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Con-Law-II-Bloom-Spring-2012

VIEWS: 3 PAGES: 95

									1/9/2012
-Con Law 2 is the civil rights movement, we are going to spend a lot of time on the immunity clause, equal protection clause, and the due
process clause
     Equality and the Constitution (pg 441)
             o means-end methodology- judges ask whether the classification the gov. is using is sufficiently related to the goals it is
                  pursuing
                         Modern Sp. Crt.'s treatment of equal protection claims
             o Equal protection clause of 14th Amend. has become the primary source of const. requirements of equal treatment
                         Initially was made to protect newly freed African Americans from continued discrimination by southern state govs
             o Slavery and the Constitution (pg 442)
                         3 provisions recognize and arguably legitimize slavery
                                  Art. I Sec. 2 Cl. 3 (Apportionment of seats of the House of Representatives)
                                           3/5 rule was compromise (South wanted slaves counted, North said why you don’t treat them like
                                               people)
                                  Art. I Sec. 9 Cl. 1 (Prohibited Congress from outlawing "importing" people until 1808) (Congress could not
                                     disallow the slave trade)
                                  Art. IV Sec. 2 Cl. 3 (Required returning runaway slaves to their masters) (“fugitive slave clause”)
                         No evidence exists to suggest that the framers thought the Constitution contained the power to abolish slavery
                                  However, there is also zero evidence that the fed. gov. could never exercise powers of emancipation
                                           Above permits the conclusion that the future of slavery was left open on purpose
                                           Framers merely put slavery beyond national regulation
                         Justice Thurgood Marshall thought the Const. should not have been ratified (pg 443)
                                  Marshall was critical and skeptical of the framers
                         State v. Post (Sp. Crt. of New Jersey) (pg 443) (1845)
                                  OVERVIEW: One of the two writs, which were the subjects of this opinion, was directed to an individual
                                     who held a slave in servitude, the slave having been born prior to July 4, 1804. The other writ was directed
                                     to an individual who held in involuntary servitude the child of a slave born since that time. This proceeding
                                     was designed to present for the court's adjudication the question, whether slavery could exist within the
                                     limits of New Jersey under its present constitution and laws. The court held that the relation of master and
                                     slave existed by law, at the adoption of the N.J. Const. in 1844. The court held that the constitution had not
                                     destroyed that relation, or abolished slavery. The court held that the persons involved in these cases, who
                                     were held in involuntary servitude, should be remanded to the custody of the persons who held them.
                                     Accordingly, the court rendered judgment against the prosecutors.
                                  Crt. stated outright that the Const. should state clearly whether or not slavery is permitted and not leave
                                     the question to political debate
                                  This was a test case; Case illustrates the common problem the Crts faced between imposing judicial
                                     solutions to the problem of racial justice and attempts to leave the matter to the political process
                         Prigg v. Pennsylvania (pg 446) (1842)
                                  OVERVIEW: A woman and her children escaped from slavery and resided in Pennsylvania. The court held
                                     that the right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever state they
                                     were found, and the corresponding power in Congress to use the appropriate means to enforce the right
                                     and duty, derived their validity and obligation exclusively from the Constitution of the United States. In the
                                     absence of any positive delegation of power to the state legislatures, the power to enforce that right
                                     belonged to Congress.
                                  OUTCOME: PA Act, upon which the indictment was founded, was unconstitutional and void.
                                  Art. IV Sec. 2 vested Congress with the power to assist owners in securing the return of escaped slaves
                                           Congress had exercised that power by enacting the Fugitive Slave Act of 1793
                                                    Any state law disallowing the returning of slaves to their owners was unconstitutional
                                  The Crt's decision left in tact the power of both free states and the nat. gov. to limit the growth of slavery
                                     by freeing slaves brought into free areas
                         Dred Scott v. Sandford (pg 447) (1857)
                                  One of the main questions in the 1800s was how slavery was going to be treated in the territories
                                           South would have walked out if the north did not allow them to have slavery
                                           North did not want slavery to expand to new US territories, South did
                                                    South wanted a balance for slave and free states to stop the free state from having a
                                                        majority over them
                                                    If slavery is permitted in the territory before statehood, then it would most likely become
                                                        a slave state (vice versa)
                                                    Came to a head in 1820 when Maine entered the Union as a free state, Missouri came in
                                                        as a neutral state that eventually became a slave state

                                                                                                                                                  1
                    Longest case is Sp. Crt. history, considered a “great case” (Sp. Crt. intervened and composed the worst
                     opinion ever)
                  Chief Justice Taney gave the opinion
                  OVERVIEW: The Supreme Court reversed and dismissed for lack of jurisdiction. Scot, slave, brought suit in
                     Federal court against owner for assault. Held that petitioner was not a citizen of Missouri as asserted in his
                     original complaint because he was not permitted to become a citizen, and no state had the power to grant
                     him citizenship. Furthermore, Court held that petitioner did not gain freedom by being transferred into a US
                     territory declared free by Congress because Congress's power to make rules and regulations for territories
                     only applied to those territories belonging to the United States when the constitution was drafted.
                     Therefore, the law making the territory free was unconstitutional. Finally, the Court held that petitioner did
                     not gain his freedom by being taken into the free state of Illinois because the property laws of one state
                     could not grant petitioner's freedom. Therefore, the Court held that judgment against respondent was to
                     be vacated and the case dismissed because the Court did not have jurisdiction over petitioner's complaint.
                  OUTCOMEThe Supreme Court held that petitioner was not a citizen and could not bring the action in the
                     court because petitioner was a slave of African descent.
                  Dred Scot case was the second instance of the Sp. Crt. invalidating a federal law (the Missouri Compromise),
                     the first was Marbury v. Madison (54 years later)
                           Missouri Compromise had already been overruled by the Kansas Compromise
                  How would a slave bring about a lawsuit?
                           P: Assault, battery, and false imprisonment (Slave)
                           D: Slavery (Owner)
                           Court would determine and either decide the person was a slave or a free person
                           This litigation was brought after Enderson(owner from Missouri) had died, was against his widow
                  This was a test case because some thought that the Sp. Crt. could quell the violence going on in Congress
                  Some believe there was no way that Scot could have won
                           Crt. could have decided case in a way that would have made the decision irrelevant
                           Crt. could have decided that the question of Scott’s citizenship was a Missouri (state)
                                      Taney was persuaded to write a decision that would have decided all of the issues in the
                                         case versus just staying on the most simple topics
                           Why did the Crt. need to address the Missouri Compromise?
                                      no majority on the contrary holding
                                      He devotes a majority of the opinion to whether living in a free territory can make Scott a
                                         free man (he states it can’t)
                                               Relied on the concept of substantive due process
                                               Argument made in Congress by Southerners
                                                          The territories were jointly held by the states, thus any citizen should be
                                                            able to enter a territory with his property and keep his property
                  Justice Curtis wrote dissent stating that Blacks were citizens
                           Curtis talked about how women and children are not allowed to vote, but they are still considered
                               citizens; Curtis also stated that diversity of citizenship was only tested by whether both parties
                               lived in different states, not whether both parties were citizens
                  Republican party (Lincoln)
                           For Lincoln, the Dred Scott decision was a step away from requiring the toleration of slavery in all
                               the states; it is only a small step from saying that Congress or a territorial legislature cannot
                               exclude slavery from the territories to saying that neither the state legislature nor the people of a
                               state can exclude slavery therefrom.
                           To defend against this possibility, Lincoln advised letting the Declaration’s principle that all men
                               are created equal be as nearly reached as possible; if we cannot give equality to every creature, we
                               should at least do nothing that will impose slavery on any other creature.
                           Thus he argued against strictly limiting slavery to where it already existed.
                  Scott received freedom from the family who financed his lawsuit
                           They bought him and freed him
o   Reconstruction and retreat (pg 451)
         Civil War & its aftermath caused a major realignment in the const. understanding of the relationship between the
            fed. and state govs and the role of the fed. gov. w/ respect to indv. rights
         Work of the Reconstruction of Congress
                  Wanted to constitutionalize what the Northern had won after the war
                  Laid the groundwork for the expansion of fed. authority by enacting 3 const. amendments
                           13 Amend. (1865)- prohibited slavery and involuntary servitude
                                  th

                                      Sec. 2 granted Congress the power to enforce the article through legislation
                                      Some states made “Black Codes” to stifle Black rights
                                                                                                                                     2
                                   
                                          th
                                      14 Amend. (1868)- Guarantees rights
                                              Gave Congress the Const. authority to pass the Civil Rights Act of 1866
                                              Due process clause
                                              Overruled Dred Scott
                                              passed primarily because provided a basis for federal legislative action against the states
                                              Primary purpose was to protect freed slaves
                                  15 Amend. (1870)- Secured right to vote for all (racial context)
                                          th

                         Reconstruction ended with the Democrats regaining Congress
                         Slaughter-House Cases (pg 453) (1873)(Justice Miller)
                                                                                                                   th     th
                                  OVERVIEW: Butchers of New Orleans, contended that a state statute 13 & 14 amendments. The
                                      statute forbade the slaughtering of animals for food within the city, giving a company the sole
                                      privilege of slaughtering animals. Plaintiffs also argued that the statute created a monopoly and
                                      deprived the butchers of the city the right to exercise their trade.
                                  OUTCOME: The court found that state had the exclusive right under its police, and the laws of the
                                      federal Constitution did not apply.
                                                          th         th
                                  Crt. rejected a 13 and 14 Amend. attack on a Louisiana statute
                                                                                                 th
                                  Crt. ruled the privileges and immunities clause of the 14 Amend. did not provide general fed.
                                      protection for citizens against state regulation
                                              Instead, only the rights “which owe their existence to the Fed. gov., its National character,
                                                 its Const., or its laws” were deemed protectable
                                                                           th
                                              According to Miller, 14 amendment
                                                       Overruled Dred Scott by giving citizenship to all
                                                       Privileges and immunities clause applied only to citizenship of US, not States
                                              Miller and dissenters looked at Art. IV; Relied on information in the document to
                                                 determine what other parts of the document mean
                                                                                       th
                                                       When the framers of the 14 Amend. used this language, they clearly had a
                                                           determined meaning in mind
                                                       Point of it was to stop discrimination against out of staters: Whatever rights a
                                                           state gives its own must extend to other US citizens visiting that state
                                                                        th
                                  Two tier approach to the 14 Amend.
                                              When rights of newly freed slaves at stake, the amend. must be read expansively to
                                                 provide comprehensive federal protection
                                              But when racial discrimination is not at issue, the protections of fed. citizenship are
                                                 narrower
   Implied Fundamental Rights (pg 711)
        o A sharp distinction must be made to maintain the distinction between implied and express right
        o Slaughter-House Cases (pg 721) (1873) (SECOND APPEARANCE OF THIS CASE)
              3 Observations made by court:
                    There is citizenship of the US and there is citizenship of a State, both are separate and distinct from one another
                              Privileges and immunity clause discussion
                              The rights granted by one State to its citizens must apply to citizens from other States (Act. IV Sec. 2)
                                  Discussed Corfield v. Coryell (pg 722): “privileges and immunities: right of a citizen of one state to
                                      pass through, or to reside in any other state, for purposes of trade, agriculture, professional
                                      pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain
                                      actions of any kind in the courts of the state; to take, hold and dispose of property, either real or
                                      personal; and an exemption from higher taxes or impositions than are paid by the other citizens of
                                      the state; may be mentioned as some of the particular privileges and immunities of citizens, which
                                      are clearly embraced by the general description of privileges deemed to be fundamental: to which
                                      may be added, the elective franchise, as regulated and established by the laws or constitution of
                                      the state in which it is to be exercised. These, and many others which might be mentioned, are,
                                      strictly speaking, privileges and immunities.”
                                  Privileges and immunities clause applies only to rights that are fundamental
                                              Discusses privileges and immunities of relationship between citizens & states
                              Several rights & privileges owe their existence to the fed. gov. therefore the fed. gov. may exercise
                                 power of privileges and immunities over the states guaranteeing certain freedoms
              Crux of this case
                                                  th
                    Should we read the 14 Amend, especially the privileges and immunities clause, as changing the precedent of
                        protecting civil rights from State gov. to Fed. Gov?
                                   th
                    No, the 14 Amend did not change this
                              Structural argument that would be a radical change from how we previously viewed the Const.
                              Should we conclude that the privileges and immunity clause really grants power to the Fed Gov?
                                                                                                                                           3
                                             Miller says no, too much second guessing would happen
                           However, no clause in a legal document should be without meaning
                   Thus, Miller lays out 8 to 9 rights that everyone citizen is entitled to
                           Fields states that the rights Miller highlights were already protected by States rights
                   Miller brushes aside the equal protection argument here because there is no racial discrimination
                   Miller also brushes aside the due process argument
                       Fields Dissent
                                Fields said that there is an inalienable right to pursue your calling
                                         Miller thought the basic protections of civil rights was left to the states
                                         Fields believed that the Fed. Gov. ultimately controlled the rights of the states and therefore
                                            controlled the States
                                                  What the framers were trying to do with regard to fundamental rights was to say as a
                                                      matter of law, you have to guarantee rights to your citizens as well
                                                           Miller’s objection is that that would radically change the Const because it would
                                                                give the federal gov. too much potential control over state governments
                                                           Fields says contrary to Miller, there was a major shift posed by the federal gov
                                                                over state gov
                                                                                  th
                                                           Miller said the 14 Amend would not have been accepted if that was the case
                                                           Only when the State gov fails to do something does the privileges and immunity
                                                                clause kick in
                       Bradley’s Dissent
                                States have rights to restrict their citizens, but there are fundamental rights which regulation cannot
                                   infringe on
                                         States may prescribe the manner of the exercise of citizen’s rights, but they may not undermine
                                            such rights
                                Near the end of the Bradley dissent, he talked about how the privileges clause is based on anti-monopoly
                                   sentiment from England
                                         The ability to practice your trade is a natural right that has a strong basis in English law
                                         This is also protected by Due Process as well
                                                  This argument was made in Dred Scott (Taney said there was a procedural aspect to it as
                                                      well)
                                                  The State can deprive you of life, liberty, property, but it must give you specific
                                                      procedures before it does so
                                One significant aspect is the substantive due process right
                                         Becomes a well accepted doctrine
                                Second Issue: Incorporation of the Bill of Rights
                                         Butchers were arguing that the Fed. Crts had a role to play in the denial of rights by the State Govs.
                                         Barren v. Baltimore Bill of Rights was intended to apply only to Fed Govs, not to state rights
             o    3 Important theories for whether to apply the Bill of Rights to the States
                       Total incorporation (Justice Black only, Justice Douglas to an extent)
                                                                                                        th
                                Argued for a total incorporation of the Bill of Rights through the 14 Amend in Adamson and nothing else
                                Everything in the Bill of Rights is automatically applied to the States
                       Fundamental Fairness (Frankfurter, Brandeis)
                                Must look at every guarantee in the Const and break them down to whether each one is fundamental
                                Not every right in BOR is fundamental to liberty; states should choose whether or not to extend
                                Certain focus on the historical aspect of the right (how important was this at the time of the framing of the
                                   Constitution?) (Was this right recognized in England?) (Was this right important to the common law?)
                                Most Justices adhered to this theory; however, Whenever there is a sub rule that has been applied in fed.,
                                   but not yet in State Crt., the debate could go on and on
                       Selective Incorporation (Brennan)
                                Started in the 1950s and went through the 1960s; More evolution of fundamental fairness
                                2 significant differences between Selective Incorporation and Fundamental Fairness
                                         Difference in analysis (can we imagine a system of fairness that can be just without this particular
                                            right?) (Fundamental said no, only our system matters)
                                         Fundamental fairness would look at each subcategory, or application, and ask if that was a
                                            necessary right for liberty
                                Needs about 15 cases to say that the right should be applied to the States
                       McDonald v. City of Chicago is a good overview

1/18/2012
*Applying most important provisions of the Bill of Rights against the States was a very important step for the Crt.
                                                                                                                                               4
   The Incorporation Controversy (pg 729)
        o Barron v. Baltimore (pg 729)
                 Chief Justice Marshall held that the rights guaranteed in the first eight amendments do not apply to the states
                           Based observation on the fact that each state has their own enacted constitution
        o Cases since Slaughter-House by which the Courts have held cases most of the rights guaranteed in the first eight amendments
                                                                              th
            applicable to the states via the due process clause of the 14 Amend.
                 Twining v. New Jersey (1908) (pg 729)
                           Court rejected defendant’s argument that by instructing a jury that it might draw an unfavorable inference
                              against the defendants because they failed to testify was not a violation of the defendant’s rights
                           Justice Harlan dissent
                 Palko v. Connecticut (1937) (pg 730) (Justice Cardozo)
                           Concerned the constitutionality of a Connecticut statute permitting the state to appeal in criminal cases
                                                                                            th
                           Statute would violate double jeopardy clause of the 5 Amend., but it rejected appellant’s contention that
                                                                                           th
                              the statute violated the due process clause of the 14 Amend.
                                     Right from prosecution is not a fundamental right
                                 th
                           14 Amend. incorporated rights guaranteed in the bill of rights through absorption
                                     Process of absorption is sourced by the belief that neither liberty nor justice would exist if they
                                        were sacrificed
                 Adamson v. California (1947) (pg 731)
                                               th                                       th
                           eld that the 14 Amend. did not incorporate the 5 Am self-incrimination privilege
                           Dissent written by Justice Black joined by Justice Douglas, set for the “total” incorporation theory
                                     Black and Douglas disagreed with “natural law” theory
                                           th
                                     14 Amend.’s purpose was to extend to all people the complete protection of the Bill of Rights
                           Concurring opinion written by Frankfurter attacked Black’s theory of “total” incorporation
                                     limited immunity from the duty to testify was written into the Fed. Bill of Rights
                                     comment on failure of an accused to testify is forbidden in fed. prosecution
                           The Warren Court began to modify incorporation theory in the early 1960s
                                     Expressly abandoned “fundamental fairness”
                                     Court looked increasingly at the bill of rights for ”selectively” incorporating more of the specific
                                                                                                               th
                                        guarantees of the bill of rights into the due process clause of the 14 Amend.
                                     These developments are traced in Duncan
                 Duncan v. Louisiana (1968) (pg 733)
                                                    th                                                            th
                                     Held the 6 Amend. right to a jury trial applicable to states via the 14 Amend. Due Process clause
                                                                                                        th th
                                     Test for determining whether a right extended by the 5 and 6 Amends. is also protected against
                                                                  th
                                        state action by the 14 Amend. is decided by 3 questions:
                                               1. Whether right among the ‘fundamental principles of liberty and justice which lie at the
                                                   base of all our civil and political institutions’;
                                               2. Whether it is ‘basic in our system of jurisprudence’; AND
                                               3. Whether it is a ‘fundamental right, essential to a fair trial’
                                     In earlier cases, whether civilized system would not give the particular protection being sought
                                     Recent cases have proceeded under the assumption that state crim. processes are actual systems
                                        bearing virtually every characteristic of the common-law system that has been developing
                                        contemporaneously in England and the U.S.
                                               Question whether procedure is necessary to an Anglo-American regime of ordered liberty
                                     Case illustrates that by the 1960s the Court had reached the conclusion that the guarantees of the
                                                                                                                               th
                                        bill of rights that were ‘selectively’ incorporated in the due process clause of the 14 Amend.
                 Incorporation since Duncan (pg 734)
                           Selective incorporation now makes almost all specific guarantees of the bill of rights applicable to the states
                                                                                                       nd                                  rd
                           The ONLY provision of the first 8 Amends. not incorporated is 2 Amend. (solved by McDonald in Supp.), 3
                                                                                                    th               th
                              Amend., the requirement of grand jury indictment from the 5 Amend., and the 7 Amend.
                                                               th
                           The Court has treated the 14 Amend. as protecting both enumerated and unenumerated rights
                 McDonald v. City of Chicago (2010) (Supp. Pg 88) Justice Alito delivered the opinion
                           Heller recognized that there is a fundamental right to possess a gun for self defense purposes (fed. gov.),
                                                                                                                            nd
                           OVERVIEW: Ordinances banned possession of handguns by private citizens. Court held 2 Amendment
                                                                                                                            nd
                              protected the right to keep and bear arms for the purpose of self-defense and that the 2 Amendment
                              fully applicable to the states. Plurality therefore found that the Second Amendment right to keep and bear
                              arms was incorporated and made applicable to the states by the Due Process
                              OUTCOME: The court of appeals' judgment was reversed, and the matter was remanded for further
                              proceedings. 5-4 Decision, 2 Concurrences, 2 Dissents.
                           Privileges or Immunities argument
                                     Slaughter-House cases wrong: Bill of Rights meant to apply to the States
                                                                                                                                           5
             Because of the Slaughter-House opinion, the privileges or immunities clause has not been allowed
              to play a huge role in American Law; court has been overusing substantive due process
           McDonald Court challenged the other judges to overrule Slaughter-House
                    But Sp. Crt. refuses to overrule Slaughter-House because of the cases history (Alito)
                nd
           2 Amend. is a fundamental right, then per selective incorporation, it is a right
   Respondents (the city) argued that a right set out in the Bill of Rights applies to the States only if that right
    is an indispensable attribute of any “civilized” legal system
           If possible to imagine civilized country that does not recognize the right, then right not protected
                    Civilized countries do ban private possession of handguns
                                                  th
   Because the Due Process clause of the 14 Amend. has been used to analyze the rights protected by the
       th
    14 Amend., the Crt. did not find the Slaughter-House holding overruled
   Test for whether a right in the first 8 Amends. applies to the States:
           Whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty
              and system of justice
                    Or whether this right is “deeply rooted in this Nation’s history and tradition”
                    NOT whether any “civilized system would not accord the particular protection”
           Crt. also decided that it would be incongruous to apply different standards to claims in fed. vs.
              state crts.
                                                                                                       nd
   Crts. decision in Heller stated that individual self-defense is “the central component” of the 2 Amend.
           Crt. found that defense of self, property, and family is most acute in the home and that since
              handguns are the most preferred firearm in the nation to have for protection, citizens must be
              permitted to keep firearms for lawful self defense in their own homes
   Crt. talked about America’s long history of protecting citizen’s rights to possess weapons for self defense
           In Section 14 of the Freedmen’s Bureau Act of 1866, the right for freed Blacks to possess weapons
              for self protection was considered by the Crt. to be very important
                      th
           The 14 Amend. was created instead to protect Black’s rights and the right to bear arms was
              debated within this Amend.
   Scalia’s concurring opinion
           Addresses Stevens’ dissent
           What Scalia does not like:
                    Stevens’ argument that the Court should refrain from looking to history as evidence for
                         how the Court should rule in the present; Scalia sees this as allowing justices to pick the
                         rules they like and discard the ones they don’t
                    Stevens’ arg. that judicial review ought to take into consideration “intrinsic aspects of
                         liberty and the practical realities of contemporary society”
                    Stevens’ argues for the “living Constitution” theory
                               Scalia thinks historically focused method is better
   Thomas’ concurring opinion
           Believes that the right to bear arms is a privilege of American citizenship that applies to the States
                                th
              through the 14 Amend.’s Privileges or Immunities Clause
                                                                                   th
           In looking at history, it was understood that if Section 1 of the 14 Amend. let each State decide
              which privileges or immunities of U.S. citizens it would protect, then liberty would not be
              protected
           Thomas also stated that Cruikshank holding that the States should control the right to bear arms
              should be thrown out because it was based on discrimination
   Stevens’ Dissent
           Believes the question that should be asked is “whether the Constitution ‘guarantees individuals a
              fundamental right’ enforceable against the States, ‘to possess a functional, personal firearm,
              including a handgun, within the home’.”
           Stevens does not believe that the Privileges or Immunities Clause is as clear as they suggest and
              that 137 years of precedent should not be dislodged
           Believes this is a substantive due process case
           Cases establish:
                    1. The rights protected by the Due Process Clause are not merely procedural in nature
                    2. Substantive due process is fundamentally a matter of personal liberty
                               Liberty clause guarantees that a measure of dignity and self-rule will be afforded
                                   to all persons
                    3. The rights protected against state infringement by the 14 Amend’s Due Process Clause
                         need not be identical in shape or scope to the rights protected against Fed. Gov.
                         infringement by the various provisions of the Bill of Rights


                                                                                                                    6
                                             Stevens argues that “when a fed. crt. insists that state and local authorities follows its dictates on a
                                              matter not critical to personal liberty or procedural justice, the latter may be prevented from
                                              engaging in the kind of beneficent ‘experimentation in things social and economic’ that ultimately
                                              rebounds to the benefit of all Americans”
                                                    Costs are especially high when relevant regulatory interests are different from place to
                                                        place
                                          Stevens’ believes a rigid historical test in inappropriate for this case because substantive due
                                              process doctrine has never evaluated substantive rights in purely, or even predominately,
                                              historical terms
                                                    Ex: the right to free speech has always been guarded from state infringement, not
                                                        because the States have always honored it, but because it is “essential to free gov.”
                                                    A rigid historical methodology is unfaithful to the Const. command
                                                                                                      th
                                                             If it were really the case that the 14 Amend. guarantee of liberty embraces only
                                                                the rights that have been rooted in our history and tradition, then the guarantee
                                                                would serve little function, except to ratify those rights that state actors have
                                                                already been according the most extensive protection
                                                                       America has a history of discrimination against minorities, do we want
                                                                          to continue that history?
                                          Stevens asks how are we to do justice to grant interpretive discretion without injecting excessive
                                              subjectivity or unduly restricting the States from experimenting with their own solutions?
                                                    Must ground the analysis in historical experience and reasoned judgment, and never on
                                                        “merely personal and private notions”
                                                             Can be achieved by:
                                                                       1. Not reducing liberty to a formula
                                                                       2. Respecting the democratic process
                                                                                Not forcing fed. standards on States argument
                                          Stevens then asks whether the particular right asserted by petitioners applies to the States
                                                                 th
                                              because of the 14 Amend. itself, standing on its own bottom
                                                    Must determine
                                                             1. The nature of the that has been asserted; AND
                                                                                                          th
                                                             2. Whether that right is an aspect of 14 Amend. “liberty”
                                          Stevens believes that a better reading of case law supports the City because
                                                    1. Firearms have a fundamentally ambivalent relationship to liberty
                                                             Guns may be useful for self-defense, but they also have a unique potential to
                                                                facilitate death and destruction and thereby to destabilize ordered liberty
                                                    2. Right to possess a firearm of one’s choosing is different from the liberty interests we
                                                        have recognized under the Due Process Clause
                                                             No case has held that “liberty” encompasses either the common-law right of self-
                                                                defense or a right to keep and bear arms
                                                                       Owning a firearm is not key to leading a life of autonomy, dignity, or
                                                                          political equality
                                          Stevens then attacks Scalia’s concurring opinion that attacked his dissent
                                                    Questions whether using history as evidence for new decisions is in society’s best interest
                                                             What happens if societies’ view of something has changed? Is the historical
                                                                information still applicable?
                                 Justice Bryer’s Dissent joined by Ginsburg and Sotomayor
                                                                       nd
                                          No evidence that the 2 Amend. is “fundamental” for private self-defense purposes
                                          Bryer believes that the Court should look to evidence other than history when history is not clear
State action, federalism, and individual autonomy (pg 1544)
              o A state action requirement might be thought to define an area that must remain beyond he reach of national power—at least
                  national judicial power
              o The Court’s analysis of that state action issue has long been influenced by the assumed link among indiv. Freedom, state
                  action requirements, and restrictions on fed. power.
              o State action and federalism
                        The modern Court has held that state action is a prerequisite to the assertion of rights contained in both the first 8
                                                                                              th
                           Amends. (originally applicable only to the fed. gov.) and the 14 Amend. (applicable to the states)
                        Court was required to decide the extent to which it changed the traditional balance between state and fed. authority
                           (2 views)
                                 1. The new amendments gave the fed. gov. plenary authority to protect indiv. rights—against both public
                                     and private sectors


