the commerce power are
             inherent in the very language of the Commerce Clause.” The supreme court then writes,
             “For nearly a century after Ogden, the Court held that certain categories of activity such
             as production, manufacturing and mining were within the province of state governments,
             and thus were beyond the power of Congress under the commerce clause”
        (3) The next line of reasoning the court expounds on deals with a changing point in
             commerce clause application which extends these powers radically. “Jones & Laughlin
             Steel, Darby and Wickard ushered in an era of Commerce Clause jurisprudence that
             greatly expanded the previously defined authority of Congress under that Clause. In part,
             this was a recognition of the great changes that had occurred in the way business was
             carried on in this country. Enterprises that had one been local had become national in
             scope. But the doctrinal change also reflected a view that earlier commerce clause cases
             artificially had constrained the authority of congress to regulate interstate commerce.”

        (4) So what are the outer limits of the commerce clause expansion? Jones & Laughlin
             Steel tries to define this by saying the scope of power, ‘must be considered in the light of
             our dual system of government and may not be extended so as to embrace effects on
             interstate commerce so indirect and remote that to embrace them, in view of our complex
             society, would effectually obliterate the distinction between what is national and what is
             local and create a completely centralized government.” (S 84).
             (a) Another limit can be found in Maryland v. Wirtz, “Neither here nor in Wickard has
                  the court declared that congress may use a relatively trivial impact on commerce as
                  an excuse for broad general regulation of state or private activities. Rather the court
                  has said only that where a general regulatory statute bears a substantial relation to
                  commerce, the de minimis character of individual instances arising under that statue
                  is of no consequence.”
        (5) The Lopez court then identifies three broad categories that the Congress may regulate
             within through the commerce clause. They are-
             (a) Congress may regulate the use of the channels of interstate commerce
             (b) Congress is empowered to regulate and protect the instrumentalities of interstate
                  commerce, or persons or things in interstate commerce, even though the threat may
                  come only from interstate activity.
             (c) Congress’ commerce authority includes the power to regulate those activities having
                  a substantial relation to interstate commerce, i.e. those activities that substantially
                  affect interstate commerce.
                  (i) This final category is where much of the debate occurs, and one of the key
                       questions is whether ‘an activity must “affect” or “substantially affect” interstate
                       commerce in order to be within Congress’ power to regulate…We conclude that
                       the proper test requires an analysis of whether the regulated activity
                       “substantially affects” interstate commerce’. (S 85).
        (6) The Lopez court explains that applying federal gun control laws to schools using the
             commerce clause could create a slippery slope which would allow congress to enter into
             the learning environment and even the family. (S 89). The majority rejects congressional
             application of gun control laws in schools given the outer limits of commerce clause
             interpretation. The court writes, “In Jones & Laughlin Steel, we held the question of
             congressional power under the commerce clause ‘is necessarily one of degree’…These
             are not precise formulations, and in the nature of things they cannot be. But we think
             they point the way to correct decision of this case. The possession of a gun in a local
             school zone is in no sense an economic activity that might, through repetition elsewhere,
             substantially affect any sort of interstate commerce.” (90). The court concludes by
             broadly recognizing concepts that are of national scope and local scope given the
        (7) Concurring opinions in Lopez go through the original idea of Federalism as envisioned
             by the framers, etc. J. Thomas goes even further by arguing that the current test of
             substantial effects goes too far. He does this by describing how the framers probably
             thought of commerce (in a more narrow sense) and how this was different from
             manufacturing and agriculture.
        (8) The dissent argues that the court should look at the aggregate of all similar activities (gun
             possession) on interstate commerce and that the constitution requires the courts to judge
             the connection between a regulated activity and interstate commerce, not directly, but at
             one remove. This is where the rational basis test comes from when evaluating the
             connection. The argument here is that congress should be able to judge what type of
             threats exist and be able to define the ‘economic realities’ of any given situation through
             the commerce clause power. (S. 105-106). An obvious argument against the dissent is
             that there would, therefore, be no ground the federal government could not go to. (S. 106)
d) Political Safeguards of Federalism: The freedom of choice act of 1993 and the commerce clause-
   i) The supreme court has found in Roe v. Wade that the right of a woman to have an abortion is
        constitutionally protected. This ‘right’ has been limited however, by some state action
        restricting the time at which an abortion can occur (S 137). These restrictions have been

             favored by several judges and they have been shown to not create an undue burden on the
             right to abortion protected by the Constitution.
         ii) Abortion rights activists are attempting to use federal legislation to restrict the burden states
             can put on getting an abortion. This is passed on theories based on legislative powers
             contained in the commerce clause and 14th Amendment. Since the threshold is quite low
             concerning when congress can use its powers through the commerce clause, abortion would
             certainly fall under these auspices. However, many would argue that politically, using the
             commerce clause to regulate abortion is only to get away from judicial oversight. Prof.
             Michelman thinks federal legislation limiting states powers to control abortion is within the
             commerce clause. (S 139).

2) Commerce clause extensions – can it be extended to cover seemingly non-commerce issues?
   a) What about civil rights statutes?
      i) The connection is that interstate travelers need to eat, and they do buy food, and so prejudice
           built into business transactions foils this goal. Congress can then step in and try to regulate
           through civil rights laws.
      ii) Agenda in the 30s was entirely economic and so this transferred to the 60s.
      iii) Two issues
                (a) The reach of federal power
                (b) And the limitations on power included in the constitutions
      iv) Wickard case (the wheat one), you might be just a little pebble, but if everyone does this then
           it will make a big impact. Overinclusive (or categorical argument) way of solving problems,
           these are clear and bright restrictions. P.395 (Loan sharking). Classes are in the reach of the
           federal gov’t and so, congress is allowed to go deal with this type of class activity.
   b) Lopez p. 82 of supplement. (Knocks out statute because of commerce clause arguments).
      i) Thomas’ concurrence may be too far of an extension (Friedman doesn’t think so however).
      ii) It is not simply an assertion that the commerce clause operates on interstate commerce, but it
           can also extend to the affects of commerce. Thomas doesn’t think that the power to control
           commerce is not the same as regulating the affects of congress.
      iii) Why is this a hard case? Maybe because it really does not involve commerce at all in any
           economic way.
           (1) Violence in schools has an affect on interstate commerce (economic activity).

B. A Residue of State Sovereignty
B&L 400-406, 411-422, Handout Printz v. US, S 395-439
This section discusses other limitations on congressional power.
1) Inherently Local Subjects
    a) United States v. Oregon (1961)—Ct gets tougher in local areas
         i) This was a suit between the federal government and the state government over an estate of an
              Oregon resident who died intestate without any legal heirs in a Federal Hospital for Veterans.
         ii) The state claimed under a general escheat statute which is the traditional way these matters
              were dealt with. The federal government claimed under a statute providing that the personal
              property of a veteran dying in a VA hospital would vest in the US for the benefit of the
              General Post fund.
         iii) The state lost this constitutional attack and J. Black wrote for the majority, “Congress
              undoubtedly has the power- under its constitutional powers to raise armies and navies and to
              conduct wars- to pay pensions and to build hospitals for veterans. Although it is true that this
              is an area normally left to the States, it is not immune under the Tenth Amendment from laws
              passed by the Fed. Gov’t which are, as is the law here, necessary and proper to the exercise of
              delegated powers.” (400).
              (1) The dissent argued that, “the succession of real and personal property is traditionally a
                   state matter under our federal system, that this is Oregon’s constitutional right under the
                   Tenth Amendment. The supremacy clause is not without its limits.” J. Douglas goes on
                   to say, for a federal law to have supremacy it must be made in pursuance of the
                   Constitution. However, the power to provide for the administration of the estates of

                 veterans is to me a far cry from any such power given to the federal government to
                 maintain veteran hospitals, etc.
2) Coercion of States under the Spending Power
   a) Federal aid to state and local governments – for welfare, education, health and a variety of
       municipal functions –has increased enormously since 1937. The proper extent of federal
       supervision of the state use of federal monies has been a continuing subject of dispute. Social
       security was where this argument first touched off in 1937, when the Supreme Court ruled that SS
       was not a coercive force and did not go beyond the federal government’s power. However, J.
       Cardozo did not reject the possibility that the spending power was subject to implicit limitations
       based on state sovereignty.
   b) Another case, ten years later, on a similar subject involving expenditures of federal highway funds
       in Oklahoma, the court wrote, “While the United States is not concerned with and has no power to
       regulate, local political activities as such of state officials, it does have power to fix the terms upon
       which its money allotments to states shall be disbursed. The offer of benefits to a state by the U.S.
       dependent upon cooperation by the state with federal plans, assumedly for the general welfare, is
       not unusual.” (402).
   c) Then there is South Dakota v. Dole (1987) ( p 402)- even though, through the 21st Amendment,
       states are given unfettered power to control drinking, the supreme court held that congress acting
       indirectly under its spending power to encourage uniformity in the State’s drinking ages by
       w/holding funds if state sells to people under 21 is within constitutional bounds even if congress
       may not regulate directly. However, this almost unlimited power is tempered by a few
       i) First, the court found “the exercise of the spending power must be in pursuit of the general
            welfare though congress is entitled to considerable deference in regard to judgements about
            what constitutes such welfare.”
       ii) Second the court required that if Congress desires to condition the States’ receipt of federal
            funs, it must do so unambiguously, enabling the state to exercise their choice knowingly of
            the consequences of their participation.
       iii) Third, conditions on federal grants might be illegitimate if they are unrelated to the federal
            interest in particular national projects or programs.
       iv) Last, other constitutional provisions may provide independent bars to the conditional grant of
            federal funds.
            (1) The federal funding contingent on making the drinking age uniform was found to be in
                 line with these tests and not against the 21st Amendment (element #4 of the above test),
                 since it was not causing a state to do an act that was unconstitutional (like forcing a state
                 to be discriminatory, etc.).
            (2) However, the dissent argued that this holding would allow congress to regulate almost
                 any area of a state’s social political or economic life on the theory that use of the
                 interstate transportation system is somehow enhanced.
            (3) The argument is forwarded by Hans Linde that fiscal decisions impact public sector
                 necessarily. “Because federal grants go to many separate agencies at different levels of
                 state and local government and because cost attributed to the federal government are not
                 always easily separated from other state and local costs, the federal government can set
                 program standards and control them under federal law. There must be some limits if the
                 political values of federalism are to be preserved despite this fiscal centralization.”
            (4) The percentage of funding being with-held for not complying with federal wishes is also
                 a consideration that the courts look at. (405).
    d) US v. Mussari (1996) (3/18/99) (Dead-Beat Dad Statute)
     Father, while residing in a different state, was charged w/failure to pay child support
    Does Congress have the power under the Commerce Clause to enact this statute?
    Since Congress has the right to regulate & protect the instrumentalities of interstate commerce, &
       the obligation of providing child support will be fulfilled by interstate commerce (mail, wire, or
       transfer of electronic funds), Congress has the authority in this case