                                                                                                                                                    7
                       2. The amendments left untouched the states’ traditional functions and authorized fed. intervention only
                        when the states defaulted in their primary obligations
o   Civil Rights Cases (pg 1544) (1883)
           OVERVIEW: Five civil rights cases were consolidated before the court in order to decide if the Civil Rights Act of
              1875, 18 Stat. 335, §§ 1, 2 (1875), were constitutional. The court held that these sections were unconstitutional as
              they sought to proscribe individual action, which was the purview of state rather than federal law pursuant to the
              U.S. Const. amend. X. The court held that U.S. Const. amend. XIII prohibited the badges and incidents of slavery, and
              individual discrimination against African Americans did not rise to the level of slavery. The court further held that
              U.S. Const. amend XIV did not provide authority to enact these sections of the Civil Rights Act, as it was aimed at the
              state legislatures rather than the individual person. As such, the court held the sections unconstitutional in respect
              to the five cases brought before it.
              OUTCOME: The court struck down the challenged provisions of the Civil Rights Act of 1875, holding that the United
              States Constitution did not provide Congress with such authority. The court thus declared the statutory provisions
              void as they applied to the operation in the states from which the actions arose.
           Civil Rights Act of 1875
                    Provided that certain areas of commerce could not discriminate based on race:
                              State carriers (buses, steamboats); Hotels Inns; Places of Recreation (parks etc.)
                    These cases question if Congress had a right to apply anti-discrimination laws to these areas
                              Court said that Congress did not have the power to reach private discrimination
                                       CRA of 1875 does not correct of any const. wrong committed by the states
                              Justice Bradley delivered the opinion of the Court
                                       Majority said that Congress overstepped its bounds by passing this law
                              Plaintiff’s make two arguments (both based on the constitutionality of the act on the ground that it
                                 was not authorized by any substantive grant of power to the fed. gov.)
                                             th
                                       14 Amend (everyone is equal)
                                                 Invasion of indiv. rights is not the subject matter of the amend.
                                                 Equal protection provision
                                                 Why can’t Congress rely on this provision?
                                                           Domain of willful jurisprudence
                                                           Only the States have the power to do this per the Court (Court looks at
                                                                                                   th
                                                             the substantive provisions of the 14 Amend. and say that Congress
                                                             only has the right to reach discrimination caused by State laws based on
                                                             the wording of the amend.)
                                                           Beginning of the State Actions Doctrine
                                                                   Whether or not there was/is sufficient state action
                                                                   There was no state action here
                    Justice Harlan Dissented (only dissenter)
                                                       th
                              Sentence 1 of the 14 Amend. should give Congress the power to pass this legislation in and of
                                 itself
                                       Congressional power comes from section 5 enforcement provision
                                       Majority says the equal protection clause is limited to state action, which does not exist
                                          here, so Congress is trying to do something that is unauthorized
                                       Harlan says back that Sentence 1 talks about national citizenship, which is enforceable
                                                    th
                                          under 14 Amend., can utilize sec. 5 to draw out the meaning of Sec. 1 citizenship
                                       Harlan’s argument is against Slaughter-House
                              Slavery argument
                                       Harlan argues that racial discrimination is an aftermath of slavery
                              Okay, if we need state action, I think there is state action here
                                       Power of Congress is not restricted to the enforcement of prohibitions upon State law or
                                          State action
                                       It is distinct and positive to enforce all of the provisions of the amend.
                                       Where would Harlan find state action here? (extreme position would be that if states fail
                                                                                                 th
                                          to prohibit discrimination, then this is against the 14 Amend.; the businesses that the Act
                                          tried to affect were businesses that historically and functionally carried with them public
                                          duties )(common law recognized a basic nondiscrimination principle, these businesses are
                                          semi-public and very heavily regulated by the states and that they are regulated so much
                                          that they should come under Congressional Act)
                                       State Action Doctrine is born from this dissent
                    Civil Rights cases brings down the civil rights movement for 90 years
                              Jim Crow Era comes into being (1886/1887)
                                       Transportation is one of the areas where discrimination was allowed
                                                                                                                                   8
o   Plessy v. Ferguson (pg 456)(1896)
         Justice Brown delivered the opinion
         Considered the inaugural “separate but equal” case
                    Did not actually require the equal part though
         OVERVIEW: Petitioner, who was charged by information with violating 1890 La. Acts No. 111, p. 152, argued that the
              statute was unconstitutional. The state supreme court disagreed and denied petitioner's request for a writ of
              prohibition. The United States Supreme Court affirmed. The statute did not conflict with the Thirteenth Amendment.
              A statute that implied merely a legal distinction between differing races did not tend to destroy the legal equality of
              the two races or to reestablish a state of involuntary servitude. The statute also did not violate the Fourteenth
              Amendment. In determining whether the statute was a reasonable regulation, the Louisiana legislature was given a
              large amount of discretion; the legislature was at liberty to act with reference to the established usages, customs,
              and traditions of the people, and with a view to preserving public peace and good order. The Court rejected
              petitioner's argument that the separation of the two races stamped one race with a badge of inferiority. A
              legislature had to secure for its citizens equal rights before the law. If one race was inferior to another socially, the
              Federal Constitution could not put the two races upon the same plane.
              OUTCOME: The Court affirmed the judgment.
         Test case for discrimination cases
                                                  th
         Crt stated the objective of the 14 Amend. was to enforce equality of the two races before the law, BUT could not
              have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political,
              equality or a commingling of the two races upon terms unsatisfactory to either
                    Laws permitting/requiring separation do not necessarily imply inferiority of either race to the other, and
                        have been recognized as within the States police power to make these laws
                              Crt. used Mass. Crts. allowing separate schools for whites and blacks as an example that this
                                 practice is okay
         Crt. also rejected Plessy’s argument that discrimination based on race could “open the floodgates” for other
              discrimination
                    EX. discrimination based on hair color
                    Crt. responded that every exercise of the States police power must be reasonable, and extend only to such
                        laws that are enacted in good faith for the promotion of the public good, and not for the annoyance or
                        oppression of a particular class
         Theory is due process or equal protection, no state action problem here
                    (Railroads did not like these laws because it would increase their costs)
         Sp. Crt. rejects equal protection problem in this case
                    Separate does not imply inferiority of either race per Court
                    This is just social custom, this is just the way things are
                    State was just trying to legislate according to the majority
                                                                                                    th
         Court has recognized that banning racial discrimination was at the heart of the 14 Amend., why does this not come
              within the equality principle
                          th
                    14 Amend. is concerned with 3 different kinds of rights according to the Court
                              Civil Rights
                                       Important rights between you and the gov.
                                                  Right to property etc.
                              Political Rights
                                                            th
                                       Right to vote (15 Amend. banning racial discrimination in voting)
                              Social Rights
                                       Right to travel in an integrated Railroad Car
                                              th
                                       14 Amend. was not concerned with these rights
                                       No violation since it was not considered fundamental
                                       Left up to the individual jurisdiction based on the State’s police powers
                                                                                       th
         Court talks about two issues regarding conflict of the laws w/ the 14 Amend.
                    1. Whether the statute of Louisiana is a reasonable regulation?
                              The legislature must be allowed discretion to create laws in the best interest/consistent with the
                                 views of the people they represent
                    2. Enforced separation of blacks and whites puts blacks in a position of inferiority
                              Court says Blacks are the only ones who can make themselves feel that way
                              Argument assumes that social prejudices may be overcome by legislation
                              And that equal rights cannot be secured to Blacks except by an enforced commingling of the races
                    Court said neither issue could be accepted and that the races must come to social equality on their own
         Court stated that if one race is inferior to another socially, the Constitution did not grant the power to make the two
              races equal
         This is an attempt by the State of Louisiana to enforce social customs, and the Court believes that this is okay
                                                                                                                                     9
                  The Court believes that there is nothing wrong with racial segregation, especially not in this case
         What evidence does the Court rely on, that the equal protection clause was not meant to strike down all social
            injustices?
                  Segregated schools in the District of Columbia was the Court’s evidence for separation based on race
                  Congress allowed this, so Congress did not allow an across the board racial equality statute
                  Big battle will come down to whether Plessy allowed segregation in schools
                            Many states used Plessy as the rational for Jim Crow laws
         Dissent: Justice Harlan
                  Defends a much broader principle, that the majority is not ready/willing to accept
                  Stated that the Constitution does not “permit any public authority to know the race of those entitled to be
                      protected in the enjoyment” of its rights
                  Also made the point that in the US there is no caste system or dominant ruling class and that the Const. is
                      color blind and “neither knows nor tolerates classes among citizens”
                  Mentions that the majority, like the majority in Dred Scott, will be overruled
                  Made a point that while Chinese immigrants are not considered citizens, they are permitted to ride with
                      whites, but Blacks, who are citizens are not permitted to
                  Encouraged Blacks to keep fighting for equality
                  Makes 2 points that may or may not be consistent (pg 458)
                            In two of the sentences he says there is no superior class (__ Theory)
                            In the third sentence he says the Constitution is color blind
                                      Does not lead to the same place as the first two sentences
                                      Race is off the table as a classifying factor
         Justice Harlan is ahead of his time for not going with the majority
                  Strauder v. West Virginia (pg 512) does not support this
                            Decided 15 years before Plessy
                            OVERVIEW: Defendant, plaintiff in error, was convicted of murder. Prior to trial, he petitioned for
                                removal under U.S. Rev. Stat. § 641, which provided for removal when individuals in state court
                                were denied their civil rights. Defendant objected to the fact that black men were ineligible for jury
                                duty under 1873-73 W. Va. Act 102. The court held that the state statute unconstitutionally
                                discriminated on the basis of race and that it amounted to a denial of equal protection. The court
                                further ruled that the congressional power to enforce U.S. Const. amend. XIV gave Congress
                                sufficient authority to enact the federal removal statute. The court concluded that Congress had
                                the power to authorize removal when a right under federal law or the U.S. Constitution was
                                involved. Therefore, it was error for the state trial court to proceed to trial after defendant filed for
                                removal based on a denial of equal protection.
                                OUTCOME: The court reversed the judgment of the state supreme court and remitted the case
                                with instructions to reverse the judgment of the state trial court.
o   Note Separate But Equal (pg 459)
         Cumming v. Board of Education (pg 459)(1899)
                  Decided 3 years after Plessy
                  Addressed equality problem for the first time
                  Justice Harlan wrote the opinion for the majority
                  PROCEDURAL POSTURE: Plaintiffs in error taxpayers, black residents of the county, challenged a judgment
                      from the Superior Court of Richmond County, Georgia, which refused their request for an injunction against
                      defendant in error board of education to prevent the board from using funds obtained through the levy of
                      taxes to maintain a high school for white children without providing an equal school for black children.
                      OVERVIEW: The taxpayers filed suit against the board and the tax collector arguing a tax for the support of
                      high schools was illegal and void because it was for the use and benefit of the white population exclusively.
                      The taxpayers also argued that the system denied them the equal protection of the laws guaranteed by the
                      Fourteenth Amendment. The trial court refused to grant an injunction against the tax collector, but entered
                      an order restraining the board from using any funds for the white high school until an equal facility was
                      established for black students. The state supreme court reversed the injunction against the board and
                      dismissed the petition. On appeal, the court affirmed. The board's decision to give educational facilities to
                      the 300 black children who were not provided for, rather than to maintain a separate school for the 60
                      children who wished to have a high school education, was in the interest of the greater number of black
                      children. The board's decision to suspend temporarily and for economic reasons the high school for black
                      children was not made to discriminate against the black students because of their race. The taxpayers were
                      not denied equal protection of the laws.
                      OUTCOME: The court affirmed the denial of the injunction requested by the taxpayers.
                  Court made clear that local authorities were to have substantial discretion in allocating funds between
                      black and white facilities
                                                                                                                                      10
                              And that any interference from the Fed. gov. cannot be justified except in cases of a clear and
                               unmistakable disregard of rights secured by the supreme law of the land
         McCabe v. Atchison, Topeka & Santa Fe (pg 460) (1914)
                  Justice Hughes wrote the majority opinion
                  OVERVIEW: The Separate Coach Law required the railroads to provide separate, but equal, compartments
                     for African-American and Caucasian passengers. Section 7 of the law allowed the railroads to provide
                     sleeping cars, dining cars and chair cars exclusively for Caucasian persons. Appellants filed suit against the
                     railroads before the law went into effect, but amended their claim after the law became effective. The
                     appellate court's order upholding the order sustaining the railroads' demurrers to the complaint was
                     affirmed. The court held that § 7 of the law was improperly enacted based on the consideration of the
                     limited demand by African-Americans for sleeping, dining, and chair cars. However, appellants' suit was
                     properly dismissed because appellants had not traveled on any of the railroads, had not requested
                     transportation on the railroads, and had not requested any of the facilities described in § 7 of the law.
                     Further, there was no proof that the railroads had refused to provide the facilities described in § 7 of the
                     law to appellants. Finally, there was no proof that appellants would have had an adequate remedy at law if
                     the railroads had denied equal facilities to appellants.
                     OUTCOME: The order upholding the order sustaining the railroads' demurrers and dismissing appellants'
                     suit was affirmed.
                  Court stated that it is the individual who is entitled to equal protection of the laws and thus one being
                     denied something that is offered in the public domain to other races, but not to their own, may bring suit
         Berea College v. Kentucky (pg 460)(1908)
                  OVERVIEW: That the Act did not violate the constitution of Kentucky was settled by the decision of its
                     highest court, and the single question was whether it conflicted with the federal Constitution. The court of
                     appeals discussed at length the general power of the State in respect to the separation of the two races. It
                     ruled that the right to teach white and Negro children in a private school at the same time and place was
                     not a property right. That court went on to say that the college, as a corporation created by the State had
                     no natural right to teach at all. Its right to teach was such as the State saw fit to give to it. The State may
                     have withheld it altogether, or qualified it. The United States Supreme Court affirmed and held that
                     Kentucky had the power over its own corporate creatures, and the college came within that power. A
                     power reserved to the legislature to alter, amend or repeal a charter authorized it to make any alteration or
                     amendment of a charter granted subject to it, which would not defeat or substantially impair the object of
                     the grant, or any rights vested under it, and which the legislature may deem necessary to secure.
                     OUTCOME: The judgment from the Court of Appeals for the State of Kentucky was affirmed.
         Buchanan v. Warley (pg 460)(1917)
                  OVERVIEW: The seller asserted that the ordinance was unconstitutional upon the ground that it violated
                     the Fourteenth Amendment of the United States Constitution because it abridged the privileges and
                     immunities of citizens of the United States to acquire and enjoy property, took property without due
                     process of law, and denied equal protection of the laws. The seller thus argued that the ordinance was no
                     bar to the buyer's performance of the contract to sell the property. The Court held that the intent of the
                     ordinance to prevent the alienation of property to a person of color was not a legitimate exercise of the
                     police power of the state and was therefore an unconstitutional violation of the Fourteenth Amendment's
                     prevention of state interference with property rights except by due process of law. The Court distinguished
                     the ordinance from other segregation laws because it was not merely designed to regulate a business or the
                     like; rather, it destroyed the right of the individual to acquire, enjoy, and dispose of his property and was
                     thus void as being opposed to the due process clause of the Fourteenth Amendment.
                     OUTCOME: The Court reversed the court of appeals' determination that the ordinance was constitutional.
                  Court distinguished this case from the other cases because “in none of them was he denied the right to use,
                     control, or dispose of his property, as in this case”
o   Substantive Due Process: The Protection of Economic Interests and the Question of Redistribution
         Const. contains several provisions expressly restricting gov’s power to interfere with market ordering and private
            economic interests of individuals
                          th     th
                  Ex.5 & 14 Amends. (restricting gov. from interfering w/ right to contract and no one shall be deprived of
                     property w/out due process of law)
         Note: The Road to Lochner
                  Shift to using the due process clause was produced in part by economic and social developments
                                                                               th
                            Rise of industrial organizations in the late 19 Century transformed American society
                                      th
                            As 20 century approached, state legs. Began to address the conditions accompanying the
                               concentration of private power in business
                            Justice Taney started this shift that was started in the Dred Scott case
                            Justice Bradley relied in great length on privileges or immunities in Lochner, same argument Taney
                               relied on in Dred Scott
                                                                                                                                 11
                     In Munn, the Court did not invalidate the grain regulation law, because it was a business affected
                      by the public interest, and therefore the State, under it’s police power, had the right to regulate
                      the business
                            If not affected by public interest, substantive due process theory is okay
         By the late 1880s, the make-up of the Court had changed almost completely
                  New appointees were more inclined to use the due process clause to protect substantive rights of
                      property
                            Shift might have been due to
                                     1. Justices conservative economic policies; OR
                                     2. Their acceptance of the liberty-based, antigovernment “free labor”
                                        jurisprudence of the antislavery movement
                  Significant amount of legislation that dealt with working conditions were being made as a result of
                      the bad conditions brought on by immigration, industrialization, and the industrial revolution
                  Allgeyer v. Louisiana
                            Court used substantive due process
   Lochner v. New York (pg 739)(1905)
         Justice Peckham delivered the opinion of the Court
         Most noted substantive due process case
                  Because of the famous dissents that were written where the Court really debates back and forth
                                                              th       th
         Court held that the due process clause of the 5 and 14 Amends. protect liberty of contract and private
            property against putatively unwarranted gov. interference
         **When looking at Con Law, always look at the State’s justification of the law**
                  What is the State trying to accomplish?
                  How is the Court saying they will accomplish this?
         OVERVIEW: The state supreme court, which found that the employer allowed his employee, a baker, to
            work more than 60 hours in one week in violation of 1897 N.Y. Laws art. 8, ch. 415, § 110, upheld the labor
            law as a constitutional exercise of the state's police power. The United States Supreme Court reversed. The
            general right to make a contract in relation to one's business, and the right to purchase or to sell labor, was
            part of the liberty protected by the Fourteenth Amendment. The statute was not necessary as a health law
            to safeguard the public health or the health of the individuals who labored as bakers. The trade of a baker
            was not an unhealthy one to such a degree that would authorize the legislature to interfere with the right
            to labor and the right of free contract on the part of the individual. Various regulations already governed
            the cleanliness of the quarters in which bakeries were to be conducted. Restricting the number of hours
            that a baker could work would not further the purpose of those regulations. It was not possible to discover
            the connection between the number of hours a baker could work and the quality of the bread that he
            produced.
            OUTCOME: The Court reversed the judgment and remanded to the county court.
         The Court had adopted a theory of substantive due process (the state does not have the authority to take
            away certain aspects of liberty or property away from you)
                  First appeared in the Dred Scott case
         Lochner when it was decided was not that big of a deal, has become the poster child for substantive due
            process because of the two dissenting opinions.
                  Most importantly the descent of Justice Holms
         NY unanimously passed a law to curb the dreadful conditions of the baking industry (bread was made in the
            basements)
                  Set the maximum hours a baker could work at 60 hours per week
                  Lochner bakery did not follow the NY law and was fined, Lochner bakery took the case to court
         Why would NY pass a law to limit the time a baker could work?
                  There was a health law justification
                  State would pass a law under the "police power" law (states have the inherent power to protect
                      the health, safety, and welfare of its constituents)
         Justifications of the law
                  NY has a police power to protect the health of its citizens
                            The bakers (working long hours in ill-ventilated bakeshops cause horrible conditions)
                            Court rejects this because it abridges the rights of the individual
                                     Court did not think the State had a right here because baking is not that
                                        dangerous
                                               Another case decided earlier had upheld regulating hours of miners,
                                                  Court said mining is much more dangerous than baking

            NY argued that protecting the health of the bakers is important for keeping others healthy
                                                                                                                         12
                       The protecting bakers from working long hours could affect more important profession
                        such as doctors or lawyers
          Court rejected this contention because working more hours as a baker is not overtly dangerous or
              unhealthy (no less unhealthy than any other occupation)
                    Reasonable basis standard was applied
                    Commerce Clause does not make sense in this case per the Court
   Court said there was another reason why NY wanted to regulate
          Court said NY wanted to pass a regulative law, pure and simple
   Why would NY want to step in and regulate?
          Labor issues (create more jobs by requiring bakeries to meet a law by hiring more bakers)
                    Court rejects this justification as a reason as invalid (the state is prohibited from
                        regulating the ends of this statute)
                    The means is okay, the end is not
                    The Court then listed numerous situations in which if this statute was allowed to stand, a
                        floodgate would be open
                             Inequality of bargaining power
                                        This statute violates the ability to contract
   Why not let the baker and the employer work this out on their own?
          Bargaining power was substantially in favor of the employer
          Maybe the legislature was in favor of helping the bakers by giving them some bargaining power
   Court’s justification for invalidating NY statute
          Court invalidates the health justification by saying the law does not sufficiently protect the health
              of the citizens
          Under the labor justification, Court says the State does not have the right under the substantive
              due process class
                    Freedom of contract was in jeopardy here
                             Right to contract is highly protected aspect of due liberty, NY cannot just take the
                                 right away
   Crt. articulated 3 major principles that were followed until 1937
          1. Freedom of contract is a basic right protected as liberty and property rights under the due
                                         th
              process clause of the 14 Amend.
          2. Gov. could interfere w/ freedom of contract only to serve a valid police purpose: to protect
              the public safety, public health, or public morals
          3. It is the role of the judiciary to carefully scrutinize legislation interfering w/ freedom of
              contract to make sure that it served a police purpose
   Why is the Constitution involved here at all?
          14th Amendment due process clause protects liberty
          One important liberty is the freedom to/from contract
   Dissents
          Justice Harlan in his dissent zeros in on the health situation
                    Emphasized the need for judicial deference to leg. choice
                             If there is at least some justification that is health related, that should be where
                                 the discussion stops for the Court
                             As long as the leg. had some info. infront of it that this was unhealthy, that is all
                                 the Court needs to know, counter evidence is for the leg. to decide, not Court
                             Court must show more deference to the leg. than it did
                    Dissented on the health justification
          Justice Holms in his dissent objected to the thought that a state passing a "police law" that
              protects its citizens somehow should not be considered bad
                    One of the most famous opinions in all of Con Law
                    Is there a fundamental right to liberty according to Holms?
                             One point he makes is that there is nothing special about the right to contract
                             Liberty is liberty
                             State has the right to regulate your liberty, that’s what laws generally do
                             Governments regulate liberty all the time (i.e. speed limits, marketing practices,
                                 etc.)
                    Holms says there is nothing particularly special about this case
                    Expressly rejected majority’s premise that the Const. should be used to limit gov. reg. and
                        protect laissez-faire economy
                    Holm scolds the majority for getting away from the Constitution by trying to over regulate
                        the economy
                                                                                                                13
                                                The legislature should be the entity to regulate the economy, not the Court
                                                Court cannot mistake its own values or preferences over that of the legislature
                                     Holm said the Constitution is for everyone, the people must vote for what they want
                                                The substantive due process clause cannot decide the issue for the people
                                     Most historians believe that there were 2 important Constituional strands the majority
                                          relied on
                                                Anti-Class legislation, it is inappropriate for the state to distinguish two groups
                                                    from each other
                                                           Bakers from all other workers
                                                Right of Contract
                                                           Part and partial of abolitionist theory from the
                 Lochner was overruled soon after, but was picked up again later
                            Court struck down over 200 laws based on substantive due process theory
         Nebbia v. New York (pg 751 CB, pg 638 Chemerinsky) (1934)
                 Indication by the Crt. that it was ready to allow more gov. economic regs. and question the premise of
                      Lochner era that gov. only could regulate to achieve a police purpose and that the Crt. needed to review
                      laws aggressively to ensure that they truly served a police purpose
                 Justice Roberts wrote the opinion
                 OVERVIEW: The New York Legislature passed a Milk Control Law that established a Milk Control Board with
                      the power to fix minimum and maximum retail prices charged by stores to consumers for milk. Defendant
                      was a storekeeper who was found to have sold milk for less than the price fixed by the Board's order.
                      Defendant asserted that the statute and order violated the equal protection clause and the due process
                      clause of the Fourteenth Amendment. The Court held that the contention that discrimination deprived
                      defendant of equal protection was not well founded because there was no showing that the order placed
                      him at a disadvantage or affected him adversely. As the dairy industry was one subject to regulation in the
                      public interest, there was no constitutional principle barring the state from correcting existing deficiencies
                      by legislation fixing prices. In light of the fact that the board's order was not unreasonable or arbitrary and
                      that constitutional due process protections did not prohibit the state from fixing the selling price of milk,
                      defendant's conviction was appropriate.
                 Crt. neither contract nor property rights are absolute; they must be used to benefit the general welfare
                 Power to promote general welfare is inherent in the gov.
                 Crt. also stated the need for judicial deference to legislative choices
                 There is no closed category of businesses affecting the public interest
                            Pulled the rug out from under Lochner
         West Coast Hotel v. Parrish (pg 752 CB, pg 639 Chemerinsky) (1937)
                 Substantive due process case that Justice Roberts switched sides and cast the fifth vote to uphold the law,
                      signaling the end of the laissez-faire jurisprudence that had dominated const. law for so long
                 Chief Justice Hughes wrote the opinion for the Court
                 OVERVIEW: A female employee filed an action for back wages under the Washington Minimum Wages for
                      Women Act. The Supreme Court held that the Act did not violate the Due Process Clause of the Fourteenth
                      Amendment because it was a valid exercise of the state's police power to protect the health and safety of
                      women. The Court reasoned that the state had a valid interest in the wages paid to women because their
                      support would fall on the state if women were not paid adequate wages. The Court specifically overruled a
                      case relied on by the employer which held that minimum wages laws for women were an unconstitutional
                      burden on the right to contract. The Court reasoned that the case could not stand because employers and
                      employees did not stand on equal footing in the contract process, and the state's interest in the protection
                      of women was valid. The Court held that equal protection was not violated because there was no doctrinal
                      requirement that required the legislation to be couched in all-embracing terms. The Act was directed at a
                      social position unique to women, so the Act did not constitute arbitrary discrimination.
                 Court threw substantive due process based on economic issues out the window
                 Crt. pointed out that the Const. does not speak of the freedom of contract
                            Crt. recognized that protecting exploited workers is an area that may be regulated by gov.
                 Crt. indicated that it would defer to the leg. choices so long as they were reasonable
                 Holm’s and Harlan’s dissents from Lochner were pulled into and made the law
                 Lochner was officially thrown out because of this case
o   From the Court’s inception until 1937, in the area of Con Law, the Court was primarily a business Court
                 Court was concerned primarily concerned with business, wages, labor, etc.
                 As of 1937, Court says they are not as concerned with business factors anymore
                            Not going to second guess decisions regarding wages, etc., we are going to be differential to the
                                State legislature on these issues
                 What is the Court going to do now? What is its new role going to be?
                                                                                                                                   14
                   Begins to sketch this out very soon after 1937
                   Does so in United States v. Carolene Products case
   United States v. Carolene Products Co. (pg 755)(1938)
         Justice Stone delivered the opinion of the Court
         OVERVIEW: Appellant United States obtained an indictment against appellee corporation for a violation of
             the Filled Milk Act (Act), 21 U.S.C.S. §§ 61-63, which prohibited the shipment of adulterated milk in
             interstate commerce. Holding that a rational basis for legislation was all that the Fifth Amendment's
             guarantee of due process required, the Court reversed. The Court first declared the Act a valid exercise of
             congressional power under the Commerce Clause. The Court then held that the Act did not infringe the
             Fifth Amendment, as nothing in the guarantee of due process prohibited a national or state legislature from
             enacting laws for the protection of their citizens. Further, the Court noted the presumption of
             constitutionality inherent in legislative acts. The Court held that its function, at least with respect to acts not
             implicating specific constitutional prohibitions, restricting political processes aimed at the repeal of
             undesirable legislation, or prejudicing "discrete and insular minorities," was to determine if a rational basis
             existed for the act, and if so, to uphold it.
             OUTCOME: The Court reversed the judgment for appellee corporation, because Congress had the power,
             under the Commerce Clause, to prohibit the shipment of adulterated milk in interstate commerce. The
             legislative exercise of such power did not violate respondent's right to due process under the Fifth
             Amendment where Congress had a rational basis for enacting the legislation.
         When the gov. reasonably regulates a business, that is all we need to know
         Justice Stone drops this footnote 4 that states (pg 760)**VERY IMPORTANT**
                   Basic economic, business regulations, we are going to be differential to the states
                             Court is going to stop taking mainly economic questions and be differential to the states
                   Much of the argument in constitutional law is over which standard of review is appropriate (high to
                       low)
                             All that the gov. needs to show is that they have the right to do and the means that they
                                have chosen are rationally based
                             Question is not whether the means are rationally related, it is about whether the
                                LEGISLATURE believes that the means is a rational way to go about achieving what they
                                mean to achieve
                   But there could be other Constitutional challenges(instances) in which we would not be as
                       differential (3 rationales/scenarios)
                             1. If there is an explicit right in the Const, we are going to raise the amount of scrutiny
                                       Suppose the state were to pass a law with a direct conflict with an amend. to the
                                           Const., Court would have to take a hard look at the case
                             2. If there is a law that restricts a democratic process, we are going to take a harder look
                                at it (representation based theory)(substantive in nature, process based)
                                       Constitution structurally and explicitly sets up a democratic gov., it must be
                                           protected
                                       Why was it that Justice Harlan said we should not be looking very hard at
                                           legislation passed by the Congress?
                                                 Because of the democratic representative process, the people elected to
                                                     the legislature to make their laws
                                                 But, if it looks like the legislature is interfering w/ the democratic
                                                     process, than we must take a harder look at the legislation to decide
                                                     whether it is proper
                             3. Process based theory, ordinarily we assume the political process is entitled to respect,
                                but if we sense that a minority group, because of prejudice, is not able to employ the
                                political process to effect their means/ends, the Crt. must take a harder look
                                       Prejudice against “discrete and insular minorities”
                             Most of what Stone wrote about has come to pass
                             Barnwell v. South Carolina (weight regulations of the trucking industry)
                                       States are responsible for the maintenance of highways, therefore we will be
                                           differential to the State
                                       Burden was just as high against in-state as out-of state truckers
                                       Stone wrote footnote stating that the cost of the bill being relied on does not
                                           increase costs significantly, therefore it is okay
                                                 If the cost was being assessed on those who were not being represented
                                                     by the legislature (out-of-state truckers) than the Court would have to
                                                     take a harder look because the democratic process would not have
                                                     worked
                                                                                                                             15
                        th
   First sentence of 14 Amend.
          Privileges or immunities Clause
                    Was never really used
          Due Process Clause
                    Munn v. Illinois started it
                                                                                                       th
                    Substantive due process was used to utilize the Due Process Clause of the 14 Amend
                              Falls out of favor in 1965?
          Equal protection clause
                    Justice Holm’s commented that equal protection is the last attempt as a constitutional lawyer
                              Probably not going to work, but if you wanted to say you tried everything, you should use
                                 it
                    Later, equal protection became the only argument that could be made, negating Holm’s opinion
                    Kicked off by the Korematsu case
   Williamson v. Lee Optical of Oklahoma (pg 757)(1955)
          OVERVIEW: The optician sought to have Okla. Stat. Ann. tit. 59, §§ 941-947 (1951) declared
              unconstitutional because the effect of § 941 was to forbid an optician from fitting or duplicating lenses
              without a prescription from an ophthalmologist or optometrist. In practical effect, it meant that no optician
              could fit old glasses into new frames or supply a lens without a prescription. The trial court found that
              portions of the statute were unconstitutional. On appeal, the United States Supreme Court held that,
              although the law might have exacted a needless, wasteful requirement in many cases, it was for the
              legislature, not the courts, to balance the advantages and disadvantages of the new requirement. In
              reversing the judgment, the Court held that the law did not violate the Equal Protection Clause of the
              Fourteenth Amendment and that the law's prohibition on the use of advertising for the sale of eyeglasses
              and lenses was constitutional because the legislature could treat all who dealt with the human eye as
              members of a profession who should use no merchandising methods for obtaining customers.
              OUTCOME: The Court reversed the portion of the trial court's judgment holding that part of the Oklahoma
              statute was unconstitutional, and the Court affirmed the remainder of the judgment.
          “The day is gone when this Court uses the Due Process Clause to strike down state laws, regulatory of
              business and industrial conditions, because they may be unwise, improvident, or out of harmony with a
              particular school of thought”
   Ferguson v. Skrupa (pg 757)(1963)
          Justice Black delivered the opinion
          OVERVIEW: The statute enjoined by the district court made it a misdemeanor for any person to engage in
              the business of debt adjusting, except as an incident to the lawful practice of law. The business owner
              alleged he was in the business of debt adjusting, that his business was a useful and desirable one, and that,
              therefore, the business could not be absolutely prohibited by the State. On appeal from the district court's
              decision, the Court held that the legislation did not violate the Due Process Clause. States had the power to
              legislate against what were found to be injurious practices in their internal commercial and business affairs
              so long as their laws did not run afoul of some specific federal constitutional prohibition or of some valid
              federal law. When the subject lay within the State's police power, debatable questions as to reasonableness
              were not for the courts but for the legislature. The Court further held that the statute's exception of
              lawyers did not constitute a denial of equal protection of the laws to nonlawyers. Statutes created many
              classifications that did not deny equal protection; it was only invidious discrimination that offended the
              Constitution.
              OUTCOME: The court reversed the decision of the district court.
          “It is now settled that States have the power to legislate against what are found to be injurious practices in
              their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal
              constitutional prohibition”
   Note: Pluralism, Naked Wealth Transfers, and the Courts(pg 758)
          In Carolene Products, the Court indicated that it would uphold economic legislation if any state of facts
              either known or reasonably inferable could support the legislative judgment.
          In Lee Optical, however, the Court went even further and resorted to wholly hypothetical facts and reasons
              to sustain the legislation.
          In Ferguson, the Court appeared to uphold the legislation without any inquiry in to the rationality of the
              means/ends connection.
              Position suggested in West Coast Hotel and other decisions marking the decline of Lochner—that gov.’s
              apparent failure to act may in some circumstances amount to gov. action—does not justify judicial
              abdication as a general rule
                    To the contrary, the understanding that the “private” sphere is itself a governmental creation
                        suggest that a wide range of practices might be vulnerable to constitutional attack
                              Poverty might be understood as a product of governmental action
                                                                                                                          16
   Equal Protection Methodology: Heightened Scrutiny and the Problem of Race (pg 512)
        o Cases where the Court has applied higher scrutiny than the “rational relationship” test
                  Best established cases for using higher scrutiny are classification based on race cases
        o The Origins and Rationale for Heightened Scrutiny in Race-Specific Classifications That Disadvantage Racial Minorities
                  Strauder v. West Virginia (pg 512)(1880)
                          OVERVIEW: Defendant, plaintiff in error, was convicted of murder. Prior to trial, he petitioned for removal
                            under U.S. Rev. Stat. § 641, which provided for removal when individuals in state court were denied their
                            civil rights. Defendant objected to the fact that black men were ineligible for jury duty under 1873-73 W.
                            Va. Act 102. The court held that the state statute unconstitutionally discriminated on the basis of race and
                            that it amounted to a denial of equal protection. The court further ruled that the congressional power to
                            enforce U.S. Const. amend. XIV gave Congress sufficient authority to enact the federal removal statute. The
                            court concluded that Congress had the power to authorize removal when a right under federal law or the
                            U.S. Constitution was involved. Therefore, it was error for the state trial court to proceed to trial after
                            defendant filed for removal based on a denial of equal protection.
                            OUTCOME: The court reversed the judgment of the state supreme court and remitted the case with
                            instructions to reverse the judgment of the state trial court.
                  Korematsu v. United States (pg 514)(1944) Justice Black gave the opinion
                          OVERVIEW: Petitioner challenged the assumptions underlying the order and claimed that when the
                            exclusion order was enacted, all danger of Japanese invasion of the exclusion area had disappeared. The
                            U.S. Supreme Court held that the exclusion order under which petitioner was convicted was valid and, thus,
                            upheld the conviction. Because the order curtailed the rights of a group based on national origin, the order
                            was inherently suspect and rigid scrutiny was applied. The Court found that the exclusion order, like a
                            previously upheld curfew order, was intended to prevent espionage and sabotage in threatened areas
                            during war. The exclusion from such an area was closely related to the intent of the order. Moreover, the
                            Court could not reject the judgment of the military and Congress that there were disloyal members of the
                            population who constituted a menace to the national defense and safety. Compulsory exclusion of groups
                            of citizens from their homes, except under circumstances of direst emergency and peril, was inconsistent
                            with the basic governmental institutions. However, the Court held that the exclusion order was justified by
                            the exigencies of war and the threat to national security.

                              OUTCOME: The Court affirmed petitioner's conviction.
                             3 Different requirements of the measure
                                    Curfew
                                    Relocation order
                                    Detention order that Japanese descendants could not leave dentition centers
                             Hirabayashi case upheld the Constitutionality of imposition of a curfew against people of Japanese descent
                                    Because it was impossible to figure out the loyal from the disloyal among those of Japanese
                                        descendant’s they decided to segregate everyone
                                    By the time the case went before the Court, the war was over
                             Justice Black argued for strict scrutiny in this case
                                    Why strict scrutiny in this case?
                                             What is the purpose of this statute?
                                                      Under differential standard—legitimate state purpose that is not otherwise
                                                          disallowed by the Const.
                                                                Rational basis
                                                                Legislature could have believed there is some rational basis between the
                                                                    means and the end
                                                      Under strict scrutiny—legislature must show (3 things)
                                                                Compelling interest (highest order)
                                                                Narrowly tailored (the best way)
                                                                No less discriminatory or less burdensome than another alternative
                                    Normally when you apply strict scrutiny, States loose
                                             However in this case, strict scrutiny allowed the Legislature’s argument to stand
                                             Means won over the end
                                                      Legislature justified the means by saying it was a crisis situation, that opened us
                                                          up to sabotage, and that we had to act quickly
                                                      We did not have time to separate the loyal from the disloyal
                                                      Could have done individualized review (Crt. did not say this)
                                                                Was done in England to German citizens
                                                                Supposedly Hawaii did this?


                                                                                                                                       17
                             Court stated that is was not beyond the war power of Congress and the Executive to exclude those of
                              Japanese ancestry from the West Coast war area
                           Court admitted that the order presented a hardship, said hardships are part of war
                           Court actually states that Korematsu is not being discriminated based on race
                                    Explains that a lot of thought went into requesting that those of Japanese descent be sent away
                                         from their homes
                           In the equal protection context, the focus of the analysis is on the classification
                                    You are attacking a specific classification the law makes
                                              “This law has identified two different groups of people differently, and there is no rational
                                                  basis for doing so”
                                    That is what is being done here
                                              Because of my Japanese heritage, I am being forced from my home
                           Came out later that the gov. never had any evidence that Japanese citizens were dangerous
                                    Congress eventually passed legislation apologizing for its behavior and paid $20,000 to survivors
                           Generally cited as the case where racial discrimination is involved, strict scrutiny is required
                           Dissents
                                    Justice Murphy
                                              Stated “this is racism”
                                              Argued for “definite limits to military discretion, especially when martial law has not been
                                                  declared”
                                              Argued that the military should subject itself to the judicial process of having its
                                                  reasonableness determined
                                              Believed that the military gave into irrational public fears and misinformation
                                              Yes there is a compelling state interest, but there are other way to obtain the end
                                    Justice Jackson
                                              Thought majority and Murphy’s dissent were both wrong
                                              Relied heavily on the fact that the war is over
                                              3 different possibilities for what Jackson was suggesting
                                                        We would not have enjoined the military on this, but we did not agree
                                                        Write an opinion calling this a political question beyond the judicial power
                                                        The path that the Court was taking the view that the question is best left un-
                                                            adjudicated
                                              Made the point that “Once a judicial opinion rationalizes such an order to show that it
                                                  conforms to the Constitution, or rather rationalizes the Constitution to show that it
                                                  sanctions such an order, the Court for all time has validated the principle of racial
                                                  discrimination in criminal procedure and of transplanting American citizens”
                                                        Once the Court decides a certain way, they can’t take it back, even if it is wrong
                                                            and unjust
                                              Argued that “A civil court cannot be made to enforce an order which violates
                                                  constitutional limitations even if it is a reasonable exercise of military authority”
                                                        Courts can exercise only the judicial power, can apply only law, and must abide
                                                            by the Constitution, or they cease to be civil courts and become instruments of
                                                            military policy
   The Attack on Jim Crow Laws (pg 461)
        o After the Courts followed the Legislature blindly as it invalidated civil rights initiatives, it was the Courts, instead of Congress,
            that lead the way for civil rights change
                  Note: NAACP’S Legal Strategy
                           $100,000 donated by Charles Garland from his inheritance started the effort
                           Did not pursue any single strategy to end discrimination, instead it tried numerous paths
                           Was trying to fight separate but equal in elementary schools first
                           Much of the leadership believed that it was too dangerous to challenge Plessy head on, even though
                              “separate but equal” never meant that Blacks had equal opportunities as whites
                                    Some thought the Court might further substantiate Plessy, making it harder for Blacks
                                    Others wanted to take up the cause and go for it
                           NAACP decided to go about things on a small case by case basis
                                    Briggs v. Elliot, in S. Carolina, was litigated at the same time as Brown, in conjunction with several
                                         other cases in other states
                                    About 14 cases, all from different states, came together to make Brown after the plaintiff’s had
                                         been defeated in their state courts
                                              Except Delaware, where the Sp. Crt. agreed separate but equal did not work, but the case
                                                  joined with its sister cases anyways
                                                                                                                                             18
   The Road to Brown
         First victories against separate but equal were in the areas of higher education
         From 1938-1950, Sp. Crt. decided a series of cases involving black plaintiffs who challenged their exclusion
            from state institutions of higher education
                  Missouri ex. rel. Gaines v Canada
                            No state law school for Blacks, state would pay for Black students to go to schools in other
                               states
                            Court said no basis for this, you should not have to go out of state
                  Sipuel v. Board of Regents
                  Fisher v. Hurst
                  Sweatt v. Painter
                            UT Law School case
                            Texas established law school for Blacks in a basement across from the state capital, Court
                               invalidated that saying it was unjust
                  McLaurin v. Oklahoma State Regents
                            Court accentuated that McLaurin could not “learn his profession” by being made to sit in a
                               specific section of the library and classroom and not being allowed to eat in the cafeteria
         Social and political changes were affecting the world, making discrimination more and more of a blemish on
            American society
                  Jackie Robinson integrated baseball
                  MLK movement was getting off the ground
         A Mexican-American discrimination case won in California before Brown was tried (Mendez v. Westminster
            School District)
                  District Court shot down school district’s policy of sending Hispanic children to different schools
                      than White children
                  Warren put laws into place against discrimination before he went to Sp. Crt.
   Brown v. Board of Education of Topeka (Brown 1) (pg 465)(1954) Chief Justice Warren wrote the opinion
         OVERVIEW: By consolidated opinion, the Court reviewed four state cases in which African-American minors
            sought admission to the public schools of their community on a non-segregated basis. In each instance,
            they had been denied admission to schools attended by Caucasian children under laws requiring or
            permitting segregation according to race. This segregation was alleged to deprive the minors of the equal
            protection of the laws under the Fourteenth Amendment. In each case, except the Delaware case, the
            district court denied relief to the minors on the "separate but equal" doctrine announced by the Supreme
            Court in Plessy v. Ferguson, 163 U.S. 537. The minors contended that the public schools were not equal and
            could not be made equal, thereby denying them equal protection of the law. The common legal question
            among the cases was whether Plessy should be held inapplicable to public education and whether
            segregation of children in public schools solely on the basis of race, even though the physical facilities and
            other tangible factors were equal, deprived the children of the minority group of equal educational
            opportunities. The Court held in the affirmative as to both.
            OUTCOME: The Court overturned Plessy v. Ferguson and the "separate but equal" doctrine, finding that it
            had no place in public education. Segregation was a denial of the equal protection of the laws under the
            Fourteenth Amendment. Separate educational facilities were inherently unequal.
                                                                                          th
         Warren states that the circumstances surrounding the adoption of the 14 Amend. are inconclusive to help
            in this case because:
                  Passage of the Civil Rights Act of 1876 was significant
                            There was an article banning all racial discrimination as a whole, that would include
                               banning discrimination in schools
                                     This meant with resistance though
                                                                         th
                                     Bingham, the creator of the 14 Amend., agreed to delete it
                            Warren wanted to hear argument about what the deletion of the provision against school
                               segregation meant
                                     Caused the parties to spend the summer holding their own separate historical
                                         seminars to try and explain the significance of these events to go for their side
                                     Argument for the school districts by John W. Davis were straightforward
                                               Tried, couldn’t, since it was not included, oh well
                                     NAACP had to get around this
                                               Had to argue the reason why it was omitted, that it did not think under
                                                          th
                                                  the 13 Amend, they did not have the authority to desegregate schools,
                                                     th
                                                  14 Amend. meant to do this
                                                     th
                                               14 Amend. should be looked at as a broad disallowance of all racially
                                                  based in discrimination
                                                                                                                       19
                                                                                 th
   How does the Court deal with the issue of the original understand of the 14 Amend?
          Court found that the original understanding is inconclusive
          They thought hard about it, but can’t figure it out
   Defendants had two arguments
          Originalism
                                                                                   th
                    Crt dismissed this issue after arguments over the 14 Amend.
          Precedent
                    Plessy v. Ferguson
                             It has been the law that we relied on for the past 60 years and we have
                                 built our entire social structure around and you (the Court) said it was
                                 okay
                    Crt said in response
                             Plessy was wrongly decided from the outset based on Slaughter-House
                                 and Strauda
                                              th
                                       14 Amend. was made to stop racial discrimination
                                       Strauda was the jury case where racial discrimination was
                                           disallowed
                                       The Court got it right at some point so it could be relied on now
                             Plessy was mistaken regarding stigma
                                       Plessy did not believe that stigma existed, which is wrong
                                       Court said we know more about stigma now
                             Over the last 20 years starting in Gains we have been chipping away at
                                 Plessy in higher education, there is not much left for Plessy
                                       It is a precedent that has been under attack at the Sp. Crt. over
                                           time and it is time to let it go
                    Crt said “separate but equal” violates the Constitution itself
                    The question is what exactly did Brown hold?
                                 “Separate but equal” in education is unconstitutional because of...
                                       Stigma (stamps minority race as inferior)
                                       Adverse impact on education (was recognized by the Kansas
                                           Crt., but it felt like it could not get around Plessy without a
                                           ruling from the Sp. Crt.)
                                       Black students are not getting the same educational
                                           opportunities because they are being demoralized by the racial
                                           discrimination
                                       This case instead lays the foundation for all other racial
                                           discrimination cases to overrule segregation
                                       Stigma became an easier case to make because of this case
                                       Example of the principle that in common law adjudication, you
                                           don’t know exactly what the opinion means for sometime
   Footnote 11 pg 467
          ANOTHER FAMOUS FOOTNOTE
                    Was a bunch of social science studies
          Was the evidence the court used
          The Court was criticized for citing these social science studies as the basis for their opinion
                    Were these the best studies to use?
                       Studies are always subject to criticism of its accuracy
                    Basing a judicial opinion on empirical studies is wrong because the Crt.
                        essentially was standing on shaky ground
                    To say that Brown was only relying on empirical studies would undermine the
                        moral authority of the decision
   This case is different than other cases we will look at because
          It is unusually short
          Non-legalistic
                    Did not cite precedent, standard of review, did not cite to a lot of other cases
          Case is non-accusatory
                    Did not say that racial discrimination is a bad thing necessarily
          Why would the Crt. write the opinion this way?
                    Backlash
                    If the opinion was too harsh, the states would not accept it


                                                                                                       20
                                     The Crt. is concerned with the fact that the issue is controversial and we don’t
                                      want to get people more resistant or defiant than they are already going to be
                                    Just wanted to say “things have got to change”
                                    Crt. did not want to get into an accusatory mode, because it was going to need
                                      their cooperation if it wanted to get anything done
                          Why is this case so short?
                                    Wanted to give opponents the smallest target possible to argue against
                                    Come up with an opinion that is easy to comply with
                                    Crt. was writing for a broad audience in this case where as it normally writes for a
                                      narrow audience of lawyers and judges
                                            Needed to write an opinion that anybody could understand because this
                                                 case was closely watched by all and the opinion needed to be one that
                                                 anybody could understand
                                            Needed public support
                                    Warren was thinking about writing an opinion that was able to be:
                                            Printed in its entirety in a newspaper
                                            The average person could read it and understand it
                          Another aspect of Brown that separates it is the fact that it is a very vague opinion
                                    It does not exactly strike down racial discrimination
                                    It left a lot things up in the air
                                    Why is this?
                                            They don’t know what kind of resistance they are going to meet
                                            We made a big decision, it is going to take some time to find out what is
                                                 going to work
                                            They didn’t want to give opponents more area to attack them on
                          What was Justice Warren’s largest obstacle in this opinion?
                                    Crt. anticipated resistance and defiance
                                    Southern Justices warned Warren that many southern districts are going to hate
                                      this and they will try and defy the Court
                                            Had to make a simple opinion so the Southern Justices would not write
                                                 a descent, giving southern states food for their argument
                                            HAD TO HAVE UNANIMITY
                                    Warren had to give the school districts the appearance of a “united front” from
                                      the Sp. Crt.
                    5 cases that were brought together for this case
                          The Court decided Boiling needed to be brought on its own, the rest of the cases could be
                              grouped together
                          Kansas was chosen as the spotlight state because it was a boarder discrimination case
                                    It was not a part of the deep south and therefore would not be as likely to be
                                      perceived as accusatory


                                                                                       th
                      What Congress and the state legislatures had in mind when the 14 Amend. was made cannot be
                       determined with any degree of certainty
                                                                    th
                    Status of public education at the time the 14 Amend. was made is unknown
                            Whites were educated at private schools while Blacks were not educated at all for the
                                most part
                                      That has all changed
                            Framers were probably not focusing on education that much either
   Justifications and Explanations for Brown (pg 467)
          Justifications
                    The legislative history of the equal protection clause is consistent with outlawing segregated
                       education
                                                                             th
                            Crt did not assert that the framers of the 14 Amend. intended to outlaw segregated
                                education
          Boiling v. Sharpe (pg 468) (1954)
                    Opinion was written by Chief Justice Warren
                    OVERVIEW: Petitioner minority students brought an action against the school district alleging that
                       public school segregation depriving them of due process of law under the U.S. Const. amend. V.
                       The district court dismissed the students' complaint, and the Court reversed on appeal. The Court
                       found that segregation in public education was not reasonably related to any proper governmental
                                                                                                                      21
                      objective, and thus it imposed on petitioners a burden that constituted an arbitrary deprivation of
                      their liberty in violation of the Due Process Clause of U.S. Const. amend. V. Moreover, the Court
                      held that just as the Constitution prohibits the states from maintaining racially segregated public
                      schools under the Equal Protection Clause of U.S. Const. amend. XIV, racial segregation in the
                      public schools of the District of Columbia was a denial of the due process of law under U.S. Const.
                      amend. V.
                      OUTCOME: The Court reversed the district court's dismissal of petitioner minority students claims
                      because racial discrimination on the part of the District of Columbia constituted an arbitrary
                      deprivation of their liberty in violation of the Due Process Clause of the Fifth Amendment to the
                      United States Constitution. The matter was restored for reargument.
                   Case was decided on the same day as Brown
                                                                                                                 th
                   Crt. ruled discrimination was so unjustifiable, it violated the due process clause of the 5 Amend.
                   Crt. says that on the one hand, we are not saying that the due process clause contains its own
                      equal protection clause, but the due process clause has to do with fairness and so does the equal
                      protection clause
                   Crt. said it was not recognizing a non-racial discrimination protection claim across the board, but
                      that is the way it has been viewed
                   Shorter than Brown, but it gets more doctrinal
                            Examines the state interest, something Brown did not do
                                      Crt. does not think there is any legitimate purpose to racial discrimination
                            Dissed Kiramatsu and said it was racially discriminatory
                   Boiling was a more uncomfortable case in itself than Brown
                            It is unthinkable that the Crt. could tell the states that they could not have racial
                                discrimination, when they were going to allow the Dist. Of Columbia to do so
                   Why does the due process argument raise some issues?
                                 th
                            5 Amend. & due process clause was a part of the original Bill of Rights and it would be
                                hard to raise an originalist argument on this Amend.
                            Can’t make the argument that it was meant to give a broad across the board equal
                                protection non-racial discriminatory policy
                                           th                                                             th
                            Crt. said 5 Amend. due process probably means the same thing as 14 Amend. equality
                                clause
                                                                th
                            Crt. said the makers of the 14 Amend. wanted an equality check, that maybe the framers
                                                            th                                         th
                                trusted the states in the 5 Amend., but did not trust itself in the 14 Amend.
                   If due process clause means equality, than why do we bother creating an equal protection clause?
                            We have to make do with what we have doctrinally
                   Can think of this case as reverse incorporation
                                                                                                               th
                            Takes something that applied only to the states and incorporates it through 5 Amend.
                                due process to the Fed. Gov.
                            From this case on, any case could be challenged on an equality theory through the due
                                process clause
                   Overall doctrinal finding on Boiling is very extensive
         Today, education is one of the most important functions of state and local governments
         “To separate minority children from others of similar age and qualifications solely because of their race
             generates a feeling of inferiority as to their status in the community and may affect their hearts and minds
             in a way unlikely ever to be undone”
   Brown II (pg 472)(1955)
         Justice Warren wrote the opinion for the Crt.
         OVERVIEW: The court held that because of their proximity to local conditions and the possible need for
             further hearings, the courts that originally heard the cases could best perform judicial appraisal of whether
             local school authorities' actions constituted good faith implementation of the governing constitutional
             principles to accomplish admission of students to public schools on a racially nondiscriminatory basis.
         OUTCOME: The court reversed the lower courts' judgments, with the exception of the Delaware case, and
             remanded the cases to the lower courts to take action that was necessary and proper to admit parties to
             public schools on a racially nondiscriminatory basis. The judgment in the Delaware case was affirmed and
             remanded for further proceedings.
         The Crt. wanted to know more about remedy, so it said to the parties it wanted to hear more arguments on
                                                     rd
             what each side wanted to happen (3 Round of oral arguments)
                   Potential remedial approaches
                   Questions for Briefing
                            Should we provide a remedy stating “okay desegregate now” or should we provide a
                                remedy stating “take your time”
                                                                                                                       22
                                         Should we issue a decree on how to desegregate, or should we remand these cases to the
                                          Fed. District Crts. and ask them to try to decide what to do, or assign a special master to
                                          research and decide the best course of action?
                              What did the Crt. decide to do?
                                      Desegregate gradually with speed
                                      Why did the Crt. allow gradualism in this case?
                                               Crt. did not want to suggest that schools had the right to drag their feet, but the
                                                   Crt. recognizes that there are real logistical issues in play here
                                               Crt. of equity is a proper Crt. for deciding this issue
                                      Per Bloom:
                                               Internal Sp. Crt. deliberations tend to indicate that this was the price of
                                                   unanimity (Southern districts must have time to adjust, must be gradualism)
                                               They were not certain what kind of support they would get from the executive
                                                   branch in terms of enforcement
                                                          Eisenhower was lukewarm to the idea and he pressed for gradualism
                              Who should go about it?
                                      Wanted the local Crts. to give the feeling that it is coming from the local level, not the
                                          Fed. level
                                      Crt. understands that it is going to take a lot of heat for this, they needed to push some of
                                          the blame onto the lower crts. and back off for a little bit
                                      We don’t know the nature of the problem or what needs to be done.
                                      We don’t know all of the issues for each district, but the lower court judges will and they
                                          can tailor an appropriate remedy
                                      Lower courts are closer to the social scene
                                      Should the Court have entered into an immediate remedy for the Plaintiff’s in this case?
                                               P’s took a lot of flack over this, Justice Black argued that the P’s should get
                                                   something immediate
                                               Is it appropriate for the Crt. to act strategically in this case instead of immediate?
                                                          Most P’s in this case never got the benefit of the judgment
                                                          Can argue that the Crt. has to think strategically, long term
                                                                   Long term is effective desegregation
                                                          Arguably the Crt.’s job is to say what the law is, not to enforce it, that is
                                                              the executive’s job
                                                                   Crt. should not be worried about the long term, must give a
                                                                       remedy to the winner of the case
                                                          Crt. throughout history has been concerned with implementation, even
                                                              though its job is to say what the law is and back off
                   For 10 years the Sp. Crt. does not get involved with desegregation in a major way, they leave it to the State
                        Courts
           Cooper v. Aaron (pg 476)
                   All justices singed the opinion as if they all had authored the opinion
                   Arkansas tried to stop desegregation
                   Crt. made its largest statement ever in this case that it must be obeyed
           Griffin
                   We will shut down our school rather than desegregate
                   Crt. shut down for two reasons
                              1. You can’t do away with the public education system for private schools instead
                              2. When you are under an order to desegregate, you must do it
o   Civil Rights Act of 1964 (pg 477)
           Gave the Fed. Gov. the right to dispense a lot of $$$ to school districts who desegregated
           This had a significant impact for helping with desegregation
                   School districts could not turn down the $$$
                   H.E.W. guidelines stated what could or could not qualify for the $$
o   Brown was hard to apply for several reasons
           Court did not narrow its opinion and many did not know what it stood for
           In most states, the state merely repealed segregation laws, but other policies would stand in their place
                   Just could not be based on race
                   But the division between Black and White students were drawn already and nothing really changed except
                        for the law on the books
           Might stand for if you had been legally segregating, you have to integrate the schools
           Crt. never really answered what they meant for 13 years after Brown until Green
                                                                                                                                      23
o   Green v. County School Board (pg 477)(1968
         Justice Brennan wrote the opinion
         OVERVIEW: The parents maintained that the board had not taken appropriate steps to desegregate the school
             because no white child had chosen to go the traditionally all black school and only 15 percent of the black children
             attended the traditionally all white school. The parents asserted that better options were available that would
             affirmatively cause integration. The court reversed the decision and held that the board's freedom-of-choice plan
             could not be accepted as a sufficient step to effectuate a transition to a unitary system. In the three years that the
             plan had been in place during the appeals, virtually no integration had occurred. Rather than affirmatively
             dismantling the old dual system, the plan placed the burden of integration on the parents. The court ordered the
             board to adopt steps to convert promptly to a system without a segregated school. It was incumbent on the board
             to establish that any proposed plan promised meaningful and immediate progress toward disestablishing state-
             imposed segregation.
             OUTCOME: The court reversed the decision of the lower court and required the school board to take affirmative
             action in adopting a plan to desegregate the school system without placing the burden on the parents.
         Crt. says “we really mean the time is up, no more segregated schools”
         Finally explained the nature of the original mandate in Brown
         Obligation of Brown is to effectively integrate
                   If you are operating under a duel school system, it must be abolished and replaced with an integrated
                      school system
         Case that comes closest to saying what “complete integration” means
                   All things integrated, classes, sports etc.
         District Crt. has to conclude in order to release the case either:
                   Unitary status has been achieved (every aspect of school has been integrated)
                   School has done everything that it can conceivably do to integrate
         A year later the Crt. in Alexander affirmed Green
                   School District said it was too far into the semester to break everybody up, let us have to the end of the
                      school year
                   Sp. Crt. said you have been delaying for 8-10 years, enough is enough
                   Crt. we don’t want to hear anymore rationalizations for “expedient speed”
         Swann v. Charlotte-Macklenburg Board of Education (pg 478)(1971)
                   Justice Burger wrote the opinion
                   PROCEDURAL POSTURE: Petitioner filed a motion for further relief under a school desegregation order,
                      which the district court granted, adopting a new desegregation plan. The United States Court of Appeals for
                      the Fourth Circuit affirmed in part, but vacated in part and remanded. The Court granted certiorari,
                      reinstating the district court's order pending further proceedings. On August 7, 1970, the district court
                      ordered that a revised plan stay in effect.
                      OVERVIEW: All parties agreed that the school system failed to achieve the "unitary" school system required
                      by the Equal Protection Clause. The district court stated that efforts should be made to reach a 71 percent
                      white to 29 percent Negro ratio in the schools, which reflected the system's student population. The final
                      board plan left 10 schools 86 percent to 100 percent Negro and yet categorically rejected the techniques of
                      pairing and clustering. The Court held that where the proposed plan contemplated the continued existence
                      of some schools that are all or predominately of one race, such schools should be scrutinized, and the
                      school authorities had the burden of showing that such racial composition was not the result of present or
                      past discriminatory practices. The plan adopted by the district court used zoning, pairing, and grouping
                      techniques in the elementary schools so that schools throughout the system would be from nine percent to
                      38 percent Negro. The Court upheld the district court's flexible use of mathematical ratios as a starting
                      point rather than as an inflexible requirement. The district court's plan was reasonable, feasible, and
                      workable, even though it required busing.
                      OUTCOME: The Court affirmed the judgment of the court of appeals as to those parts in which it affirmed
                      the judgment of the district court. The order of the district court, dated August 7, 1970, was also affirmed.
                   Swann articulated 3 principles that would later guide school desegregation cases:
                            1. Constitutional violation stems from purposeful state manipulation of schools’ racial composition
                            2. The scope of judicial power was limited by the scope of the constitutional violation
                            3. Once a school district achieved “unitary” status, judicial intervention should cease
                   How do achieve unitary status when residential segregation occurs on its own?
                            Crt. said it is up to the Dist. Crt. to come up with a plan for real integration
                   Dist Crt. can
                            Redraw district lines to mix up the district
                            Create magnet schools that are attractive to kids through the district
                            You can engage in busing!
                                     Not impermissible as long as it is not too burdensome
                                                                                                                                 24
                            Most kids ride school buses anyways
         As a matter of doctrine, it recognizes a broad principle
                   1. Extreme deference to fed. dist. Judges
                            They know the most about their district
                            They know what will work
         Places desegregation litigation in the hands of the lower courts after this case
         Ancient principle of equity
                   The scope of the remedy should be guided by the scope of the injury
                            Must be a reasonable relationship
                            Starting point for assessing judicial remedies
                   As long as the Dist. Crt. applies this, we will stay out of the case
   The De Jure/De Facto Distinction and Limits on Courts’ Radical Powers
         Swann was the last major desegregation decision that was entirely “southern” in its orientation
         Good things about Brown opinion
                   Ambiguity of the scope of Brown I provided the Court with flexibility to respond to critics
                   “All deliberate speed” formulation allowed the Court to avoid defeat when significant progress was
                       not politically feasible, then to push ahead when it changed
         Desegregation was partially successful because of demography of small rural areas and an accident of
             history (some districts had started mixing urban with suburban populations)
   Keyes v. School District No. 1 (pg 480)(1973)
         Justice Brennan wrote the opinion
         PROCEDURAL POSTURE: Petitioner parents sought review of a judgment from the United States Court of
             Appeals for the Tenth Circuit, which partially ruled in favor of respondent school board in the parents' suit
             alleging de jure segregation in the Denver school system. The school board was not required to desegregate
             core city schools.

            OVERVIEW: Although the district court found that the school board had engaged in an unconstitutional
            policy of deliberate racial segregation with respect to schools in the Northeast area of the city, the district
            court required the parents to make a fresh showing of de jure segregation in each area of the city for which
            they sought relief, including the core city area. The appellate court upheld this approach. The Court held
            that both lower courts erred. The Court held that a finding of intentionally segregative school board actions
            in a meaningful portion of a school system created a presumption that other segregated schooling within
            the system was not adventitious. It established a prima facie case of unlawful segregative design on the part
            of school authorities, and shifted to those authorities the burden of proving that other segregated schools
            within the system were not also the result of intentionally segregative actions. This was true even if it was
            determined that different areas of the school district should be viewed independently of each other.

            OUTCOME: The Court modified the judgment of the appellate court to vacate instead of reverse the parts
            of the final decree that concerned the core city schools, and remanded the case to the district court for
            further proceedings.
           Before this case, the Crt. assumed de jure segregation
                  Local law established segregation as a matter of law
                  Not so much in the North, but there were extreme de facto segregation
                            Does this violate the constitution?
           Denver never had a legal policy of segregation, but one portion of the school district had been deliberately
            segregated by the school board
                  Does this constitute a violation?
                  If so, to what extent?
           Court assumed that P’s bore the burden of establishing that segregated schools had been brought about or
            maintained by intentional state action
                  Does not have to be a law in the books, P’s just had to show it was intentional
                  To have an equal protection violation, you must show some degree of discriminatory intent
                            If you can’t show that, you don’t have a violation
                            Discriminatory intent is a part of your prima facie case
                  Scope of the remedy must meet the scope of the violation
           Once such a showing had been made regarding a substantial portion of the school system, P’s were not
            required to show deliberate segregation as to each school w/in the system
                  Scope of the right scope of the remedy consolidation
                            2 Assumptions
                                    1. Presumption of Effect- Geographical and Temporal
                                    2. Presumption of Intent
                                                                                                                        25
   Discrimination in this case did occur for a while, but it was only in a small part of the district and it
    happened a long time ago, but it was not intentional when it occurred regarding this case
          Crt. said we will presume if you have de jure discrimination in a small part of the district and de
             facto discrimination in the rest of the district, we will assume that there is discrimination
          We will assume that if there is intentional discrimination in one part of the district, it exists in all of
             the district
                   These are nearly impossible burdens to carry
          But school district may rebut these assumptions
                   It is difficult though
          Crt. suggests that it is only creating presumptions, but this is an area where placing the burden of
             proof is outcome determinatitve
                   If you have an issue that is impossible to prove one way or the other, whoever has the
                       burden of proof is probably going to loose
                   As a practical matter, the presumptions create in Keyes resulted in giving a tool to pro-
                       desegregation Ps
   What is it that the state would have to show to rebut the presumption?
          Hypo: Suppose an area has grown substantially and it needs to new schools and the two schools
             are built one in a Black neighborhood and the other in a White neighborhood, one on each side of
             a highway
          This would be permissible if they did not intentionally intend to keep the two races of children
             separate
          School would argue that their practical decision should not be overshadowed by the segregation
             intent
                   Sp. Crt. says NO, you engaged in intentional discrimination, it does not matter the other
                       reasons why you did what you did
                   Non-discriminatory reasons would not come into play
                   School district would have to show that they did not have any discriminatory reasons at all
                       in order to win
   Concur & Dissent: Justice Powell
          Only white Southerner on the Court at the time
          De facto- in fact
          De jure- in law
          Powell called for abandoning constitutional principles of regional in nature for national principles
          Did not like the idea of busing because it “infringes on what may fairly be regarded as other
             important community aspirations and personal rights”
   Dissent: Justice Rehnquist
          Dissented on the ground that courts should not assume that a finding of manipulation with respect
             to a few attendance zones transformed all segregation w/in a school system into a constitutional
             violation justifying judicial intervention
   Moving away from desegregation
          Tipping Point- as the proportion of black students w/in a particular school increased, white
             students might abandon the school with increasing velocity
   Court response
          Court held that political opposition and “white flight” were not excuses for avoiding constitutional
             requirements of desegregation
   Milliken v. Bradley (pg 482)(1974)
          Justice Burger delivered the opinion
          PROCEDURAL POSTURE: Respondents, a class of Detroit school children and resident parents, filed
             an action against petitioners, various state and local officials, which sought the implementation of
             a desegregation plan in Detroit schools. The United States Court of Appeals for the Sixth Circuit
             affirmed the decision ordering the implementation of a plan that involved suburban and
             metropolitan school districts. Petitioners appealed the decision.

             OVERVIEW: At trial, the district court found that governmental actions at all levels had combined
             to establish and maintain a pattern of residential segregation throughout the city of Detroit.
             Accordingly, the trial court ordered the implementation of a cross-district school desegregation
             plan in order to truly integrate the school systems. The appellate court affirmed the order. The
             court stated that a federal remedial power could be exercised only on the basis of a constitutional
             violation and the nature of the violation would determine the scope of the remedy. The court
             further found that before the boundaries of separate and autonomous school districts could be set
             aside by imposing a cross-district remedy, it must first be shown that there had been a
                                                                                                                   26
             constitutional violation within one district that produces a significant segregative effect in another
             district. Specifically, it must be shown that racially discriminatory acts of the state or local school
             districts, or of a single school district, have been a substantial cause of interdistrict segregation.

              OUTCOME: The judgment of the lower court was reversed and the case was remanded for further
              proceedings, including the formulation of a decree directed at eliminating the segregation found to
              exist in the Detroit city schools.
          School district said “there are not enough white kids to go around”, Dist. Crt. told school district to
              engage in cross district busing to achieve integration
          Before you can rope other districts into a desegregation scheme, you have to prove that
              segregation was being used in the other districts
          In cases where boundaries between school districts were deliberately drawn to create segregated
              school systems, a Fed. Crt. could order a remedy that includes reassigning pupils across district
              boundaries or redrawing school district boundaries
                    However, the fact that a single school district had engaged in purposeful racial
                        segregation did not authorize the fed. courts to reach into adjacent districts
          What can a district judge in a district like Detroit do?
                    Crt. said best they could do is try and improve their schools in a variety of ways (magnet
                        schools etc.)
                    Real answer is can’t meaningfully integrate, but you can try and make things better
                        through other means
          Dissent: Written by Justice Marshall and joined by Justices Douglas, Brennan, and White
                    Dissent believed that the Court rendered district judges powerless to require States to
                        remedy its constitutional violation in any meaningful way
   Milliken v. Bradley II (pg 483)(1977)
          Court rejected the notion that desegregation remedies were limited to pupil assignments and held
              that a district court judge could order the expenditure of state funds for remedial education as
              part of an effort to place victims of unconstitutional conduct in the position they would have
              enjoyed, but for the violation
   Missouri v. Jenkins I (pg 484)
          Facts: KS City Sch. District was mainly black & had no real hope for integration. So KS City D.Ct
              wanted to battle white flight & ordered a tax increase to finance/create super school district w/
              amazing amenities.
                    Petting zoos, Olympic size swimming pools etc.
          H: S.Ct said cts can’t order tax increase to finance improvements. BUT can order improvement &
              d.ct can find another way to get the $.
                    Taxing is a legislative function & ordering tax increase is abuse of discretion
   Jenkins II
          Facts: d.ct spent a lot of $ trying to make super district. Straw that broke back was d.ct ordered
              teacher salaries to be > than best suburban sch districts.
          H: ct cannot order district to spend money to create an urban district so strong that it would
              reverse white flight when there is no proof of intentional segregation by suburban districts. Abuse
              of discretion.
   U.S. v. Fordice [1992][what is the sufficient remedy at the UNIVERSITY level?] [NOT IN OUR BOOK]
          Facts: Miss. Operated 3 white univs, 1 predominantly black univ, & 2 primarily black & 2 primarily
              white regional colleges. 99% whites were enrolled in white schools, 71 % of blacks attended black
              schools.
          H: State has duty to remedy segregation that resulted from its actions. Brown applies if you have
              situation where state legally places system that segregates. There is a same duty to integrate. But
              more complicated b/c you choose where you go to college.
          2 seemingly contradictory evidences to show that segregative system was in place
                    duplicative programs at geographically close black & white colleges hints segregation
                    completely different programs at black & white colleges also hints segregation
          Remedial aspect was difficult because:
                    Unlike grade schools, you don’t go to a college because you live in a particular
                        neighborhood
                              Bussing remedy at the college level makes no sense
                    Black colleges did not want their focus on black students to be lost
                              Crt. said they would not necessarily want to abolish this
   What was the result of desegregation litigation?
          Resulted in a fair amount of desegregation in the deep South
                                                                                                                  27
                                        Created the notion in Const. Law of structural reform litigation
                                               Rather than having cases where one individual would bring a case, P’s can bring a suit
                                                    between several P’s to make a larger case
                                                          Crt’s would attach continuing jurisdiction in cases to make sure that their orders
                                                             were carried out
                                                          Also seen in prison reform
                                      Brown brought equal protection to the forefront
                                               Went from being a loser of an argument to the first one you should make
                                      Brown also brought to the forefront the struggle between the minority needing protection from
                                         the majority and it is the role of the court to protect these minorities
                                      Gave the notion to judges that they are a sort of “white knight” who is there to solve the problems
                                         of society
   Equal protection methodology: Rational basis review
        o Any attack on legislation must be able to pass the rational basis review analysis
                  Does it have a legitimate rational purpose?
        o Broadly: equal protection claims involve a challenge to laws that allocate benefits or impose burdens on a defined class of
            individuals
                  P in an equal protection case claims that the gov. has drawn the line between the favored and disfavored groups in
                      an impermissible way
                            Cannot make the argument solely on two groups being treated differently
                            Ex.: To be eligible to drive a car, you must be at or above the age of 16. Treats the two groups differently
                                      Rational:
                                               We think you should have a certain maturity level, and 16 is a good enough age for
                                                    deciding that (must be tall enough to see over the dashboard and reach the pedals)
                                                          This is over and under inclusive (it is not perfect, but we can only do what we can
                                                             do)
                                                          As long as we are applying the differential st. of review, we are okay (wide
                                                             margin of error)
                                                          Crt. recognizes that legislation by definition stigmatizes, classifies, and
                                                             stereotypes different groups in order to protect the overall population
                                      What this boils down to is that as a general rule, the state is not required to treat you as a
                                         distinct individual, instead the Crt. can treat you as a member of a group
                                               State cannot afford to treat everyone like a unique individual
        o Equal protection requires that the state treat similarly situated people, similarly and dissimilar situated people dissimilarly
        o Rational standard of review is very easy for the state to overcome
        o THE REAL QUESTION IN EQUAL PROTECTION CASES involves deciding whether, under particular circumstances, a challenged
            classification is permissible
                  Court approach (3 questions)
                            1. How has the gov. defined the group being benefited or burdened (“means”)
                            2. What is the goal the gov. is pursuing (“ends”)
                            3. Is there a sufficient connection between the means the gov. is using and the ends it is pursuing? (“fit” or
                                “nexus”)
                  Reviewing Court asks whether the line the gov. has drawn is related in a discernible way to the achievement a
                      permissible gov. purpose
                            CALLED RATIONALITY REVIEW
                            Is differential
                  The gov. may use constitutionally suspect classifications only when their use is tightly tied to achieving a very
                      significant gov. objective
                  Policies that satisfy the default standard of rationality review might run afoul of the more demanding standards
                      applied in cases involving suspect classifications
        o Sunstein (author of casebook) made the argument that at least there must be some purpose beyond shifting of money to
            make a statute legal, must be a legitimate public purpose for the public’s well being
                  Fritz [note case] argument against naked public theory
                                Shows its difficult to determine to what extent there is legit public purpose or when it is simply a legislative
                                compromise.
                            Here, the rationale for legit purpose was that it is better to eliminate most of double benefits while
                                retaining some than eliminating none at all.
        o New York Transit Authority v. Beazer (pg 490)(1979) (Stevens)
                  OVERVIEW: This litigation was brought by four individuals as a class action on behalf of all persons who had been or
                      would in the future be subject to discharge or rejection as employees of the public employer, a transit authority, by
                      reason of participation in a methadone maintenance program. Their complaint alleged that the employer's blanket
                                                                                                                                               28
             exclusion of all former heroin addicts receiving methadone treatment was illegal under Title VII of the Civil Rights Act
             of 1964 (Title VII), 42 U.S.C.S. § 2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment. The
             court held that as the rule was not motivated by racial animus, there was no rebuttal claim that it was merely a
             pretext for intentional discrimination, and the findings did not support the conclusion that the regulation prohibiting
             the use of narcotics violated Title VII. While it may have been unwise for the employer to rely on a general rule
             instead of individualized consideration of every job applicant, it concerned matters of personnel policy that did not
             violate equal protection principles, and the Constitution did not authorize a federal court to interfere in such policy
             decisions.
             OUTCOME: The court reversed the judgment.
         In this case, policy was not aimed against any particular person or group of people, but instead it is a policy choice
                   “Because it does not circumscribe a class of persons characterized by some unpopular trait or affiliation, it
                      does not create or reflect any special likelihood of bias on the part of the ruling majority”
         Dissent written by Justice White joined by Justice Marshall
                   Talked about “employability”
                            Employers should not expect every employee to be a model employee
                            TA did not provide evidence to distinguish methadone users from non-methadone users
                            Rule’s classification of successfully maintained persons as dispositively different from the general
                                 population is left w/out any justification and, with its irrationality and invidiousness thus
                                 uncovered, must fall before the Equal Protection clause
                   Blanket exclusion of only methadone using people, when only a few are actually unemployable and other
                      groups have varying numbers of unemployable members, is arbitrary and unconstitutional
                            Brought up the point that many people are on many different drugs for mental reasons, why does
                                 it matter more for this group?
o   Equal treatment and relevant differences
         Problem of equality: Providing similar treatment for two groups will not result in equal treatment if the groups are
             not similarly situated.
         Measuring equality
                   Formal Treatment- as long as each indiv. is subjected to the same selection regime, equality is satisfied
                   Outcomes- as long as each indiv. obtains the same level of benefits, equality is achieved
         Equality may also be achieved by denying both groups the benefit
         “relevant differences” principle
                   A difference is relevant if, but only if, it bears an empirical relationship to the purpose of the rule
                   May become meaningless unless some restriction is placed on the kinds of purposes the leg. may pursue
o   Limitations on Permissible Gov. Purposes
         What makes a leg. purpose invalid under the equal protection clause?
                   Purposes that are forbidden by other const. provisions
                   But, a principle that moral disapproval is always a permissible gov. purpose would swallow up the equal
                      protection clause
                            Since withholding a benefit or imposing a burden on a defined class can always be said to serve the
                                 gov. purpose of expressing disapproval or creating an incentive for indv. to forswear conduct of
                                 which the gov. disapproves
         U.S. Department of Agriculture v. Moreno (pg 495)(1973) (Brennan)
                   OVERVIEW: Appellees consisted of several groups of individuals who alleged that, although they satisfied
                      the income eligibility requirements for federal food assistance, they were nevertheless excluded from the
                      program solely because the persons in each group were not all related to each other. The district court held
                      that the "unrelated person" provision of 7 U.S.C.S. § 2012(e) created an irrational classification in violation
                      of the equal protection component of the Due Process Clause of the Fifth Amendment. On certiorari, the
                      Court affirmed, holding that the "unrelated person" provision was irrelevant to the state purpose of the
                      Food Stamp Act and did not operate to rationally further the prevention of fraud. The classification acted to
                      exclude not only those who were likely to abuse the program, but also those who were in need of the aid
                      but could not afford to alter their living arrangements so as to retain their eligibility.
                   OUTCOME: The Court affirmed the district court's determination that the unrelated household classification
                      was invalid because it was irrelevant to the stated purpose of the Food Stamp Act and was not rationally
                      related to furthering any legitimate government interest.
                   “Under traditional equal protection analysis, a leg. classification must be sustained if the classification itself
                      is rationally related to a legit. Gov. interest”
                   “If it is to be sustained, the challenged classification must rationally further some legitimate gov. interest
                      other than those specifically stated in the act”
                   Justice Douglas wrote a separate concurring opinion
                   Dissent by Justice Rehnquist whom Justice Burger joined
                            Fed. purpose was evident that the gov. wanted to stop food stamp abuse
                                                                                                                                   29
             City of Cleburne v. Cleburne Living Center (pg 498) (1985)
                    OVERVIEW: Respondent sought to open a home for the mentally retarded in petitioner city. Under the
                        zoning ordinance, petitioner refused to give respondent the permit. The zoning ordinance specifically
                        restricted the home because the occupants were mentally retarded even though the home complied with
                        space requirements for the occupants. Respondent alleged that the ordinance was unconstitutional and in
                        violation of the Equal Protection Clause. The Court held that the mentally retarded were not a quasi-
                        suspect class. The Court held that to withstand equal protection review, legislation that distinguished
                        between the mentally retarded and others must be rationally related to a legitimate governmental purpose.
                        As no rational purpose was present, the Court held that the ordinance was invalid and remanded the action
                        to the lower court.
                    OUTCOME: The court affirmed the appellate court's judgment that petitioner's zoning ordinance was
                        invalid as it applied to respondent, vacated the judgment that mental retardation was a quasi-suspect class,
                        and held that mental retardation was a characteristic that the government may legitimately take into
                        account.
                    “Mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning
                        proceeding are not permissible bases for treating a home for the mentally retarded differently from
                        apartment houses, multiple dwellings, etc.”
                    Justice Stevens wrote concurring opinion
                              “The word ‘rational’ includes elements of legitimacy and neutrality that must always characterize
                                  the performance of the sovereign’s duty to govern impartially
                    Justice Marshall concurred in the judgment
             Romer v. Evans (pg 498) (1996)
                    Justice Kennedy wrote the opinion
                    OVERVIEW: In Colorado, various ordinances that afforded protection to persons discriminated against by
                        reason of sexual orientation gave rise to a statewide controversy. In a statewide referendum, voters passed
                        what was known as Amendment 2 (Colo. Const. art. II, § 30b). Amendment 2 prohibited all legislative,
                        executive, or judicial action at any level of state or local government designed to protect homosexual
                        persons. Respondents, homosexual persons and municipalities whose ordinances were invalidated,
                        commenced litigation to declare Amendment 2 invalid and enjoin its enforcement. The state supreme court
                        affirmed the judgment that enjoined enforcement of Amendment 2. The United States Supreme Court
                        affirmed. Amendment 2 violated the Equal Protection clause, U.S. Const. amend. XIV, because the
                        classification was unrelated to any legitimate state interest. Amendment 2 withdrew from homosexuals,
                        but no others, specific legal protection from the injuries caused by discrimination, and it forbid
                        reinstatement of protective laws and policies. Amendment 2 thus classified homosexuals not to further a
                        proper legislative end but to make them unequal to everyone else.
                    OUTCOME: The Court affirmed the judgment of the state supreme court.
                    Statutes defied conventional rational basis inquiry by:
                              1. Amend imposed a broad and undifferentiated disability on a single named group
                              2. Sheer breadth of statute is so discontinuous w/ the reasons offered for it that the amendment
                                  seems inexplicable by anything but animus toward the class that it affects and lacks a legitimate
                                  state interest
o   Note:   “Actual Purpose” Review (pg 500)
             McGowan v. Maryland : “The constitutional safeguard is offended ONLY IF the classification rests on grounds wholly
              irrelevant to the achievement of the State’s objective
             State legs. are presumed to have acted w/in their constitutional power despite the fact that, in practice, their laws
              result in some inequality
             Statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it
                    Neither the Court nor individual justices have been altogether consistent on the issue of review based on
                        actual purpose
             Minnesota v. Clover Leaf Creamery Co. (pg 500)(1981)
                    Justice Brennan wrote the opinion
                    PROCEDURAL POSTURE: Petitioner state challenged the order of the Supreme Court of Minnesota, which
                        enjoined the enforcement of Minn. Stat. § 116F.21 (1978), which banned the retail sale of milk in plastic
                        nonreturnable, nonrefillable containers, but permitted the sale of milk in other nonreturnable, nonrefillable
                        containers. Respondent dairy contended that the statute violated the Equal Protection and Commerce
                        Clauses.

                       OVERVIEW: The Court reversed the order that enjoined the enforcement of Minn. Stat. § 116F.21 (1978),
                       which banned the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitted milk
                       sales other containers. The controversy centered on the narrow issue of whether the legislative
                       classification between plastic and nonplastic, nonreturnable milk containers was rationally related to
                                                                                                                                     30
                                achievement of conservation. Because the question was at least debatable, the state supreme court erred
                                in substituting its judgment for the legislature's. The Court sustained § 116F.21 under the Equal Protection
                                Clause, concluding that it was rationally related to the State's objectives. From there, it followed that §
                                116F.21 did not violate the Fourteenth Amendment's Due Process Clause. As to the Commerce Clause, the
                                Court found that § 116F.21 did not discriminate between interstate and intrastate commerce. The
                                controlling question was whether the incidental burden imposed on interstate commerce by § 116F.21 was
                                clearly excessive in relation to the local benefits. The statute's burden on interstate commerce was
                                relatively minor, and there was a substantial State interest involved.