             This is like any other debt & subject to congressional control

3) State immunity from direct federal regulation
   a) Garcia v. San Antonio Met. Transit Authority (p 411)
        i) Facts- S.A. was not complying with federal minimum wage laws. The secretary of the
             department of Labor brought suit, but the lower courts ruled against the secretary because of
             the tenth amendment interpretation found in National League of Cities v. Usery.
        ii) The court overturns National League of Cities writing, “the attempt to draw the boundaries of
             state regulatory immunity in terms of traditional governmental function is not only
             unworkable but is inconsistent with established principles of federalism…”(411).
        iii) The court goes through a long history of difficulty the federal courts have had in defining
             what are to be considered ‘traditional governmental functions’. This includes discussions of
             railroads and taxation, and how the courts have abandoned the hope of finding a clear
             distinction to base their decisions on. “The distinction the court discarded as unworkable in
             the field of tax immunity has proved no more fruitful in the field of regulatory immunity
             under the commerce clause.” (413). This part includes a discussion of using historical
             governmental functions to define immunity and how this has failed.
        iv) “A nonhistorical standard for selecting immune governmental functions is likely to be just as
             unworkable as is a historical standard. The goal of identify uniquely governmental functions
             has been abandoned in other areas of law (governmental tort liability).” The court finds
             however, that, “The problem is that neither the governmental/propriety distinction nor any
             other that purports to separate out important governmental function can be faithful to the role
             of federalism in a democratic society.” Here, the citizens choose what type of state
             governmental action, and then the courts shoot this down. And so it becomes impossible to
             figure out what the ‘traditional function of government’ is. The court goes on to try to figure
             out, “the manner in which the Constitution insulates State from the reach of Congress’ power
             under the commerce clause.”
        v) The problem with doing this is that the constitution does not define what the states powers are
             or how far congress can reach into the state with its commerce clause. “Apart from the
             limitation on federal authority inherent in the delegated nature of Congress’ article I powers
             the principal means chosen by the Framers to ensure the role of the State in the federal system
             lies in the structure of the Federal Government itself.” (415).
             (1) The court then argues that “we are convinced that the fundamental limitation that the
                   constitutional scheme imposes on the commerce clause to protect the states as states is
                   one of process rather than result. Any substantive restraint on the exercise of commerce
                   clause powers must find its justification in the procedural nature of this basic limitation,
                   and it must be tailored to compensate for possible failings in the national political process
                   rather than to dictate a sacred province of state autonomy.”
        vi) The holding is that the federal minimum wage statute should apply to the Transit system and
             the built in restraints of the constitution will save state sovereignty. (417).
        vii) The dissent argues that this is a fundamental change in federal system. The main argument is
             that the decision really does not say how the states’ involvement in the electoral process
             guarantees that commerce clause will not be overreaching.
4) New York v. US (1992) (3/22/99)
    Congressional statute provided that each state be responsible for providing for the disposal of
        radioactive waste in accordance w/criteria laid out in the statute
         Congress offered valid incentives to states in complying w/the statute & in authorizing state &
             regional compact sites to increase the cost of access to the site for radioactive waste
         The third set of incentives was held invalid—this portion provided that if the state in which
             the waste was generated was not able to provide adequately for the disposal, the state will be
             obligated to accept ownership of the waste
    Can Congress constitutionally force states to choose b/w accepting ownership of the waste or
        regulating according to the instructions of Congress?

     Ct held that the Constitution does not confer upon Congress the ability to simply compel the States
       to provide for the disposal of radioactive waste generated w/in their borders

    Printz v. US (1997) (3/23/99)
    Under the Gun Control Act, Attorney General must establish a national instant background check
       system in which background information must be given to the chief law enforcement officer
       (CLEO) before sale may be consummated
        In states that have not rendered any alternative to this system (either providing instant
            background checks or immediately selling to a person who possesses a permit), CLEOs must
            make reasonable efforts w/in 5 business days whether receipt or possession of the firearm by
            the potential purchaser would be in violation of the law—CLEO is not required to take any
            action upon finding information, but if he does notify the dealer, he must provide the potential
            purchaser with reasons for his determination
    Whether certain provisions of the Brady Handgun Violence Prevention Act violate the
       Constitution (in directing state law enforcement officials to participate in the administration of a
       federally enacted scheme)?
    Although early legislative history suggests that federal government can impose direction w/o the
       states’ consent, later history does not indicate this authority
        Rather, the Constitution established a system of dual sovereignty in the states retained many
        This shift in power would also affect the separation & equilibration of powers b/w the 3
            branches of government—encroach on powers of the executive if state officers could carry
            out legislature’s needs
     As in New York v, US, state legislatures, or any state officers, are not subject to federal direction
    O’Connor states that states & CLEOs may still participate voluntarily in the federal program
    Stevens argues that when Congress exercises the powers delegated to it by the Constitution, it may
       impose affirmative obligations on executive & judicial officers of state & local governments as
       well as ordinary citizens
        Similar to the question whether Congress could require state agents to collect federal taxes
        Congress is granted the power here w/in its power to regulate commerce among the states &
            10th Amendment imposes no restriction on the exercise of delegated powers
5) U.S. Term Limits v. Thornton (1995) (Supp p 395)
   a) Facts – Arkansas amends its constitution to limit the terms a candidate to Congress can run from
       that state as a representative. “The Arkansas Supreme Court held that the amendment violates the
       Federal Constitution. We agree with that holding. Such a state-imposed restriction is contrary to
       the fundamental principle of our representative democracy embodied by the constitution that the
       people should choose whom they please to govern them. Allowing individual states to adopt their
       own qualifications for congressional service would be inconsistent with the Framers vision…”
   b) The constitutionality of this amendment is tested by two items-
       i) “The First is whether the constitution forbids states from adding to or altering the
            qualifications enumerated in the Constitution.” (S 397).
       ii) “The second is if the constitution does so forbid, whether the fact that the amendment is
            formulated as a ballot access restriction rather than as an outright disqualification is of
            constitutional significance.”
   c) Powell v. McCormack becomes of critical importance since it deals with changing the
       qualifications of representatives (although it is through Art. I section 5). The conclusion of the
       court was that Art. I section 5 does not allow the house of representative members to change the
       i) The Powell decision rests on two fundamental ideas. They are-

            (1) The egalitarian concept that the opportunity to be elected was open to all.
            (2) The critical postulate that sovereignty is vested in the people and that sovereignty confers
                 on the people the right choose freely their representatives to the national government.
       ii) Powell thus establishes two important propositions: first, that the relevant historical materials
            mean that congress was not intended to change the requirements for office. And second, the
            people should choose who they want to lead them.
    d) The Thorton court holds that even though the constitution does not have a limitation on states’
       powers in this area, the tenth amendment does not automatically mean that states can change the
       qualifications set in the constitution. The reasoning is-
       i) The power to add qualifications is not within the original powers of the states and thus is not
            reserved to them in the tenth amendment and
       ii) Even if the states had power in this area, the framers intended that the constitution to be the
            exclusive source of qualifications for members of congress and the framers thereby divested
            states of any power to add qualifications. (S 401).
    e) “In sum, the available historical and textual evidence, read in light of the basic principles of
       democracy underlying the constitution and recognized by this court in Powell reveal the Framer’s
       intent that neither congress nor the states should possess the power to supplement the exclusive
       qualifications set forth in the test of the Constitution.” (S 410).
    f) The dissent focuses on the fact that the tenth amendment allows some flexibility and that, other
       states rules about what type of candidates can run for office would be invalidated (S 439).

C. State Regulation of Interstate Commerce; the privileges and immunities
B&L 164-165, 166-167, 424-436, 445-448, 459-468, Handout on Anderson v. Roe

  States may not frustrate federal purpose w/their regulation
  Dormant Commerce Clause
    Constitution gives the power to regulate commerce to Congress
         If Congress was silent on an issue, Ct can still hold the state statute invalid if the statute
             contradicts federal policy
         Framers wanted to prevent states from acting in their own self interests & breaking down the
             federal market
1) The Cooley accommodation – Cooley v. Board of Wardens (1851) (p 164)
   a) Facts- a state law requires vessels entering or leaving the port to engage a local pilot or pay extra
        port fees that went to a fund that was for old seamen.
   b) “This subject of the regulation of pilots and pilotage has an intimate connection with the general
        subject of commerce with foreign nations and among the several States, over which it was one
        main object of the Constitution to create a national control.” (165).
   c) Thus the question is whether the grant of the commercial power to congress per se deprives the
        states of all power to regulate pilots. The grant of commercial power to Congress does not contain
        any terms which expressly exclude the States from exercising an authority over its subject matter.
        If they are excluded it must be because the nature of the power, thus granted to Congress requires
        that a similar authority should not exist in the states.
   d) The final holding for this case is, “We are of the opinion that this State law was enacted by virtue
        of a power, residing in the State to legislate; that it is not in conflict with any law of Congress; that
        it does not interfere with any system which Congress has established by making regulations or by
        intentionally leaving individuals to their own unrestricted action; that this law is therefore valid…”
2) State regulation of Interstate Commerce: the current doctrine and its problems-
   a) Judicial treatment of the dormant commerce clause involving constraints on the state’s authority to
        regulate interstate commerce even where congress has not affirmatively exercised its power, did
        not parallel the decline of economic due process. (424).
        i) Anti-protectionism and the movement of Goods
             (1) The Basic Rationale For Restricting State Power
                  (a) The theory is that the threat of a protectionist purpose behind state statutes that deal
                       with interstate commerce is the primary reason that the dormant commerce clause

        has vitality. Protectionism is when a statute is adopted for the purpose of improving
        the competitive position of the in state actor at the mercy of a foreign actor.
(2) The Case Law
    (a) In dealing with state laws that are not protectionist on their face, the Court has often
        weighed the state’s interests in achieving its legitimate (and nondiscriminatory)
        objectives against the burden imposed on interstate trade.
    (b) This area often sees conflicts between the state’s police powers and the federal
        commerce clause power. “While we unhesitatingly admit that a state may pass
        sanitary laws and laws for the protection of life, liberty, health or property within its
        borders; it may not interfere with transportation into or through the State beyond
        what is absolutely necessary for its self-protection. It may not, under the cover of
        exerting its police powers, substantially prohibit or burden either foreign or interstate
        commerce.” Hannibal & St. Joseph Railroad v. Husen.
    (c) The court’s current approach is illustrated by Dean Milk Co. v. Madison in which
        appellant an Illinois milk producer with plants located some distance from the city of
        Madison, successfully challenged an ordinance requiring that all milk sold in the city
        to be pasteurized within a five mile radius of downtown. “In thus erecting an
        economic barrier, Madison plainly discriminates against interstate commerce. This it
        cannot do, even in the exercise of its unquestioned power to protect the health and
        safety of its people, if reasonable nondiscriminatory alternatives, adequate to
        conserve legitimate local interests, are available.”
    (d) In most of these ‘protectionist’ cases, the complainants are out of state manufacturers
        or distributors who seek unimpeded access to the local market.
(3) The ‘Balancing Test’
    (a) This theory says the court has used a balancing test in movement of goods cases to
        invalidate nonprotectionist laws that have too costly an impact on interstate
        commerce. This goes against Prof. Regan’s theory on protectionism being the
        primary reason courts strike down state police power laws.
    (b) Pike v. Bruce Church (1970) (p 430)
        (i) Facts- The case involved an Arizona statute requiring all cantaloupes grown in
              Arizona and offered for sale be packed in Arizona before shipment for sale our
              of state. The statute was challenged by Bruce Church, which wished to ship
              uncrated cantaloupes to nearby facilities in Blythe California, for packing and
              processing. The stipulated facts indicated that it would cost the company about
              $200,000 to build a packing facility within Arizona. (p 431).
        (ii) The unanimous court held that, ‘statutes expressly requiring that certain kinds of
              processing be done in the home State before shipment to a sister state have been
              consistently invalidated by this Court under the Commerce Clause.’
        (iii) The Pike test for analyzing the constitutionality of legislation under the dormant
              commerce clause can be found on page 431. It says this, “Although the criteria
              for determining the validity of state statutes affecting interstate commerce have
              been variously stated, the general rule that emerges can be phrased as follows:
              Where the statute regulates evenhandedly to effectuate a legitimate local public
              interest, and its effects on interstate commerce are only incidental, it will be
              upheld unless the burden imposed in such commerce is clearly excessive in
              relation to the putative local benefits. If a legitimate local purpose is found, then
              the question becomes one of degree. Occasionally the Court has candidly
              undertaken a balancing approach in resolving these issues, but more frequently it
              has spoken in terms of ‘direct’ and ‘indirect’ effects and burdens.
    (c) Maine v. Taylor (1986) (p. 431)
        (i) Facts- Maine outlaws the importation of live bait, plaintiff gets caught importing
              live bait and claims Maine statute is unconstitutional.
        (ii) The court upholds the Maine statute emphasizing the distinction between state
              statues that burden interstate transactions only incidentally and those that
              affirmatively discriminate against such transactions. The first category of
              statutes violated the commerce clause only if the burdens they impose on