                                OUTCOME: The Court reversed the state supreme court's order and sustained the state statute that banned
                                the sale of nonreturnable, nonrefillable plastic milk containers.
                             “Rational basis” test- St. of Review
                             “States are not required to convince the courts of the correctness of their legislative judgments”
                      Under actual purpose review, per Justice Rehnquist, a litigant must:
                             1. Convince Crt. that the legs. had a particular purpose in mind in enacting the law, AND
                             2. Convince Crt. that the law was not at all suited to the accomplishment of that purpose
        o   Note:    The Means-End Nexus (pg 504)
                      To survive equal protection review, a classification must bear some connection to a permissible gov. end
                      In almost all cases, the classification will not be perfectly efficient but will be either “overinclusive” or
                       underinclusive” or both.
                             Overnclusive- disadvantages a larger class than is needed to achieve the state’s purpose
                             Underinclusive-some people are not disadvantaged even though the failure to include them undermines
                                achievements of the state’s interest
                      Permissibility of a leg. generalization must turn on the cost of the generalization as compared to the cost of a more
                       individualized judgment
                             To strike the balance, one must first weight the importance of each side and then discount each side by the
                                risk of error
                      Railway Express Agency v. New York (pg 506) (1949)
                             OVERVIEW: The business owner was engaged in a nation-wide express business and operated about 1,900
                                trucks in New York City. It sold the space on the exterior sides of the trucks for advertising, which, for the
                                most part, was unconnected with its own business. The business was convicted in the magistrate's court of
                                violating § 124, which prohibited the operation of an advertising vehicle except where such vehicles were
                                engaged in the usual business of the owner and not used mainly for advertising. The business owner
                                appealed, arguing that the regulation's aim and purpose did not justify unequal treatment on the basis of
                                such a distinction and that the classification had no relation to the traffic problem because a violation
                                turned not on what kind of advertisements were carried on trucks, but on whose trucks they were carried.
                                The Court held that if the classification was related to the purpose for which it was made, then it did not
                                contain the kind of discrimination against which the Equal Protection Clause afforded protection. Therefore,
                                the court affirmed the lower court's judgment.
                                OUTCOME: The Court affirmed the lower court's decision.
                      Williamson v. Lee Optical (pg 508)(1955)
                             Justice Douglas wrote the opinion
                             OVERVIEW: The optician sought to have Okla. Stat. Ann. tit. 59, §§ 941-947 (1951) declared
                                unconstitutional because the effect of § 941 was to forbid an optician from fitting or duplicating lenses
                                without a prescription from an ophthalmologist or optometrist. In practical effect, it meant that no optician
                                could fit old glasses into new frames or supply a lens without a prescription. The trial court found that
                                portions of the statute were unconstitutional. On appeal, the United States Supreme Court held that,
                                although the law might have exacted a needless, wasteful requirement in many cases, it was for the
                                legislature, not the courts, to balance the advantages and disadvantages of the new requirement. In
                                reversing the judgment, the Court held that the law did not violate the Equal Protection Clause of the
                                Fourteenth Amendment and that the law's prohibition on the use of advertising for the sale of eyeglasses
                                and lenses was constitutional because the legislature could treat all who dealt with the human eye as
                                members of a profession who should use no merchandising methods for obtaining customers.
                                OUTCOME: The Court reversed the portion of the trial court's judgment holding that part of the Oklahoma
                                statute was unconstitutional, and the Court affirmed the remainder of the judgment.
                      A P can bring an equal protection claim even if she belongs to a “class of one” when she “alleges that she has been
                       intentionally treated differently from others similarly situated and that there is no rational basis for the difference in
                       treatment”
   Strict Scrutiny
         o Does not mean that the statute will never be found to be proper
         o Found first in Korematsu where the Crt. said that race is a suspect justification
                                                                                                                                              31
          Must be supported by a “pressing public necessity”
   3 characteristics of strict scrutiny
          Highest order of fundamental interest
                   Tailoring analysis
                             Focus is on the means/ends connection
                             To what extent does the means of the state purpose/ends justify its means
          Narrow tailoring
                   Little to none over/under tailoring
          No less discriminatory alternatives
   Why does it matter?
          Is a suspect classification
          Perhaps there are other suspect classifications as well
                   If you want to make an argument that other classifications can be considered suspect, the best
                       way to make that argument is to analogize the argument to race
   Loving v. Virginia (pg 518) (1967)
          Justice Warren wrote the opinion
          Ct H: VA statute prevented marriages between whites & blacks violates EPC.
          State arg: applies equally to whites & blacks so it was const.
          Ct: mere equal application of statute containing racial classification doesn’t remove it from being invidious
             racial discrim! Standard: strict scrutiny.
          Concurring opinion by Justice Stewart
                   Justice Stewart took a broader view of the matter
   8 Different reasons why race can be considered a suspect classification (pgs 521-526)
          Original understanding
                                                                                          th
                   Equal protection clause came into the Const. through the 14 Amend. and racial discrimination
                                                                                       th
                       that followed the Civ. War was a primary reason for the 14 Amend and the Equal Protection
                       clause
                             We know discrimination is what the writers of the Amend. were worried about
          Stigmatizes
                   Racial classifications send out a public message of inferiority
             Process- Caroline Ftnote Paragraph 3
                   Maybe if we have a situation in which because of prejudice, minorities are unable to utilize the
                       political process the same way the majority does, then there should be a higher degree of review
                   Stone said
                             Prejudice
                             Discrete
                             Insular
                             Minorities
                             Political Process
                             Madissonian idea of the way democracy works in a large republic in Madisson 10
                                        As a general rule, there is no a coherent majority that can be relied on to pass
                                           legislation that is in everyone’s best interest
                                        You have to be able to build a coalition of interest groups, you have to come up
                                           with some sort of plan to include all interest groups (republican theory of gov.)
                             As long as various groups, including insular minorities, can form interest groups to achieve
                                  their goals, the process works
                             Assumes:
                                        We are talking about hardcore prejudice
                                        It is not enough that you are talking about a group that looses on a particular
                                           issue, there is going to be a loser in every battle
                                                  It is only when you have a group that is excluded over and over again
                                                     that this theory kicks in, which would indicate that this theory is not
                                                     working at all
                             “Discrete and insular minorities” are the minorities that Justice stone addresses
                                        Discrete- readily identifiable
                                        Insular- isolated/unable to build protective political coalitions
                                        The Crt. should take a harder look when this process breaks down
                                        Crt. assumes hardcore prejudice that would overrule community of interest
                   Critique by Ackerman
                             As a matter of public policy, insular and discrete minorities do better in the public process
                                  than others
                                                                                                                          32
                                                    Discreteness allows them to find each other easier
                                                    Insularity means they have a common interest and can come together easier
                                                     than those without strong interest
                   Irrelevant & Unfair (Immutability)
                             You should not be held down because of the color of your skin
                             However, there are some instances where the state can (i.e. if you are blind, you should not be
                                 driving a car)
                             Race is immutable and irrelevant (it does not have any debilitating effect on a person)
                   History of Subordination (Anti-subordination)
                             One or more races have been considered inferior to others (ex Plessy)
                             Given the history of America, our history is for Anti-Subordination
                                       In Plessy the Crt. said that America does not have a caste system
                   Racialism
                             Ideally we would like to reach a race neutral society, and the extent to which the state uses race, it
                                 enforces the notion that race matters
                             May give rise to the notion that race should matter and we should classify people by racial terms
                             If we want to be a more race blind society, using racial classifications for even benign reasons is
                                 not acceptable
                   Colorblind Theory
                             Race is almost always a troublesome characteristic to rely on
                             Almost always does more harm than good
                             Must be a heavy disposition against seeing color of skin
                             Const. is colorblind
                   “Smoking Out” Theory
                                 To the extent race was being used in the racial discrimination era, the problem there is that there
                                 is no legitimate state interest
                                       Analysis should stop there because you have no case
                             Strict scrutiny smokes out legitimate state purposes
                             Those might seem like decent enough purposes, but if you force the state to satisfy strict scrutiny,
                                 you are probably going to reveal what they are really up to
         Justifications reinforce Crt’s reasoning
o   Facially nonracial classifications that disadvantage racial minorities: when does heightened scrutiny apply?
         Washington v. Davis (pg 531) (1976) (White)
                   OVERVIEW: The trial court denied the police recruits' motion for summary judgment because the qualifying
                       test was directly related to the requirements of the police training program, and a positive relationship
                       between the test and training course performance was sufficient to validate the former. The appellate court
                       reversed that ruling because the disproportionate impact resulting from the fact that a greater proportion
                       of blacks failed the test than whites established a constitutional violation. The court reversed, holding that
                       the appellate court erroneously applied legal standards applicable to Title VII cases. The court held a
                       statute, which was otherwise neutral on its face had to be applied so as to invidiously discriminate on the
                       basis of race. The police department's efforts to recruit black officers, the changing racial composition of
                       the recruit classes, and the relationship of the test to the training program negated any inference that the
                       police department discriminated on the basis of race or that a police officer qualified on the color of his skin
                       rather than ability. Thus, it was error for the appellate court to direct summary judgment for the police
                       recruits.
                       OUTCOME: The court reversed the appellate court's judgment, which invalidated the qualifying test taken
                       by police recruits.
                   This does not look like a context where discrimination is being practiced
                   There are cases where desperate impact is so powerful, that desperate impact is obviously there
                   Sometimes the inference can get the P across the finish line, sometimes it can’t
                   Why did the Crt. in a case like this, choose intent instead of desperate impact?
                             Still an open question
                             There can be lots of reasons why different racial groups are represented in one field, some are
                                 racial discrimination, others are not, we cannot assume that every time there is disproportionality
                                 there is racial discrimination
                             A lot of neutral laws have disproportinate effects on people, whenever you can show desperate
                                 impact, cannot be allowed to stand in every case
                   There is a difference between purpose and motives
                             Legislatures have lots of different reasons for voting for the statutes that
                                       Because of this, Court will not concern itself with leg. motive opposed to leg. purpose
                                       Distinguishes cases like Palmer v. Thompson
                                                                                                                                    33
                               If the Crt. requires that in order to prove discriminatory intenet, you must do this
                                to have an equal protection case, how would you do that?
                                      Show the statute was passed for discriminatory reasons
                                      Line can get fuzzy between public purpose and individual motive
                            Why has the Crt. generally drawn this line against looking at motive versus
                                looking at purpose
                                      Separation of powers issues, Crt. does not want to grill you about why
                                          you did what you did
                                      Figuring out the motive of legislation is too difficult , often times
                                          impossible
                                      Crt. might be striking down all laws that don’t fit what they believe are
                                          good reasons
                                      Relying on improper motives would cause the leg. to control their
                                          debates too much, not allowing for free debate
                            Other side
                                      If there is an improper motive, maybe it should be taken more seriously
                                      If you have to show purpose:
                                                1. Requires some sort of explanation
                                                2. Laws would get passed for the right reasons (arguable)
                                                3. Crt. does this in great frequency in interpreting statutes, why
                                                    can’t Crt. do it in interpreting constitutional issues
                                                4. Due process of law making (laws should be passed for the
                                                    right reasons, and we should require this)
                                      What does desperate impact show
                                                Might tell us something about whether there is a
                                                    discriminatory purpose
                                                May be relatively significant in some cases, but not others
                            When the Crt. lays down Const. rules, such as here, in order to have an equal
                                protection race discrimination violation, the P must prove discriminatory intent
                                      This does not transfer to P having a complete case, P must flush out the
                                          issues
                            Disparate impact (What the Crt. could have decided)
                                      Is irrelevant
                                      Creates an inference
                                                Evidence
                                      Creates a presumption
                                                P still carries burden of proof
                                      Shifts the burden of proof
                                                D should have to show there was no discriminatory intent, P
                                                    should not have to prove that there was
                                      Constitutes a Prime Effice violation
   This case establishes that in order to properly argue discrimination under the equal protection clause
          racial impact is insufficient in itself to show racial classification. Laws that are facially race neutral
             will only be reviewed by strict scrutiny if there is proof of discrim purpose. Intent > effect.
          Showing proportionately different effect is not enough to get you there
                   Why would the Crt. conclude that desperate impact is not enough?
                            Would invalidate a lot of laws
                            Not every disproportionally is attributable to discrimination, Crt. did not want to
                                go there
                            Washington v. Davis is one of several cases where Crt. contrasts individual
                                approach versus group treatment
                                      Everybody should have the same opportunities
                                      Speaks to persons, not groups
                            Stigmatization
                                      Because of your race, we consider you inferior
                   Why desperate impact should be considered enough
                            Intent standard fails to take account of how we got to where we are
                                      Impact of past discrimination is so wide spread, we need to right a past
                                          wrong
                            Intent is harder to prove, desperate impact is easier to prove
                            No one wants to be found guilty of discrimination
                                                                                                                   34
                                                   Having to show intent is going to be very hard
                    Keys – in order to show a valid claim, you had to show
          Justice Stevens wrote concurring opinion
                    The line between discriminatory purpose and discriminatory impact is not nearly as pronounced as
                        the majority believes it to be
                    Stevens was uncertain about how to formulate the standard
   Note: Rational Basis Review of Non-Race-Specific Classifications (pg 533)
          After Washington v. Davis; Crt. confronted w/ a classification that disadvantages a racial minority must:
                    1. Determine whether it constitutes a “racial classification”
                              If classification either explicitly draws racial lines OR it is motivated by a racial purpose
                                         CRT WILL USE STRICT SCRUTINY AND PROPABLY INVALIDATE
                                  If classification is non-race specific
                                             CRT WILL USE RATIONAL BASIS REV.
                                         Despite classification’s disproportionate impact on the minority group and
                                              probably uphold the law
          Many of the arguments against an effects test assume that, so long as a disproportionate impact is
              unintended, it is merely a matter of chance
          If discrimination is in spite of rather than because of, the leg. may get away with discrimination
                    Might be because the Crt. had to have such as strict standard against the schools because w/out it
                        the school districts would ignore the Crt.
          Oregon v. Mitchell (pg 534) (1970)
                    Justice Black wrote opinion
                    Sp. Crt. unanimously upheld Congress’s nationwide ban of literacy test as a prerequisite to voting,
                        holding that the challenged statute reflected an appropriate use of congressional enforcement
                        power under the Reconstruction amendments
                    Because of “equal but separate” many children educated during that era had varying degrees of
                        education and many minorities were not able to read because of that disparity
          When classification is race specific, the purpose question is not whether leg. intended to treat blacks &
              whites differently
                    Instead the question is whether the leg. intended to disadvantage a racial minority simply for the
                        sake of harming it rather than for the sake of achieving some permissible goal
          Strict scrutiny doctrine holds that only a showing of a close fit and an overriding gov. interest can
              overcome the inference that the class. Was motivated by a desire to harm the minority
   Note: What constitutes a Racially Motivated Classification? Questions of discriminatory purpose
          Washington v. Davis provides that a Crt. should apply strict scrutiny to a facially nonracial gov. action ONLY
              IF the P can show that the action was taken for a “discriminatory purpose”
                    If P can prove this, burden shifts to Gov. to prove that the same decision would have resulted even
                        had the impermissible purpose not been considered
   Yick Wo v. Hopkins (pg 537) (1886)
          Facts: San Fran passed ordinance requiring any laundry operated out of wooden building to obtain consent
              of city. Wo didn’t receive city’s consent. San Fran only applied this ordinance to Chinese apps [gave waivers
              to nonchinese].
          H: struck down law.
          Reasoning: Since ordinance was neutral on its face, need to show discriminatory purpose. Here,
              discriminatory purpose was that the administration of the law was unconstitutional!
                    “whatever may have been the intent of the ordinance as adopted, they are applied by the public
                        authorities charged w/ the administration *thus representing the State+” so unequally &
                        oppressively that it violates EPC.
   Rice v. Cayetano (pg 539) (2000)
          To what extent is the Crt. relying on
   Palmer v. Thompson (pg 540) (1971)
          City Council closed down public pools in MS. because they were afraid that integrating the pools would
              cause violence
          P’s wanted to show that this was something of a smoke screen, they wanted to show that Jackson did not
              want to integrate so this is illegal
                    Court said they were not going to allow Ps to make this argument because they believed the
                        state’s interest was legitimate
          Taken together, Palmer and Washington suggests that a facially neutral statute is subject to enhanced
              review when it has BOTH a discriminatory purpose AND a disproportionate impact
   U.S. v. O’Brien [1968]        bad legislative motive alone is NOT enough to strike down law


                                                                                                                          35
            Facts: individuals burned their draft cards to protest the Vietnam war in violation of fed law that made it a
             crime to knowingly destroy draft cards.
         H: for govt. upheld the fed law.
         Test: as long as govt can show that there were other impt interests unrelated to suppressing free speech to
             regulate this conduct, can use it?
                   other reasons here: convenience, facilitates emergency military mobilization, aids communication
                       w/ person’s draft brd, update addy, etc.
         Takeaway: Ct wont strike down an otherwise constitutional statute just b/c alleged bad legislative motive.
   Palmer v. Thompson [1971] coupled w/ Davis, appears USSC requires both discrim purpose AND impact
         Facts: city used to run 4 white & 1 black swimming pool. Closed them all instead of integrating them.
         P: real reason they shut down was racial discrimination
         H: upheld. Did not violate EPC. Lack of funding was legit purpose.
         Test: even though racial discrim may have been part of the reason, as long as there is a legitimate purpose
             [in this case, lack of funding], that’s all city needs to show!
                   cant attempt to impeach the legit purpose w/ proof of discrim motive b/c it would be irrelevant.
         Seems to say leg intent doesn’t matter but Davis shows otherwise.
   Obrien & Palmer support why shouldn’t inquire into leg. discrim motive[3]
         Separation of powers principle – should give deference to legislature.
                   Plus, Congress could just pass law again w/ only the right reasons.
         Evidentiary problems – its hard to figure out what the motive was.
         Encouraged unnecessary litigation & remedial & judicial futility
                   the same statute would be reenacted w/ pure motivs
         plus – don’t want leg hiding their motives. This might encourage that.
   Reasons FOR inquiring into leg. Discrim motive.
         Due process of law. – ppl have right to legislation passed for the right reason. Want an untainted process.
         Law might not have been passed if leg could only take acct of proper considerations.
         Ct actually CAN often discover improper motives [no discrim prob]
         Not intrusive on leg branch b/c cts already often look closely at leg record to interpret statutes.
   Note: Distinctive Problems in the Administration of Criminal Justice (pg 542)
         Castaneda v. Partida (pg 543)(1977)
                   In order to show that an equal protection violation has occurred, D must show that the procedure
                       employed resulted in substantial underrepresentation of his race or of the identifiable groups to
                       which he belongs
                              1. Establish that group s one that is a recognizable, distinct class, singled out for different
                                 treatment under the laws
                              2. Degree of underrepresentation must be proved by comparing the proportion of the
                                 group in the total population to the proportion called to serve as jurors over a significant
                                 period of time
                              3. Selection procedure that is susceptible to abuse or is not racially neutral supports the
                                 presumption of discrimination raised by statistical showing
                   Remedy was the reversal of D’s conviction, even in the absence of showing an prejudice resulted
                       from the discriminatory policy
         Batson v. Kentucky (pg 534) (1986)
                   Justice Powell wrote the opinion
                              Crt. held that the Equal Protection Clause forbids the prosecutor to challenge potential
                                 jurors solely on account of their race or on the assumption that black jurors as a group will
                                 be unable impartially to consider the State’s case against a black D
                   Dissent: Justice Burger joined by Justice Rehnquist
                              Cannot boil preemptive strikes down to merely “assumptions” or “intuitive judgments”,
                                 therefore not discriminatory
         McClesky v. Kemp (pg 546) (1987) (Powell)
                   OVERVIEW: Petitioner convicted of armed robbery and murder. Jury imposed the death penalty
                       because petitioner did not provide any mitigating circumstances. Petitioner then filed a petition for
                       a writ of habeas corpus in federal court in which he alleged the state's capital sentencing process
                       was administered in a racially discriminatory manner in violation of the Fourteenth Amendment.
                       Petitioner based his claims on a study that indicated a risk that racial consideration entered into
                       capital sentencing determinations. The appellate court affirmed the lower court's decision and the
                       Supreme Court granted certiorari. The Court held that the statistical study did not present
                       substantial evidence that would require a reversal of petitioner's conviction. The Court concluded
                       that the lower court had properly applied Georgia law.


                                                                                                                           36
                      OUTCOME: The Supreme Court affirmed the decision of the appellate court that denied
                      petitioner's application for a writ of habeas corpus.
                  Statistics were supposed to show that the race of the victim was a basis of punishment
                  Crt. required exceptional clear proof before it would infer that the discretion has been abused
                  Crt. ruled that the safeguards designed to minimize racial bias in the judicial process, the
                      fundamental value of jury trials in our criminal justice system, and the benefits that discretion
                      provides to criminal Ds, the Baldus study does not demonstrate a constitutionally significant risk of
                      racial bias affecting Georgia’s capital punishment system
                            Concerns:
                                      1. D’S claim of racial discrimination in the capital punishment sentencing system
                                          will open the floodgates to similar claims if allowed
                                                Constitution does not require that a State eliminate any demonstrable
                                                   disparity that correlates w/potentially irrelevant factors
                                      2. D’s arguments are for the leg., not the Sp. Crt.
                  Further proof that disparate impact is not enough
                  Dissent: Justices Brennan, Marshall, Blackmun, and Stevens
                            Took into consideration Georgia’s history of racial discrimination
                            Insisted that the Crt. has a right to hear and correct injustices when the majority does not
                                      It is a part of the Crts. duties under separation of power
         Note: Racial Disparities in Investigating, Charging, and Sentencing (pg 550)
   Race-Specific Classifications Designed to Benefit Racial Minorities (pg 553)
         Modern equal protection cases involving explicit classifications have all involved challenges by nonminority
            Ps to affirmative action programs
                  Overtime, Crt. has applied strict scrutiny to these cases also
   Note: The Imposition of Strict Scrutiny
     Regents of the Univ. of Cali. v. Bakke (pg 553) (1978)
             **ARGS FOR/AGAINST STRICT SCRUTINY FOR BENIGN DISCRIM SHOULD BE BASED OFF THIS ARG BETWEEN POWELL &
                 BRENNAN!**
             Facts: UC Davis med sch had no history of past discrim but adopted affirmative action plan to set aside
                 16/100 entering spots for minorities. Bahke [white guy] denied admission twice even though scores
                 substantially higher than min students admitted.
                       Cali. Sp. Crt. agreed w/ Bakke
                       Based on 2 different theories
                                 Equal protection
                                 Title VI of the Civil Rights Act of 1964
                                           Anyone who is receiving federal funds cannot discriminate on the basis of
                                               race, religion, gender, etc.
             H: no majority. But Stevens 4 + Powell held to strike down the set-aside. Admit Bakke.
                       3 way split, Powell was in the middle
             Standard: strict scrutiny! [Powell]
             Bakke’s 2 claims: 1) EPC 2) Title VI of Civil Rights Act of 1964
                                                                 THE SPLITS:

                H1: Stevens 4 + Powell: held to strike down the set-aside
                      Title VI is clearly violated, we don’t have to talk about equal protection
                      Can’t use race, clear Title VI violation
                H2: Brennan 4 + Powell: race can be a factor in university admissions.
                      We don’t have to talk about anything, we are correcting past discrimination
                      Cal. was not in violation of either equal protection or Title VI
                      Acknowledged that some use of race would be constitutional
                      Societal discrimination is not constitutional, diversity plan is the only place (Powell) Brennan
                         believed that correcting societal discrm. was okay
                      Title VI should mean whatever the Sp. Crt. decided with regards to the Equal Protection
                         Clause, they should follow each other
                               Unlike in Title VII, which should have its own standards
                               In applying Title VI, you apply it exactly like the Equal Protection clause
                                        THIS MAKES THE EQUAL PROTECTION CLAUSE REACH TO PRIVATE
                                            INSTITUTIONS (such as SMU)
                                        Anti-discrimination statutes would have to be satisfied
                                        First case to hold this
                Brennan 4: remedying past discrim is a compelling state interest. not diversity.
                                                                                                                          37
   Powell: diversity is a compelling state interest.
         Strict scrutiny should apply, policies must be color blind
         Reasons Cal. gave for their policy
                  Wanted more minority Drs.
                             Powell says BS. This is not a compelling state interest, it is per se
                                 unconstitutional
                  Providing more medical services to underrepresented minorities (minority dr’s would
                       return to their community)
                             Powell says this is not narrowly tailored/may or may not be a compelling
                                 state interest
                             Cal. could offer scholarships/tuition reimbursement to achieve their goal
                             It is unfair to treat minority students differently than minority students by
                                 putting pressure on them to go back to the minority communities that they
                                 came from
                  Provide a remedy for past discrimination
                             Powell says this can be a compelling state interest BUT
                             1. There must be a fact finding (were O’Connor gets this point in Croson)
                             2. Medical faculty is not sufficiently expert/authorized to make such a fact
                                 finding (not their specialty, an independent party needs to do this)
                  Diversity in the educational institution
                             Powell likes this one and agrees that it is a compelling state interest
                             Powell was from Harvard and he agreed that an individualized assessment of
                                 race of the whole entering class would be okay in order to achieve diversity
                                 as long as one race was not deemed better than another
         If Cal. wants to utilize race in the same way Harvard does, that would be okay (race is a factor,
             but not a deciding factor)
   Stevens 4: racial set-aside violates Title VI so don’t need to address EPC
   Brennan 4: racial set-aside doesn’t violate Title VI or EPC. Wants intermediate scrut.
   Powell:
         agrees w/ Brennan’s interp of Title VI – framers intended Title VI to mean whatever EPC
             means. [if violate Title VI, also violates EPC]
         Disagrees w/ Brennan’s interp of EPC.
                  Brennan 4: should apply intermediate scrutiny so uphold law
                  Leg CAN decide which groups to favor.
                  Preferences do NOT stigmatize maj or stereotype the min.
                  Shouldn’t be suspect class if maj burdens itself.
   Powell: should apply strict scrutiny so strike down law. why?
         Individualistic approach to EPC – same standard to all persons.
         EPC applies to persons not groups. [Brennan takes group apprch]
         Creates a stigma
         The program supports stereotype that mins cant succeed w/o help
         Racial preferences may harm members of min group, unfair to burden innocent, & may
             exacerbate racial antagosnism.
              Univ’s args & Ct’s opinion for compelling state interest*4+:
              UC Davis wanted more minorities.
                        Ct [Powell]: this Is just racial discrim. Not compelling state int. illegal goal.
              Wanted more min med students so when they graduate would help serve the
                 underserved minority communities that didn’t have enough med att’n.
                        Ct [Powell]: not fair to admit students for select purpose like this. There are less
                            discrim means – can tell any of the grads that you’ll pay their student loans, etc,
                            if they go serve the underserved communities. So not compelling int bc not finely
                            tailored nor least discrim means.
              Remedial – remedy for past discrimination. [Brennan relies on this]
                        Ct [Powell]: compelling state int ONLY when you have proven discrim.
                                  Cal med wasn’t a body that could competently find past discrim.
                                  Swann – scope of remedy = scope of wrong. Here, no wrong.
                                  Brennan 4 uses this to arg that univ CAN use this program as remedial
                                      measure to past discrim.
              Diversity [Powell relies heavily on this – race can be a “plus in the file”]



                                                                                                             38
                                 Powell recognizes diversity as a compelling state interest. HOWEVER, he holds
                                  that the set-aside undermines true diversity here b/c only considers 1
                                  diversifying factor so fails to treat ppl like unique individuals.
                                            Powell relies on Harvard Univ brief: if univ wants to use race as a factor,
                                            must consider all other diversifying factors too.
                                        no one else agrees w/ Pow’s approach here. Brennan COULD have just
                                            said that although remedial approach is best explanation, still agree w/
                                            Powell that diversity is also a justification. But he doesn’t.
                    after Bakke:
                              everyone treats Powell’s opinion as maj opinion but it wasn’t really. Ct doesn’t
                                  readdress this issue in education context again until Grutter & Gratz in 2003.
   Fullilove v. Klutznick (pg 554) (1980)
           2 years after Bakke, the Crt. considers aff. Action program created on the fed. level in the context
              of pub. Ks
                    Public Works Employment Act of 1977-provided fed. financial assistance to state & local
                        gov.s to build public facilities IF 10% of the funds for the project were used to procure
                        services from “minority business enterprises” (MBEs)
           Justice Burger wrote the opinion joined by White and Powell
                    Affirmed the program, but there was no majority
                              Relied on the:
                                        Limited duration of the program
                                                         th
                                        Sec. 5 of 14 Amend. that gives Congress authority to make remedial
                                            measures for racial discrim.
                                        No nonminority contractor was severely injured by the program
                                        Waiver provision permitted deviation from the requirement
                                        10% requirement was not unduly burdensome
                                        5 year period this would go on was not significant to the Crt.
                    Powell wrote his own concurring opinion
                    Marshall, Brennan and Blackmun also concurred
                              Argued Congress had a sound basis for finding that minority firms were
                                  hampered by the continuing effects of racial disc.
                              Congresses means were substantially related to the achievement of remedial
                                  purpose
           Dissent: Justices Rehnquist & Stewart
                    Gov. may never act to the detriment of a person solely because of race
                    Stevens dissent
                              Emphasized the absence of congressional deliberation over the measure
   Wygant v. Jackson Board of Ed. [1986][Oconnor] role model theory not compelling state int.
           Facts: as part of settlement of a discrim suit, sch hired lots of black teachers. When layoffs were
              required, Bd of educ decided to retain teachers by seniority BUT that % mins laid off could not
              exceed % mins employed at the time of the layoffs. city attempted to achieve faculty diversity in its
              schools by laying off white teachers w/ more seniority than black teachers.
           H: struck down the plan. Not acceptable means of affirmative action.
           State arg: role model theory – state wanted enough black role models.
           2 primary points:
                    rejected role model theory as NOT a compelling state interest
                              disparity between students & teachers had no prob value in determining prior
                                  discrim in hiring/promoting that justifies race-based relief
                    indicated that layoffs are much more serious than hiring.
                              racial preference in hiring not as bad bc not losing what you already have.
                                        Crt said we are going to take a much harder look at race when laying off
                                            employees, not when hiring
     City of Richmond v. J.A. Croson Co. (pg 555) (1989)
               Justice O’Connor wrote opinion, joined by Rehnquist, White, and Kennedy
               Majority of the Crt. held that state and local aff. action programs should be subjected to strict
                   scrutiny
               Facts: state copied congressional program in Fullilove, but changed the %. City was 50% black
                   & less than 1% Ks go to black K’s so set level at 30% rather than 10%. White contractor sued bc
                   lost contract under the program.
               Finally a majority: ANY use of race for benign/non-benign purposes  strict scrutiny!
                         *O’Connor quotes extensively from Powell in Bahke]
                                                                                                                     39
   why does O’Connor apply strict scrutiny?
          Smoking out theory
          Strict scrutiny requires narrow tailoring – figuring out whether doing it for good/bad
             reason.
          Colorblind theory – skeptical of race classification so always use strict scrutiny
                   Racial preferences are likely to cause resentment and friction, that take us
                       further away from the colorblind ideal than towards it
          EPC is individualistic, not group. Each PERSON has right of equal protection.
          Reverse stigma argument, if you have a strong stigma either way
   Why does the plan here fail strict scrutiny?
          Providing a remedy for past PROVEN discrim IS compelling state int, but here, No
             specific fact finding of past discrim here. Just societal discrim.
                   You cannot use a racial remedy, racial classification based on societal
                       discrim. alone
                             Why?
                             The scope of the remedy must be tailored to the scope of the
                                 wrong
                             If we don’t have specific fact finds regarding who
                             How do we know whether the remedy has worked or whether it is
                                 appropriate
                   Brennan arg: the more severe the discrim, the harder to make factfinding.
          State tried to prove past discrim: fact that city is 50% black but less than 1% Ks go to
             blacks, lengthy history of discrim [Richmond was capital of Confederacy], & several
             W’s testified there was discrim in past.
                   O’Connor says this is not enough. Need proven discrim.
          Was no consideration of using race-neutral means to increase minority business
             participation in city King
          Swann – need fact finding bc scope of remedy = scope of wrong
                   Bc fear of abuse. There must be a limit.
   Distinguishes between state & fed. If anyone is going to use racial pref, it should be fed bc they
    have 14th A – states work under stricter standard of review.
          Scalia concurred on this point
                   Believed that historically, racial disc. against any group is found more at the
                       state and local level than at the fed. level
          Adarand overturns this theory: fed is NOT under lower level of scrutiny.
   Not narrowly tailored enough. State Defined “minority-business enterprise” by taking Fullilove
    def [blacks, Hispanics, etc, Eskimos] – didn’t help b/c can’t show narrow tailoring bc no
    Eskimos in Richmond.
          Richmond argue it is 50% black and only less than 1% of the contractors are black,
             this shows a lot of discrimination
                   O’Connor said this is irrelevant, there are not enough black contractors
                             Before you can use statistics to prove an inference of intent, there
                                 must be some in the relevant applicant pool (there just were not
                                 any black contractors there)
                             Statistics must be relevant before you can cite to them as evidence
                             Class benefit has to show that they were the object of
                                 discrimination
                             Richmond’s plan was originally drawn up so that anyone could bid
                                 on the project even if the business had never been doing business
                                 in Richmond
                   Justice Brennan would say
                             In a city with a long history of discrimination, it is a no brainer why
                                 there would not be a lot of black contractors
   No consideration for use of race-neutral means. Must consider those first.
   Both O’Connor & Scalia emphasized the fact that the majority of the Richmond City Council
    was Black
   Contracts tailoring requirement
          1. Discrimination is not enough
          2. Relevant labor pool
          3. Labor provisions
          4. Exclusions for groups that could not have been a part of discrimination
                                                                                                   40
               More opportunities could be extended for contracts in general, that would also allow for more
                minorities to get contracts
             Crt. held that racial preference cannot be used initially, it must be a last resort
             O’Connor believed a racial preference should not be a permanent or entrenched program,
                there should be a stopping point
             Dissent: Brennan, Marshall, and Blackmun
                     Marshall wrote dissent, others joined
                     Consistent w/ their views in Bakke, they argued for applying a form of intermediate
                         scrutiny
                               Any kind of racial classification is disturbing and the chances for
                                   discrimination are high, intermediate amount of review is needed
                               This is what we reached for gender, should be the same for race
                     Thought Richmond’s own experience undercut the notion that race-neutral means
                         could achieve minority participation and the 30% figure was appropriate given the
                         city’s population
   Adarand Constructors, Inc. v. Pena (pg 558) (1995)
         Opinion written by O’Connor
         Facts: fed program gave members of qualified min groups adv in receiving fed-funded Ks. White
            contractor sued.
                 On its face, aimed at socially based groups, but in reality it was aimed at racial groups
         H: remand case to be considered under strict scrutiny. Lower ct struck it down.
         Standard: strict scrutiny.
                 Gov. argued program was based on “disadvantage, not race” therefore relaxed judicial
                    scrutiny is proper
         O’Connor’s 3 principles for assessing racial preferences established in Croson:
                 Skepticism: always apply strict scrutiny to race [Croson & Bahke]
                 Consistency: doesnt matter which race benefits or if class is benign/invidious
                 Congruence: same 5th A standard applied to Congress as to states under EP.
         3 principles lead to the conclusion that any person has the right to demand that any gov. actor
            subjected to the Const. justify any racial classification subjecting that person to unequal treatment
            under the strictest judicial scrutiny
         Fact finding is a compelling state interest per Croson, if you show that standard, then we will allow
            that.
                 Not applied here because there were not enough facts
         O’Connor: “strict scrutiny is not fatal in fact” - sometimes can still win. [ex: AL 1-1 promotion
            quota where showed DPS had discriminated against blacks]
                 Point of strict scrutiny is to differentiate between permissible and impermissible gov. use
                    of race
                 When race-based action is necessary to further a compelling interest, such action is w/in
                    const. constraints IF it satisfies “narrow tailoring” test
                 We don’t know if the policy is benign or not
         Scalia concurring in part & concurring w/ the judgment
                 Believes gov. can never have a “compelling interest” in discriminating on the basis of race
                    in order to “make up” for past racial discrimination
                          No such thing as a “creditor/debtor” race
         Thomas concurring in part & concurring w/ the judgment
                 Wrote separately to disagree w/ Justice Steven & Ginsburg’s dissent that there is a racial
                    paternalism exception to the principle of equal protection
                 Gov. cannot make us equal, it can only recognize, respect, and protect us as equal before
                    the law
                 Paternalism engenders attitudes of superiority and can provoke resentment among those
                    who believe that they have been wronged by the gov.’s use of race
         Dissents
                 Anti-subordination approach
                          It should matter if the approach is benign or invidious, and we should take that
                              into consideration
                          Race is a troublesome problem
                 Written by Justice Stevens & joined by Ginsburg
                          Remedial race-based preferences reflect a desire to foster equality in society
                          Disagreed with majorities “consistency” and “congruency” theories
                 Written by Ginsburg & joined by Breyer
                                                                                                               41
           After this opinion, Congress looked at their statutes and began to make things tighter
           Since Adarand, there has been a lot of this kind of litigation
                 O’Connor said that it is okay to have racial preference laws as long as there is sufficient
                      fact finding to allow for such a program
   Note: The Constitutionality of “Benign” Racial Classifications
         Adarand and Croson establish that benign racial classifications, like those that harm racial
            minorities, are subject to strict scrutiny
                 Will only be upheld if they are narrowly tailored to achieve a compelling gov. interest
                              th
         By its terms, 14 Amend. says nothing about heightened review for racial classifications
                 There is also a sense that it was meant to restrict judicial power
         Metro Broadcasting v. FCC (pg 569) (1990)
                 Justice Brennan wrote the opinion
                 Facts: 2 FCC programs approved by congress [set aside + plus in file program] that gave
                      minorities advantage in obtaining broadcast licenses.
                            To the extent that FCC was taking licenses away, minorities had a right to first
                                 refusal
                            MBE would get a boost in a bidding process, but boost was not absolute
                 H: upheld.
                 Standard: congressionally approved affirmative action prorams only need to meet
                      intermediate scrutiny. [Adarand overturns later]
                            Brennan relies on Powell’s Bakke opinion that diversity was important state int &
                                 the programs here were substantially related to that end. The programs serve 1st
                                 A interest of promoting diversity viewpoints over public airwaves.
                            Intermediate standard of review
                                       He argued this standard in Bakke & Akarand, but won his argument here
                 OConnor dissent - Standard of review should be strict scrutiny!
                            Race classifications endorses racial hostility & conflict.
                            Attacks Powell’s diversity arg in Bakke. Says remedy for past discrim was only
                                 previously recognized state int to support racial classes & broadcast diversity is
                                 not that same interest. Hopwood uses this dissent later.
                 Inconsistent w/ Croson & Powell’s Bahke. Between this & Adarand, 4 of the Metro maj
                      justices resigned. none of the dissent justices resigned so Adarand overturned Metro.
   Hopwood v. Texas [1996] 5th Cir. Rejected Bakke & said race can’t be used at all.
         Facts: UT law had history of discrim. School adopted series of plans to increase minority
            enrollment. Separate admissions committees to evaluate black/white applicants. Min admissions
            score reqs were adjusted up/down during the yr to ensure # of min students desired would be
            admitted. Lower than white score.
         H: for P. race cannot be used as a factor in admissions.
         This case seeks to render race irrelevant in govt decisions.
         3 reasons why reject Bahke:
                 there never was precedent for diversity justification.
                            5th cir uses this reason to make sure Hopwood is good law. [had to arg that
                                 Bahke was never precedent, not that overruling Bahke bc state ct cant overrule
                                 USSC decision & that’s what the next 2 reasons do+
                            Powell never had a majority to support diversity as comp. state int.
                                       In fact Brennan 4 explicitly rejected Powell’s diversity arg.
                            Bahke’s decision was too confusing to be good law.
                                       Metro is not good precedent bc used diversity justification under
                                          intermediate standard & Adarand overruled Metro.
                 Even if Bahke was precedent for diversity justification, inconsistent w/ precedent since
                      then.
                            Croson – remedying past wrongs is the only state interest.
                            O’Connor’s dissent in Metro
                            Adarand – remedying past discrim is only compelling state interest.
                 Diversity is inconsistent w/ Equal Protection principle
                            EP is individualistic. Ppl of same race don’t necessarily share same views.
                            Fear of stigmatizing.
                            Diversity Encourages racism. EP purpose is to deemphasize race.
                 Analysis [3]:
                            Law school can only use remedial racial classes to correct the present effects of
                                 discrim in the law school.
                                                                                                                42
                                                      Compelling state interest?
                                                            Test for whether present effects of discrim are enough to pass strict
                                                                scrutiny:
                                                            Present effect must be caused by discrim.
                                                            Effect is of sufficient magnitude to justify the program.
                                        Application: no compelling tate interest.
                                                    Here, Mexican-americans have never been excluded from law sch.
                                                    blacks were admitted in 1950s & engages in extensive min recruit
                                        is remedial action necessary & is it narrowly tailored?
                                                    No need to discuss b/c no compelling state interest.
MAIN POINT BEHIND GRUTTER & GRATZ: DIVERSITY IS A COMPELLING STATE INTEREST IN EDUCATION & UNIVS MAY USE RACE AS A FACTOR FOR DIVERSITY, BUT
CANT USE QUOTAS/NUMERICAL QUANTIFICATION OF BENEFITS
    o Grutter v. Bollinger [2003] [O’Connor] (pg 571)
              Facts: U of Mich law.
              H: upheld the affirmative action program. Survived strict scrutiny bc compel state interest & narrowly tailored.
                 Colleges & univs have compelling interest to create diverse student body. Race can be a factor among many to
                 enhance diversity.
              Mich arg: 2 compelling state interests: 1) diversity 2) selectivity [critical mass]
              Reasoning:
                       Affirms that Bahke is precedent [even if wasn’t before, it is now!]
                              o Strict scrutiny applies.
                              o Need a “critical mass” *a little diff from Powell’s individualistic apprch]
                              o Precedential status of Powell’s opinion in Bakke
                                        We are not going to argue about whether it was the precedent, we are just going to
                                             accept it
                              o Holding is in keeping with tradition of giving a degree of deference to a university’s academic
                                   decisions, w/ constitutional limits
                       Str. Scru. Step 1: Compelling state interest: being an elitist law school. [how does ct determine this is
                          compelling? Mich tells them. Kennedy dissents this.] OConnor agrees Mich has compelling state int to
                          recruit minority students w/o lowering standards. Amicus brief wins the case for Michigan!
                              o Military came up w/ strong racial preference program concerned almost ONLY w race but on other
                                   hand officers have to be topnotch & this has worked over time. OConnor uses this to show military
                                   recognized there are instances when you need both compelling state ints [top notch + race]
                              o Michigan argued its desire for diverse student body
                                        Similar to an extent to Powell’s argument in Bakke where Powell stated Harvard uses
                              o Compelling to O’Connor because
                                        Michigan is a high ranking law school and a lot of leaders are going to come from this
                                             school and diversity of opinion is important to this leadership
                                                    Military says compelling state interests
                                                    Business leaders say compelling state interests
                                        Who are we to be experts on the educational process?
                                                    If school says that it is important, than it must be because who would be in the
                                                       best position to know other than the school?
                                        Educational benefits are sufficiently compelling to allow the school to focus on critical
                                             mass on minority students and not sacrifice overall academic quality in the process
                              o Michigan’s problem is that it standards were very high making minority students selected low
                                        Could not admit more minority students under their admission standards without some
                                             sort of admissions rule
                                        Lower Crts. said you did this to yourself by having such strict standards, it is your own
                                             fault
                                                    Lower your standards and you will have a larger minority pool
                                                           o Mich. used military officer core plan as an example of how their plan
                                                                works towards a non-discriminatory benefit
                                                           o Military brief probably could not have passed the Bakke test, but it
                                                                made a good point that their officers tests have to have high standards,
                                                                but also have to admit minorities
                                                                      There is a compelling state interest not simply in achieving the
                                                                          compelling state interests in racial diversity, but achieving the
                                                                          compelling state interest without scarifying selectivity
                                                                      O’Connor used brief to back up her argument