               interstate trade are clearly excessive in relation to the putative local benefits.
               Statutes in the second category are subject to more demanding scrutiny.
         (iii) The court upholds the Maine statute because of environmental evidence the state
               provides which illustrates the possible dangers of imported bait. The court
               writes, “Once a state law is shown to discriminate against interstate commerce
               either on its face or in practical effect the burden falls on the state to
               demonstrate both that the statute serves legitimate local purpose and that this
               purpose could not be served as well by available nondiscriminatory means.”
               Maine’s evidence concerning environmental impact of imported bait outweighs
               the commerce interests.
(4) State Regulation of Transportation
    (a) Cooley v. Board of Wardens, articulated a functional standard for adjudicating
         dormant commerce clause cases. Although the Cooley doctrine went into long
         hibernation right after it was born, transportation cases continue to come regularly
         before the court. Instead of analyzing state laws in the terms suggested by Cooley
         whether the subject being regulated demanded diverse or uniform regulation, the
         Court distinguished between direct and indirect burdens on interstate commerce.
    (b) J. Stone led the way in changing the commerce clause as it applies to state regulation
         of transportation and thus attempting to re-apply a Cooley like test.
         (i) In Disanto v. Pennsylvania the court struck down a state license fee for travel
               agents selling steamship tickets to foreign countries, granted only on proof of
               good character and fitness. J. Stone dissented and wrote, “ In this case the
               traditional test of the limit of state action by inquiring whether the interference
               with commerce is direct or indirect seems to be too mechanical, too uncertain in
               its application, and too remote from actualities to be of value. In this making
               use of the expressions, direct and indirect interference with commerce, we are
               doing little more than using labels to describe a result rather than any
               trustworthy formula by which it is reached.” p. 433.
         (ii) In the ‘30s J. Stone brought back the Cooley standard which is evidenced in
               South Carolina v. Barnwell Brothers. (p 434)
               1. Facts- A trucking company challenged a state law that excluded from South
                    Carolina’s highways trucks wider than 90 inches. The extensive record
                    showed that most trucks were bigger than this and every state allowed them.
                    The court found these width limits helped increase safety since S.
                    Carolina’s highways were narrower than normal. The district court struck
                    down the law as an unreasonable burden on interstate commerce.
               2. J. Stone struck down the district court decision, and articulated a two part
                    inquiry: “whether the state legislature has acted within its province and
                    whether the means of regulation chosen are reasonably adapted to the end
                    sought.” He went on to write, “Ever since Cooley it has been recognized
                    that there are matters of local concern, the regulation of which unavoidably
                    involves some regulation of interstate commerce but which, because of their
                    local character and their number and diversity, maybe never be fully dealt
                    with by Congress. The fact that this regulation affects alike shippers in
                    interstate and intrastate commerce in large numbers within as well as
                    without the state is a safeguard against their abuse. Courts do not sit as
                    legislatures, either state or national. They cannot act as congress does when
                    after weighing all the conflicting interests, it determines when and how
                    much the sate regulatory power shall yield to the larger interests of a
                    national commerce. Hence reviewing the present determination we
                    examine the record, not to see whether the findings of the court below are
                    supported by evidence, but to ascertain upon the whole record, whether it is
                    possible to say that the legislative choice is without rational basis. Not only
                    does the record fail to exclude that possibility, but it shows affirmatively
                    that there is adequate support for the legislative judgement.”
(5) A Skeptical Look at the Dormant Commerce Clause

         (a) Tyler Pipe Industries v. Washington State Dep’t of Revenue (p 445), the court
              invalidated a Washington State tax on the ground that it fell more heavily on
              interstate than on intrastate commerce. The dissent (JJ Scalia and Rehnquist) in this
              case leveled a general attack on the notion that the judiciary has a legitimate role to
              play in enforcing the dormant commerce clause, at least where state legislation does
              not overtly select out foreign commerce for invidious treatment, and suggested that
              the task of monitoring the impact of state regulation on interstate commerce was
              more properly left to Congress.
         (b) The dissent emphasized the lack of any clear theoretical underpinning for judicial
              enforcement of the Commerce Clause which was described as a charter for Congress
              and not the courts, to ensure an area of trade free from interference by the States.
         (c) After noting the expansive meaning of interstate commerce given by post 1937
              decisions of the Court, the dissent considered the Cooley distinction between local
              regulation and regulation of subjects that are in their nature national or admit only of
              one uniform system. Whatever the wisdom of such a distinction, the dissent argued
              that it was hard to see why judges rather than legislators are fit to determine what
              areas of commerce in their nature require national regulation.
         (d) “Recall the taxonomy of modes of constitutional interpretation. It is clear that the
              dissent in Tyler Pipe finds that negative commerce clause as developed by the
              judiciary to be wholly without textual or historical support. The dissent does not
              however, consider whether there might be a structural rationale. J. Posner has
              suggested that the negative commerce clause corrects against the danger that like
              independent nations, state might be led by internal interest group pressures to
              establish trade barriers against commerce from other states. Posner describes the
              negative commerce clause as one device for preventing state from abusing their
              market power.”
         (e) Maybe it is easiest to defend the judicial role by adopting one of the two other modes
              of justification examined earlier, either doctrinal or consequential.
ii) Intersections of the Commerce Clause and the Privileges and Immunities Clause of Article IV
    (1) Supreme Court of New Hampshire v. Piper (p 459)
         (a) Facts - Piper, a resident of Vermont applied to take the New Hampshire Bar. With
              her application, she submitted a statement of intent to become a New Hampshire
              resident. After passing the exam, she was informed that she could not be sworn until
              she established a New Hampshire address. The New Hampshire Supreme Court
              rejected a request for a dispensation of residency requirement; Piper thereupon sued
              in federal court claiming a violation of the Privileges and Immunities Clause Article
              IV, section 2. The district court ruled in her favor finding both that the opportunity
              to practice law a fundamental right and that the state had denied this right without a
              substantial reason. The Supreme Court Affirmed.
         (b) The court writes, “We believe that the legal profession has a noncommercial role and
              duty that reinforce the view that the practice of law falls within the ambit of the
              Privileges and Immunities Clause. Out of state lawyers may and often do, represent
              persons who raise unpopular federal claims. The lawyer who champions unpopular
              causes surely is as important to the maintenance or well-being of the union as was
              the shrimp fisherman in Toomer or the pipeline worker in Hicklin.” P 460.
         (c) The state (the defendants) argue that the Privileges and Immunities Clause should be
              held inapplicable to the practice of law because a lawyers’ activities are bound up
              with the exercise of judicial power and the administration of justice. The state
              concludes that if it cannot exclude nonresidents from the bar its ability to function as
              a sovereign political body will be threatened.
              (i) The court does not follow this line of reasoning “because under Griffiths, a
                   lawyer is not an officer of the state in any political sense. The court goes on to
                   say that they conclude that the right to practice law is protected by the Privileges
                   and Immunities Clause.
         (d) “In summary, the state neither advances a ‘substantial reason’ for its discrimination
              against nonresident applicants to the bar, nor demonstrates that the discrimination

              practiced bears a close relationship to it proffered objectives.” 462. (The court
              earlier dismissed the state’s claims about the type of lawyers which will take the bar
              but not offer other advantageous things to New Hampshire, like community service
              or a superior knowledge of New Hampshire specific laws).
     (2) Dormant Commerce Claus vs. Privileges & Immunities Clause
         (a) DCC requires discrimination & excessive burden; P/I requires only discrimination
         (b) P/I applies only to citizens—personal discrimination, not industrial
         (c) P/I is directed to citizens who have a connection to another state—notion of physical
              presence is necessary
         (d) Under DCC, Ct can overrule what Congress says; P/I: Congress can’t overrule where
              Ct rules P/I applies
iii) Reeves Inc. v. Stake (p 463)
     (1) Facts- The issue in this case is whether, consistent with the Commerce Clause, the state
         of South Dakota in a time of shortage may confine the sale of the cement it produces
         solely to its residents. The plant was originally created to provide cement for South
         Dakota only. The petitioner in this case is a construction company that almost totally
         relies on the cement plant for its needs. “After conducting a hearing, the District Court
         found no substantial issue of material fact and permanently enjoined the cement plant
         from discriminating between its in state and out of state customers. The court reasoned
         that South Dakota’s hoarding was inimical to national free trade envisioned by the
         Commerce Clause.” P. 463
         (a) The Circuit Court reversed relying on Hughes v. Alexandria Scrap. This case
              concerned a Maryland program designed to remove abandoned automobiles from the
              State’s roadways and junk yards. There were greater limits on out of state junk
              collectors and the junk had to be processed in Maryland to get a reward for collecting
              it. The supreme court held that Maryland’s rules did not involve the kind of action
              with which the Commerce Clause is concerned. “Maryland has not sought to
              prohibit the flow of hulks or to regulate conditions under which it may occur.
              Instead, it has entered into the market itself to bid up their price as a purchaser in
              effect of a potential article of interstate commerce and has restricted its trade to its
              own citizens or businesses within the State.” The court went on to say, “Nothing in
              the purposes animating the Commerce Clause prohibits a State in the absence of
              Congressional action, from participating in the market and exercising the right to
              favor its own citizens over others.”
         (b) “The basic distinction drawn in Alexandria Scrap between States as market
              participants and States as market regulators makes good sense and good law. As that
              case explains, the commerce clause responds principally to state taxes and regulatory
              measures impeding free private trade in the national marketplace…There is no
              indication of a constitutional plan to limit the ability of the States themselves to
              operate freely in the free market.”
     (2) “South Dakota, as a seller of cement, unquestionably fits the market participant label.
         Thus the general rule of Scrap plainly applies here.” The petitioner tries to say that since
         the cement factory had taken advantage out of state business, then it should have to
         continue to deal with out of state builders in the same manner as it had in the past.
         However, the court doesn’t buy this. “Such a holding would interfere significantly with a
         State’s ability to structure relations exclusively with its own citizens. It would also
         threaten the future fashioning of effective and creative programs for solving local
         problems and distributing government largesse. A healthy regard for federalism and
         good government renders us reluctant to risk these results.”
     (3) The court does not find South Dakota’s decision protectionist and does not regard cement
         as a resource that is really ‘hoardable’. The worry that other states will hold onto their
         natural resources doesn’t apply to cement. The items that make cement are not unique
         and it can be made by any state that chooses to make it. Other states can easily make it
         using abundant ingredients.