                                                                                                                                          43
                                                   Focuses on the fact that leading law schools provide a
                                                    disproportionately high number of society leaders
                                                 There is a high interest in making sure all racial groups are able
                                                    to be educated for this purpose
         o 2 diff diversity perspectives are almost contradictory:
                   Powell: concerned only w/ benefits/disadv of diversity in classrm
                              Internal benefits to the University from racial diversity (the education process is
                                 benefiting highly from this)
                              Focused on holistic diversity
                   Military amicus brief: more concerned w/ what happens after univ (O’Connor)
                              What happens after graduation is more important that what happens during
                              In the law school context, it is important that the elite section of society is
                                 diversified
                              If we need to ensure that the elite class is racially diverse, why do we need to be
                                 concerned with other kinds of diversity, if racial diversity is what Michigan is
                                 after
   Str. Scru. Step 2: Sufficiently narrowly tailored here
         o Mich wasn’t only concerned w/ using race as 1 diversifying factor but also in getting a “cirtical
              mass” of min students so they wouldn’t be isolated, there woul be diff viewpts, etc so needs
              certain % of mins.
                   Scalia dissent said this was disguised quota [not permissible].
                   3 potential problems here: why 3 diff min groups, discrep between applicants &
                       admissions, Mich focused on daily reports.
                   Nonetheless, O’Connor says its narrowly tailored.
                              Will allow Mich to achieve critical mass as long as there is individualistic
                                 consideration & there isnt a quota.
                              It would be a mistake to make the process mechanical and to make two separate
                                 admissions committees like UT did (one for minorities, one for everyone else)
                              Note: school could say all it cares ab is GPAs & LSATs. Only need to use
                                 individualistic approach from Bahke if using race as a factor.
                              In the past, O’Connor had adamantly been for a stopping point for the program,
                                 Michigan did not offer one here
                                      o She says it has been 25 years since Bakhe, so 25 years from now,
                                           hopefully this won’t be needed anymore
                                                 We want to get to a society where this is not needed any more
                                      o Justices disagree with this point, but O’Connor wants Universities to be
                                           thinking about this constantly so that they can one day stop this policy
         o Note: O’Connor DOES think there are limits. Need to consistently review the situations so that
              won’t use race if don’t need it anymore.
   Rehnquist & Kennedy dissent:
         o Agree that diversity of educ is compelling state int [1st part of test ok] but the plan was not
              narrowly tailored so fails 2nd part of strict scrut test.
                   Just disguising a quota beneath a diversity façade.
                   Rehnquist: sch has control over who they admit, not who comes.
                   Kennedy: this doesn’t really look like strict scrutiny application bc giving too much
                       deference to the school.
                              Strict Scrutiny means that the school has the burden of proving that this is not
                                 racial discrimination, and Michigan has failed this test
                                      o O’Connor says the school does not believe they are being racially
                                           discriminatory, that is good enough for her
                   Why is this different than other cases where we dismissed the same diversity principle?
                       (schools choosing its own diversity)
   Thomas and Scalia dissent:
         o Agree that strict scrutiny must be used, but they believe that Blacks should not receive preferential
              treatment
                   Fredrick Douglas quotation
                   “Like Douglas, I believe blacks can achieve in every avenue of American life without the
                       meddling of University administrators”
         o Did not believe a public law school was a pressing public necessity
                   Whether a state activity is of pressing public necessity can be obtained by asking whether
                       all States feel compelled to engage in that activity
                                                                                                                  44
                                                   Less than 16% of the students at Michigan Law will stay in Michigan after graduation
                                                          This does little for the public welfare the Law School claims to serve
                                    o Believed the majority was allowing Michigan to ignore the Equal Protection clause by allowing
                                         racial selection and ignoring LSAT scores
        o Gratz v. Bollinger [2003] [Rehnquist-majority, OConnor-concurring] (pg 587)
                   Facts: U of Mich. affirm action program added 20 pts to min student applications. Different from Grutter bc no
                     individualistic approach. Just adding #s. [quota]
                   H: invalidated affirmative action program.
                   Standard: strict scrutiny
                   Reasoning: program not sufficiently narrowly tailored so fails strict scrutiny
                           Narrowly tailored? No.
                                    o Too mechanical. Since using race, need to have individualistic apprch.
                                               20 points were added to an applicant’s score purely because they were in the minority
                                                    category, making race a “decisive” factor
                                                          Other soft factors such as leadership or community involvement were capped at
                                                              5 points
                                                          Individualized assessment cannot be done when the point variables are already
                                                              setup
                                                          Points could be used because without them, it would take way too long to decide
                                                              who is/is not offered admission, scale back the points for race
                                    o Note: OConnor recognizes that though you have to consider other factors, race CAN be the most
                                         important factor. That’s ok. **?? Ask bloom++
                                               Safe thing to do would be to avoid it altogether
                                               If you want to use it, you probably need to hire more people to review the applications
                                                    more individualistically
                                    o Case created a model that is hard to second guess
                                               There is an enormous burden to sort through whether the school is acting in good faith
                                                    when they say there are
                   Dissent: Souter and Ginsburg
                           Michigan’s point system is fairer than other states, like Texas’, top % of the high school graduating class,
                               because it is more frank and upfront
                   Takeaway: schs should prob not use any kind of pt system even if it doesn’t grant race an overwhelming % of pts bc
                     scared OConnors opinion might mean no quantifcation.
        o After Grutter & Gratz: What should schools do?
                   Since race is suspect class, if going to use it as factor, must do individualistic apprch!
                           Convince ct program IS narrowly tailored!
                                    o Use clearly defined mission statement. Convince ct program IS narrowly tailored. [ex: Grutter did
                                         this in its idea of critical mass]
                                    o Hire more ppl to review application process.
                           OConnor made clear that this is temp program. [Grutter+ Go back periodically to assess what they’re doing
                               is correct & there aren’t any less discrim alternatives.
   Synthesis of Brown and Affirmative Action (pg 600)
        o Parents Involved in Community Schools v. Seattle School Dist. No. 1 (pg 600) (2007)
                   This case confuses things, what does it really amount to?
                   Justice Roberts wrote opinion
                   Facts: Seattle had a system where if racial demographics of a school deviated more than predetermined % from
                     Seattle’s total population, would use race to determine who goes where. [basically even though no past discrim,
                     Seattle chose “forward looking” apprch & wanted racial balancing.+ Louiville, KY was also a D in this case because it
                     had a similar program, but it was trying to right a past wrong
                   H: struck down. Cant assign students to public schs solely to achieve racial integration.
                   City arg compelling interest: racial balancing
                           Argue that increase racial integration in grade school is a compelling state interest even when there has not
                               been a history of racial disc.
                           The State ought to be able to address racial issues as it seems fit
                                          rd
                                    o 3 Argument of a compelling state interest made by the state
                                    o Justice Breyer agrees w/ State in his Dissent
                                    o Roberts says racial balance is not the same as racial diversity Bakhe
                                               Not compelling, not legitimate
                   Roberts [Plurality]: can’t use race as a factor at all. [pulls out of Ps brief in Brown]
                           Ct says: not compelling interest and not narrowly tailored
                                    o Compelling state interest in past has been
                                                                                                                                        45
                              1. To remedy effects of past intentional disc.
                                     Not at issue here, Seattle never had disc.
                                     Does not work for Louiville, because Crt. said once you have achieved unitary
                                         status, your obligation is gone, no more remedial measures
                          2. Interest in diversity in higher ed.
                                     Ex. is Grutter, but this is not a similar case
                                     1st Amend. based right is extended to Univ. to allow them to pick and choose
                                         who they admit to their schools per Powell in Grutter
                 o   Review is not individualized enough to be justifiable
                          Not narrowly tailored, too much reliance on race
                          Equal Pro. Clause protects people not groups
                          Cannot pass the narrow tailoring of Bakhe
                          Even if it could, it is unlikely it would make sense in the elementary context, Univ. is
                               different
                 o   There are other ways that are not as racially bias
                 o   Majority went back to ruling in Brown I & II for evidence
                 o   Section IIIB & IV is not written by Roberts
                          Roberts drops out because he believes that Breyer is correct that maybe there is a state
                               interest in compelling racial diversity in grade schools
                          Kennedy agrees that it is probably a compelling state interest
   Kennedy Concur:
         thinks that diversity in elem/hs IS compelling state interest. CAN use race as a factor. But agrees that even
             so, the schs didn’t narrowly tailor the use of race to achieve purpose. So fails test.
                  o Here, students were defined by their race- bad!
         De jure/de facto matters! Here is de facto. Brown was de jure.
                  o School dist. that had engaged in de jure segregation has an affirmative const. duty to desegregate,
                       those that were de facto segregated did not
                             This goes to what is an acceptable remedy
         So few students were not cataloged based on race
         Relies on desegregation remedies and believes there are other ways of creating diversity than what was
             used here
   Dissent: Breyer, Stevens, Souter, and Ginsburg
         This is just unfinished business from Brown. To extent that you have to take acct of race to achieve racial
             integration in public schools, under Swann, that is ok.
                  o Strict Scrutiny test:
                             Compelling state interest
                                      Here, deference should be given to school board who has decided that there is a
                                          compelling st. inst.
                             Narrow Tailoring
                                      Predominant factor is student choice, race is subsequent factor = narrow
                                          tailoring
   Arg over the meaning of Brown
         Roberts: can’t use race as a factor at all
                  o Hardcore color blind approach
                  o Brown was anti-segregation case, compelling state interest not at issue
                             Majority is more accurate with the law
                             Swann involved de jure segregation, not applicable here because there was no history of
                                 segregation
         Breyer: broader. Brown was ab racial equality & education, not just ending de jure separation. That’s what
             the schs are trying to do here. Should allow it.
                  o Anti-subordination approach (past discrimination, we need to right it)
                  o Carrying Brown into a new generation, they are not as integrated as they should be and school
                       districts should be allowed to take account of that
                             This seems to be against standing law
         Thomas: focuses on Plessy more than Brown. Plessy relied on southern states saying this is our life, let us
             work it out. Thomas wants to do that here.
         Crt. is in sharp disagreement over Plessy v. Ferguson, are we moving backwards instead of forwards?
         Example of how the different sides claim Justice Harlan as their champion
                  o Color Blind principle vs. Anti-subordination approach talked about by Harlan in Plessy
                  o Case in which these two clash directly

                                                                                                                      46
           This would prob also be struck down under Grutter: bc there is nothing individualistic ab this apprch. Not taking
            acct of any diversifying factors.
         This case suggest that Justice Scalia is prepared to take a different approach than Justice O’Connor, who he replaced
                  This case might be a subject to revisit
o   2/22/2012
         Case taken by Sp. Crt. regarding Texas’ top 10% rule
         Hopwood was overruled with regards to UT’s law school having an affirmative action requirement
         2004 Review by UT
                  1. Not that many minority students in small classes
                            o Considered this inconsistent with what it was trying to achieve
                  2. Certain majors in schools in Texas as a state did not have minority students
                  Texas did not set forth a policy to try and fix this, anything that says so is wrong
         Judge Higgenbotham compares the Texas program to Grutter, and says they are the same, but Texas’ program is
            better
                  There is some tension between the theory of Grutter and the 10% program
                            o The challenge by the plaintiff’s is given the success of diversity 10% program, which is not narrowly
                                tailored enough under Grutter
         This is a case that the Sp. Crt. granted certiorie when the district courts did not have a split among the districts
         The Crt. also did not have a huge problem with Grutter
o   Voting/Redistricting cases [just know main pts] (pg 590)
         Any state that was found to have discriminated against minority voting, needed to redistrict to right their wrongs
                  Texas is an example
                            o Must satisfy either the District Crt of the DC circuit or ??
                            o On one hand the Crt. has made it clear that if a State or Crt., draws electoral districts in which the
                                primary reason for drawing the district the way it was drawn is race, either increasing or
                                decreasing minority voting power, strict scrutiny applies
                                      Crt. recognizes there are other factors though
                                      Similar to a Bakhe analysis
                                      If race is predominate, it can be troublesome for the Crt./Leg. body
                            o Political affiliation may be taken into account
                                      It is permissible for the leg. to try and reflect the dynamics of a particular state
                                      Any political party is going to redraw districts in order to maximize their influenceCrt
                                          does not want to unconstitutionalize this because it would be a hard fight
         Gomillion v. Lightfoot (pg 538)- establish that when districts are purposely constructed to reduce the voting power
            of minorities, the plans are unconstitutional
         Voting rights act: requires leg to attempt to max # of min/maj dists, gov. cannot use redistricting plans that result in
            the dilution of minority voting strength, regardless of gov.’s motivation in adopting or maintaining such plans
         Shaw v. Reno (pg 591)-Facts: P’s challenged const. of a state reappointment that included one “majority-minority”
            district of “irregular shape”
                  Crt, per Justice O’Connor held that P’s had a cognizable claim
                            o Reinforces perception that members of the same racial group—regardless of their age, education,
                                economic status, or the community they live in—think alike, share the same political interests, and
                                will prefer the same candidates at the polls
                            o This leads to racial gerrymandering
         United States v. Hays (pg 591)-Crt. held that P’s living w/in a district subject to a racial gerrymander have standing,
            but P’s outside the district don’t unless they can show that they have personally been subject to a racial classification
         Cant just pile all mins in a couple of dists bc doesn’t necessarily max # of districts.
         Seems to suggest its ok to use race as factor but cant be only factor
         If dist so egregious in shape, can conclude it was result of race as predominant consideration so unconst. [ex: dist
            width of highway]
         Area is very incoherent bc never know if dist is const until OConnor tells us.
         Miller v. Johnson (pg 592): any kind of decisive group oriented approach in racial area is almost by definition
            unconstitutional.
                  Justice Kennedy delivered opinion
                  Shape of district is relevant for analysis because it may be persuasive circumstantial evidence that race was
                      the leg’s dominant rationale in drawing its district lines
                  Crt. elaborated on what P has to show to trigger strict scrutiny
                            o P’s burden is to show through circumstantial evid. Of a district’s shape and demographics, or more
                                direct evidence going to leg. purpose, that race was THE PREDOMINANT FACTOR motivating the
                                leg.’s decision to draw district lines
                            o To make showing, P must prove leg. subordinated trad. race-neutral districting principles
                                                                                                                                  47
                          For strict scrutiny to apply, P must prove race was predominant factor motivating leg’s redistricting decision
                    Easley v. Cromartie (pg 594) (2001)
                          Facts: Revisit of Shaw argument
                          Justice Breyer wrote opinion
                                  o Created strong distinction between race being A motivating factor and being THE motivating factor
                                  o Race is not the predominating factor when the State has articulated a legitimate political
                                       explanation for its districting decision, and the voting population is one in which race and political
                                       affiliation are highly correlated
                          Dissent: Justices Thomas, Rehnquist, Scalia, and Kennedy
                                  o Believed that the original fact finders, the Dist. Crt., should be given deference
                  Once strict scrutiny is triggered, what gov. interest is sufficiently weighty to justify race-specific redistricting?
                          Compliance w/ Voting Rights Act
                          Remedying effects of prior discrimination (Bush v. Vera)
        o Note: The “Special” case of Indigenous People
                  Rice v. Cayetano (pg 596) (2000)
                          Justice Kennedy wrote the opinion
                          Facts: OHA was charged w/ carrying out the duties of a trust between the indigenous people of Hawaii and
                              the US, compensating the for past wrongs, and helping to preserve the indigenous culture that existed
                              before Capt. Cook landed in 1778.
                                  o Petitioner was a citizen of Hawaii and a descendant of pre-annexation residents of the islands. He
                                       was neither "native Hawaiian" nor "Hawaiian" as defined by the statute. Petitioner applied to vote
                                       in the elections for Office of Hawaiian Affairs (OHA) trustees. To register to vote for the office of
                                       trustee he was required to attest that he was Hawaiian and desired to vote. Petitioner marked
                                       through the words "am also Hawaiian and," then checked the form "yes." His application was
                                       denied. The Supreme Court held that the voting structure under the statute specifically granted
                                       the vote exclusively to persons of defined ancestry. The state, in enacting the statute, used
                                       ancestry as a racial definition and for a racial purpose. The ancestral inquiry was forbidden by the
                                       Fifteenth Amendment. Thus, the electoral restriction enacted a race-based voting qualification,
                                       which denied or abridged the right to vote on account of race in violation of the Fifteenth
                                       Amendment.
                          H: OHA activities were constitutional, but the method by which the trustees who administered OHA were
                                                       th
                              elected violated the 15 Amend.
                                  o Franchise was limited to descendants of people inhabiting the islands in 1778
                                  o Decision that statute denied petitioner's right to vote for state officers because of his ancestry
                                       reversed; the ancestral inquiry created a race-based voting qualification, which violated the
                                       Fifteenth Amendment.
                          Dissent: Justice Stevens, Ginsburg
                                  o Precedent is that Crt. will uphold leg. that singles out Indians for special treatment as long as the
                                       special treatment can be tired rationally to fulfillment of Congress unique obligations towards the
                                       Indians
                                              Was not followed in this case
                                  o Dissent believed that Native Hawaiian’s should be allowed to conduct their business as they see fit
   Equal Protection Methodology: Heightened Scrutiny and the Problem of Gender (pg 619)
        o Until 1970’s, Crt. applied only minimal scrutiny to gender classifications, thus consistently rejecting const. attacks on statutes
            that disadvantaged women
                                                                                                                                           th
        o Were decided against the backdrop of the Slaughter-House cases, which had given an extremely narrow reading to the 14
            Amend. due process and equal protection clause
        o Early cases
                  Bradwell v. Illinois- upheld Illinois law that prohibited women from being able to practice law. (Not P or I) Bradley
                     concurrence claimed women should stay at home with family.
                  Minor v. Happersett- upheld constitutionality of excluding women from voting. (Not P or I) Overruled by 19th A.
        o Road to Intermediate Scrutiny
                                                      st
                  Reed v. Reed (pg 621) (1971) (1 decision Sp. Crt. invalidates a gender class. under Equal Pro. Clause)
                          Justice Berger wrote opinion
                          One of 3 cases to cause Prof. Gunther in Harvard Law Review to say “something funny is going on here..”
                                  o The Crt. could easily say that it is a legitimate interest to say that those administering an estate
                                       should know what they are doing, and it would not be illegitimate for someone to say that men
                                       have more business experience than women, therefore the statute under the rational basis
                                       standard would be easily upheld
                          Ct applies rational basis with a bite to invalidate law. Administrative convenience argument doesn’t work
                              with Rat. Bas. with a bite. [[first time SCt invalidates a gender classification]]
                                                                                                                                           48
                          o     Two forms of rational basis tests:
                                     Highly differential
                                     Rational Basis with a bite (what is going on here)
                          o Might have been actually applying intermediate scrutiny
                 Facts: Idaho law specified the hierarchy of persons to be appointed as administrators of an estate when a
                     person died intestate. Specifically it created 11 categories in rank order—parents, children, etc.—said if 2
                     competing applicants in same category, male was preferred over the female.
                 Issue: whether gender had rat’l relationship to the ability to administer the estate.
                 standard: rational basis with a bite!
                 Holding: SC invalidated a gender classification law which preferred male estate administrators over female
                     ones.
                          o Ct said they were using rational basis but the reasoning didn’t look like it.
                          o State claimed they used this method to cut down on administration costs of having a hearing for
                                these matters and that state chose males b/c they were more likely to have business knowledge.
                          o Would probably be ok if they randomly chose out of a hat from two people but it seems the court
                                implicitly had to regard gender as an impermissible basis for government decisions.
                                     Another element of intermediate standard is that “archaic stereotypes” (men are one
                                          way, women are another way) should not relied on by the states
                          o Not highly deferential RB, but rational basis with a bite. Case used in Gunther article.
                                     State has to prove its own case per Gunther article
                                               There is a strong means/end relationship
                          o Example of preliminary step where court deals with a new question using familiar terms but
                                pushes the envelope.
         Fontiero v. Richardson [1973] (pg 622)
                 Justice Brennan wrote the opinion
                 H: SC struck down federal law that allowed men to automatically claim wife as dependent but required wife
                     to prove husband was actually dependent on her for over half his support to claim him for active duty
                     benefits.
                 Justice split: 4 Justices voted for SS to be applied to gender classifications but they were one short of a
                     majority. Stewart later said he thought SS would apply under Equal Rights Amendment (it ended up failing).
                     Level of scrutiny remained uncertain.
                 Where the Crt. starts to get interested in gender cases
                 Concept that plays a role in gender cases is “similarly situated”
                          o People who are similarly situated should be treated the same
                                     Not similar?--> No Equal Protection problem
         Rausteger case
                 Draft case that was gender specific
                          o Only males must register because only males can serve in combat
                 Crt. upheld this
                          o Because of the Crt.’s deference to military procedures
o   From Reed to Craig v. Boren—Evolution and Doctrinal Confusion
         Craig v. Boren- [1976] Intermediate scrutiny applies to gender classifications
                 Justice Brennan wrote opinion
                 SC declared unconstitutional OK law that allowed women to buy beer at 18, but wouldn’t allow men to buy
                     it until age 21.
                 STANDARD: first case that decides intermediate scrutiny is the appropriate standard for gender
                     classifications! citing Reed. “To withstand the constitutional challenge, previous cases establish that
                     classifications by gender must serve important governmental objectives and must be substantially related
                     to those objectives.” Intermediate Standard of Review So test:
                          o End- Important government interest
                                     Don’t need compelling state interest, but need it to be more important than legitimate
                          o Means- Must be substantially related to important government interests.
                                     Does not have to be narrowly tailored, but must be tighter than rational
                 4 Reviews
                          o Strict scrutiny
                                     Applies to race and alienage
                                     Race would be the classification you measure others by to apply strict scrutiny
                                     Are race and gender significantly a like that strict scrutiny should apply to both?
                                               Racelong history of discrimination


                                                                                                                               49
                                           o       You could make the same argument regarding women, in some respects
                                                   more so than African Americans
                                               o Gender is immutable and not a direct factor
                                               o Carolene Products Footnote 3, women are discrete, but not insular, not
                                                   a minority
                                      Crt. says that there are real differences between men and women that need to
                                          be taken into consideration
                                               o Most of the time, gender does not matter, for some distinctions there
                                                   are
                                               o We don’t want so high a standard that we throw out legitimate
                                                   concerns
                                      14 Amend. argument
                                            th
                                                                                                                    th
                                               o Race is constitutionally special because it was included in the 14
                                                   Amend., but gender was not put in
                                      Lengthy history of discrimination of both groups, but African Americans had it
                                          worse than women
                   o Intermediate review
                             More flexible
                                      But can be too flexible, could be narrowly tailored to the facts of the case, but
                                          could get too subjective
                                      Empirical showing must be stronger
                                      State is going to have to prove their case, and the degree of proof is going to
                                          have to be somewhat convincing
                             There ought to be some sort of searching review, but strict scrutiny is too burdensome
                   o Rational Basis
          Differences between Intermediate Review and Rational Basis Review
                   o Pure administrative convenience is insufficient for intermediate review, okay for rational review
                   o
          Difference between rules and standards here
                   o You can make rules that cause cases to come out a certain way because of precedent
                   o Intermediate standard of review is just a standard
                             Judges will have more discretion
                            
          OK said traffic safety (drunk driving) was important governmental interest and court accepts this.
          Ct concluded that gender discrimination, though, was not substantially related to that objective.
                   o There was only a correlation of less than 2% difference in % of males and females arrested for
                       drunk driving.
          Intermediate Scrutiny provides a different result than RB would have given.
                   o Statistical evidence that men DD more than women would be enough for RB.
                   o Administrative convenience is almost always sufficient under RB but almost never under IS.
                   o Diff. from SS too bc “no less restrictive alternatives” test doesn’t apply to IS.
          Dissent: Rehnquist
                   o Rational Basis equal protection analysis is best here
                             No history of this group being particularly disadvantaged
                   o Adding another standard of review is too confusing
                   o Nothing wrong with relying on 2%, any drinking and driving is bad and should be punished
   These cases made the federal government notice that women were significantly disadvantaged and were often put
    into classifications that were unjust
                         th
   Adoption of the 19 Amend., according to Siegel, reject two interrelated arguments
          1. That men adequately represented women w/in the family
          2. That the family was immune from Fed. regulation
   Another issues that arise is to what extent can gender be used for affirmative action purposes
          Johnson v. Title Roads
                   o Department of public safety in Cali.
                   o Many men worked out doors, while women worked inside in administrative roles
                   o When a position opened up in a category where women where underrepresented, there was a
                       consideration of many factors, including gender, which could be an advantage for women
                             Under Title VI, not equal protection
                   o Sp. Crt. upheld by saying there does not have to proof of past discrimination, there only has to be
                       imbalance in the workforce
                             Gender is only one factor, cited Wygant
                                                                                                                      50
                 o     O’Connor wrote a concurrence that said this is okay, but you have to be careful
                             This is okay, but beyond disproportionate, it is not okay
                             This is something the gov. could choose to do, but there has to be a stopping place
                             A method by which the gov. can respond to what it sees, but cannot do indefinitely
         Mississippi University for Women v. Hogan (pg 635) (1982)
                  o Action against University for admitting only female students and not male students
                  o Crt. struck down the practice because it perpetuated the stigma that women are nurses and men
                       are doctors
                  o Crt. did not rule out admitting only one gender to a school though
   Presumably, the states would have a better chance of using gender because the standard of review is lower
         Easier standard of review
         On the one hand racial discrimination has been more harmful, but it is easier for the gov. to provide a
             remedy for gender discrimination rather than racial discrimination because the standard of review is easier
   United States v. Virginia (pg 637) (1996)
         Justice Ginsburg wrote the opinion
         Virginia Military Institute (VMI) did not want to let women into their school because they did not feel that it
             was for women, they wanted to create a separate school that is not as demanding in its entry standards and
             would be less acclaimed.
         Standard: intermediate scrutiny
                  o State must show classification serves “important gov. objectives and that the discriminatory means
                       employed are substantially related to the achievement of those objectives”
                  o Justification must be genuine, not hypothesized or invented post hoc in response to litigation
                  o And it must not rely on overbroad generalizations about the different talents, capacities, or
                       preferences of males and females
             Holding: Under IS the SC declared unconstitutional the exclusion of women by the Virginia Military
             Institute (VMI) even though the state had set up the Virginia Women’s Institute for Leadership.
                  o (ii) “Skeptical Scrutiny”
                             Ginsberg said she was applying IS but said “parties who seek to defend gender-based
                                 government action must demonstrate an exceedingly persuasive justification for that
                                 action…the burden of justification is demanding and rests entirely on the State.”
                             “The state must show at least that the challenged classification serves important
                                 governmental objectives and that the discriminatory means employed are substantially
                                 related to the achievement of those objectives.”
                             More demanding that regular IS—push toward SS
                  o (iii) G also said justification “must not rely on overbroad generalizations about the different
                       talents, capacities, or preferences of males and females.” B/c the exclusion was based solely on
                       gender stereotypes, it was rejected.
                  o (iv) VA’s arguments:
                             a. Good reasons to have diff appch to men and women since they are so different.
                             b. Privacy issues and sexual harassment issues- we would have to change to much to bring
                                 in women.
                             c. We could try to have the exact same school but for women but so few would want to
                                 go.
                             d. Educational diversity—there are many coed schools we want ours to be diff.
                             Post decision, VMI still resisted adopting the Crts opinion
                  o (v) Ct’s Response to VA’s arguments:
                             a. Individualistic Approach- If one woman is interested and qualified ingoing to VMI, you
                                 have to include her.
                             b. Formalistic Approach- Women should have the opportunity to meet the same
                                 standards imposed on men. If she can meet the standard then she should be let in as
                                 opposed to saying she is still qualitatively different.
                             c. Rejection of Institutional Diversity Argument- VA can have diversity just not at the
                                 expense of women. Ct believes this is just an after the fact justification. (Why do we
                                 defer to Michigan in Grutter but not to Virginia here?)
                             d. VWLI doesn’t give women the same education or opportunities as VMI. Just can’t
                                 replace intangibles, even with lots of $. (Sweat v. Painter)
                                       University of Tex. case which created a separate law school for blacks
                  o (vi) Other Opinions:
                             a. Rehnquist Concurrence- Doesn’t like skeptical scrutiny, but not arguing RB
                                 anymore. Ct oversteps itself in saying schools could never be equal. VMI shouldn’t be
                                 punished for things it acquired before discrimination was wrong.
                                                                                                                      51
                                      Concurs that VMI has not done enough, at the all women’s school, Mary Baldwin,
                                       but he thinks there is a possibility that this could be cured
                                    But you can’t replicate the intangible factors of VMI at Mary Baldwin (e.g.
                                       reputation, prestige of faculty), and you should not take this into consideration in
                                       the decision (Crt. rejects this)
                           b. Scalia Dissent- Majority is ignoring real differences, sexual harassment arguments; do
                              we seriously need another standard of review? Elite class imposing their view.
                                    Crt. is simply imposing its own values through the constitution
                                    Crt. does not have the right to make this decision
                                    Same argument he makes in his dissent in Romero
                o (vii) What is the nature of equality? Can you offer something of equal value or benefit but it
                     doesn’t have to be exactly the same since men and women are physically and socially different?
                o Intermediate scrutiny- you can’t base discrimination on
                o Example of the Crt. taking an individual approach to classification
            Nguyen v. Immigration and Naturalization Service (pg 648) (2001)
                o Justice Kennedy delivered the opinion
                o Facts: Nguyen was born in Vietnam to a Vietnamese mother and American father, he came to the
                     U.S. when he was 6 to live with his dad, at 22 he was convicted of a felony and INS wanted to
                     deport him, father took paternity test to prove Nguyen was his son, but INS said it was too late and
                     that the process needed to be done before Nguyen turned 18
                o SC allowed a difference in INS rules favoring mothers over fathers b/c
                           Greater certainty as to the identity of the mother as compared to the fathers and
                                    Mothers have to be present at the birth, but fathers don’t have to be
                           The greater opportunity that mothers have in establishing a relationship with their
                              children and with the United States
                                    Discusses young men in foreign countries when they work for the military
                                    DNA is not enough to prove a relationship between father and child
                                    Kept talking about “mother’s knowledge of the child and the fact of parenthood”

                 o    Dissent: O’Connor, Souter, Ginsburg, and Bryer
                            DNA evidence is enough to negate the passage of time when a father may/may not be
                                involved in the child’s life
                            Disagrees that a parent-child relationship must form before the child is 18
                            There are gender neutral alternatives to the statute
   Note: The Relevance of “Real Differences”
          Califano v. Goldfarb (pg 656) (1977)
                  o Justice Brennan wrote the opinion
                  o SC held unconstitutional a federal provision where woman automatically would received benefits
                      based on the earnings of her husband but a man would receive those benefits only if he could
                      prove he received at least half his support from his wife.
                  o Invalid b/c it was based on presumption that wife was usually dependent.
                                              th
                            Violation of 5 Amend equal protection clause
                  o Also, law discriminates against everyone: men can’t get benefits from wife, women can’t pass on
                      benefits to husband.
                  o Dissent: Rehnquist, Burger, Stewart and Blackmun
                            Argued over the kind of test the Crt should use in deciding the case
          Califano v. Webster (pg 658)(1977)
                  o SC upheld a provision in the Social Security Ac that calculated benefits for women in a more
                      advantageous way than for men.
                  o This was ok b/c it wasn’t based on a stereotype but trying to compensate women for past
                      economic discrimination.
                  o Decision was based on Kahn and Ballard
   Discrimination that is cultural or societal is usually not touchable by the Crt. because it is beyond the Crts. reach
          There is not a lot to be done at the court level, it is all about societal norms
          Proof of intent and
   Series of cases that have been omitted from our book: restructuring of the political process
          Hunter v. Erickson (pg 529)
                  o City council passed a fair housing requirement that was then repealed and provided that in the
                      future, any ordinance in the city dealing with fair housing had to be voted on by the city, not just
                      decided by the city council