                 (4) The dissent in this case argues that the state as a ‘private manufacturer’ has to abide by
                      the Commerce Clause which means the cement plant cannot stop the natural flow of
                      interstate commerce. The problem is that the state is controlled by political rather than
                      economic factors. The impact of this policy of cement hoarding will have a large effect
                      on trade and so it is differentiated from Scrap. Also, “The state has no parallel
                      justification for favoring private, in-state customers over out of state customers. In
                      response to political concerns that likely would be inconsequential to a private cement
                      producer, South Dakota has shut off its cement sales to customers beyond its borders.
                      That discrimination constitutes a direct barrier to trade of the type forbidden by the
                      Commerce Clause and involved in previous cases…The effect on interstate trade is the
                      same as if the state legislature had imposed the policy on private cement producers. The
                      commerce Clause prohibits this severe restraint on commerce.” 468.
      b)       Right to Travel
               Anderson v. Roe (1998) (3/10/99)
                CA set up residential requirements in receiving welfare benefits—individuals received
                 benefits @ the level from the state from which you came
                  CA was trying to prevent itself from becoming a welfare magnet
                  Although CA wanted to help its own citizens, it failed to realize that people who travel to
                     CA are CA citizens

IV.        The Constitutional Treatment of Race
A. Early Doctrine
B&L 237-240, 254-262

1) Strauder v. West Virginia (1880) (p 237)
   a) Facts- Petitioner is a black man convicted of murder in state court by a jury from which blacks are
       excluded. The State Supreme court affirmed the conviction, but the Federal Supreme Court
       reverses it, holding the W. VA law unconstitutional
   b) Issue – The controlling question is whether by the Constitution and laws of the US, every citizen
       of the US has a right to a trial of an indictment against him by a jury selected and impaneled
       without discrimination against his race or color, because of race or color.
   c) The 14th Amendment is one of a series of constitutional provisions having a common purpose:
       namely securing to a race recently emancipated all the civil rights that the superior race enjoy.
       The true spirit of this amendment is captures in the Slaughter House Cases. If this is the spirit and
       meaning of the amendment whether it means more or not, it is to be construed liberally, to carry
       out the purposes of its framers. It ordains that the law in the States shall be the same for the black
       as for the white; that all persons whether colored or white shall stand equal before the laws of the
   d) The right to trial by jury is guaranteed to every citizen of West Virginia and the constitution of
       juries is a very essential part of the protection such a mode of trial is intended to protect. In view
       of these considerations how can it be maintained that compelling a colored man to submit to a trial
       for his life by a jury drawn from a panel which the state has expressly excluded every man of his
2) The Civil Rights Cases (1883) (p 254)
   a) Facts- these area all consolidated cases from California, etc, arose out of the exclusion of Negroes
       from inns, theaters and a railroad on the account of race.
   b) Issue- The primary and important question in all the cases is the constitutionality of the law:
       colored citizens, whether formerly slaves or not, and citizens of other races shall have the same
       accommodations and privileges in all inns, and public conveyances as are enjoyed by white
       citizens. Has congress constitutional power to make such a law?
   c) Civil rights such as are guaranteed by the Constitution against State aggression cannot be impaired
       by the wrongful acts of individuals unsupported by State Authority in the shape of laws, customs,
       or judicial proceedings. We have discussed the question presented by the law on the assumption
       that a right to enjoy equal accommodations and privileges in all inns is one of the essential rights
       of the citizens which no State can abridge or interfere with. But the power of Congress to adopt

       direct and primary, as distinguished from corrective legislation, on the subject in hand, is sought
       from the 13th Amendment which abolishes slavery.
        Ct found that 14th, which speaks only to states, applied b/c these places were heavily
            regulated by the states
       i) It is assumed that the power vested in Congress to enforce the article by appropriate
            legislation clothes Congress with power to pass all laws necessary and proper for abolishing
            all badges and incidents of slavery in the United States. Can the act of a mere individual the
            owner of an inn, refusing the accommodation justly regarded as imposing a badge of slavery
            upon the applicant? Mere discrimination on account of race or color were not regarded as
            badges of slavery by freed slaves that did not have the luxury to stay at Inns, etc. The civil
            rights act of 1875 is deemed unconstitutional because it is over broad and does not fit under
            the constitutional amendments. P 257
    d) The dissent argues that the majority uses word games to get out of applying the 13/14 th
       Amendments to situations in which they are obviously needed. Congress does have the power to
       enact laws which guarantee certain civil rights from being abridged because of race issues. This
       legislation can be direct and work within the states in numerous ways. “I am of the opinion that
       such discrimination practiced by corporations and individuals in the exercise of their public or
       quasi-public function is a badge of servitude the imposition of which congress may prevent under
       its power by legislation.
       i) The assumption that this amendment (14th) consists wholly of prohibitions upon State laws
            and state proceedings is unauthorized by its language. The connection between the state and
            public works (inns, etc.) is clear.

B. School Desegregation
B&L 581-619, S 173 –175, 202-226, Handout on later desegregation

1) We begin by using the occasion of the School Desegregation case to examine in greater detail the
   original understanding of the equal protection clause and its current implications. Background to
   School Desegregation-
   a) Alfred Kelly, The School Desegregation Case.
        i) The world war II crisis worked substantial acceleration in the growth of the negro’s political
             power and influence. It created an unprecedentedly large demand for Negro labor in the great
             cities of the North. Second, the egalitarian ideology of American war propaganda created in
             the minds and hearts of most white persons a new and intense awareness of the shocking
             contrast between the country’s image of itself and the realities of American racial segregation.
        ii) Many laws passed that change Negro rights and empowered them in a political manner. The
             NAACP was created in the 1930s and it was on the cutting edge of all the complex social and
             political forces that were at work to produce a desegregated America.
   b) The NAACP started a series of postwar school desegregation court cases to force the admission of
        Negroes to Southern graduate schools. The hope was that by breaking the separate but equal
        doctrine at the graduate school level, it would be easier to integrate grade schools. Several cases
        were decided in the NAACP’s favor including Gaines v. Canada [state pays for blacks to leave
        state for law school] (p 583) and Sipuel v. U of Oklahoma and Sweatt v. Painter [can’t establish
        law school for blacks “equal” as U of Texas for whites]. One court writes, ‘petitioners have a
        constitutional right to an equal education and can not be denied entrance to a state law school
        solely because of race.’ This concept was reaffirmed in Sweatt where the court held that a
        separate law school established for blacks did not and probably could not provide an education
        equal to that offered by the normal University of Texas Law School. The basic argument is that
        law school is more than just facilities and so the resources of the white law school will always be
        superior to the black school.
        i) McLarin v. Oklahoma State held that the petitioner who was admitted to a graduate program
             in the state school could not be required to sit in separate sections of the classroom, library
             and cafeteria since this would impair and inhibit the petitioners ability to learn his profession.
             The court writes, “There is a vast difference – a Constitutional difference – between
             restrictions imposed by the state which prohibit the intellectual commingling of students and
             the refusal of individuals to commingle where the state presents no such bar…The removal of

           the state restrictions will not necessarily abate individual and group prejudices. But at the
           very least, the state will not be depriving appellant the opportunity to secure acceptance by his
           fellow students on his own merit.” (p 584.)
       ii) Brown v. Board of Education is perhaps the most famous of the NAACP cases. This one
           involved the desegregation in elementary and secondary schools. (p 585)
           (1) “These cases come to us from many states. They are premised on different facts, but a
                common legal question justifies their consideration together in this consolidated
                opinion.” Does segregation in schools deprive plaintiffs of the equal protection of the
                laws under the 14th Amendment? Does the separate but equal doctrine described in
                Plessy v. Ferguson really work? Under the doctrine equality of treatment is accorded
                when the races are provided substantially the same equal facilities even though they are
           (2) “The plaintiffs contend that segregated public schools are not equal and cannot be made
                equal and that hence they are deprived of the equal protection of the laws….In more
                recent cases, all on the graduate level, inequality was found in that specific benefits
                enjoyed by white students were denied to Negro students of the same qualifications. In
                the case at hand the tangibles (salaries of teacher, buildings used, curricula taught) are
                equal or almost equal. Our decision, therefore, cannot turn on merely a comparison of
                these tangible factors in the Negro and white schools involved in each of the cases. We
                must look instead to the effect of segregation itself on public education.” 587
           (3) “In these days, it is doubtful that any child may reasonably be expected to succeed in life
                if he is denied the opportunity of an education. So we come to the question: Does
                segregation of children in public schools solely on the basis of race, even though the
                tangible factors may be equal, deprive the children of minority groups equal educational
                opportunities? We believe that it does.”
           (4) We conclude that in the field of public education the doctrine of separate but equal has
                no place. Separate educational facilities are inherently unequal. Therefore, we hold that
                the plaintiffs and others situated for whom actions have been brought are by reason of the
                segregation complained of, deprived of the equal protection of the laws guaranteed by the
                14th Amendment.
2) The current meaning of the Original understanding
   a) Whose intent?
       i) Justice Warren writes, “what others in Congress and the state legislatures had in mind cannot
           be determined with any degree of certainty.” The 14 th Amendment was initially rejected by
           several Southern States which were then required to ratify the Amendment as a condition for
           sending representatives and senators to Congress. Thus, the tangled history of the
           Amendment connected as it was with the political turmoil of Reconstruction and the
           unorthodox process of its addition to the Constitution makes it especially difficult to
           determine what lay in the minds of its supporters.
       ii) If we really are searching for the states of mind of those responsible for the presence in the
           Constitution of a particular provision it is hard to understand why we should be particularly
           concerned only with those who drafted the provision or supported it actively. Responsibility
           is very widely distributed.
   b) What was their intent?
       i) After examining the debates of the 39th congress, a historian (Bickel) concluded that the
           adopters of the 14th Amendment merely intended to ensure the constitutionality of the Civil
           Rights Act of 1866 and that Brown and almost all other Supreme Court decisions under the
           14th Amendment are incorrect. However, many have been critical of this reading since the
           15th amendment giving voting rights to blacks passed two year later, proving that racism must
           not have been that entrenched.
       ii) Michael McConnel disputes Bickel’s findings in multiple areas. His claim is that after 1866,
           school desegregation was discussed a lot and the congress decided that it was indeed
           unconstitutional. S. 173
   c) The Manifold Nature of Intent
       i) Interpretative Intent refers to the canons by which the adopters intended their provisions to be
           interpreted. This is a plain meaning rule which reads the text as it is written.

       ii) The intended specificity of a provision is a matter of how much discretion the adopters
            intended to delegate to those charged with applying the provision. For more information look
            to 595.
       iii) Many argue that the framers of 1787 almost certainly did not view the Constitution as
            embodying their specific intentions. Rather the late 18 th century common lawyer conceived
            an instrument’s intent and therefore its meaning, not as what the drafters meant by their words
            but rather as what judges, employing the artificial reason and judgement of the law
            understood the reasonable and legal meaning of those words to be. Courts in this era did not
            use legislative history.
       iv) Madison’s interpretive theory rested primarily on the distinction he drew between the public
            meaning or intent of a law and the personal opinions of the individuals who had written or
            adopted it. 599.
   d) Some other Examples of 14th Amendment Decisions Having Problematic Originalist Roots.
       i) Bolling v. Sharpe was decided on the same day as Brown and it held that the due process
            clause of the fifth amendment prohibited racial segregation in the District of Colombia
            Schools. “The concepts of equal protection and due process both stem from our American
            ideal of fairness, are not mutually exclusive. The equal protection of laws is a more explicit
            safeguard of prohibited unfairness than due process of law and therefore we do not imply that
            the two are always interchangeable phrases. The constitution should not allow the federal
            government to segregate in schools if it doesn’t let states, and so we hold that racial
            segregation in the public schools of DC is a denial of the due process of law guaranteed by the
            5th Amendment.
            (1) However, Judge Bork thinks this decision is cracked and it would allow the court to do
                 anything it wanted in a substantive due process manner. 601
   e) Against Originalism?
       i) Charles Curtis wrote “the intention of the framers of the Constitution even assuming we could
            discover what it was, when it is not adequately expressed in the Constitution that is to say
            what they meant when they did not say it, surely has no binding force on us.”
       ii) Brest argues that we should take into account the text and original understanding of the
            Constitution, but we should not be bound by it. However this begs the question if an
            interpreter is not bound by the text of the Constitution or the intentions of the framers, then
            what does bind her?
            (1) Some say the answer is stare decisis (Henry Monaghan in Stare Decisis and
                 Constitutional Adjudication ). The basic argument is founded on the fact that stare
                 decisis allows for government to be justified by having a certain standard that only moves
                 slowly as society changes so that on the micro level it is not noticable, but on the macro
                 we can get stuff like 14th amendment and Brown that work together, even if that was not
                 the original intention.
   f) Reflections on the Brown Opinion
       i) Chief Justice Warren wrote the decision very carefully so as to not be accusatory and that it
            could be read easily without a lot of legal jargon. He also wanted to get the whole court to
            agree to the decision and so he agreed to have the court slowly dismantle segregation rather
            than wrench it apart. Those who were going to dissent decided to agree with the majority for
            the sake of agreeing and not necessarily because they believed in the decision. This is the
            personal view versus the institutional view.
       ii) This brings up the question why courts should write decisions at all. Maybe it makes the
            decisions more rational and tangible?
3) Three Decades of School Desegregation
   a) Brown and it Immediate Aftermath
       i) The court in Brown II devised a plan for the courts to deal with overseeing the desegregation
            of the schools. Fundamentally it relied on a lot of local work by local original jurisdiction
            courts. Desegregation in the thousands of districts affected by Brown followed no single
            pattern but varied with the attitudes and behavior of school officials. The Supreme Court
            allowed controversies to develop and occasionally to resolve themselves in the inferior courts
            until the late 60s, when it finally intervened to establish a national policy.
       ii) Massive resistance

              (1) The south responded to Brown with a barrage of measures designed to preserve and
                  entrench segregation. Most of these schemes were struck down by the lower courts. 613.
        iii) Pupil Placement
              (1) Massive resistance was followed by adoption of pupil placement acts in the late 1950s
                  and early 60s. The major thing decided in this period was that students could have class
                  action judicial relief.
        iv) Desegregation in the late 60s
              (1) During the 60s, the lower courts approved two types of desegregation plans – assignment
                  on the basis of residence and freedom of choice plans. Residence schemes were an easy
                  way for school districts to get around desegregating since they would just use two
                  overlapping school zones and have kids then go where they were the majority or be able
                  to switch schools so that there was a majority. Minority to majority transfers were held
                  to be unconstitutional because they were based on race and so this desegregation plan
                  became less popular. Freedom of choice was a better plan which allowed a student to
                  attend either the formerly white or formerly black school. These programs did not work
                  that well either for obvious reasons. P. 615.
              (2) Ten years after Brown less than 1 percent of black children in the deep south attended
                  schools with whites. The school districts were not changing voluntarily and the plans
                  were inadequate, and so each district had to be sued in a separate action.
              (3) Later the congress endorsed freedom of choice plans and gave money to schools based on
                  their plans. This still was not changing the face of schooling very rapidly.
                  (a) The reason that freedom of choice plans were so popular was that they were
                       constitutional on their face since the constitution required no more than that black
                       and white children have the option to attend schools with children of the other race.
              (4) Green v. New Kent County School Board (p 617) marked the point at which the supreme
                  court stepped in and stopped the inefficiency of programs to desegregate up to this point.
                  (a) Facts- The court held that a school district which was not residentially segregated
                       and which had only two schools, could not employ a freedom-of-choice plan when
                       its effect was to perpetuate the long standing tradition of segregation.
                  (b) We hold today that in desegregating a dual system a plan utilizing freedom of choice
                       is not an end in itself. This is not a transition to a unitary system, and it is only a
                       delay of the segregation that has unconstitutionally existed for too long. The Board
                       must be required to formulate a new plan and in light of other courses which appear
                       open to the Board such as zoning fashion steps which promise realistically to convert
                       promptly to a system without a white school and a Negro school, but just
4)   Judicial Power to Impose Remedies in School Desegregation Cases
     Freeman v. Pitts (1992) (4/8/99)
        Ct held that the goals of federally-imposed desegregation were to create a unitary system & to
         eventually return school districts to the control of local authorities
          Thus, in the course of supervising desegregation plans, federal courts have the authority to
             relinquish supervision & control of school districts in incremental stages, before full
             compliance has been achieved in every area of school operations
          Once the racial imbalance due to the de jure violation has been remedied, the school district is
             under no duty to remedy imbalance that is caused by demographic factors

     Missouri v. Jenkins (1995) (4/8/99)
        The issue was whether the Court able to go outside the district to remedy white flight by creating
         magnet schools
        Ct held that the district court’s remedial plan was not designed to redistribute students w/in the
         system in order to eliminate racially identifiable schools w/in the district, but was instead designed
         to attract nonminority students from outside the district—the Court ruled:
          The district court’s order that attempted to attract non-minority students from outside the
              district was impermissible b/c there was no proof of an inter-district violation

            The district court lacked authority to order an increase in teacher salaries—although this
             appears essential to desegregation, the Court held that it was not a necessary remedy
            The continued disparity in student test scores did not justify continuance of the federal court’s
             desegregation order

    Swann ( p 624): Ct held it was permissible to use bussing as a tool to achieve greater integration &
    remedying de jure segregation
    Milliken: w/o an interdistrict violation or effect, there is no constitutional wrong calling for an
    interdistrict remedy
5) United States v. Fordice (Supp p 202)
   b) Facts- in this case we decide what standards to apply in determining whether the state of
        Mississippi has met this obligation [to dismantle segregation] in the university context.
   c) There are many colleges in the state which are pretty much racially divided in 1992. In 1969, the
        department of Health Education and Welfare initiated efforts to enforce Title VI of the civil rights
        act. The plan made the state devise a plan to disestablish the formerly de jure segregated
        university system. These plans did not work and were not supported by the State. The
        segregation continued at high rate through the 80s. The state’s main argument is that the mere
        continued existence of racially identifiable universities was not unlawful given the freedom of the
        students to choose which institution to attend.
   d) The primary issue in this case is whether the State has met its affirmative duty to dismantle its
        prior dual university system.
   e) The court’s decision establish that a State does not discharge its constitutional obligations until it
        eradicates policies and practices traceable to its prior de jure dual system that continue to foster
        segregation. Thus we have consistently asked whether existing racial identifiability is attributable
        to the State and examined a wide range of factors to determine whether the State has perpetuated
        its formerly de jure segregation in any facet of its institutional system.
   f) That college attendance is by choice and not by assignment does not mean that a race-neutral
        admissions policy cures the constitutional violation of a dual system. Thus even after a state has
        dismantled its segregative admissions policy, there may still be state action that is traceable to the
        State’s prior de jure segregation and that continues to foster segregation.
   g) Mississippi must justify its policies that could be remnants of the former de jure segregation
        system or eliminate them. The court then focuses on ACT score minimums and describes how
        these are remnants of the de jure system because the lower scores but you in the black schools, etc.
        Maybe there should be a larger focus on GPA since the gap between white and black is smaller
        here than in ACT scores. Also program duplication and the mission statements of the schools
        prove that there is some de jure segregation still occurring.
   h) The court remands for a new plan to decrease racial imbalance based on de jure segregation built
        into the system.

C. State Action
B&L 1301-1307, 1320-21, 1333-1336

1) The distinction between government and the individual is fundamental to American constitutional
   theory – and to the ways most Americans ordinarily think about political matters. Almost without
   exception the provisions of the Constitution are addressed to governmental entities and officials. For
   example, the First Amendment precludes the state from expressing any views at all on certain matters,
   such as the truth of particular religious doctrines and state officials may not pick and choose who may
   speak in public parks based on the acceptability of the speakers’ views.
2) Reinforcing this distinction the language used to grasp this aspect of our experienced social lives
   usually includes a contrast between the private and the public realm with the Constitution ostensibly
   regulating only the latter and indeed carving our private realms for protection from government
   a) Despite the emphasis on the division, the boundaries separating the public and private sectors have
       never been neat or static. As government has increasingly involved itself in the formerly private
       sector, either through regulation or social welfare, traditional lines have often been obscured, if not

     b) One central topic in this area (public/private distinction) is the extent to which recipients of public
          funs and other privileges become subject to certain constraints that the Constitution imposes on
          the state.
     c) This section explores the reach of the Constitution – the circumstances in which an arguably
          private sector actor is defined as sufficiently public to become subject to constitutional constraints.
3)   The controversy over the reach of the Constitution has centered on the 14 th amendment and especially
     the equal protection clause. In fact the very debate can be seen in the Civil Rights Cases where the
     majority struck down the civil rights act because, “It is state action of a particular character that is
     prohibited. Individual invasion of individual rights is not the subject matter of the amendment. The
     Amendment does not come into operation until some state law has been passed or some state action
     through its officers or agents has been taken.”
     a) The dissent argued that Inns are agents of the state because they perform a quasi-public function.
4)   The state action doctrine may respond to at least three interests besides race discrimination-
     a) Federalism – the doctrine may serve to protect the autonomous sphere of state power against the
          incursion of national power, whether exercised by Congress or the judiciary.
     b) Individual autonomy – The doctrine may serve to protect the sphere of individual autonomy
          against the incursion of government power.
     c) Separation of powers – As applied to the self-executing aspects of the amendment, the doctrine
          may serve to protect the domains of legislative policymaking from incursions by the judiciary.
5)   Burton v. Wilmington Parking Authority (p 1304)
     a) Facts- In this action for declaratory and injunctive relief it is admitted that the Eagle Coffee
          Shoppe a restaurant located within an off street automobile parking building in Delaware has
          refused to serve appellant food or drink because he is a Negro. The parking building is owned and
          operated by a state agency. Appellant claims that such refusal abridges his rights under the equal
          protection clause of the 14th amendment. The supreme court of Delaware held that Eagle was
          acting in a purely private capacity under its lease, that its action was not that of the Authority
          (state run) and was not therefore state action within the contemplation of the prohibitions
          contained in that amendment.
     b) To secure additional capital the parking building leased some of its space to Eagle Coffee Shoppe.
          Even though this is a purely public building it has private tenets. The civil rights cases embedded
          in our constitutional law the principle that the action inhibited by the first section (the equal
          protection clause) of the 14th Amendment is only such action as may fairly be said to be that of the
          States. That amendment erects no shield against merely private conduct, however discriminatory
          or wrongful.
     c) “It is clear, as it always has been since the Civil Rights Cases that individual invasion of
          individual rights is not subject matter of the amendment and private conduct abridging individual
          rights does no violence to the EPC unless to some significant extent the State in any of its
          manifestations has been found to have become involved.” P. 1305
     d) “By its inaction the Parking Authority and through it the state has not only made itself a party to
          the refusal of service but has elected to place its power, property, and prestige behind the admitted
          discrimination. The State has so far insinuated itself into a position of interdependence with Eagle
          that it must be recoginized as a joint participant in the challenged activity which on that account
          cannot be considered to have been so purely private as to fall without the scope of the 14 th
          Amendment.” 1307.
     e) Specifically defining the limits of our inquiry what we hold today is that when a State leases
          public property in the manner and for the purpose shown to have been the case here, the
          proscriptions of the 14th Amendment must be complied with by the lessee as certainly as though
          they were binding covenants written into the agreement itself. The judgement of the Supreme
          Court is reversed.
6)   The special problem of judicial enforcement of Private Agreements
     a) Shelley v. Kraemer ( p 1320)
          i) Facts- Prior to 1948 tracts of residential property in white neighborhoods were often subject
               to covenants running with the land prohibiting the sale of the property to racial minorities.
               This case is a suit to enjoin Negroes from taking possession of a lot sold t them in breach of a
               racially restrictive covenant. The Court noted that the private contract as such was beyond the

            reach of the 14th Amendment but held that a state court could not constitutionally enforce it by
       ii) “The short of the matter is that from the time of the adoption of the 14 th Amendment until the
            present, it has been the consistent ruling of this Court that the action of the States to which the
            Amendment has reference includes action of state courts and state judicial officials. It is clear
            that but for the active intervention of the state courts, supported by the full power of the state,
            petitioners would have been free to occupy the properties in question without restraint.” 1321
       iii) The difference between judicial enforcement and nonenforcement of the restrictive covenants
            is the difference to petitioners between being denied rights of property available to other
            members of the community and being accorded full enjoyment of those rights on an equal
       iv) We hold that in granting judicial enforcement of the restrictive agreements in these cases, the
            states have denied petitioners the equal protection of the laws and that, therefore, the action of
            the state courts cannot stand.
    b) The Park Case: Evans v Newton (p 1333)
       i) In 1911 Senator Bacon gave a large tract of land to the city of Georgia for the use of a whites
            only park. In Evans v. Newton the park’s managers sued to remove the city as trustee and
            replace it with private trustees who would enforce the racial limitation. Negro citizens
            intervened in opposition and the heirs of the senator requested the property revert back to
            them if the conditions of the will were not met. The state court accepted the resignation of the
            city as trustee and appointed individual trustees to avoid failure of the trust. The Court held
            that the private trustees could not exclude Negroes from the park. The central holding is
            premised on the government’s involvement of many years in maintaining and caring for the
       ii) “We hold that where the tradition of municipal control has become firmly established, we
            cannot take judicial notice that the mere substitution of trustees instantly transferred this park
            from the public to private sector. A park is more like a fire department or police department
            that traditionally serves the community” 1334.
       iii) The dissent argues that a park is more like a school and that the federal government should
            not be involved in these matters. “I find it difficult to avoid the conclusion that this decision
            opens the door to reversal of these basic constitutional concepts and at least in logic
            jeopardizes the existence of denominationally restricted schools while making of every
            college entrance rejection letter a potential Fourteenth Amendment question.” 1334
    c) The White Primary Cases
       i) In Grovey v. Townsend the court unanimously refused to invalidate the convention’s rule that
            Negro’s could not take place in primary elections, holding that the state was no longer
            unconstitutionally involved after allowing a private group control the primary.
       ii) However, in Smith v. Allwright the court held that the all white primary mandated by the state
            convention violated the 15th Amendment because the primary is an integral part of a state’s
            election machinery.