                                                                                                                         52
                                   o  Facts: city enacted fair housing ordinance that prohibited racial discrim in real estate. Citizens
                                      objected & passed § 137 – required any ordinance regarding race to be approved by maj of vote.
                                 o H: struck down § 137 b/c violates EPC.             Standard: strict scrutiny.
                                            Restructuring the federal process is not allowed
                          James v. Valtierra (pg 529)
                                 o Cali. required that legislation pertaining to landlord/tenet issues had to be challenged at the state,
                                      versus the local level
                                 o Restructuring
                          Seattle v.
                                 o Repealed what Seattle had done and said if they wanted to reinstitute it, they had to appeal to a
                                      higher board
                                 o Difficult issue raised is proving discriminatory intent
                                            Hard to prove about a referendum by the general electorate
                          Crawford v. LA School District
                                 o Cali., unlike the Fed. Crts. held under its own state constitution, de facto segregation is a violation
                                            Cali. was required to undergo extensive busing, even though there was no discriminatory
                                                intent
                                 o Facts: CA SCt held that under CA const, de facto segregation is violation of state EPC & that busing
                                      to cure would be appropriate remedy. CA voters didn’t like it so they passed referendum asking to
                                      remove busing as approp remedy for de facto seg in CA. *didn’t change const but changed
                                      enforcement].
                                 o H: upheld.
                                 o Reasoning: it wasn’t a ‘restructuring of political process’ but merely a repeal. Repeal is const bc
                                      otherwise there wouldn’t be method for progressive change. Mere repeal is okay.
                                            If racially progressive legislation necessarily becomes entrenched against repeal under the
                                                restructuring principle, this becomes
                                                      Voters/legislature can never stay working because repealing the law would
                                                          violate equal protection
   Equal protection methodology: The problem of sexual orientation
                  Romer v. Evans [1996] (pg 666)         one of rare cases where state failed rational basis test [homo]
                          Justice Kennedy wrote the opinion
                          Facts: cities in Colorado accepted local ordinances, which banned discrim in housing, employment, educ,
                            public accommodations, & health & welfare services on the basis of sexual orientation [so includes sex
                            orientation w/ race & gender]. But then voters passed a referendum saying no minority status for sexual
                            orientation.
                          D’s alleged state interest: there are limited resources so don’t want to make more groups minorities, don’t
                            want to make homosexuality a “special” class
                          H: struck down as unconst. Violation of EPC.
                          Standard: rational basis [but still failed! Bc animus against gays & lesbians, even when purported “moral”
                            basis for law, is not sufficient to meet rational basis test]
                                 o Application: The target of the ordinance was so narrow [homosexuals & lesbians] & the coverage
                                      was so broad [all state benefits] so it appeared to serve no legit state purpose & was simply the
                                      result of prejudice.
                                            Broad-Private Public
                                            Stripping gays of ordinary rights
                                 o Factors ct considered to determine violation of EPC:
                                            Arbitrary – not rational
                                            Doesn’t serve a purpose – so must be b/c of hostility
                                            Class is not a classification - too narrowly defined
                                            Broad coverage/narrow class – very strange. Denies EPC rights.
                                            Can’t punish ppl for status [status v. conduct]
                                            Crt. believed the disadvantage imposed was born of animosity towards Gays
                                            Restructuring the political process – they’re trying to make it diff for this narrow group b/c
                                                now to change have to amend state const.
                                                      Other groups that are not protected by local laws, all they would have to do is
                                                          convince the city council that they needed protection
                                                               o Gays would have to amend the constitution
                                                      This in and of itself would not be enough though to make something
                                                          unconstitutional
                                                      Restructuring exists only w/ respect to race, not any other kind of classification

                                                                                                                                        53
                                                   In any kind of constitutional challenge, must consider the states purpose for making the
                                                    law
                                                          Must have legitimate state purpose
                                                                  o Per Kennedy, State is attempting to rely on several justifications
                                                                            Moral disapproval (tolerate, but not embrace)
                                                                            All we are doing is putting Gays in the same position as
                                                                               everyone else (should we give Gays special rights, or treat them
                                                                               like all of the other groups)
                                                                            Protect the rights of association of people who have a strong
                                                                               disagreement with the gay lifestyle (landlords, small
                                                                               businesses)
                                                                            Conserving gov. resources to protect other groups
                              Scalia dissent: perhaps this isn’t out to get gays & lesbians.
                                    o Depicts gays as a group earning higher than avg incomes & having more political pwr than their
                                         tiny numbers would suggest. “special rights” legislation.
                                    o If its const to criminalize conduct that defines the class [Bowers] then its const for state to enact
                                         other laws merely disfavoring homosexual conduct. [this case was before Lawrence]
                                    o Ct is once again imposing views of the elite class on the country.
                                    o The referendum denies special but not general protection.
                                    o Principle seems to suggest that group is denied EP if its required to appeal to a more general &
                                         difficult decision-making process for relief
                                    o Law is attempt to counter the geographic concentration of homosexuals in the cities by removing
                                         the issue to the state level.
                                    o Indistinguishable from state const bans on polygamy
                                    o Legit expression of moral disapproval rather than prejudice.
                                    o Protecting morals of individuals, prohibits special treatment of homosexuals and nothing more,
                                                Constitution is silent, left to normal democratic means ie state constitutions.
                                                Animus/hostility – smallest conceivable
                              Why important?
                                    o 1st time Ct invalidated discrim based on sexual orientation.
                                    o Indicates some willingness [even though used rational basis review] to protect gays, lesbians, &
                                         bisexuals from discrim.
                              now what?
                                    o Left a lot open b/c doesn’t make clear what its limitations are.
                                    o Colorado could just go back & pass another law under a legit purpose
                                    o Some say is EPC case, some say its like a Bill of Attainder [legislative burdening of one
                                         person/identifiable closed class] – but is it sufficiently closed class?
                              2 different lines of authority in the gay rights area
                                    o Romer v. Evans [EPC area]
                                    o Lawrence v. Texas [overrule Bowers crim bans on homosexual sodomy]
                                                Case that overruled Texas’ sodomy law and overruled Bowers v. Hardwick (Georgia case
                                                    where the Crt. upheld Georgia’s law criminalizing all oral and/or anal sex regarding
                                                    homosexual activity)
                                                Seemed to equate morality w/ prejudice
                                                O’Connor’s argued that Texas’ law refused to serve a legitimate state interest
                                    o Also DOMA
                                                o Among first to Repeal antisodomy laws

                        Lawrence v Texas (2003) – seems to take morality off the table as a legitimate police power interest.
                                               OTHER CANDIDATES FOR HEIGHTENED SCRUTINY
                                    Alienage: Only relates to legal aliens!! Not applicable to illegal aliens.
   Graham v. Richardson (1971)– alienage is and has been a suspect classification for a long time.
   Since then Court has applied a strict standard of review
   -      all of these cases involve state legislation.
   -      control is predominately a concern of congress and federal govt and not the states. The states do not have all that much of an
    interest, consequently, the Court would be much more deferential to federal regulation
   -      qualified strict standard because the Court builds in an escape hatch: as a general rule states have to have a compelling state
    interest in excluding aliens but there are some state govt positions where that would be inappropriate to the extent that we are
    talking about policy making (Lt Gov or head of a department, someone who makes or implements state policy) then the state has a
    strong state interest in ensuring that the ppl governing the citizens are in fact American citizens and are loyal to our nation, not some
    other nation.
                                                                                                                                            54
   -      Court claims it is rational basis but really is rational basis with a bite or intermediate standard of review.
   Alienage is a suspect classification except when it isn’t, sometimes it isn’t. When it comes to police officers, the court says that police
    officers are supposed to make policy but they are enforcing important legal provisions and are supposed to be understanding of
    constitutional limitations.

   Court has not really done much with this in relatively recent years. One could argue that the whole area of the law would make more
    sense if the Court had simply decided to apply intermediate scrutiny then it would explain all of the decisions. Court was not thinking
    in strict scrutiny because it was 5 years before it was recognized in Craig v. Boren.

   Fundamental Interests (3) and Equal Protection
   1.    voting and state elections
   2.    right to travel
   3.    rights in criminal process
   if you have a classification that has an adverse effect on such a fundamental interest then strict scrutiny will apply even though there
    is nothing suspect about the classification itself.

   VOTING –
   Constitution left state voting to itself. This changed in the early 60’s, history of the country a defining characteristic is urbanization.
    More people moved from the country to the cities. That means legislative districting needs to be updated from time to time because
    demographic changes will throw it out of whack as people move form rural to urban districts.
   If based on each individual person
   many states had not reapportioned themselves. A minority of the people controlled the majority of the legislature.

   Colgrove v. Green (1946) – Illinois legislature challenged on grounds malapportioned. based on guaranty clause.
   Supreme Court rejected this challenge. claimed it was apolitical question.

   Baker v. Carr – (1962) violated equal protection
   state argued it was a political question. Majority says it was political question because did not have judicially manageable standards in
    Colgrove. Court remanded and said apply equal protection clause. As a result electoral reapportionment at the state level was
    challenged throughout the country.

   Reynolds v. Sims (1964) 25% controlled the majority of the state legislature seats. reformers turned to the Courts.
   -       votes of the urban residents are diluted.
   -       casts a light on what is a central issue in any type of equal protection case.
   -       brings to the forefront something the courts always have to think their way through:
   o as a general rule – equal protection requires that people who are similarly situated should be treated similarly, if you treat them
    differently then prima facie would be an equal protection violation.
   o all voters stand in the same position.
   § determining whether people on two sides of classification are similarly situated then they should be treated the same.
   § how do you tell if they are similarly situated?
   ·      opinion just announces it – with no explanation
   ·      generally outcome determinative
   § one person one vote would have to follow from this rule
   o Warren makes the argument through Analogy of previous cases:
   § explicit vote dilution would clearly violate
   ·      ie rural area only gets half a vote rather than full vote of urban à obviously problematic
   o state relies on claim of federal analogy
   § court does not buy it – only have the constitution because of the great compromise
   § this does not apply to states and counties – states are not created by coming together as independent sovereigns
   § based on historical issues that don’t carry any weight in state context.
   -       provides nice example of analogical reasoning – are the similarities greater than differences = good analogy; differences exceed
    similarities then inappropriate
   -       Standard – state must make an honest and good faith effort to construct districts.
   o bicameralism can still make sense – can have different lengths of terms, different size districts (larger and smaller),
   finish Reynolds (focus on companion Lucas case) and look at voting rights cases through bush v. gore and other fundamental rights
    (criminal process and right to travel cases)
                    
   Equal protection methodology: Other candidates for heightened scrutiny (pg 686)
         o Alienage (pg 686)

                                                                                                                                              55
                    Heightened scrutiny for suspect classifications the appropriate judicial response to efforts by the majority to exclude
                     certain groups from the political community
                    Footnote 4 of Carolene Products discusses the gov.’s need for more judicial inquiry because prejudice tends to hurt
                     the things set in place to protect minorities
                    Sugarman v. Dougall (pg 687)(1973)
                           OVERVIEW: Appellees, who were federally registered resident aliens, filed a class action when, because of
                              their alienage, they were discharged from their competitive civil service positions with New York City.
                              Appellees challenged the constitutionality of N.Y. Civ. Serv. Law § 53, which denied all aliens the right to
                              hold positions in New York's classified competitive civil service. Appellees sought a declaration that the
                              statute was invalid under U.S. Const. amend. I and XIV, injunctive relief, and damages for lost earnings. A
                              defense motion to dismiss for want of jurisdiction was entered by appellants. The lower court ruled that the
                              statute violated the Fourteenth Amendment and the Supremacy Clause and granted injunctive relief. The
                              Court affirmed the lower court's decision and determined that aliens as a class were a prime example of a
                              discrete and insular minority. From Graham v. Richardson summarizing Carolene Products. Classifications
                              based on alienage were subject to close judicial scrutiny. The Court looked to the substantiality of the
                              state's interest in enforcing the statute and to the narrowness of the limits within which the discrimination
                              was confined. The Court concluded that § 53 was unconstitutional.

                              OUTCOME: The Court affirmed the district court's decision.
                             Restrictions of employment to noncitizens could be okay if it is narrowly confined and has a particular
                              relevance to an important state responsibility
                          Dissent: Justice Rehnquist
                                   o Aliens did not suffer any disability that precluded them from gaining citizenship
                                   o Constitution recognizes a difference between aliens and citizens, which signifies there is a
                                        important difference
                                   o Aliens are most likely not knowledgeable with our customs of how to treat others or how we
                                        expect government to treat us
                                             Listed bribery as an example
                    Lucas v. 44th General Assembly [1964]        companion case to Reynolds
                          Facts: CO case. most ppl live along springs. There was vote where could choose between equality of
                              representation [1 prsn 1 vote] or deliberate malapportionment where the more sparcially apportioned
                              areas would receive a little more representation. Maj vote in every county approved 2nd choice b/c there
                              were areas where not a lot of ppl but significant economic acitivty.
                          CO arged that geography DOES matter for apportionment. Diff interests.
                          H: strikes down the malapportionment.
                          Main pt: Ct said irrelevant that voters had approved the malapportionment. 1 prsn 1 vote is a const.
                              mandate. Cant violate even by by maj voter approval.
                          Clark would have argued that this would have been okay as long as it was rational, majority disagreed, must
                              be one person 1 vote, not whether or not the public thinks its okay
                          Cannot dilute anyone’s vote, or you have to change what your state does
   Voting (pg 766)
        o 3 aspects of the right to vote:
                  Denial of the right to vote
                  Dilution of the right to vote
                  Denial of access to the ballot
        o Denial of the “Right to Vote”
                  Original Constitution left the states free to determine qualifications of voters for national and state elections
                       th
                  14 Amend. did not directly prohibit discrimination in voting
                  Until the 1960s, the Court usually deferred to the states in determining the qualifications to vote, except where a
                    statute said otherwise
                  Reynolds v. Sims opened the door to a more active judicial scrutiny of voter qualifications
                  Harper v. Virginia State Board of Elections (pg 767) (1966)
                           OVERVIEW: The state residents filed an action against the voting officials, seeking a declaration that a poll
                             tax, Va. Const. § 173, was unconstitutional as a violation of the Equal Protection Clause. The district court
                             dismissed the actions, relying on an earlier case that had authorized the poll tax, and the state residents
                             sought review. The Court reversed and overruled the prior case to the extent that it sanctioned the tax. It
                             held that a state violated the Equal Protection Clause whenever it made the affluence of the voter or
                             payment of any fee an electoral standard. Voter qualifications had no relation to wealth or to paying or not
                             paying this or any other tax. The Equal Protection Clause prohibited the states from fixing voter
                             qualifications that invidiously discriminated. To introduce wealth or payment of a fee as a measure of a
                             voter's qualifications was to introduce a capricious or irrelevant factor. The degree of the discrimination
                                                                                                                                         56
                       was irrelevant. As a condition of obtaining a ballot, the requirement of fee paying caused an "invidious"
                       discrimination that ran afoul of the Equal Protection Clause.
                   OUTCOME: The Court reversed the order dismissing the state residents' action. The poll tax was an
                       invidious discrimination that violated the Equal Protection Clause of the Fourteenth Amendment.
                   Overruled Breedlove v. Suttles, thus invalidating a Virginia law requiring payment of a poll tax as a
                       precondition of voting
                   “A state violates the Equal Protection Clause when it makes the affluence of the voter or payment of any
                       fee an electoral standard”
                   Crt. relied on the “suspect classification” and “fundamental interest” aspects of equal protection analysis
                   Wealth is not determinative of one’s ability to participate intelligently in the electoral process
                   Voting is a fundamental interest and strict scrutiny should apply
                   Dissents: Black and Harlan
                            o Black
                                      States should have the broadest leeway in situations where the Constitution gives them
                                          the ability to act
                                      State poll tax can reasonably, rationally, and without evil purpose to injure anyone be
                                          found to rest on legitimate state policies
                            o Harlan joined by Stewart
                                      There is a rational basis for Virginia’s poll tax as a voting qualification
                                                They have traditionally been part of our political structure
                                                Poll taxes promote civic responsibility, weeding out those who do not care
                                                    enough to pay $1.50
                                                         o Flip side is doesn’t waiting in hours long lines and restricting when and
                                                              where you can vote achieve the same goal?
          Kramer v. Union Free School District (pg 770) (1969)
                   Chief Justice Warren delivered the opinion
                   OVERVIEW: Appellant citizen, a bachelor who neither owned nor leased taxable real property, filed suit in
                       federal court claiming that N.Y. Educ. Law § 2012 denied him equal protection of the laws in violation of
                       U.S. Const. XIV. The statute limited individuals who were eligible to vote in school district elections to
                       property owners and parents. The district court dismissed the suit, and appellant challenged the decision.
                       On appeal, the Court reversed the district court's judgment and remanded the case, finding that N.Y. Educ.
                       Law § 2012 did violate the Constitution. The Court held that § 2012 did not meet the exacting standard of
                       precision required of statutes that selectively distributed the franchise. The classifications in § 2012
                       permitted inclusion of many persons who had, at best, a remote and indirect interest in school affairs and,
                       on the other hand, excluded others who had a distinct and direct interest in the school meeting decisions.
                   OUTCOME: The Court reversed and remanded the district court's order dismissing appellant citizen's suit
                       challenging the denial of his right to vote in the elections of appellee school district. The Court held that a
                       statute limiting the right to vote in the elections did not meet an exacting standard of precision.
                   Dissent: Justices Stewart, Black and Harlan
                            o NY was not being irrational here, they were w/in their rights
o   Dilution of the “Right to Vote” (pg 774)
          Until 1962, Crt. held that legislative districting controversies were nonjusticiable
          Reynolds v. Sims (pg 775)(1964)[Warrens most impt decision] b/c 1 prsn 1 vote to state legislatures changes make
             up of every leg in country.
                   Chief Justice Warren wrote the opinion
                   OVERVIEW: The original plaintiffs, county residents, taxpayers, and voters, alleged that despite uneven
                       population growth from 1900 to 1960, the failure of the Alabama legislature to reapportion itself denied
                       them equal suffrage in free and equal elections and the equal protection of the law, in violation of U.S.
                       Const. amend. XIV. The court affirmed the judgment of the district court, which held that the existing and
                       two legislatively proposed plans for the apportionment of seats in the two houses of the Alabama
                       legislature were invalid. The court held that the Equal Protection Clause required both houses of a
                       bicameral state legislature to be apportioned on a population basis and that recourse to the so-called
                       "federal analogy" would not be sustained. The district court was found to have acted with proper judicial
                       restraint after the Alabama legislature failed to act effectively to remedy the constitutional deficiencies in
                       its apportionment scheme in ordering its own temporary plan to permit the holding of elections pursuant to
                       it without great difficulty and in retaining jurisdiction and deferring a hearing on a final injunction to allow
                       the legislature opportunity to act effectively.

                      OUTCOME: The court affirmed the district court's decision to invalidate existing and proposed plans for the
                      apportionment of Alabama's bicameral legislature because the plans violated the Equal Protection Clause.
                      Any such apportionment was to be based on population, and recourse to the "federal analogy" would not
                                                                                                                                    57
            be sustained. The plan effected by the district court to allow for interim elections while the legislature acted
            was affirmed.
         This case involved combining five cases, this one was from Alabama
         like Wesberry, but now ct acknowledges 1 prsn 1 vote applying to state legislature. P arg their votes aren’t
            as weighty as ppl in rural areas. Vote dilution.
         H: Can only use population to draw districts, NOT geo [leg reps ppl not trees]. Both houses of state leg must
            be apportioned by population!
         Malapportion  vote dilution  Here, violates Equal Protection!
                 o How much dilution is necessary for const. violation?
                            if ppl similarly situated, should be same. If not  violate EPC
                                       P need to show similar situated & being treated differently.
                            If 2 groups situated differently & Ct treat them same  violate EPC
                 o Application Here:
                            Similarly situated? Yes. You are similarly situated regardless of whether you live in city or
                                 suburbs. [ct kind of assumes this here]
                                       IMPT!!: USSC assumes GEOGRAPHY IS IRRELEVANT.
                            Treated differently? Yes. Votes not equal b/c voters in suburbs have more pwr. 1 prsn 1
                                 vote!  violates EPC!
         Ct also strikes down P’s federal analogy arg *every state entitled 2 senators despite population+ – Great
            Compromise.
         Consitent w/ cases like Wash v. Davis b/c takes individualistic approach to EP. Every person has right to
            have their vote counted same as any other person.
         This case is good example for arguing by analogy: when don’t have clear authority for your case, may want
            to argue by analogy. Here, the analogy is that malapportionment is pretty analogous to explicit vote
            dilution.
         Clark concurrence: note that Clark concurs in Reynolds but dissents in Lucas b/c takes a more deferential
            approach. Sees Reynolds as arbitrary crazy quilt malapportionment but sees Lucas as rational. [more of a
            rational basis test]
         Harlan Dissent: as matter of political theory should leave it up to states – not 1 prsn 1 vote. Equal
            Protection Clause did not limit the power of the States to decide how to apportion their legislature
                 o Const – theres no way to reconcile what ct did w/ original txt/14th A. Ct is interfering w/ state
                      rights. silly not to use other factors than population. Framers didn’t intend 14th A to limit states
                      pwr to apportion leg dists. History never imposed 1 prsn 1 vote.
                 o Textual – why include 14th A § 2 if § 1 EP applies to voting? Why adopt 15th A if 14th A applies to
                      voting. 14th A NOT ab voting but only ab racial discrim in voting.
         Stewart and Clark Dissent
                 o So long as a State’s apportionment plan reasonably achieves, in the light of the State’s own
                      characteristics, effective and balanced representation of all substantial interests, w/out sacrificing
                      the principle of effective majority rule, that plan cannot be considered irrational
                 o Equal Protection Clause demands only
                            1. In light of the State’s own characteristics and needs, the plan must be a rational one
                            2. Plan must be such as not to permit the systematic frustration of the will of a majority of
                                 the electorate of the State
                 o If both things are met, State may do as it pleases
         This case changed how states did things, why was there no outcry by the public over this?
                 o 1 person 1 vote was considered very fair
                 o Seemed intuitively fair
                 o May not be constitutionally required, but seems fair
                 o Not difficult to put this plan of action into motion
                            Ease of administration
                 o Margin of error when you have state representation bodies
                            Congressional districts do have to be decided with precise precision according to Article 1,
                                 but not so with state legislative bodies
         Reynolds & Brown v. Ed compared.
                 o Brown met 30-40 yrs resistance. Reynolds accepted easily b/c result [1 prsn 1 vote] seemed
                      intuitively fair.
   Courts have developed a number of statistical indices to measure malapportionment
         Maximum percentage deviation
                 o Up to 15% to make up for underrepresentation/overrepresentation is okay
                 o State legislatures only
                 o Political gerrymandering has not been able to be worked out yet
                                                                                                                         58
                                Complies w/ 1 person 1 vote, but has not been able to come up with a good way to keep
                                 minorities who live in majority districts safe
                                      Political question, or there is no problem here
   Bush v. Gore (pg 148)(2000) [also reiterated that voting is a fundamental right]
         Facts: Florida recount. Minimal supervision so each vote counted differently. Under state law, the count
             was required to be certified by Nov. 15. Sec. of State certified for Bush, Gore appealed. Gore handpicked
             three districts he sought a manual recount from, FL complied, Bush appealed that to the Sp. Crt. of the U.S.,
             Sp. Crt. struck it down and remanded to the FL Sp. Crt. and asked to know what the basis for its opinion
             was, this is Bush v. Gore II
         H: violated EP clause. no standard to count the votes. Looking at Reynolds, vote dilution is as much a
             deprivation as depriving some 1 of vote entirely.
                  o Voting is a fundamental right and the recount procedures are unfair because they do not treat
                       each vote the same
                  o Standard is determine the intent of the voters
         The diff justice splits
                  o 7 justices agreed this was an Equal protection case. [maj + Souter & Breyer] & violated b/c no
                       standard to count the votes.
                             Bush’s lawyers did not think this was their best argument, they thought the Article 2
                                 argument was stronger
                                      Article 2 argument is that under the Constitution, it says the Legislature should
                                          designate the electors
                                      Under a McPherson v. Black, Crt. held that when the Constitution said the
                                          legislature, it meant the legislature to the point where the legislature, the rules
                                          for conducting elections must be set by the state legislature alone, the extent
                                          that the FL judiciary process seemed to violate Article 2, and would also deprive
                                          them of safe harbor protection
                                               o Applies if and only if the rules were conducted in the election were
                                                    ratified before the election itself
                             Rhenquist made Art. 2 argument in his concurrence
                                      Dissent said no, not an Art. 2 violation
                                               o Ginsburg- cases he cites are the only examples and the overwhelming
                                                    number of cases do not get into state law
                                               o Rhenquist said what the state did, by changing the rules drastically, is
                                                    against Art. 2, dissenters say “no” it is just good faith interpretation
                  o Disagreed on: Remand or just cancel the vote? H: Cancel the vote.
                             remand to FL to come up w/ uniform standard: Souter & Breyer
                             maj: just H for Bush. Not enough time. today is 12/11. FL wanted to take adv of safe
                                 harbor provision [ends 12/12] or drop out of vote entirely.
                             Dissent: deadline is 12/18 even though no more safe harbor & Congress can decide that
                                 votes certified after 12th aren’t actual votes. 18th is last day votes won’t count PERIOD.
                                 Can’t just assume FL didn’t want this.
                             Why did the majority decide everything had to be done by the next day, Dec. 12?
                                      Statute said so, this happened in the 1800s
                                               o As long as the ballots are certified by the State by a certain date, the
                                                    results have to be accepted, beyond that date cannot be accepted
                                               o FL Sp. Crt. said coming w/in the safe harbor was important, but that
                                                    would be impossible
                  o Rehnquist Plurality[concurrence]: violation of Article 2.
                             Art.2 already sets out process for presidential vote. FL S.Ct directly violated art. 2 by
                                 changing election rules during the process. Cant change rules during process b/c will favor
                                 1 candidate. Can’t legislate from the bench.
                  o Dissenters: it was an ambiguous statute. The way Fl.Ct read it isn’t completely arbitrary or
                       unreasonable so USSC must just accept it.
                             Stevens dissent: [essence of case! Bloom agrees: should remand!] you are questioning
                                 state judge’s partiality. Need to have more confidence in their ability to decide. Single
                                 impartial magistrate CAN resolve recount.
                             Justice Breyer
                                      Congress, not the Court should decide electoral problems because they were
                                          elected by the public and are thus in a better position to make decisions for the
                                          public

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                                                           It is up to the States themselves to determine what is more important to them,
                                                            maybe FL would agree with the majority/maybe they won’t, but it should be up
                                                            to the State
                                                                  o 2 deadlines
                                                                            Dec. 12-date had to be certified by the State
                                                                            Dec. 18-Electoral college will meet and tally the votes, no
                                                                                certification, no votes get counted (dissenters think this date is
                                                                                more important)
                            “Gore was checkmated by the Constitution [12th A]”
                                     o even if both Gore & Bush were certified, vote would go to House of Reps under 12th A. more
                                          republican majority states at time so Bush would win.
                                     o Just about every scenario has Bush winning, all but 1
                            End gain under the Constitution was that assuming the vote count went on until the Electoral College voted
                               on Dec. 18, FL legislature hired lawyers to say that FL declared Bush a winner on Dec. 12
                                     o Suppose FL Sp. Crt. had certified Gore and Legislature had certified Bush, what would have
                                          happened?
                                                Would go Congress to decide which one is right, Republican’s had control of Congress,
                                                   Bush would win
                                                There was a Constitutional way to work this out (YAY!)
   Access to the Judicial Process
        o Brief summary of another aspect of fundamental interest review, suspect classification
                  During the 60’s, it seemed as though the Crt. was receptive to the argument that there was something
                      fundamentally wrong with a statute
                  With respect to various fees in the criminal process, some of these cases suggest that some of them have
                      fundamental interest because there is discrimination against the poor
                  Griffin v. Illinois (pg 795)(1956) [right of indigent to receive free transcript for appeal]
                            Justice Black wrote the opinion
                            Facts: indigent wanted to appeal crim conviction but couldn’t afford transcript so difficult to show ct of app
                               where trial ct erred.
                            H: right to transcript in crim process is fundamental. For Griffin. Give it to him.
                            Also tended to show wealth might have been suspect classification. [but its not]
                  Douglas v. California [poor ppl get counsel on trial AND appeal]
                            Lawyer on appeal, 6 Amend. right to counsel did not extend to appeal, indigent said WTF
                                                     th

                            Justice Douglas wrote the opinion
                            Facts: D wanted to arg case in app. ct but couldn’t afford counsel.
                            H: right to appeal crim conviction is fundamental. For Douglas. Give him counsel. No constitutional right to
                               crim. appeal, but it is pretty darn important, but if the state decides to provide it, it must be provided on an
                               equal basis to all
                  Boddie v. Conn. (pg 799)[Harlan 1968]
                            Due process, NOT EP case!
                            Ct invalidated filing fee for divorce under DP as wealth discrimination burdening a fundamental right.
                            Seemed to suggest wealth as suspect class. [but its not!]
                            3 Distinct positions on the constitutionality of filing fees that might preclude indigents from initiating civil
                               litigation
                                     o Constitutional (Black)
                                     o Unconstitutional only if the litigation involves “interests of basic importance in our society” and
                                          “state monopolization of the means” for protecting such interests (Harlan)
                                     o Unconstitutional
                  Crt puts a lot of weight on the fact that we are dealing w/ discrimination against the poor
                            Crt. suggests there is something wrong w/ it, but they are uncomfortable with it
                            Raised standard of review
                  Reliance on two different constitutional amendments
                            Due Process
                            Equal Protection
                            Crt. recognizes as a practical matter, it does not have the ability to equalize everything in society
                                     o Crt. recognizes that some have the ability to pay a lot of money for their defense, but indigent
                                          defendant’s do not have to have the same benefitsEQUAL PROTECTION IS NOT ENOUGH
                                     o Crt. reconciles this with Due Process (PLACES CEILING ON WHAT THE STATE HAS TO EQUALIZE)
                                                To the extent the right in question is important, if the state allows one person to have it, it
                                                   has to be provided for the indigent as well

                                                                                                                                               60
   Right to Travel-Fundamental right=STRICT SCRUTINY per Crt., however Bloom believes it is a fundamental interest
        o Although Const doesn’t mention right to travel, S.Ct has long recognized it.
        o There is some confusion regarding which scrutiny should apply
                  Marricopa County Case
                            Crt. struck down 1 year residency statute
                                     o Does not make sense
                                                 1. Most people moving to AZ would not know about the rule, but would probably not be
                                                     deterred from moving
                                                 2. Would not factor into their decision in any event, few would be deterred
                                     o Crt. started talking about penalizing vs. deterring
                                                 Dissenters say this has some problems because in many of these cases, the person who
                                                     relocated was entitled to this benefit in their state
                                                 So they are not getting something that they were entitled to beforehand, therefore this is
                                                     all shaky
        o Shapiro v. Thompson (pg 803)(1969)
                  Justice Brennan wrote the opinion
                  Facts: states [CA] + Congress passed durational residency req for receipt of welfare benefits [1 yr]
                            Cali. did not want hundreds of indigents flocking to Cali. to use up the state’s welfare benefits
                  H: for P. the req violated fundamental right to travel [relocate to another state]
                  TEST: when classification impinges on fundamental int., apply strict scrutiny
                            Step 1: What is the classification?
                                     o Ppl in state < 1 yr  no welfare
                                     o Ppl in state > 1 yr  welfare.
                            Step 2: what is the fundamental interest? Right to travel is fund int under EP clause.
                            Step 3: Does the classification impinge on the fundamental interest?
                                     o Yes b/c durational residency reqs discourage interstate travel & especially migration.  apply
                                           strict scrutiny.
                  State args & why ct rejects:
                            Fair to pay benefit to ppl who contributed to state. Ct: illegit purpose
                            States aren’t welfare magnets, don’t want poor ppl rushing to CA. Ct: illegit purpose. Citizen can select state
                                they want to live in. state cant select its citizen!
                            Saving money might be a legitimate state interest, but not an overwhelming state interest
                                     o States don’t have the right to select who they want as citizens, but citizens may choose which state
                                           they want to reside in
                  Where does Ct pt to show that there is a fundamental right to travel?
                            might be derived from 1) Commerce Cl. 2) Art 4 P&I 3) const structure.
                                     o Crandall v. NV: [1867] ct struck down law making railroads [thus citizens b/c fee was passed down]
                                           pay tax if you left state
                                     o Edwards v. CA: *1941+ *commerce Cl+ ct struck down CA’s anti-Okie laws that can’t come to CA
                                           unless showed had employment. Ppl traveling to seek employment IS commerce. Dust bowl era
                                           case, Crt. struck it down as violating Commerce Clause
                                                 Though maj used CC & didn’t mention right to travel, 4 concurring opinions mentioned
                                                     fundamental rt to tralve protected by 14th A P&I Cl. [ rare after Slaughterhouse! ]
                                     o [Art 4 P&I]: to extent state extends benefits to own citizens, its required to extend same to
                                           noncitizens who happen to be there.
                  Harlan Dissent: objects to whole idea of fund. Interests under EP.
                            if you have fundamental rt to travel, EP shouldn’t even be relevant. Either it is or isn’t a violation of your
                                right to travel.
                                     o Cali. has only violated right to travel, do not have to talk about EP at all, if so rational basis should
                                           apply
                            If you don’t have fund rt to travel, USSC doesn’t have right to increase standard of review & take another
                                aspect of your liberty & call it fund int.
                            So remember when Harlan writes for maj, he doesn’t use EP but DP!
                  After Shapiro: USSC analyzes these cases by asking whether residency req “penalizes” NOT deters right to travel *bc
                      deter is legal fiction.]
                  Legit residency reqs: Divorce, vote. But note can’t be too long! [3 mths is ok]
                  In subsequent cases, the Crt. has indicated that a good faith residency requirement is acceptable, as long as it is not
                      too long
                            Must be reasonable
        o Saenz v. Roe          suggests might revisit 14th A P&I. explicit fund. Rt to travel.
                  Suggests maybe USSC no longer willing to stand behind Shapiro
                                                                                                                                              61
                     Facts: CA law said that during 1st yr of residency in CA, entitled only to welfare that you would’ve received in your
                      old state. [different than Shapiro that didn’t give any welfare at all+
                     H: this is 3rd type of right to travel. Ct explicitly says Right to travel is a fundamental right protected by P&I of 14th A.
                      apply strict scrutiny.
                     3 types of right to travel cases each supported by diff const. theory
                            right to enter/leave state [federal structure]
                                     o Crandall & Edwards
                            right to be treated as a welcome visitor [art 4 P&I]
                            right to relocate & be treated same as any other citizens [14th A P&I – the law that was diminished by the
                                 Slaughterhouse cases.]
                                     o Ct here is saying there is still a list of things that are still 14th A P&I & right to travel might fall
                                         under there]
                                     o Shapiro & this case.
                                     o Note: limited durational reqs are acceptable. Ex: in-state tuition.
                     Even reading Slaughterhouse narrowly, this case still qualifies as a 14th A P&I.
                     Maybe this is a first step in revitalizing 14th A P&I. McDonald suggests no.
                     Thomas concurrence: assuming we did get P&I clause wrong in Slaughter & it was intended to be broader, &
                      assuming we go correct it, then have to correct other things! not going to happen since too much has happened
                      since.
   Welfare
        o After Shapiro, a number of courts maintained that welfare constituted a “fundamental interest” for purposes of equal
            protection review
                  Like voting and access to judicial processes, welfare is “fundamental” because it “preserves all rights”
        o After the 60’s, 4 Justices retired and replaced, the Crt. started moving in another direction
                  Dandrich v. Williams
                            Justice Stewart wrote the opinion
                            F: Welfare families sought to strike down a provision of Maryland’s Aid to Families with Dependent
                                Children that gave families a flat $250 monthly grant without taking into consideration the size of the family
                            H: Constitutional because the State’s actions were rationally based and free from invidious discrimination
                            If classification has some “reasonable basis” it does not offend the Constitution
                            Receiving welfare benefits is a fundamental interest
                            Crt said welfare is important, but there is nothing fundamentally important about welfare
                  After Dandrich, Crt has generally adhered to the view that rational basis review is the appropriate standard for
                      evaluating welfare classifications
                  Crt. halts argument that filing fees have an adverse affect on indigents
                            Crt. hold that there is nothing wrong w/ a filing fee to declare bankruptcy
                                     o No problem w/ a filing fee and no requirement that the state appoints discretionary appeals to
                                         state Crt. or U.S. Sp. Crt., counsel must be appointed only in State/Federal direct appeal
   Educational finance cases
        o Around the late 60’s, almost every state financed their schools through local property taxes, which created significant
            disparities between district incomes
                  Biggest disparities were between suburban and rural areas, not between rural and suburban areas
                            Business property taxes made it easier for the suburban districts to be fairly equal
                  It used to be until late 70s early 80s, if P’s brought a case challenging a case on constitutional grounds (law itself is
                      invalid), they were entitled to a three judge district crt, a special crt would be made (2 district judges and 1 appellate
                      judge)
                            If you could convince the crt you were right, you could appeal directly to the Sp. Crt.
                            Sp. Crt. found this to be
                                     o Overly burdensome
                                     o Too rushed of a process
                            Sp. Crt. asked Congress to do away with this, Congress agreed and now Sp. Crt. is completely discretionary
                  Serrano v. Priest [1970]                            California S.Ct. rebellious case
                            Cal S.Ct invalidated property tax based financing scheme under EPC finding education was fundamental
                                interest & wealth was suspect classification so applied strict scrutiny.
                                     o Didn’t go to USSC b/c FN said would’ve come to same conclusion under state Const. [ptless for
                                         USSC to view it so Art 3 forbids review]
                            First state that hit this issue head on was California
                                     o California Sp. Crt. said discrimination based on wealth
                                     o Strict Scrutiny
                                     o Struck down California statute

                                                                                                                                                62
           US Sp. Crt. could not look at this case because of a footnote
           Was a blueprint for the type of an argument you could make
                o Others made this same argument based solely on
   San Antonio Indep. Sch. Dist. v. Rodriguez (pg 818) similar to Serrano but went to USSC
         Case in which the Crt. is trying to make their decisions have clarity and coherence across the board
         Justice Powell wrote the opinion
         Main pt: USSC expressly held poverty is NOT suspect classification so discrim against the poor should only
            receive rational basis review!
                o Crt. tries to straighten out what the rules are
         Facts: TX system relied heavily on local prop taxes to pay for public educ. poor areas were taxed at high
            rates but still not as much $ as wealthy areas.
         H: Powell upheld TX law. Applied rational basis. state int: keep local control. Ok.
         P 3 strict scrutiny args: 1) disc. based on wealth is suspect 2) educ is fund int 3) combo
            Powell v. Marshall args. Powell try to clean up EP [fund rights & suspect class]
                o but see from [Plyer & Cleburne] the doctrinal instability of Rodriguez
         Powell Conclusion 1: Wealth is NOT a suspect classification
                o Pow1: Lack of personal resources did not wholly deprive group of desired benefits. In the crim &
                     other cases, ppl discrim’ed against were poor. Here, there is no direct correlation btween poverty
                     of dist & poverty of ppl living there. The crim cases etc are applicable only where there is complete
                     deprivation of a benefit while here=relative disadvantage.
                             If you have districting at all, there is going to be disparities
                                       P’s argue, this may be so, but then strict scrutiny must apply
                                       Powell says other cases are distinguishable because immutability regarding
                                          wealth changes, it is not a definite state
                                       Other cases previously decide, turned on discrimination against poor people that
                                          , P did not show that property poor districts are made up of poor people, poor
                                          people are distributed throughout most of the districts (not against the property
                                          poor)
                o Marsh1: the crim cases don’t support Pow’s theory b/c there, what indigent was seeking was
                     appeal & he got it—it simply wasn’t as effective. Kids in poor dist getting educ – just not a good
                     one. Same.
                                Real right involved was right to appeal
                             This is a relative deprivation, not an absolute deprevation
                o Pow2: no strict scrutiny bc no proof that > educ spending = > academics
                             Even if less money is being spent from school district to school district, there is no
                                correlation that this is result determinative
                                       Has not been proved one way or another
                             How would Powell distinguish Powell and Douglas?
                                       Describes them as a complete deprivation of an inability to pay
                                               o Didn’t have the money, couldn’t get something
                                               o Not the case here, students are just having less money spent on their
                                                    education from district to district
                             Powell- easily distinguishable here
                                       Not based on a complete inability to pay
                                       There is still education going on, relative deprivation
                             Nice instance in which two justices are looking at the same cases trying to figure out what
                                is at the bottom of them
                o Marsh2: most ppl assume that > $ = better schools & better student performance. parents in poor
                     dists should at least have opportunity to proceed on that assumption & pay more if they want to.
                             All they need to ask for is something to compete with the other district
                             P’s are saying give us the same opportunity to get the same amount of money and see
                                what happens
                                       Equal results or equal opportunities
         Powell Conclusion 2: Education is NOT a fundamental interest
                o Pow1: Ct doesn’t create fund ints simply bc the int is impt. Only apply strict scrut. under EP to
                     interests explicity/implicitly protected by Const. Const doesn’t guaranty absolute equality in educ.
                             Just because education is really important, does not make it a fundamental interest
                             Fundamental is based is on
                                       Whether explicitly or implicitly stated in the Const.