D. Implementation of “The Suspect Classification” Standard
B&L 642-664, 670-672, 676-678

1) The Antidiscrimination Principle
   a) Paul Brest, In Defense of the Antidiscrimination Principle
       i) “By the antidiscrimination principle I mean the general principle disfavoring classifications
           and other decisions and practices that depend on the race of the parties affected. The A-
           principle guards against certain defects in the process by which race-dependant decisions are
           made and also against certain harmful results of race-dependant decisions.”
       ii) The a-principle is designed to prevent both irrational and unfair infliction of injury. Race-
           dependant decisions are irrational insofar as they reflect the assumption that members of one
           race are less worthy than other people. However, not all race decisions are irrational since if
           black workers are late for work more than white workers, the decisions not to hire black
           workers has basis.

       iii) Regulations based on statistical generalizations are commonplace in all developed societies.
            However the a-principle fills a special need because race dependent decisions that are rational
            and purport to be based solely on legitimate considerations are likely in fact to rest on
            assumptions of the differential worth of racial groups or on the related phenomenon of
            racially selective sympathy or indifference.
       iv) Our history provides strong reasons to suspect that racial classifications ultimately rest on
            assumptions of the differential worth of racial groups. Whatever the cause, decisions that
            reflect this phenomenon, like those reflecting overt racial hostility are unfair.
       v) A second independent reason for the a-principle is the prevention of the harms which may
            result from race-dependant decisions. Recognition of the stigmatic injury inflicted by
            discrimination explains applications of the a-principle where the material harm seems slight
            or problematic. This fully explains the harmfulness of de jure school segregation without the
            need to invoke controversial social science evidence concerning the effects of segregation.
            Generalizations are still more pernicious, for they often premised on the supposed correlation
            between the inherited characteristic and the undesirable behavior of those who possess the
   b) John Ely in Democracy and Distrust emphasizes the defects of legislation and the way the a-
       principle could remedy this. He puts forward many justifications for the treatment of racial
       classifications as suspect. These include-
       i) First degree prejudice – the covering up of official attempts to inflict inequality for its own
       ii) Second degree prejudice – legislation over generalizes which could cause injury.
   c) Ruth Colker, Anti-Subordination Above All: Sex, Race and Equal Protection
       i) “Antidifferentiation advocates color-blindness in the development and analysis of legislative
            and institutional policies and frequently criticize affirmative action as violating that
            principle.” Colker goes on to argue that we should use a anti-subordination theory which says
            that it is inappropriate for certain groups in society to have subordinated status because of
            their lack of power in society as a whole. This approach seeks to eliminate power disparities.
       ii) This approach looks at society and the affects of subordination on groups over time. Thus
            under this theory it is worse for a black to be treated a certain way as compared to a white in
            the same situation because historically blacks have been subordinate.
       iii) The antidifferentiation principle does a disservice to history and the fundamental aspirations
            of people by asserting that discrimination against whites is as problematic as discrimination
            against blacks. We allow distinctions now for intellect, why not race, etc?
2) The Imposition of Unequal Burdens Based on Race
   a) The preceding discussions caution against the use of racial classifications, but do not determine
       under what circumstances if any racial classifications may be employed. There are at least three
       i) The dangers inherent in using race are so great that as a prophylactic measure the government
            must never use it as decision-making criterion.
       ii) The dangers are such that any use of race is justified only if it is necessary to the promotion of
            extraordinary important government interests.
       iii) In each case the decision maker should inquire to what extent the regulation gives rise to the
            dangers inherent in the use of race and then weigh these dangers against the governmental
            interest promoted.
   b) In Korematsu v. US the court upheld a conviction of a Japanese American for refusing to obey the
       order to exclude all Japanese Americans from the West Coast during World War II. Although the
       court recognized that excluding thousands of Japanese American from their homes constituted an
       extreme deprivation, if found it a reasonable exercise of political-military judgement. According
       to the majority in the case, the classification was reasonable with reasonableness inextricably
       related to the magnitude of the interest asserted by the United States Government. 649.
       Korematsu was the last Supreme Court decision to uphold an overt racial discrimination.
   c) Note – Custody, Adoption and Race
       i) In Palmore v. Sidoti (p 651) the Supreme Court unanimously invalidated a judgement of a
            state court divesting a natural mother of the custody of her infant child because of here
            remarriage to a person of a different race. The lower state court made its decision on the basis

            of the mother choosing a lifestyle unacceptable to her father and to society. For this reason
            such a decision must be tested by the most exacting scrutiny. “The best interests of the child
            are indisputably a substantial governmental interest for purposes of the EPC. Desirable as this
            is and important as is the preservation of the public peace this aim cannot be accomplished by
            laws or ordinances which deny rights created or protected by the Federal Constitution. The
            effects of racial prejudice, however real, cannot justify a racial classification removing an
            infant child from its natural mother.”
       ii) Still racial matching goes on in adoption agencies. Almost no one advocates the elimination
            of any preference whatsoever for in race placement even though it is possibly illegal.
   d) Equal treatment of Whites and Blacks
       i) In McLaughlin v. Florida the court struck down a statute that punished interracial co-
            habitation more severely than cohabitation by people of the same race. In Loving v. Virginia
            the court struck down a inter racial marriage law. “We deal here with a classification based
            upon race of the participants which must be viewed in light of the historical fact that the
            central purpose of the 14th Amendment is to eliminate racial discrimination emanating from
            the States. This strong policy renders racial classifications constitutionally suspect and
            subject to the most rigid scrutiny and in most circumstances irrelevant to any constitutionally
            acceptable legislative purpose.” 653.
   e) Gathering and Disseminating Racial Information
       i) In Anderson v. Martin the court unanimously invalidated a statute requiring that the ballots in
            all elections designate the race of the candidates. The court rejected the argument that this is
            not discriminatory because it applies to everyone ( a similar argument can be seen in Pace).
            The vice here lies in placing the power of the state behind a racial classification that induces
            racial prejudice at the polls.
   f) The nature of the Suspect Classification Test
       i) Korematsu focused on the ends served by detaining the Japanese during WWII. McLaughlin
            by contrast focused on the means: a racial classification will be upheld only if it is necessary
            and not merely rationally related to the accomplishment of a permissible state policy.
       ii) John Ely’s principles also rely on looking at the decision-making process. He argues that the
            court should invalidate a suspect state law unless the state comes up with a goal it is meeting
            that has substantial weight and the classification fits the goal almost exactly.
3) Alternative forms of Race-Dependent Decisions
   a) The most overt race dependant decision is a statute that classifies people by race. However, race
       dependant decisions are not always embodied in statutes nor always overt. For example,
       employers might deny someone a job based on racial motivations but make up other reasons for
       doing this.
   b) Discriminatory Administration
       i) Laws that do not classify on the basis of race may nonetheless be administered in a race
            dependent manner. Yick Wo v. Hopkins (p 655) has the San Fran Board of Supervisors
            handing out permits to operate laundries in wooden buildings. However, they denied 200
            Chinese applicants and accepted all but one Caucasian applicant out of 80. The court
            reversed petitioners convictions for operating laundries without permits. Here the law was
            fair on its face, but was administered in a racially bias way.
   c) The race dependent decision to adopt a nonracially specific regulation or law.
       i) Laws regulations and policies that do not classify on the basis of race and are administered
            without regard to race may nonetheless be adopted for race dependent reasons. This is the
            hair cutting case for jail where the chinese are discriminated against without good reason
            (such as health or discipline reasons). Ho Ah Kow v. Nunan (p 656) is the case and the law
            was also known as the ‘Queue Ordinance’ and it was not applied to women prisoners. In
            Gomillion v. Lightfoot (p 657) the boundaries of a city were changed to avoid certain groups
            of voters. This was ruled to be tantamount to school segregation in purpose. In Griffin v.
            Prince Edward Schools the school board closed down the school system after a court had
            ordered it to be desegregated. The Court made them re-open it.
   d) Transferred de Jure Discrimination
       i) A practice that does not take race into account may disproportionately disadvantage a racial
            minority as a result of causally related de jure discrim. Although there have not been too

            many cases on this subject, Gaston v. US comes close. The case involved allowing a literacy
            test for voting purposes. Although the court ruled that as long as it was administered
            impartially, it was constitutional. However, the court brought up the fact that years of
            segregation put blacks in a bad position and so this might be somewhat discriminatory.
4) Judicial Review of Covert Race-dependant Decisions: The inquiry into Motivation.
   a) Village of Arlington v. Metropolitan Housing (1977) (p 659)
       i) Facts- In ’71 MET applied for rezoning of a 15 acre parcel from single family to multiple
            family classification. MET wanted to build some low income housing. The village denied
            MET’s request and MET alleged that it was racially discriminatory and that it violated the
            14th Amendment. The court of appeals found that the ‘ultimate effect’ of the denial of the re-
            zoning was racially discriminatory and that the refusal to rezone therefore violated the 14th.
            The Supreme Court reverses this.
       ii) Right from the get go there was a lot of vocal opposition to the plan to build low income
            housing. The opposition had two main arguments-
            (1) The area had always been zoned for single families and the neighboring citizens had built
                  in reliance of this basic fact. Rezoning threatened to kill the price of their property.
            (2) The village’s apartment policy called for multiple family housing primarily to serve as a
                  buffer between single family development and land uses thought to be incompatible with
                  this, such as commercial or industrial areas. The area where MET wanted to build did
                  not adjoin either of these areas and so did not fit in with this zoning plan.
       iii) Against the backdrop of an obvious white neighborhood and the lack of plans to build low
            income housing, the court of appeals thought that this was discriminatory. These racially
            discriminatory facts could only be tolerated if it served a compelling interest. The court
            further found that neither the buffer policy or price dropping arguments met this interest and
            so the denial of rezoning in that court’s mind violated the EPC of the 14 th.
       iv) The Supreme court reverses this because of Washington v. Davis. Which made it clear that
            official action will not be held unconstitutional solely because it results in a racially
            disproportionate impact. Proof of racially discriminatory intent or purpose is required to
            show a violation of the EPC. Davis reaffirmed this. The impact of official action whether it
            bears more heavily on one race may provide an important starting point. Sometimes clear
            patterns will emerge such as in Yick Wo and Gomillion. Absent patterns as stark as these,
            impact alone is not determinative. Historical background can be another indicator for
            discrimination such as in Griffin v. School Board. However that is not the case here.
       v) Departures from the normal procedure also might afford some evidence of improper purpose.
            However that does not apply here either. The village originally had these rules in place and
            they have not changed to deny zoning. Respondents simply failed to carry their burden of
            proving discriminatory purpose was a motivating factor in the Village’s decision. This
            conclusion ends the constitutional inquiry. The ultimate effect is without constitutional
            significance. 663.
        Disparate impact is only evidentiary—must also have intent
   b) Palmer v. Thompson (p 670) Involved an equal protection challenge to a decision by the city
       council to close the city’s public swimming pools following a federal order to desegregate them.
       The district court found that the closings were justified for economical reasons and that the city’s
       action did not deny black citizens equal protection of the laws. The supreme court affirmed. The
       court writes, “It is extremely difficult for a court to ascertain the motivation or collection of
       different motivations that lie behind a legislative enactment. On the other hand the courts below
       found that the pools were closed for safety and economic reasons. It is difficult or impossible to
       determine the sole motivation behind choices. Nothing in the 14 th Amendment implies that by
       closing the pools to all its citizens constitutes a denial of equal protection of the laws. 671.
   c) Edwards v. Aguillard is another case that argues that it is impossible to know the subjective
       thinking of a legislator when they create a law. Intent is difficult to capture and so it is hard to
       base judicial law on it.