                                                                                                                         63
                                         We can see the connection between travel, certain criminal rights to trial, and
                                          voting
                  o Marsh1: agrees need nexus btween Const & fund int but it IS here.
                             Educ enables person to use const rights to free speech & vote effectively.
                             Good education is necessary to use your rights and vote effectively
                                       There is a clear connection between education and these fundamental rights
                  o Pow: but Const doesn’t guarantee effective utilization of const rights.
                             No way to show whether less educated person is unable to speak/vote as effectively.
                                 Marsh’s nexus arg would also mean welfare & housing are fund ints *cant speak/vote if
                                 starve/freeze] - contrary to ct precedent.
                             Education is not one of the inexplicit rights guaranteed in the Const.
                             Fact that you have a Const. right, we have never concluded that the gov. has to take steps
                                 to make it effective
                                       How can we tell
                                               o 1. Whether you are using your rights correctly
                                       Examples
                                               o 1. We have held that you have the right to obtain an abortion, but have
                                                    not held that the state has to pay for it
                                               o 2. We have held that you have the right to a private/religious education,
                                                    but if you can’t afford it, the state does not have an obligation to pay for
                                                    it
         Pow other arg: Ct is hesitant to 2nd guess complicated leg taxing plans. Other things are financed by local
              prop taxes. Have to defer to state.
                  o Crt says we have been highly differential to the states by
                             1. Staying out of education
                             2. State funding
                                       Wherever you draw the line, someone is going to be better off than someone
                                          else
                                       There is always going to be disparities
         White dissent: agrees w/ EP analysis that wealth not suspect class & Educ not fund int. BUT says this law
              doesn’t even pass rational basis test. If keeping local control is the state int, this plan fails b/c the law
              prohibits dists from raising as much $ as other dists b/c of the cap. Even if wanted to pay more, cant.
                  o Powell: legitimate state interest should be in their control, it could tax itself as it saw fit
                  o White: Powell true theoretically, but the amount of money a school district can charge is capped
                       by the amount people in the district can pay
                             Applying the rational test is capped
                                       Interest is good, means is not
         Marshall dissent:
                  o 1st line of defense: educ IS fund int & suspect class [above]
                  o 2nd line: sliding scale approach to Equal Protection review! Ct vary scrutiny w/ importance of
                       right affected & nature of classification.
                             Pow + maj criticize: unpredictable. no guidance. Too discretionary.
                  o Marshall would have decided this case based on a sliding scale instead of having only two choices
                             Would have looked at the importance of the right affected and importance of the state
                                 interest and adjust the standard of review accordingly
                  o Marshall’s plan
                             Pro: more customizable
                             Con: not predictable and hard to apply
              Good ex of Rules [Powell] v. Standard [Marshall] oriented approach.
                  o Rules: much more clear. Advantage: clarity & predictability.
                  o Standards: look at totality of circs. Advantage: flexibility to tailor to cases.
                  o Rules v. Standards argument
   **NEXT 2 CASES CHALLENGE DOCTRINAL STABILITY OF RODRIGUEZ**
   Plyer v. Doe [1982] (pg 825)                             also in undocumented aliens + EP
         Justice Brennan delivered opinion
         Under EPC, Ct invalidated TX law that denied children of undocumented aliens a free education charging
              them prohibitively high tuition to attend public schools.
         Standard: intermediate scrutiny [but struck down anyway]
                  o Brennan emphasized: kids probably blameless + importance of education
                             *sounds like Marshall’s sliding scale approach+

                                                                                                                              64
                                                  Kids are also likely to stay here and eventually becoming a burden on society, better
                                                   educate them
                                                Made an analogy to illegitimate children which were unlawful because they punished
                                                   children for something that was outside of their control
                                                Fed. Gov. should be dealing with illegal alien issues, not the state
                                                Should not be trying to create a caste system
                             Undoc aliens not suspect class b/c in U.S. illegally.
                                     o Crt. recognized that a lot of illegals are exploited by the system
                                     o Children cannot control the situation created by their parents, should not punish them
                                                No rational justification for penalizing illegal children
                                     o By definition, illegal is illegal and we cannot justify giving people the highest standard of review
                                         when what they are doing is illegal
                                                Children cannot be held quite as responsible as adults
                             Arg consistent w/ Rodriguez: diff analysis bc here = complete deprivation; Footnote in Rodriguez written by
                                Powell states that there is no complete deprivation, merely a difference in money
                             Arg inconsistent w/ Rodriguez: outright rejection of Powell’s attempt at a categorical rule-oriented
                                approach.
                             Powell Concur: said wasn’t inconsistent w/ Rodriguez. Agreed w/ int. scrut. Compared to intermediate
                                scrutiny given to classifications based on illegitimacy.
                             Crt. brushed aside the importance of the amount of money that was being spent on educating illegal aliens
                             Burger Dissent: This case is not distinguishable from Rodriguez
                                     o Rodriguez approach has been dropped
                   Cleburne v. Cleburne Living Center [1985] (pg 704)
                             Wants to stick with the Rodriguez rule basis approach, Powell’s analysis has mostly held (Plyer is a little out
                                of step)
                             Justice White wrote the opinion
                             Standard: rational basis w/ a bite. but failed anyway [rare].
                                     o Crt. did not want to find any more suspect classes
                                     o Crt. was concerned enough to apply rational basis, but not in a whole differential kind of way
                             H: for P. struck down city ordinance that required special permit for operation of a group home for the
                                mentally disabled.
                                     o Crt. rejected applying heightened scrutiny
                                                Leg is better qualified to decide how to treat mentally impaired under the law
                                                Public supports protecting mentally retarded through lobbying etc. (Not w/out political
                                                   power)
                                                         Leg has outlawed disc. against mentally retarded
                                                Should not make mentally retarded a quasi-suspect class because it hard to define the
                                                   degrees
                             D wants mental retardedness as quasi-suspect status [like illegal kids in Plyer]. justifications: 1) kids from
                                hs across st might harass them *Ct: this is prejudice against disabled & shouldn’t indulge these biases+, 2)
                                home located on flood plain [Ct: but see nursing homes, hospitals]
                                     o Ct: plus, not like Plyer b/c mental retardedness is wide range. Not like Plyer [documented kids or
                                         not]. not as easy to classify.
                             Stevens concur: only 1 Equal Pro Clause so don’t need diff standards of review. [no else agrees]
                                     o Lacks guidance and predictability
                             Marshall: obv applying > rat’l basis so should just say its sliding scale/inter. rev.
                                     o Just admit we are applying a sliding scale
   Right of Privacy (Due Process)
        o Crt. had almost buried substantive due process from 1937 to 1965, Crt. decided it was not going to listen to these arguments
        o Griswold v. Connecticut [1965] (pg 832) Right to privacy case
                   Justice Douglas wrote the opinion
                             Douglas, Goldberg, White, and Harlan all write their own opinions and all say this is only about intimacy in a
                                marriage and go out of their way to say other sexual offenses are outside the scope of this opinion
                                     o Tying the due process concern to the marital relationship, nothing past it
                                                This does not last long
                             This is an instant in where the Crt explores to what extent can the Crt. really limit the doctrine explicitly
                   Substantive Due Process is NOT dead.
                   Facts: Conn statute criminalized contraceptives to prevent pregnancy – but could use it to prevent disease. [similar
                       issue to Poe but this time Ct hears the case.]
                             First time this issue was tried in 1940, the Crt. through it out because of lack of standing

                                                                                                                                          65
          Second time, not enough had evolved to make this case an issue in controversy
   Issue 1: standing:
          In this case, not prosecuting a married couple but rather a director of Planned Parenthood was charged as
              accessory b/c gave contraceptives out
                    o Were asserting rights of the married people
          Requirements for 3rd party standing to bring suit met here:
                    o Relationship between the parties - satisfied
                    o Obstacle to 3rd party ever being able to assert their rights – satisfied bc would be hard to find all
                        the users of the contraceptive to prosecute (Dr/patient relationship)
                    o Must be some harm to the 3rd party – satisfied bc chilling effect on married couples (their rights
                        might be compromised)
   Issue 2: merits:
          Douglas discovers a constitutional right to privacy! – note there is NOT a privacy clause in Const but
              Amendments give penumbras & emanations of privacy - protect zones of privacy!
                    o Astronomic zones that allow other rights to be encompassed
          Douglas’s zones of privacy to invalidate Conn law:
                    o 1st A – right of association (cases below were Lochner right to contract cases)
                             [NAACP v. AL] recognized a right of association that flowed out of the 1st Amend. to
                                 protect underlying freedom of speech.
                                       1. Protect right of association
                                       2. Protect right of privacy to associate
                             [Pierce v. Society of sisters] – struck down law making it illegal for children to attend
                                 religious school bc have right to K
                                       Peripheral rights to the 1 Amend (right to educate, right to private education)
                                                                       st

                             [Meyer v. Nebraska] – struck down reaction against European lang being taught in school
                                 [esp. german]
                                       Peripheral rights to the 1 Amend (right to teach and the right to educate)
                                                                       st

                    o 3d A – prohibition against the quartering of soldiers
                    o 4th A – prohibitions against unreasonable searches & seizures
                             Mapp v. Ohio-right to privacy is important (exclusionary rule)
                    o 5th A – self-incrimination clause
                                                                                th
                             Boyd v. US-first case to recognize that 4 & 5 Amend. does recognize the importance of
                                                  th        th
                                 privacy (more 5 than 4 )
                    o 9th A – “the enumeration in the Const, of certain rights, shall not be construed to deny or
                        disparage others retained by the people”
                             note: NOT relying on 14th Amend Due process b/c that’s what Lochner’s a/b & he wants
                                 to stay away from that as much as he can!
                                       Douglas and Black were appted to bury Lochner so tries to find the right in the
                                           BOR instead.
                                       When Lochner went down the drain, some thought that Pierce and Myers would
                                           too
                                               o But there was a renationalization to allow these opinions to stand,
                                                     meaning that these case mean other things and can be reinterpreted to
                                                     uphold other ideals
                                               o It was important for Douglas to make this huge leap to counter act Black
                                                     who argued that the Crt. was trying to replace right to contract with
                                                     right to privacy (Lochner argument)
                                      
                    o Douglas puts these all together & finds a right to privacy. Needs the penumbras & emanations bc
                        alone these Amend’s wouldn’t create an independent right to privacy but together they apparently
                        do.
                    o Relied on Skinner v. Oklahoma as protecting right to privacy
          Why does right to privacy protect use of contraceptives by married ppl?
                    o Douglas emphasizes the value & tradition of marriage.
   A lot of concurring opinions so don’t how how much they actually agree w/ maj
   Goldberg Concur:                       high pt of 9th A jurisprudence. Not really used.
          His issue: unremunerated rights – to what extend does Const protect rights that aren’t explicitly set forth in
              its text? Appears 9th A addresses this.
          DON’T FORGET THE 9th A! – the 9th A is not a source of rights, but there may be rights of const importance
              that aren’t in the Const. just bc can’t find something in BOR doesn’t meant that right doesn’t exist!

                                                                                                                        66
                          o     9th A seems to be explicit rule of interp – shouldn’t draw conclusion that bc not enumerated
                                means not there
                           o Unremunerated rights argument
                                                                                                                                  th
                                      Rule of interpretation regarding how we should read the Const. by the language of the 9
                                           Amend.
                                      There are some Const. rights that are not explicitly set forth
                                             th
                                      9 Amend. seems to say that there are other Const. rights, not just what is discussed in
                                           the Const.
                   Finds “marital privacy” among fund rights from 9th Amend
                   Cites Harlan’s Poe dissent to limit right of intimacy to married couples.
                   Since this concurrence, the 9 Amend. has never been considered again
                                                       th

                           o Not an Amend. that offers a lot of solidified rules so the Crt. often shies away from it
                   Dissenters say 9 Amend. does not speak about all unremunerated rights, but instead rights that may come
                                        th

                      from the states
                           o Anti-preemption clause: majority of rights should come from the states, not from the Fed. Gov.
         Harlan concur **this is most impt opinion In Griswold!**
                   This becomes what Griswold really stands for.
                   Plays big part in modern SDP analysis but isnt clear which parts are impt
                           o Talks a/b history & tradition [ less judicial discretion ]
                           o Also talks a/b balancing process [ a lot of judicial discretion]
                   Unlike Douglas, Harlan is not afraid of 14th A SDP. Ready to say that SDP is a valid doctrine so doesn’t need
                      to find right to privacy somewhere else.
                           o The fact that Lochner got SDP wrong doesn’t mean it’s invalid.
                   Lochner got it wrong b/c justices used SDP to impose own preferences, by basing Lochner on right to
                      contract, but Harlan thinks justices can apply SDP w/o abusing it. How?
                           o Liberties that are more highly protected must be identified on objective basis [cites to his Poe
                                opinion].
                                      Challenge is to be able to identify those liberties that are more important and need extra
                                           protection
                                      The more important the interest of the individual, the more the state is going to have to
                                           prove that their intention is right
                           o Look at history & tradition of civil rights & liberties.
                                      If strong historical tradition of protecting a certain right over others, then strong
                                           indication that is fundamental.
                                                 Marriage IS something we’ve protected!
                                                          o In the Anglo-American world, we have protected intimacy in the marital
                                                               relationship
                           o Federalism & separation of power’s role in preserving freedoms
         Black’s dissent: only rights specifically protected by BOR are protected by 14th A
                   Total incorporation: 14th A was meant to apply whole BOR to the states so only those rights in BOR are
                      const. granted.
         Stuart & Black Dissent:
                   Doesn’t agree w/ Griswold’s interpretation of 9th A. alternative reading:
                           o Antipreemption provision: 9th A doesn’t give right to make new rights [whereas Goldberg says 9th
                                A talks a/b unenumerated rights]. at the time that it was passed, overwhelming # of rights that you
                                have came to you from the state & CL rather than fed or Const. so 9th A means that though BOR
                                lays out certain rights, it doesn’t take away the rights states gave you
         All justices agree this case is a/b marriage & intimacy in marital relationship.
                   But Griswold breaks out of these constraints in Eisenstadt v. Baird
o   Eisenstadt v. Baird [1972] [ bridge between Griswold & Roe; Equal Pro. Case ] (pg 842)
         Justice Brennan wrote the opinion
         Facts: Mass statute made it illegal to distribute contraceptives to unmarried persons. Birth control advocate gave
            free sample of birth control to girl after a lecture.
         H: struck down law under EPC. Rights must be same for married/unmarried.
         Standard: rational basis w/ a bite *1 of 3 rat’l bas w/ bite cases during Reed period]
         Still emphasized importance of marriage throughout the opinion.
         How Brennan gets around Griswold being tied to married relationship issue:
                   Right of privacy is right of the individual, married or single, to be free from unwanted govt intrusion into
                      matters so fundamentally affecting person to decide whether to have a child.
         The Mass. statute would have satisfied traditional rational basis review
         Main point: marriage is no longer a restricting factor. [Roe was already on docket]
                                                                                                                                  67
   Fundamental Interests and the Equal Protection Clause (pg 762)
        o Right to have a child
                  Skinner v. Oklahoma (pg 762) (1942)
                           Justice Douglas wrote the opinion
                           Facts: Oklahoma statute made it illegal for people who had been convicted three times or more for felony
                               crimes of moral turpitude to have children by making them sterile
                                    o Coincidentally, violation of prohibitory laws, revenue acts, embezzlement, or political offenses
                                        were not w/in the scope of the act
                           H: Unconstitutional because statute punishes like offenses differently (embezzlement vs stealing), violating
                                                              th
                               equal protection act of the 14 Amend
                           Skinner argued
                                    o This is not an exercise of police power because criminal traits cannot be inherited
                                    o Due process is lacking because Skinner has not been allowed to be heard regarding whether he
                                        intends to have offspring
                                    o Act is penal in character
                                                                                                         th
                                    o Sterilization is cruel and unusual punishment and violates the 14 Amend.
                           Crt. ruled that when intrinsically the same crime is committed, those crimes may not be punished
                               differently
                           Right to have offspring is fundamental
                           Justice Stone concurring
                                    o Concurred in result, but was not persuaded that equal protection clause was appropriate
                                    o Would have rather used due process
   Abortion: Roe v. Wade [1973] (pg 843)
        o Blackmun wrote the opinion
                  Many argue that this is an unreasoned decision, it is hard to find an opinion as poorly written
                  Is this case capable of constitutional justification?
        o Facts: Texas abortion law criminally prohibited abortions except to save mother’s life. Roe, unmarried pregnant woman,
            brought const challenge against this law.
                  Blackmun made the argument that abortion had been permissible through the ages
        o H: struck down the law under SDP.
        o Standard: HSR [b/c fundamental right to privacy]
        o Rule: fundamental right to privacy.
        o Where does Blackmun find this fund right to privacy?
                  Rejects Griswold’s penumbra theory
                  Right to privacy derived from 14th A SDP Liberty (Harlan’s opinion in Griswold) [protects various activities wrt to
                      marriage, procreation, contraception, family, child rearing, education]
                  Shows Harlan carried the day b/c privacy flows out of SDP
        o Privacy = Autonomy: privacy means autonomy of personal decision making wrt impt life decisions. [P args ppl have 100%
            autonomy but Ct rejects broad right of autonomy such as taking drugs, prostitution, suicide, driving motorcycle w/o helmet,
            etc] Privacy does not mean secrecy or confidentiality.
                  Blackmun cites a string of cases (6-7) and says that they allow for the abortion decision
                  Lochner- liberty means the right to do what you want to do w/out interference from the state, law as a general rule
                      prohibits you from doing what you would otherwise do (Holmes argues that Roe goes too far)
                  Right to privacy is narrower than what P’s argue
        o Why does Privacy protect abortion?
                  Bc unwanted pregnancy may cause med harm to woman – but right to abortion is not absolute! Use HSR & need to
                      balance the woman burden & state’s interest
                  Abortion was allowed at the time the Const. was adopted, why are we taking a step back?
        o Possible state purposes in prohibiting abortion
                  Enforcing moral standards wrt sexual conduct [not relied on here]
                  Protecting health of mother [state has int in making abortion safer, but it isnt so dangerous that state has int in
                      prohibiting abortion altogether. Casey later shows state CAN regulate even in 1st trimester if making abortion safer]
                  Protecting life of fetus *not compelling state interest b/c ct doesn’t want to take a stance on when life actually
                      begins.]
                           Counterarg: TX already said if you cant decide when life begins, TX can!
                                                   nd
        o Fetus is NOT a person w/in 14th A (2 question Blackmun goes over)
                  If fetus = person under 14th A, then fetus would be entitled to protection to life under 14th A due process so the law
                      would be Const.
                           Since fetus NOT a person, then there is NO compelling state interest in protecting potential life.
                  Blackmun’s justifications why fetus is NOT const person

                                                                                                                                         68
                     “person” doesn’t seem to cover fetus elsewhere in Const. canon that where word used in several places,
                      means same thing throughout.
                            o Would not make sense to include the unborn in the places where it is used
                            o Bloom thinks this is a fairly good argument
                   Usually a fetus doesn’t bear const rights under CL or statute.
                            o Counterarg: the fact that Roe assumes DP liberty can extend to abortion is an evolving concept, so
                                if liberty can evolve over time, so can “persons”. *living Const approach].
                                       Concept of liberty has to be able to evolve in order for Blackmun to get where he wants to
                                           go
                                                If “liberty” can evolve, shouldn’t “person” be able to evolve too?
                                                        o Blackmun acknowledges that there are areas of the common law where
                                                             protection has been granted to some extent to fetuses, so that maybe
                                                             there is some concept of personhood, but it is not to an extreme degree
                                                             (exception, not the rule)
                                                        o If you look at the continued legal doctrines after Roe, it gets cloudy
                                                                   Most states recognize rights for the fetus in order to
                                                                       undermine Roe
o   Ct refuses to decide when life begins
          Texas argues that it has a legitimate interest in protecting the life of the fetus, so the question of when life begins
             kicks in
          4 places it could have been: [conception [TX], quickening [historical], viability [court chooses this], live birth]
          Recognizes ct isn’t qualified to decide.
                   Blackmun states that the Sp. Crt. cannot decide when human life begins when scientists, religious leaders,
                      biologists don’t know when it begins
                   Counter arg: Texas did decide, democratically! Get out of the way!
                            o Counter arg: TX can’t impose its view of when life begins on others, no institution of govt can say
                                when life begins.
          Blackmun does choose viability as pt when state’s interest becomes compelling *like Marshall’s sliding scale+.
                   So before viability, woman’s interest trumps. After viability, state’s int >.
                   Even after viability, protecting the women’s life over the fetus’ life is ALWAYS more important
o   Court uses balancing to come up w/ 3 trimesters to solve the issues
          1st: virtually no regulation
                   left up to women and Dr.
                   No room for any regulation because there is no interest in protecting the health of the mother, abortion is
                      less dangerous to the women’s health than childbirth would beno room for state regulation
                            o This does not fly, there is state interest in making abortion in the first trimester safer
                                       As long as the state interest does not undermine a women’s right to chose
          2nd: regulation to protect health & safety of mother
          3rd: prohibition of abortion to save the fetus. [fetus is viable]
                   state has compelling int bc fetus is now viable [can live outside womb]
                            o Viability is key to Blackmun
                                       Interest in protecting the potential life of the fetus becomes compelling, so state can
                                           prohibit abortion entirely as long as it does not endanger the life/health of the mother
                   ct doesn’t really explain why that matters
          Is it right for Sp. Crt. to engage in a balancing test?
                   There are almost no absolute rights in Constitutional law
                   State interest is almost always taken into consideration
                   The fact that the Crt. is balancing in this case is not abnormal
          Criticisms of balancing for the trimester framework:
                      like a hospital regulation.
                   Balancing is not appropriate in abortion context bc Ct has already conceded that this particular moral issue
                      is incapable of resolution so it’s not for Ct to decide.
          Arg FOR the balancing approach:
                   If ct doesn’t attempt to strike a balance, then leg will be able to completely override woman’s const. right
                      to privacy & abortion.
          Criticism of Roe
                   Roe did not please many, many thought it was poorly reasoned (but it was a 7 to 2 decision)
                   Blackmun gave the case away (Bloom)
                            o If no one knows when human life begins, than how can the Crt argue a framework for doing so?
                                       line must be drawn, yes or no regarding abortion