E. Disproportionate Racial Impact
B&L 687-709

1) Alternatives to Race Dependency as a Trigger for Equal Protection Scrutiny
   a) A Definitional Introduction: De Jure and De Facto
       i) People are described by their characteristics and in the population at large, these
            characteristics may correlate with positive or negative feelings.
       ii) The difference between de jure and de facto is as follows-
            (1) De jure is existing by right or according to law which was segregation during the pre-
                 Brown era.
            (2) De facto is actual, thus having an effect even though not formally or legally recognized.
                 (a) “For example, consider a school district’s regulation, adopted solely to assure safe
                      and efficient transportation, requiring that children be assigned to the schools closet
                      to their homes. The regulation classifies (dejure) on the basis of residence. Suppose
                      that the district is residentially segregated through no unconstitutional action. The
                      regulation still classifies according to residence, but it now has a disproportionate
                      impact on race, the schools will be de facto segregated.” (687).
            (3) The school segregation is de facto even if the school board knows that the proximity
                 assignment plan will result in segregated schools. However, if the school board adopts
                 the plan with the motive or purpose of bring about segregate then a more accurate
                 characterization is de jure segregation (because race is a key factor in this policy).
       iii) Griggs v. Duke Power Co. (p 687) construed Title VII of the Civil Rights act of ’64 to
            prohibit an employer from requiring high school diplomas of job applicants and subjecting
            them to intelligence tests where the effect was to disadvantage blacks and the criteria had not
            been demonstrated to predict job performance.
            (1) The court wrote, “What is required by Congress is the removal of artificial, arbitrary and
                 unnecessary barriers to employment where the barriers operate invidiously to
                 discriminate on the basis of racial or other impermissible classification…Congress has
                 placed on the employer the burden of showing that any given requirement must have
                 manifest relationship to the employment in question.” (688)
            (2) A later case that uses Griggs is Wards Cove Packing v. Atonio which the supreme court
                 decides using a test for a prima facie case of discrimination. “The respondents have to
                 demonstrate that the disparity they complain of is the result of one of more of the
                 employment practices that they are attacking here, specifically that each challenged
                 practice has a significant disparate impact on employment opportunities for whites and
                 nonwhites. After establishing a prima facie case, the employer carries the burden of
                 producing evidence of a business justification for his employment practice.” 689.
       iv) Washington v. Davis (1976) (p 689): this case does not read the disparate impact standard into
            the 14th Amendment.
            (1) Facts- Respondents were blacks whose applications to become police officers had been
                 rejected because they had failed a written personnel test. They sued to invalidate the test
                 on the ground that it was racially discriminatory in violation of the Fifth Amendment.
                 The court of Appeals found for the respondents holding that the fifth and fourteenth
                 amendments working with Griggs makes the test unconstitutional. They based this on
                 that the impact of the test was that is disproportionately excluded minorities and the
                 defendants had not justified the use of the test. The Supreme court reverses this analysis.
            (2) As the Court of appeals erroneously applied the legal standards in resolving the
                 constitutional issue before it & we reverse. As the court of appeals understood Title VII
                 employees or applicants proceeding under it need not concern themselves with the
                 employer’s possibly discriminatory purpose but instead may focus solely on the racially
                 differential impact of the challenged hiring or promotion practices. This is NOT the
                 constitutional rule. We never held that the constitutional standard for adjudicating claims
                 of invidious racial discrimination is identical to the standards applicable under Title VII
                 and we decline to do so today.
            (3) The central purpose of the EPC of the 14 th amendment is the prevention of official
                 conduct discriminating on the basis of race. Our cases have not embraced the proposition
                 that a law or other official act, without regard to whether it reflects a racially
                 discriminatory purpose, is unconstitutional solely because it has a racially
                 disproportionate impact.

       (4) The court then goes on to talk about how statistics reflecting segregation does not alone
            violate the Equal Protection Clause. The reason here is that then every difference in
            impact would render suspect each difference in treatment among the classes, regardless
            of the lack in racial motivation.
            (a) “This is not to say that the necessary discriminatory racial purpose must be express
                 or appear on the face of the statute or that the law’s disproportionate impact is
                 irrelevant in cases involving constitution based claims of racial discrimination.”
       (5) “My point in making this observation (about finding the subjective reason a law exists) is
            to suggest that the line between discriminatory purpose and discriminatory impact is not
            nearly as bright, and perhaps no quite as critical as the reader of this court’s opinion may
            think.” Disproportionate impact can be an indicator when it is dramatic, but it does not
            have to be the deciding factor.
       (6) There are two reasons that the police personnel test is not unconstitutional-
            (a) The test serves the neutral and legitimate purpose of requiring all applicants to meet
                 a uniform minimum standard of literacy. Reading ability is key to being a police
            (b) The same test is used in almost every federal service department. The neutrality of
                 the test can be seen in almost every part of the federal government, and so just
                 because it has a disproportionate impact in this case does not mean it is racially
   v) The legislative history of Title VII provides scant support for holding that disproportionate
       impact supports an employment discrimination claim. The difference between Griggs and
       Davis is somewhat confusing but it could have to do with legal realism. Also, in Griggs the
       14th Amendment was used almost entirely whereas Davis was an employment law case
       involving Tile VII.
b) The cultural Meaning of Racially Disproportionate Practices
   i) Charles Lawrence, The ID, The Ego and Equal Protection
       (1) Two central arguments in Washington v. Davis the first is that a motive centered doctrine
            of racial discrimination places a very heavy and often impossible burden on the wrong
            side of the debate. The second objection argues that the injury of racial inequality exists
            irrespective of the decision makers’ motives. Those who argue this urge that racially
            disproportionate harm should trigger heightened judicial scrutiny without consideration
            of motive.
       (2) The author argues that traditional notions of intent cannot capture the type of racism that
            is built into the system. In other words, a large part of the behavior that produces racial
            discrimination is influenced by unconscious racial motivation. (697).
       (3) He suggests changing the way we interpret the EPC so that we can take into account
            unconscious racism that pervades everything we do.
       (4) “By insisting that a blameworthy perpetrator be found before the existence of racial
            discrimination can be acknowledges the Court creates an imaginary world where
            discrimination does not exist unless it was consciously intended.” 700.
c) Dispropotionate Impact, Racial Classification or What?
   i) Hunter v. Erickson (1969) (p 700)
       (1) Facts- Most ordinances adopted by Akron Ohio become effective thirty days after
            passage. This is subject to a referendum which needs ten percent of the vote to overturn
            the ordinance. Section 137 provided for a special procedure for ordinances regulation the
            sale and lease of property on the basis of race, color, etc. They became effective only if
            approved by a majority of the electors voting at a general or special election. The court
            held that section 137 violated the equal protection clause.
       (2) Section 137 makes an explicitly racial classification treating racial housing matters
            differently from other racial and housing matters. Only laws to end discrimination must
            run Section 137 gauntlet. It is true that the section draws no distinctions among racial
            and religious groups. But 137 nevertheless disadvantages those who would benefit from
            laws barring racial discrimination. Moreover, although the law on face treats every
            race/religion the same, the reality is that the law’s impact falls on the minority. The
            majority does not NEED protection against discrimination.

            (3) “Like the law requiring specification of candidates’ race on the ballot (Anderson v.
                 Martin) 137 places special burdens on racial minorities within the governmental process.
                 Because the core of the 14th Amendment is the prevention of meaningful and unjustified
                 official distinctions based on race are constitutionally suspect and subject to the most
                 rigid scrutiny. They bear a far heavier burden of justification than other classifications.”
            (4) “If a governmental institution is to be fair one, one group cannot always be expected to
                 win. IF the council’s fair housing legislation were defeated at a referendum, Negroes
                 would undoubtedly lose an important battle. Here we have a provision that has the clear
                 purpose of making it more difficult for certain racial and religious minorities to achieve
                 legislation that is in their interest. Since the charter amendment is discriminatory on its
                 face, Akron must bear a far heavier burden of justification than is required in the normal
                 case.” 702.
    d) Washington v. Seattle School District Number 1 (1982) ( p 702)
       i) Facts- 66 percent of the voters approved initiative 350 which provided that no school board
            shall directly or indirectly require any student to attend a school other than the school which is
            geographically nearest to the student’s place of residence. Several school districts that had
            non-complying desegregation plans challenged 350 under the EPC.
       ii) Issue- Whether an elected local school board may use the 14 th Amendment to defend its
            program of busing for integration from attack by the State.
       iii) We are satisfied that the practical effect of initiative 350 is to work a reallocation of power of
            the kind condemned in Hunter. The initiative removes the authority to address a racial
            problem from the existing decision-making body, in such a way as to burden minority
            interests. As in Hunter the community’s political mechanisms are modified to place effective
            decision-making authority over a racial issue at a different level of government. Initiative 350
            works something more than the mere repeal of a desegregation law by the political entity that
            created it. It burdens all future attempts to integrate Washington Schools in districts
            throughout the state.
       iv) The dissent argues that a state can run its educational system in any way it chooses and that
            just because it choose to desegregate by busing does not mean that is the only avenue open to
            them. The school board could have done the same thing and ended busing, and there would
            be no lawsuit at all. Also they argue that there is no impact on racial minorities within the
            process. There is no altering of process like in Hunter. There is no unique burden on
            minorities like in Hunter and so this Initiative should be upheld.
     e) Discrimination Based on Sexual Orientation
     Romer v. Evans (1996) (4/21/99)
       Ct used rational basis review to invalidate a Colorado initiative that encouraged discrimination
        based on sexual orientation
         CO Amendment 2 repealed all state & local laws that prohibited discrimination against gays,
             lesbians, & bisexual
         Also prevented future laws to protect these individuals
       Ct held that the Amendment impermissibly discriminated based on sexual orientation & failed
        rational basis review b/c there was no legitimate purpose for denying gays, lesbians, & bisexuals
        the same use of the political process available to everyone else
       Scalia (dissent) argues that the Court, in holding that homosexuality cannot be singled out for
        disfavorable treatment, contradicts its earlier decision in Bowers v. Hardwick
       He claims if it is constitutionally permissible for a State to make homosexual conduct criminal,
        surely it is permissible for a State to enact other laws merely disfavoring homosexual conduct

F. Preferential Treatment for Racial Minorities
B&L 709-719, Handout on Bakke/later cases

1) The Basic Issues: University of California v. Bakke
   a) The ‘suspect classification’ doctrine treating racial classification as presumptively
       unconstitutional, was developed in response to discrimination against the members of minority
       groups that were the objects of hostility and prejudice. In Strauder v. West Virginia the court

   wrote, “If a law should be enacted excluding all white men from jury service…we apprehend that
   no one would be heard to claim that it would bot be a denial of the equal protection of the laws.”
   But until several decades after Brown the Court had no occasion to consider the permissibility of
   race-dependent decisions designed to benefit rather than disadvantage the members of such
b) In University of California v. Bakke the court for the first time confronted the constitutionality of
   preferential treatment that appeared to benefit minorities at the expense of non-minorities.
   i) Facts- This case presents a challenge to the special admissions program of the petitioners, the
        Medical School, which is designed to assure the admission of a specified number of students
        from certain groups. The Supreme Court of California found the special admissions program
        unlawful and enjoined the petitioner from considering the race of any applicant. The Federal
        Supreme Court holds that the special admissions program is unlawful, but reverses the
        California’s court decision on using race in the application procedure as a factor. Under the
        special admissions program at least 16 minorities had to be admitted.
   ii) The Supreme court of California found that the goals of integrating the medical profession
        and increasing the number of physcians willing to serve members of minority groups were
        compelling state interests but concluded that the special admissions program was not the least
        intrusive means of achieving those goals. The court held that the EPC of the 14th Amendment
        required that no applicant maybe rejected because of his race in favor of another who is less
   iii) Issue for the Supreme Court- At the outset we face the question whether a right of action for
        private parties exists under Title VI. In view of the clear legislative intent, Title VI must be
        held to proscribe only those racial classifications that would violate the EPC or the fifth
   iv) “The special admissions program is undeniably a classification based on race and ethnic
        background. Whether this limitation [16 minority students] is described as a quota or a goal,
        it is a line drawn on the basis of race and ethnic status.” 712.
        (1) The guarantees of the 14th Amendment extend to all persons. The guarantee of equal
              protection cannot mean one thing when applied to one individual and something else
              when applied to a person of another color. If both are not accorded the same protection,
              then it is not equal.
        (2) The court goes through a long explanation of the history of the 14th amendment and how
              it has been applied . The amendment was framed in universal terms, without reference to
              color or condition of prior servitude. Over the past 30 years this court has embarked
              upon the crucial mission of interpreting the EPC with the view of assuring to all persons
              the protection of equal laws. It suffices to say that over the years this court has
              consistently repudiated distinctions between citizens solely because of their ancestry as
              being odious to a free people whose institutions are founded upon the doctrine of
              equality. 713.
        (3) The fourteenth Amendment is not directed solely against discrimination due to a two
              class theory that is based upon differences between white and Negro. Once the artificial
              line of two class theory of the 14th Amendment is put aside, the difficulties entailed in
              varying the level of judicial review according to a perceived preferred status of a
              particular racial or ethnic minority are intractable. The concepts of majority and minority
              necessarily reflect temporary arrangements and political judgements. As observed above,
              the white ‘majority’ itself is composed of various minority groups, most of which can lay
              claim to a history of prior discrimination.
        (4) The defendant in then claims that there has been court induced preferential treatment in
              past cases. However, the court justifies this by explaining how entrenched the racism
              was at that point and the purpose behind such classifications has to do with solving that
              problem. Hence the court denied ever approving preferential classification for any group.
        (5) The test to justify the use of a suspect classification, the state must show that its purpose
              or interest is both constitutionally permissible and substantial and that its use of the
              classification is necessary to accomplish its purpose or the safeguarding of an interest.
              The University points out four purposes that the special admissions program supports.
              (717). Out of these, the court only gives the last one any credit (which is to create a more

                  diverse student body for the sake of learning). However, the court believes that this can
                  be done in a better way that is not quota based. Since the University’s special program
                  only focused on race, this did not add to the further attainment of genuine diversity.
              (6) The court suggests using a system that gives a plus to those who are racial diverse, just as
                  the admission policy would give a plus to someone who had good test scores. “This kind
                  of program treats each applicant as an individual in the admissions process. His
                  qualifications would have been weighed fairly and competitively.” The difference
                  between this program and the special program offered by the University is that it does not
                  have the facial intent to discriminate.
              (7) “In enjoining petitioner from ever considering the race of any applicant however, the
                  courts below failed to recognize that the State has a substantial interest that legitimately
                  may be served by a properly devised admissions program involving the competitive
                  consideration of race.” 719.
3)   Regents of the University of California v. Bakke (1978) (4/22/99)
      There was no majority opinion, but four justices said that intermediate scrutiny was the
        appropriate test for racial classifications benefiting minorities—racial classifications designed to
        further remedial purposes must serve important governmental objectives & must be substantially
        related to achievement of those objectives
         These justices also claimed that the Davis program did not stigmatize any group or individual
             & there was no stamp of inferiority imposed on Bakke

     Wygant v. Jackson Board of Education (1986)
        Court held that the school’s layoff provision, which provided that teachers w/the most seniority in
         the district shall be retained, except that @ no time will there be a greater percentage of minority
         personnel employed @ the time of the layoff, was improper
          Plurality concluded that the plan was not a legally appropriate means of achieving even a
              compelling purpose

     Fullilove v. Klutznick (1980)
        Court upheld a federal law that required 10% of federal public works monies given to local
         governments be set-aside for minority-owned businesses (MBE)
          Justification was to remedy past discrimination

     City of Richmond v. JA Croson Co. (1989)
        Court invalidated a set-aside plan for MBEs by determining that strict scrutiny should be used in
         evaluating state & local affirmative action plans

     Metro Broadcasting, Inc. v. Federal Communications Commission (1990)
      Congressionally approved affirmative action programs only need to meet intermediate scrutiny
        Court held “Benign race-conscious measures mandated by Congress—even if those measures
          are not ‘remedial’ in the sense being designed to compensate victims of past governmental or
          societal discrimination—are constitutionally permissible to the extent that they serve
          important governmental objectives w/in the power of Congress & are substantially related to
          the achievement of those objectives
      This case was soon overruled by Adarand

     Adarand Constructors, Inc. v. Pena (1995)
        Federal classifications, like those of the states, must serve a compelling governmental interest, &
         must be narrowly tailored to further that interest
          O’Connor wanted to dispel the notion that “strict scrutiny is strict in scrutiny, but fatal in fact”

Congress’ Remedial Power under §5 of the 14th Amendment
City of Boerne v. Flores (1997) (4/22/99)

   Congress doesn’t get to decide its constitutional powers, rather the Court has the power to determine if
    Congress has exceeded its constitutional authority

Affirmative Action
Hopwood v. Texas (1996) (4/26/99)
 University of Texas Law School application process divided candidates into 3 categories:
    presumptively admit, presumptively deny, & discretionary zone
 Nonminorities in the discretionary zone were bundled into stacks of 30 and were examined by 3
    subcommittee members who would generally cast 9-11 votes for admitting or putting applicants on a
    waiting list
 Minorities in the discretionary zone were judged by different numerical standards than nonminorities
    and were given more rigorous examination by minority subcommittee members whose
    recommendations were “final”
 The purpose was to admit minorities in proportion to the population of Texas
 Whether the Fourteenth Amendment allows the law school to discriminate in favor of minority
    applicants by giving them substantial racial preferences in the admissions process
 The purpose of the Equal Protection Clause of the 14th Amendment “is to prevent states from
    purposefully discriminating b/w individuals on the basis of race.”
 Supreme Court has required any governmental action that expressly distinguishes b/w persons on the
    basis of race be held to strict scrutiny (including programs that are “benign” or “remedial”)
     Under this analysis, the Court asks:
          Does the racial classification serve a compelling governmental interest?
          Is it narrowly tailored to the achievement of that goal?
 Court examined the school’s nonremedial goal of having a diverse student body
     Although Powell, in Bakke, claimed that diversity is a sufficient justification for a limited racial
         classification, his view is not binding precedent on this issue
     This Court held that classifications of persons on the basis of race for the purpose of diversity
         frustrates, rather than facilitates, the goals of equal protection
 Relying on Croson & Adarand, the Court announces that remedial purpose is the only sufficient
    compelling state interest to justify racial classifications
     However, the state’s use of remedial racial classifications is limited to the harm caused by a
         specific state actor
          The law school must show that the law school itself as the relevant alleged past discriminator,
              not the Texas educational system generally nor the University of Texas
          Must also show present effects of past discrimination
 Court also denied school’s arguments for correcting a hostile environment (on the grounds that it
    cannot remedy present societal discrimination) and for alleviating the school’s poor reputation among
    minorities (on the ground that minority students who are aided by the school’s racial preferences have
    already made the decision to apply, despite the reputation)
 The law school may not use race as a factor in deciding which applicants to admit in order to achieve a
    diverse student body, to combat the perceived effects of a hostile environment @ the law school, to
    alleviate the school’s poor reputation among the minority community, or to eliminate any present
    effects of past discrimination by actors other than the law school
CONCURRENCE (Judge Weiner)
 Agrees that the school has not established the existence of present effects of past discrimination
    sufficient to justify a racial classification
 Argues that diversity can be a compelling state interest, but that the admissions process here was not
    narrowly tailored to achieve diversity

   Petition for writ of certiorari was denied b/c petitioners wanted the Supreme Court to review the
    rationale used by the Court of Appeals—the Supreme Court, however, can only rule on final
    judgments (this case was still on remand @ the time of the petition).

G. Race & Representation: Voting Rights Cases
S 377-395, handout on apportionment cases

1) States have to comply w/Voting Rights Act by getting clearance of newly-drawn districts
   a) Suits are brought under the Equal Protection Clause
        (1)    Cts ask:
               (A) Is this really racially discriminatory? In a way to invoke strict scrutiny?
                    Bizarre shape is a good indicator
               (B) If yes, strict scrutiny is applied
                           1. Is there a compelling governmental interest?
                           2. Is it narrowly tailored to meet that interest?
2) Drawing Election Districts to Increase Minority Representation
    Reno v. Bossier Parish School Board (1997) (4/27/99)
        Under §5 of the Voting Rights Act, Congress may “freeze” changes in election procedures until
         states can show they are nondiscriminatory
          This section is designed to avoid retrogression—violations occur where states go from two to
              one minority district, not where states add another minority district
        Under §2, legislature bars all states & localities from maintaining any voting standard, practice, or
         procedure that results in a denial or abridgment of the right to vote on account of race or color
          Minorities are entitled to representation proportional to their population in the state
          To prevail on claim of vote dilution, plaintiff must prove that the minority group is
              sufficiently large & geographically compact to constitute a majority in a single-member
              district; that the minority group is politically cohesive; and that the white majority votes
              sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate

    Shaw v. Reno (1993)
        Using strict scrutiny, the Court determined that racial gerrymanders, whether voluntary or not,
         violate the Equal Protection Clause
          The use of race in drawing district lines is permissible only if the government can show that it
              is necessary to achieve a compelling purpose
          In determining whether race was used & that strict scrutiny should be applied, Court can
              consider bizarreness of the shape

    Miller v. Johnson (1995)
        Since bizarre shape is not necessary for a racial gerrymandering claim, the Court can apply strict
         scrutiny on the finding that race was the predominant factor in drawing the lines
          To make this showing, a plaintiff must prove that the legislature subordinated traditional race-
              neutral districting principles, including but not limited to compactness, contiguity, & respect
              for political subdivisions or communities defined by actual shared interests, to racial

    Shaw v. Hunt (1996)
        Majority relied on Miller to find that the redistricting plan was unconstitutional b/c the shape was
         highly irregular & they failed to see how the district court could have reached any other
         conclusion than that race was the predominant factor
        Dissent claimed that strict scrutiny does not apply where a state complies w/traditional districting
         principles, like §2 of the Voting Rights Act

    Bush v. Vera (1996)
        Court ruled that the district plans & demographic maps strongly suggest the predominance of race

            In applying strict scrutiny, the Court finds that the plan was not narrowly tailored to serve a
             compelling government interest
        In concurrence, O’Connor claims that compliance w/the results test of §2 of the Voting Rights
         Act is a compelling state interest

Gender Classifications
US v. Virginia (1996) (4/29/99)
   Court applied intermediate scrutiny, where the state’s infringement must serve important governmental
    objectives that are substantially related to the achievement of those objectives, in finding that the Equal
    Protection Clause precludes Virginia from reserving exclusively to men the unique educational
    opportunities VMI affords
     Ginsburg also relied on the fact that the state had no “exceedingly persuasive justification”


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