                                                                                                                                 69
                                       What can be said for/against the Crt drawing the line
                                            For: legislature is in a better position for drawing the line, this is an unprincipled
                                               decision, not even a serious attempt by Blackmun to treat this as a Const. matter,
                                               legislatures have to make hard choices between competing
                                               interest/valuesthey would be better equipped to balance the competing
                                               interests, Sp. Crt. is not qualified to balance religious vs. women’s rights
                                            Against: the decision of whether to take a fetus to term is a fundamental right to
                                               privacy, and the Sp. Crt. may protect fundamental rights to the best of their
                                               ability, ultimately a balancing test must be done
o   Ely/Bork/Epstein criticism of Roe
         Illegit decision bc ct is not right inst to decide this issue.
         Not Constitutional law and does not have any chance of being
                  If you want to make the argument that Roe is in some sense different from other cases that you disagree
                      w/, you would say the Crt. should have never decided this case to begin w/
                           o Interest in the Gov. side is a marital, moral issue that cannot be decided by the Gov.
                           o Cannot be decided on a moral basis, and the Crt. admitted it
                                     At the end of the day, though, someone has to be able to decide whether a woman can
                                        get an abortion
                                              But this is the kind of thing legislatures should do
o   Rerationalizing Roe on Equal Protection Grounds [Tribe’s 3 rationales]
         Shift case from substantive due process to equal protection
                  What is wrong is that requiring a pregnant woman to carry a fetus to term is a burden that could not be put
                      on a man
                  Torts, no duty to rescue argumentwe are not obligated to render aid to someone to help save life
                      (analogous to abortion, woman does not have a duty to save a fetus)
                           o Gender discrimination would occur by requiring a woman to save fetus
                  Criticism
                           o A lot of people have a problem with the “render aid” doctrine
                           o “Special relationship” doctrine, does the woman have a special relationship to the fetus to protect
                              it?
         Abortion restrictions are the result of improper religious domination of political process [later he changes mind bc
            religious ppl DO have right to influence public policy – that is democracy!]
         Court was “breaking the gridlock.” This was such a contentious leg issue - Invalidation of restrictive abortion laws is
            legit attempt to break political gridlock to give abortion a clean slate. *but doesn’t give Ct right to create the
            trimester apprch or right to clean the slate]
         Equal protection rationale – this should have been EPC gender discrim case. only women can be pregnant so only
            women bear the costs of pregnancy. Law that prohibits abortion places undue burden on women – CL doctrine that
            you don’t have legal duty to rescue a stranger & that’s what carrying child essentially is – imposing legal obligation to
            save a fetus.
o   After Roe,
         Many many challenges but Ct was relatively protective of the Roe right
                  Missouri and Pennsylvania attempted several times to make obtaining an abortion harder
         But refused to extend Roe to public funding of abortion.
                      Maher v. Roe (pg 855) (1977)
                           o Justice Powell wrote the opinion
                           o Crt upheld a state regulation granting Medicare benefits for childbirth, but not for nontherapeutic
                              (not medically necessary) abortions
                           o Appellees’ claimed that under the Equal Protection Act, the state was required to provide funds for
                              abortions if they provided funds for childbirth
                                     Crt rejected this argumentbeing poor does not make you a part of a suspect class
                                     Crt also stated that the State may make a value judgment favoring childbirth over
                                        abortion and use public funds to do so
                                              No restriction has been imposed to stop an indigent woman from getting an
                                                   abortion
                                     Crt. also recognized a difference between direct state interference w/ a protected activity
                                        and state encouragement of an alternative activity
                                     This case signifies:
                                              1. As a general rule, the state is not required to fund a constitutional right
                                              2. You are no worse off if you are indigent and you cannot afford a constitutional
                                                   right (not great logic, raising a child is expensive)
                           o Dissent: Brennan, Marshall, and Blackmun
                                                                                                                                  70
                                                There is a disparity between indigent and non-indigent women in that it is “impossible”
                                                 for indigent women to get abortions
                                                       The State funding childbirth will inevitably force some indigent women to carry a
                                                          child they do not want to term for fear that if they don’t their health will be in
                                                          danger
                                             Impinges upon the right of privacy by bringing financial pressures on indigent women that
                                                 force them to bear children they otherwise would not have
                                    o Dissent: Marshall
                                             The State is forcing its views onto indigent pregnant womenunconstitutional
                           Harris v. McRae (pg 858) (1980)
                                    o Justice Stewart delivered the opinion
                                    o Crt upheld “Hyde Amendment” which prohibited use of Fed. Medicaid funds for abortions except
                                       where the mother’s life would be endangered by bringing the fetus to term or necessary medical
                                       procedures for the victims of rape or incest
                                    o Crt found that a women’s freedom of choice does not carry w/ it a constitutional entitlement to
                                       the financial resources to avail herself of the full range of protected choices
                           The Crt recognizes
                                    o 1. The state is under no obligation to be morally neutral on abortion
                                             The state can explicitly say that it is against abortion and make regulations to that effect
                                    o 2. Crt. does not apply strict scrutiny to abortion funding cases
                                             As long as state does not impose an undue burden, it may encourage birth and discourage
                                                 abortion
                                             Lower standard of review is allowed
   Between Roe & Casey, ppl kept challenging Roe & support on ct for Roe kept changing.
                  PA leg was basically challenging ct to overrule Roe. Ct finally agreed to hear Casey.
                  There were originally 5 votes to overrule Roe when Rehnquist started writing the opinion, but over the term
                      O’Connor & Souter convinced Kennedy that it was a mistake to overrule Roe so Kennedy changes his mind 2 weeks
                      before opinion came out.
                  O’Connor was worried about science’s changing definition of viability and the definition would move earlier into
                      pregnancy and the right would collapse
   Planned Parenthood v. Casey [1992] (pg 864)           modifies Roe but doesn’t overrule. Undue burden
        o Facts: PA law didn’t prohibit abortions but regulated them by creating 24-hr waiting period for abortions, requiring physicians
            to inform women of availability of info a/b the fetus, requiring parental consent for unmarried minors’ abortions, creating
            reqs for reporting & report keeping, & requiring spousal notification before the abortions.
        o H: upheld the law.
        o Main point: didn’t overrule Roe, but did modify it.
        o Standard: undue burden for abortions!!! [changed from strict scrutiny from Roe]
                  New Abortion Test: govt regulations of abortions prior to viability [this was change from trimester apprch in Roe]
                      should be allowed unless there is an “undue burden” on access to abortion.
        o Joint Opinion [ Kennedy, Souter, OConnor]
                  Has an unusual structure as far as a joint point goes
                           4 justices want to strike down Roe
                           4 justices wanting to save Roe as it is
                           3 justices wanting to save Roe, but make some changes
                  Part 1: talks a/b the conclusion/holding. Purports to write for maj here.
                           Contrary to trimester setup in Roe, state DOES have developing compelling state int as the pregnancy
                              grows. Viability replaces trimester.
                           Substantive Due Process is a valid Constitutional argument
                           Crt. talks about the importance of being able to overrule or tweak it’s prior decisions
                                    o What things should Crt. think about when overruling prior decisions
                                             Unworkable
                                                       Roe is not unworkable though per the Crt.
                                             Reliance Interest
                                                       Special hardship
                                                               o Decisions involving business relationships based on particular past
                                                                    decisions in the law
                                                               o Cardozo says it is better for the rules to be decided instead of remaining
                                                                    undecided
                                                       Maybe there is a special reliance interest here that people have gotten used to
                                                          this right
                                                               o Crt. cannot turn back the clock and take back Roe
                                                                                                                                         71
                                              o       Attitudes shift things in Roe and gave a right that had not really existed
                                                      before?
                              Whether the precedent has been abandoned
                                         Has not happened in Roe, it has been enforced
                              Factual validity
                                         Factual basis/premise has been proved wrong therefore the opinion could not
                                             stand
   Part 2: talks ab underlying doctrine in general
         At what level do you define generality?
                   o The more broadly you define it
                   o The narrower you define it
         Kennedy tries to clear up where Blackmun didn’t clarify in Roe: where right to abortion choice comes from.
                   o From substantive due process liberty. [privacy/autonomy]
                   o When apply SDP to particular right, apply it at generalized level. [Bowers will address this later]
                   o Nature of woman’s right here: emphasis on burden on woman. Decision is spiritual/moral nature &
                       that’s why state doesn’t necessarily have right to reg *but can turn around w/ same arg+
   Part 3: Should not overrule Roe. Stare Decisis.
         Test: when asked to overrule precedent, 4 Stare Decisis factors to use:
                   o Has rule proved unworkable?
                              Ct: no. going to tweak it.
                   o Has been reliance int that would lead to special hardship?
                              Ct: no. ppl have right to rely on the law & that’s strongest when there is likelihood of
                                   advanced planning. There isnt strong reliance int here: though abortion decisions
                                   relatively unplanned, short term, reliance is that women go into employ bc know Roe is
                                   out there in case something happens. [Bloom says this is weak arg]
                              Bloom thinks reliance is: a lot of ppl have accepted that abortion is a constitutional right
                                   as they do their 1st/14th As. It would be disconcerting to give this const rght then take it
                                   away. Shows once you make a decision, its hard togo back to where you started.
                   o Has the precedential doctrine been abandoned?
                              Ct: no.
                   o Have underlying facts changed?
                              Ct: not really – just med understanding more ab evolving potentiality of life, but we’re
                                   factoring that into tweaking
                              Ct discusses 2 cases it has overruled but doesn’t really give adequate explanation of the
                                   overrulings:
                                         Plessy: Brown recognized that racial seg DID stigmatize. But wasn’t it overruled in
                                             part bc Brown concluded that stigma mattered & Plessy didn’t care
                                                 o Case was decided wrong because the Crt. decided that stigma did not
                                                      matter, but we disagreed later
                                         Locher: incorrect assump ab capacities of unregulated markets.
                                                 o Overruled bc Ct decided nothing special ab right to K
                   o Crt. has right to decide issues so long as it can convince the public that it is doing so in a fair,
                       consistent, appropriate manner
                              Crt. uses this reasoning to explain why it has to stand w/ Roe
                                         This is the strongest argument against Roe though
         Why else shouldn’t Roe be overruled?
                   o Not a good enough reason to overrule Roe if consider Stare Decisis
                   o But note Joint Op never says Roe was right!
   How does Ct CHANGE Roe?
         Gets rid of trimester framework  viability. Viability isn’t as absolute as before bc recognize state’s interest
              in potential life IS worth something
         Standard for abortion is UNDUE BURDEN, not strict scrutiny. New test: state law violates liberty only if in
              purpose/effect it imposes an undue burden on woman’s choice by putting substantial obstacle in her path.
              Woman’s right from Roe is to make a decision, NOT to be insulated from accurate info.
                   o Crt. never held there is an unfettered right to an abortion, only that States cannot put obstacles in
                       the women’s way to prevent her from getting an abortion
         Crt said that just because abortion is not that risky, does not mean that the state is not permitted from
              making abortion less risky at any point of a women’s pregnancy
         State has an increasingly important right in protecting the fetus throughout the process under the Undue
              Burden standard
                   o State can protect fetus as long as it is not imposing an undue burden
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                                    o    Informed consent regulation is legal if the point of it is to try and convince the woman to not have
                                         an abortion so long as there is no undue burden
                  Applying Undue Burden Test to this case:
                           The only thing that IS undue burden [so = unconst] is spousal notification
                           Things that do NOT impose undue burden: informed consent, 24-hr waiting period [expressly overrules
                               Akron I & Thornburgh] [there may be special cases where can prove 24hr waiting is undue burden for ex:
                               Miss 1 clinic & indigents can’t afford to stay overnight], medical emergency exception, parental consent.
        o Stevens & Blackmun concur: but would have used strict scrutiny instead.
        o Dissent [4]
                  Would have upheld all of the aspects of the PA law AND overruled Roe.
                  Why scalia [dissent] thinks Roe should be overruled:
                           Nothing constitutionally special ab this right [Holmes Lochner dissent]
                                    o Not explicit in the const.
                                    o No tradition that shows its implicit in const.
                                               Unlike Harlan in Griswold [there is history of protecting marriage & marital intimacy] not
                                                  same for abortion.
                           Concerned a/b enumerated rights. *Black’s Griswald dissent: even if law was inconsistent w/ modern
                               American, if it isnt textually based, then ct doesn’t have right to recognize it. Simply relying on liberty is NOT
                               enough bc then can arg any liberty is more impt than another. [back to Lochner]
                                    o Where does incorporation fit in to all this?
                                               One arg: Usually incorp done through fund int approach in SDP [justices would ask if in
                                                  BOR, etc].
                                               Bloom: arguably better arg for incorp might have been Black’s along: Incorp didn’t occur
                                                  through DP but rather through P&I. then DP can be purely procedural in nature.
        o Casey as a superprecedent:
                  Arguably Casey made Roe a superprecedent & now Roe is more protected from overruling. Ct in Casey seriously
                     considered overruling Roe & decided not to & explains why it decided not to. Challengers to Roe had their shot &
                     failed. Casey gives Roe extra protection – now must get past Casey AND Roe.
                  But some other opinions:
                           Thomas: its never too late to get it right
                           But Cardozo: its better to have a wrong rule settled than no rule at all
   Obama care legislation Sp. Crt. arguments
        o Randy White thinks it is going to be affirmed 8 to 1
        o This case is about definition, characterization of the issue
        o This case comes down to convincing the Crt. to seeing it one way or the other
        o 2 obvious character issues ways of looking at the issues
                  1. Challengers want to argue that this is unprecedented and beyond what anyone has ever done because it is illegal
                           Forcing people into commerce so that they can be regulated
                           Otherside says you are entering commerce every time you receive healthcare
                  2. What is it that Congress is trying to regulate here
                           Challengers want to argue that the issue is health insurance, that is why it does not affect commerce
                               (argument of characterization)
                           Otherside wants to argue this is about healthcare
        o Does not turn on the law or cases, it is about which side can convince the Crt. it is right
        o Lopez changes Gibbons v. Ogden (is there a limiting principle to Congress’ right to regulate things
        o Must convince Kennedy per Bloom, he will most likely be the swing vote
        o Limiting principle is going to be key in this case
                  Convincing that a limiting principle exists
        o Two lower Circuit Crts who voted to sustain the mandate, but those Crts dared the Sp. Crt. to uphold the mandate
        o The Crt. understands that the case in a big picture form is not about the healthcare mandate, what is troubling them is
             whether saying “yes” to the healthcare mandate opens the floodgates for Congress to be allowed to pass whatever law they
             want to pass and the Crt will not have the power to stand in their way
        o Bloom does not think that the whole thing will be struck down, maybe just the mandate
   Partial Abortion
        o Stenberg v. Carhart [2000] Breyer
                  Facts: Neb law prohibited “partial birth” abortions. The law was vague & arguably prohibited both dx & de abortions
                     [dx is supposed to be worse bc fetus is born & then killed]
                  H: the Neb law was unconstitutional.
                  Breyer: 2 reasons why the law is unconst:
                           Impermissible undue burden on woman’s right to choose b/c no exception permitting prohibited
                               procedures to protect woman’s health.
                                                                                                                                              73
                            Imposes undue burden on woman’s ability to choose abortion – thereby burdening right to choose abortion
                             itself *didn’t clearly only ban dx so vagueness meant could also ban de abortion, which is common & ct
                             thinks is undue burden on woman’s ability to choose+
                  O’Connor concur: hinted she would be much more likely to uphold a narrower partial abortion ban [if only banned
                   dx would prob be ok].
                         If it was clearer (only prohibited one procedure)
                         If there was a health of the mother exception
                  Kennedy dissent [feels betrayed!]:
                         Thought he was agreeing to a real compromise in Casey, but the Crt. was just blowing smoke
                                  o Hinted that he would not have voted the way he did in Casey if he had known it was going to turn
                                        out this way
                         Court comp changed. Kennedy no longer deciding vote as he was in Casey. Between Casey & here, White
                             [against abortion] retired & Breyer [for abortion] replaced him. So even if Kennedy dissents, for abortion
                             voters win.
                         Kennedy: this isnt what he signed up for in Casey’s joint opinion. Believes state CAN find a procedure so
                             morally repugnant to outlaw it
                   A lot of ppl belived in abortion right but NOT partial birth abortion. So Congress passed statute that prohibited
                   funding for & criminalized partial-birth abortion.
                         O’Connor had drawn a blueprint for how to correctly outlaw partial abortion:
                                  o 1st prob: Vagueness – Neb statute had danger of overbroad bc covered both dx AND de procedure.
                                              Congress: tried to write statute that only applied to dx
                                  o 2nd prob: Stenberg ct concluded in certain dx would be necessary for life/health of mother – Neb
                                        law was unconst bc no exception
                                              OConnor: there must always be life/health exception
                                              Congress: differed from OConnor & d.ct – a lot of ev suggests dx would never be
                                                 necessary to mother’s health, therefore don’t need a life/health exception.
        o Gonzales [Kennedy] –what does ct do w/ failure to include health exception?
                  Congress made law banning partial birth abortion
                         Tried to follow up on O’Connor’s suggestion on distinguishing the procedures
                         Did not follow her second suggestion on making an exception to protect the health of the mother
                                  o Why didn’t Congress follow O’Connor’s opinion?
                                              Congress didn’t want to allow a Dr. to have an unbridled “health of the mother” exception
                  Distinguished from Stenberg
                  Between Stenberg & Gonzales, Alito replaced O’Connor so Kennedy’s impt again
                  Kennedy’s opinion here is like Harlan’s in Lochner: there is disputed ev that there is no health risk [even though
                   stronger ev that there isn’t a health risk] –but since its uncertain, this is the diff between Roe & Casey!
                  Under Roe up til Casey: everytime there was disputed issue, decision always goes in favor of woman’s right to
                   abortion. If there was ever issue of health risk [like Stenberg], the health interest was essential.
                         Under Casey: recognized the balance is more even. If there is issue of whether health exception was
                             essential, defer to legislature!
                                  o Making Kennedy’s Stenberg dissent the maj. *nose counting!+
                  State must still have signif reason for discouraging partial birth abortion.
                         Here: Ginsberg pts out interest is not to save potential life b/c the law already assumes that the fetus is
                             going to be killed, just deciding the method.
                         Instead, the interest is that Congress can decide that one method is worse than other [allow de but not dx]
                             to keep integrity of medical profession to the public
                  Thomas Concur: doesn’t think there is a problem from abortion standpt, but thinks SCt would not be able to
                   regulate if brought under commerce clause
   Right to Die
        o Mostly in state ct – theres a good amt of state cases & law on this. Meds/orgs trying to figure this area out.
        o Cruzan v. Missouri Dep’t of Health [1990](pg 933) [Rehnquist]
                  Crt. recognizes a “liberty interest” in someone’s right to die, but does not say whether that interest is fundamental
                   or not or when the state has sufficient reasons to intrude on that interest
                  Facts: woman in vege state & parents sought to discontinue tube feeding. There was ev that she orally told roomie
                   that if she found self in this situation she wouldn’t want her life extended. Missouri doesn’t allow fam b/c they need
                   clear & convincing ev that this is what she would’ve wanted. oral stmt not enough.
                  H: upheld MI’s clear & convincing std to prove incomentent’s wishes. Due Process protects interest in life and
                   interest in refusing med treatment.
                         If there had been a clear will, there would have been a due process right to end life per the will
                  MI’s interest: to protect life procedurally – so drs/hosps cant terminate life w/o going through appropriate
                   procedures
                                                                                                                                      74
                 State is not required to be neutral about preserving life
          Crt realizes that this is an area where there has been a lot of thinking at the state level
                 State legs had appointed task forces composed of judges, legal scholars, and Drs to determine what the
                     best way of handling this situation is
                 Crt said why should we impose our own views when the political process seems to be addressing it in a
                     thorough and thoughtful manner
                 Constitutional interest here, deserves deference
        3 parts to ct’s holding
                 competent adults have a const right to refuse med care [all 8 agreed except scalia]
                          o 5 justices agree that US Const would grant compt person a const protected right to refuse
                                lifesaving hydration & nutrition.
                          o OConnor concur: this right is based on informed consent doctrine [hospital cant hook you up to
                                tubes if you don’t want it b/c by CL that would be battery+. It would be invasion of your life &
                                liberty
                 State may require clear & convincing ev that person wanted treatment terminated before it is cut off
                 State may prevent family members from terminating treatment for another.
        OConnor concur: ct is NOT deciding whether state must give effect to a surrogate/guardian to make the decision.
        Dissent: Brennan, Marshall, Blackmun
                 State has no legitimate interest in someone’s life, completely abstract from the interest of the person living
                     that life, that could outweigh the person’s choice to avoid medical treatment
                 Until a person’s whishes have been determined, the only state interest that may be asserted is an interest
                     in safeguarding the accuracy of that determination
                          o Missouri may constitutionally only impose regulations that enhance the accuracy of determining
                                someone’s wishes
        OConnor + 4 dissenters = Cruzan probably recognizes a stronger right to refuse treatment than one would think from
           the Rehnquist maj opinion.
        Scholars have arged that cts shouldn’t interfere in this area to recognize const rights bc the states [through bar
           assoc, healt assoc, hospitals, etc] have been working hard on it for decades. They have done a better job than ct
           could.
o   Washington v. Glucksberg [1997] [Rehnquist]– physician assisted suicide
        Facts: Wash. said no right to assist in suicide. Due Process claim to say there should be right to assist in suicide.
                 Important doctrinally and substantively
        H: for state. No fundamental right to assist in suicide.
        Importance: leading case over battle for unremunerated rights. assuming they are derived from SDP liberty, most
           SCT justices conceded that there are some unremunerated rights. now have to 1) identify them and 2) define them.
        Sometimes there are aspects of liberty that are of higher importance, thus they should be looked at more and a
           higher standard should apply
        Rehnquist tries to show us how to do that: [test]
                 Step 1: Identify: TO ID fund rights, focus on history & tradition
                          o Must determine whether the fundamental right was considered important in the grand scheme of
                                things
                                      Before you can tell, must describe the nature of the liberty, then determine whether
                                          there is a sufficient historical tradition
                                               Right here is the right to assisted suicide (fundamental right)
                                               There ought to be a right to die w/ dignity
                                                         o P’s argue that there is a right of self sovereignty
                                      There is a characterization discrepancy here
                                               Reasonable people can differ on their beliefs on this issue
                                      If you want to figure out whether or not there is a tradition, the best sources are legal
                                          sources (the law)
                          o [like Harlan in Poe]
                          o Here, fails the test b/c 100% tradition opposes this right.
                          o Rehnquist v. Souter on this pt:
                                      Souter: should engage in balancing process.
                                               Balance tradition with the current state of things today
                                      Where do they get their theories?
                                               Both base on Harlan’s Poe opinion. Note: once ct decides that there are
                                                    unremunerated rights, everyone agrees that opinion is best place to go. Problem
                                                    is that ppl can read it differently.


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                                             o     Souter would decide the liberty interest is more important than the
                                                   state interest if instance by instance it was more fundamentally
                                                   important
                                               o Justice Black said that it is too hard to balance rights in this way, this is
                                                   what was wrong w/ Lochner
                                                         Crt had no basis to perform this kind of balancing
                                      Harlan wasn’t afraid of judicial discretion *the balancing that Souter read+ but
                                          also noted its not up to ct to impose own preferences- need some objective
                                          guidance or we’ll end up like Lochner [need to look to history & tradition that
                                          Rehnquist read]
                                               o Harlan said there had to be a balancing process, but Rehnquist was also
                                                   correct in saying that the train stays on the tracks by recognizing history
                                                   and tradition
                            Big debate: Rehnquist’s history & tradition apprch *wins here+ v. Souter’s balance apprch
                                [wins in Lawrence] so there are 2 ways to ID fundamental rights!
           Step 2: Define: important to identify clearly to prevent domino effect
                   o Ct in step 1 already rejected right to assist in suicide
                   o Ct also rejects P’s alternative def of right of self-sovereignty
                            [P trying to go for broad def rather than assisted suicide bc harder to justify a narrow
                                right!]
                   o maj def: [Rehnquist – narrow!] if using history/tradition apprch have to define narrowly or else will
                      get a lot through the tradition.
                            Tradition of assisted suicide? Tradition of dying w/ dignity?
                            Have to know what you are talking about when making a tradition argument
                            The more narrowly, it won’t be as easy to include it in liberty, the broader the more you
                                won’t be able to restrict things
                   o Ex: Michael H v. Gerald D [Scalia 1989] limiting rights of unmarried fathers
                            Facts: woman had affair & had child. Bio father wants visitation rights but shes still
                                married. CA law created presumption that married woman’s hubby is father of child if
                                cohabitating so denied visitation rights.
                            H: upheld CA law.
                            Scalia’s methodology [Scalia & Rehnquist agree]
                                      Step 1: must be fund & interest traditionally protected by society. NEED
                                          NARROW DEF!
                                               o Characterization right
                                               o Here: Scalia [maj] def: no tradition of protecting unmarried fathers
                                                   when child conceived from adulterous relationship
                            Brennan dissent: def should be whether father has right to see daughter [much broader]
                                – tradition shows yes. He thought the additional characterization was unnecessary
                   o Casey Joint Opinion also addressed this issue!
                            Shouldn’t define fund rights on narrowest level *opp view from what maj does here+
                            Solved Scalia’s problem for him
                   o Takeaway: just like in step 1, this can go both ways depending on who is in the maj: could define
                      narrow or broad. Sometimes outcome determinative.
                            Theoretical dispute between the majority, stressing the need to anchor substantive due
                                process in history, and Justice Souter, emphasizing Justice Harlan’s belief that the
                                tradition of liberty grows over time
   Steven’s Concurrence
           Believes that some applications of the statute may be invalid if they prevent someone who is not victimized
              by abuse, suffering from depression, or who makes a voluntary decision to seek assistance in dying
   Souter Concurrence
           Let mental health professionals assist doctors in determining if someone is mentally competent for assisted
              suicide
           Concurs in practicing caution, relying on evidence of Dutch assisted suicide laws
   Remember: Harlan in Poe relied on history & tradition to defend against Lochner claim where Ct wants to impose
    own notions of fund interests
   Policy: POLICY! There is a real, objective standard [history & tradition] to determine what is fund right. However, if
    you then have to decide whether to describe these rights in narrow/broad way, & ct can choose either approach in
    diff cases w/o any guiding principle as to which is appropriate, then if they want to strike down go narrow & if want
    to uphold, go broad  then the LOCHNER issue has snuck back in through this Definition issue! you haven’t gotten

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                     rid of the Lochner problem – all you did was shift the problem from the identification part of the test to the
                     definition part of the test.
                  What about the state interests – why would state want to prohibit assisted suicide?
                           preserving human life. [legit. State CAN prefer to preserve life]
                           protecting the integrity of the med prof [legit. Just as in Cruzan partial abortion]
                           ppl involved here would be vulnerable ppl & these decisions would arguably be coerced by ppl who have
                               alternative interests [cost of care might be great so the relatives might want to hasten the death of the
                               person]
                           significant slippery slope problem here [especially convinces Souter & Breyer]
   Family and other “Privacy” Interests
       o Moore v. City of East Cleveland (pg 899) (1977)
                  Powell wrote the opinion
                  Facts: Women lived w/ her son and two grandsons, one grandson was not “sufficiently related” to the other
                     grandson and son to constitute a “family” under the ordinance
                  Hold: Crt invalidated city ordinance limiting occupancy of any dwelling unit to members of the same “family,” where
                     the ordinance narrowly defined “family” as including only “a few categories of related individuals”
                           Ordinance violated due process clause of 14 Amend
                                                                             th

                  In a similar case, Belle Terre v. Boraas, the Crt ruled a statute disallowing those unrelated by blood, marriage, or
                     adoption to live together was not unconstitutional because it further state related interests
                           Not the case here, state cannot narrowly define who a family member can live w/
                  Crt ruled that the Const. protects the sanctity of the family because it is deeply rooted in history and tradition
                  Dissent: Stewart and Rehnquist
                           Should not grant more power of right to association between those related to each than those not related
                               to each other
       o Zablocki v. Redhail (pg 902) (1978)
                  Marshall wrote the opinion
                  Facts: Wisconsin statute disallowed those that had an obligation to pay child support to marry without judicial
                     determination that they were meeting their obligation and that the child/children are not and never will be burdens
                     on the state
                  Hold: Statute violated equal protection clause
                  Crt ruled that it would be inconsistent to recognize a right of privacy w/ respect to family life matters and not w/
                     respect to the decision to marry
                           Statute directly interfered w/ fundamental right to marry
                  Crt rejected State’s interest in the statute
                           1. Individuals who are unable to pay child support are merely prevented from getting married, w/out being
                               forced to give any money to support the child
                           2. State already has numerous other ways for making those required to pay child support that do not
                               impinge on the right to marry
       o Bowers v. Hardwick [White 1986] – overruled 17 yrs later by Lawrence v. Texas!
                  Facts: Bowers missed his ct appearance & officer waited outside his apt until he went upstairs w/ another man to try
                     to catch him in an act that violated the law. Bowers brought suit under substantive due process challenging entire
                     statute, not just homosexual aspect.
                  H: uphold the statute as it applied to homosexuals.
                  Analysis
                           Step 1: define: narrowly: right of homosexuals to engage in acts of sodomy
                                    o [what Scalia argued for unsuccessfully in Michael M & unsuccessful in Casey].
                           Step 2: does history/tradition support this right? No.
                                    o once you state the issue narrowly, its often clear that history does not support it.
                  Blackmun & Stevens dissent:
                           Do not accept the characterization of the right
                                    o Would say it is a right of intimate of association
                           Should define broadly: right of intimate association. Then would be easier to show tradition protects
                               intimate association.
                  Args for narrow definitions:
                           Way to limit judicial discretion, which is a central issue once you get into unenumerated rights for fear that
                               judges will do whatever they want.
                  Args for broad definitions:
                           Narrow definitions don’t protect much at all & will only invalidate “silly” laws that are outliers *ex: Griswold,
                               Moore v. City of Cleveland]. Need broad def to look at laws other than outliers.


                                                                                                                                          77
          Note: shows one of weaknesses of fund rights analysis is that it isn’t very clear. there are always justices who don’t
           want to define narrow/broad so just depends on who has the majority.
o   Lawrence v. Texas [Kennedy 2003] – expressly overrules Bowers!
        Facts: very similar to Bowers. 2 men found in sexual act. They brought SDP claim challenging the criminal statute
           that criminalized homosexual sodomy.
        Important: morality is no longer a state interest.
        Standard: NOT strict scrutiny.
                         o H: struck down looking at tradition, remember to look at trend!
                                    Historically, sodomy laws were aimed at preventing nonprocreative sexual activity not
                                       homosexuality
                                             Hard to find historical evidence of a conviction for sodomy between two
                                                 consenting adults
                                             But not suggesting that there was a strong tradition protecting sodomy or
                                                 homosexuality
                                    If declining, then probably not worth same kind of reliance.
                                    There was a definitional problem in Bowers
                                             Didn’t like the Bowers narrowness, overstated the degree of tradition that
                                                 existed
                  Ct also looks at foreign law – maj seems to read liberty as a human right so looks at foreign law to come to
                    gribs w/ that is SDP liberty. [often kicks in w death penalty cases]
        Lawrence & Romer are similar: Ct purports to apply rat’l basis but still invalidates the law.
                  Morality alone is no longer legit state interest! Kennedy says morality = prejudice.
                         o This case is about private, consensual conduct in the home, nothing else!
                                    The home is an area where the right to privacy should be taken seriously the most
                                             Griswold
                                             As long as it is legal!
                                    Police power involves allowing the state to protect the safety, health, etc. of its people
                                             But this prejudice is morally wrong, it must be overruled
                                    But if some find homosexuality unconstitutional, then how can Kennedy make the
                                       argument here that the regulation is immoral?
                                             If state has nothing but “morality” behind it’s regulation, is it enough?
                                             This questions does not get litigated a lot
                                             In moral offenses, you can almost always show additional harm besides the
                                                 “moral” crime
                                                      o Sometimes pure moral crime is enough though
                         o what if there is no tangible harm + the morality? Then not a state int!
                         o rejects previous obscenity case [Paris Adult theatres 1972: ct said state had interest in regulating
                              porn bc leg can conclude that reading bad books has bad impact on ppl & leg can act on pure
                              moral harm, but once you get the material home, you have a right to view it]
                  have to write opinion that appeals to variety of constituencies in the ct.
                         o to get Breyer- talk a/b foreign law. to get another – define issue broadly.
        Dissessitude – here have crim law that isn’t really being enforced. Suggests state doesn’t really have much interest
           bc not taking it seriously.
        Due process and equal protection are at work here, but due process is the vehicle
                  Would a limitation w/ respect to gay marriage, clash with due process, fundamental right?
                         o Need to look at
                                    To what extent does tradition play a role?
                                             Relationship between Lawrence and Glucksberg
                         o What arguments can be made?
                                    Intermediate standard of review
                                             Gender discrimination
                         o Whether argued on due process or equal protection, will come down to the relevant reasoning of
                              the state interest
                                    Does a state have a state interest in restricting marriage?
                         o What exactly did Lawrence say about this?
                                    Was he suggesting that pure moral harm can NEVER be a state interest?
                                             Seems like a principle a lot of people would never buy into this
                                             Or has the court rejected pure moral argument because it is prejudicial
        Bowers has been eroded by decisions in Casey and Romer


                                                                                                                                78
                              Casey- Confirmed that our laws and traditions afford constitutional protection to personal decisions relating
                               to marriage, procreation, contraception, family relationships, child rearing, and education
                                     o Homosexuals may seek autonomy for these purposes just as heterosexuals do
                           Romer- Court struck down class-based legislation directed at homosexuals as a violation of the Equal
                               Protection clause
                           And by international decisions
                    How else would statute be harmful even if not really enforced?
                           Collateral consequences: its still criminalizing conduct & so if you’re engaging in that conduct you’re
                               committing a crime even if there is little likelihood that you’ll be prosecuted. Will still have signif impacts on
                               you in other contexts [ex: police app]
                    Relied on Justice Steven’s dissent analysis in Bowers
                           1. Fact that a governing majority in a State has traditionally viewed a particular practice as immoral is not a
                               sufficient reason for upholding a law prohibiting the practice
                           2. Individual decisions by married people concerning the intimacies of their physical relationship, are a form
                                                                                            th
                               of “liberty” protected by the Due Process Clause of the 14 Amend.
                                     o Should extend to married and unmarried
                           Kennedy narrowed the opinion by stating that it does not involve whether the gov. must give formal
                               recognition to homosexual relationships
                    O’Connor’s concurrence
                           Joined in the holding, but not in overruling Bower
                           Believed statute should be invalidated on equal protection clause
                                     o State interest does not satisfy rational basis review
                                               Texas’ moral disapproval is not a legitimate state interest
                    Scalia dissent:
                           Used Roe and Casey as an example of cases where the original precedent can be said to have been chipped
                               away at, but has certainly not been overruled
                           Shouldn’t really use tradition to establish fund right *?? But ct doesn’t do that here?+
                           Totally should not look at foreign law. views Liberty as defined in Const as based exclusively on either
                               original understanding or our own historical traditions. EU has nothing to do w/ this so we shouldn’t look to
                               it at all.
                                     o Also, it is very discretionary & manipulative – judges will pt to the jdx that support the result they
                                          want & ignore rest.
                           Morality itself IS a legit state interest.
                                     o There is no right to “liberty” under the due process clause
                           Uses this to attack Roe & Casey & application of stare decisis. Here we ARE overruling relavively recent
                               precedent but Scalia doesn’t think Casey & Lawrence are distinguishable. Criticizing Ct for not taking stare
                               decisis as seriously as they claimed in Casey bc it should result in same result here. The arg to stick to
                               Bowers is no weaker than sticking to Roe.
                           Dooms laws aagainst gay marriage. If morality is out of the picture, then don’t really have any legit basis for
                               prohibiting gay marriage.
                           Similarities between Scalia’s dissents in Romer, VMI, & Lawrence: Should be leg’s job. there is elite/legal
                               culture that is very out of step w/ majoritarian institutions in society wrt homosexuality & Ct has entered
                               into culture war to clear the ground.
                    Thomas Dissent
                           Texas’ law is stupid and wastes valuable police resources
                           Dissented because he does not find a right to privacy in the Const.
                    Gay marriage after Lawrence
                           Can state simply say disapprove of gay marriage b/c undermines traditional marriage & don’t want to
                               persecute homosexuals criminally but want to keep marriage only for heterosexuals?
                                     o Post-Lawrence cases have shifted away from morality & focus more on relationship between
                                          marriage to bearing children & discusses what leg has right to conclude on what social science
                                          says. Current debate:
                                               NY ‘06: NY leg can conclude that gay marriage isn’t ideal for raising kids
                                               Mass: Mass leg CANNOT conclude gay marriage isn’t ideal for raising kids
                           Congress has enacted Defense of Marriage Act providing that states do not have to recognize same-sex
                               marriages performed in other states
                                     o For Federal purposes, a marriage is recognized only between a man and a woman
   DC v. Heller (supplement 1-38) (2008)
        o Justice Scalia wrote the opinion
                    Justice Stevens and Breyer wrote concurring dissents

                                                                                                                                              79
                nd
o   Facts: The 2 Amend states “A well regulated military being necessary to a free state, the right of the people to keep and
    bear arms shall not be infringed”
          One side of the argument holds that the second part of the clause gives individuals the right to possess arms
          The others side of the argument holds that the first part of the clause limits the rights to possess arms to militia use
              only
          From1791 to 2008, the Crt had never found any law regulating possession of firearms to be unconstitutional
                                                               nd
          United States v. Miller (1939)- Crt held that 2 Amend was limited to safeguarding possession of firearms for militia
              service
                    Upheld Fed law prohibiting possession of sawed-off shotguns by explaining that such weapons were not
                                                                                                                                  nd
                       used in militia service at the time the Bill of Rights was ratified and that the Crt believed that the 2 Amend
                       was about protecting a right to have firemarms for militia service
                                            nd
o   H: Invalidated law regulating guns; 2 Amend is not limited to protecting a right to have firearms for militia service
                                                                                                                 nd
          Because DC is only a federal district, and not a state, the Crt did not consider whether the 2 Amend. applies to the
              states
                    In the 19 Century, Crt had ruled 2 Amend applies only to Fed. Gov.
                                 th                           nd

o   What is the significance of the prefatory clause?
          Scalia says that we are going to start w/ the operative clause (starting with the phrase beginning “the right”)
                    The language “the right” means that the framer’s were recognizing a right that already existed per the
                       original understanding of the English civil war and the English Bill of Rights
                    “of the people” is significance too
                            o Intratextualism- there is a principle that as a general rule, if a word or phrase is used somewhere in
                                 the legal text, then used elsewhere in the legal text, we will assume that the writers meant to use
                                 the phrase the same way in both places unless otherwise stated in the document
                                                               th      th
                            o This phrase is used in the 4 and 5 Amend
                                                                   nd                                            nd
                                       Big argument in the 2 Amend traditionally has been does the 2 Amend create an
                                           individual right to keep and bear arms, or is it a collective right?
                                                 Right of the state to see that the militia is armed or a right of the militia group to
                                                    be armed?
                                       Scalia uses the intertextual argument to say that “of the people” means an individual right
                                       Scalia says 2 different rights
                                                 “To keep”
                                                 “To bear”
                                                 Stevens disagrees, says it is one connected right that must be kept together, it
                                                    means one thing “to keep and to bear”
                            o Scalia is defending original understanding as opposed to original intent
                                       Needed to say militia because a militia would have existed instead of an army
                                       What Scalia is arguing is that to come to grips w/ constitutional meaning, it is crucial for us
                                           to determine what the words meant to the people at the time
                                                 Language as it was meant to the general public at the time it was created
                                                 Contemporaneous dictionaries can help us make this determination
                                                         o “To keep” means right to own/possess
                                                                     If you have the right to keep it, you have the right to keep it as
                                                                         you please as long as it is legal
                                                         o “To bear” means to carry at least for the purposes of confrontation
                                                                     Enemy at war, or a bear in the woods
                                                                     Scalia admits that it was meant in the terms of war, but Scalia
                                                                         skirts around this by saying there was a legal history of this kind
                                                                         of provision that existed in several state constitutions before
                                                                               nd                     nd
                                                                         the 2 Amend and after 2 Amend was accepted, clear
                                                                         understanding at the time was “to bear arms” in fact aimed at
                                                                         self-defense
                                                         o Scalia says it is very difficult to know much about language that was
                                                               deleted
                                                                     Just because language did not make it in the Const. does not
                                                                         mean that the framers meant it to never be there
                                       Madison said that what matters is not the debates that took place at the constitutional
                                           convention, it is about how the public understood those words because the public were
                                           the ones that ratified the constitution
                                                 But Madison did not follow this, he went back to the constitutional convention
                                                    and the interpretation of the constitution’s makers and got called out on it
          Steven’s disagrees, says to start at the beginning of the sentence, not the end
                                                                                                                                         80
                                “To bear” means in the sense of the military, to carry arms as part of the military
                                Stevens could argue that “to keep and to bear arms”
                                     o Drafts presented to Madison from various states before the constitution was made had a right to
                                          self defense
                                     o “To keep and to bear arms” is meant as a soldier only
                             Also argues that Madison thought of conscientious objectors—Quakers
                                     o Steven’s argued that because Madison thought about including a conscientious objector clause
                                          that would absolve Quakers from having to serve in militias, it is obvious that guns were meant to
                                          be controlled
                   Breyer’s Dissent
                             Argued that a reasonableness test should be used for 2 Amend and that DC was reasonable in light of the
                                                                                            nd

                                 handgun problem in the US
                                     o Emphasized the importance of the local leg making this decision, not the Crt
        o It is relatively clear that the operative clause is controlling so long as it is clear and unambiguous
                   We cannot turn around and reevaluate it by a prefatory clause
                                                                                                nd
        o This case left open the question of what level of scrutiny should be used for 2 Amend cases
                   Scalia indicated in a footnote that more than rational basis review is appropriate, but did not elaborate
        o Original meaning
                   Stevens- original intent vs. original understanding
                             Stevens believes that the intent of the writer is more important
                   Scalia
                             Can’t put a whole lot on omissions
                                     o What is not in it was never passed or ratified
                                     o We don’t know why it was omitted
   McDonald v. City of Chicago (supplement) (2010)
        o Justice Alito wrote the opinion
        o Facts: Ordinances adopted by Chicago made it unlawful for any person to possess a firearm, unless they have a valid
             registration certificate for the firearm. However Chicago banned the registration of most types of firearms
                   This case and Heller focused only on laws that prohibited virtually all possession of handguns
                                      nd                                                                                                      th
        o H: Crt ruled that the 2 Amend applies to state and local govs because it is incorporated in the Due Process clause of the 14
             Amend through the process of incorporation
                                                                                           nd
                   Justice Thomas concurred w/ the majority, but found that the 2 Amend applied to the states and local govs
                                                                               th
                       through the privileges or immunities clause of the 14 Amend
        o Crt did not recognize an absolute right to possess firearms
                   Instead Crt recognized that one has the right to have a firearm in their home for personal protection
        o Crt also held that gov can regulate firearms
                   Ex: keeping them out schools and airports, who may have a firearm
        o Case still left open the question of what level of scrutiny to use
                   Most likely will not be strict scrutiny, but more than rational basis per Scalia in Heller
   State Action (pg 1543)
        o Commands of Constitution are aimed at gov entities, not private parties
                   Limitation is based on the judgment that gov generally has far more power than private entities and has a monopoly
                       of the use of force to accomplish its objectives
                   Statement that the Constitution controls only gov conduct tells us nothing about what the Constitution requires the
                       gov to do
                             To have meaning, the state action doctrine must be supplemented by some substantive ideas about the
                                 meaning of relevant constitutional provisions
        o State Action, Federalism, and Individual Autonomy
                   Crt’s analysis of the state action issue has long been influenced by the assumed link among individual freedom, state
                       action requirements, and restrictions on federal power
                   State Action and Federalism
                             Modern Crt has held that state action is prerequisite to all the assertion of rights contained in both the first
                                                                                                   th
                                 8 Amends (originally applicable to only the fed gov) and the 14 Amend (applicable to the states)
                                     o Historically, it attracted little attention until passage of the Reconstruction amends after the Civil
                                          War
                                                After ratification of these amends, Crt was required to decide the extent to which they
                                                    changed the balance between fed and state authority
                                                         1 view was that the new amends gave the fed gov plenary authority to protect
                                                            indv rights against both public and private actors


                                                                                                                                             81
                                          2 view was that the new amends left untouched the state’s traditional functions
                                           and authorized fed intervention only when the states defaulted in their
                                           preliminary obligations
             The Civil Rights Cases (pg 1544) (1883)
                    o Justice Bradley wrote the opinion
                    o Facts: Civil Rights Act of 1875 provided that all persons were “entitled to the full and equal
                        enjoyment of the accommodations, advantages, facilities, and privileges of inns, public
                        conveyances, on land or water, theaters, and other places of public amusement; subject only to
                        the conditions and limitations established by law, and applicable alike to citizens of every race and
                        color, regardless of any previous condition of servitude
                              5 cases where blacks were excluded from hotels, theatres, & railroads. said Congress
                                 didn’t have authority to ban racial discrim everywhere.
                              D [govt] arg: either 13th or 14th Amend [13th is better b/c no pub/priv diff]
                              Constitutionality was challenged on the ground that it was not authorized by any
                                 substantive grant of power to the fed gov
                    o H: In an 8-1 decision, Crt struck down act; Civil Rights Act 1875 was unconstitutional. Congress
                        does not have power to prohibit discrim in private places.
                    o Reasoning: [3 principle holdings]
                              Ct struck down the Act b/c 14th A only applies to state actions
                              14th A § 5 does NOT grant Congress power to regulate private conduct
                              Ct acknowledges 13th Amend prohibits ‘primary conduct’ that is a private activity so
                                 Congress isn’t limited to state action under 13th A.
                                       Congress can only address the “badges & incidents” of slavery under the 13th
                                           amendment. Private discrim *ex: an individual innkeeper’s act+ is too far removed
                                           & isnt a “badge or incident” of slavery & so it isn’t covered under the 13th
                                           amendment. [this was later overruled in 1968]
                                                o No more than an ordinary civil injury, not slavery
                    o Large points:
                              14th A only applies to state [public] actions, not private.
                              That’s why sometimes 13th Amend arg may be better b/c doesn’t matter if public/priv
                              This case greatly limited Congress’s ability to use Reconstruction Amendments to regulate
                                 private conduct & prevent apartheid in the south.
                    o Harlan Dissent: Harlan would’ve upheld Act on 3 grounds:
                              13th A: Broad reading. Racial discrim IS a badge & incident of slavery.
                                       Freedom from slavery also entails the eradication of all burdens & disabilities
                                           suffered by black ppl bc of their race.
                              14th A: § 5 of 14th A guarantees national citizenship to anyone born here. Thus blacks
                                 were entitled to be protected from racial discrim wrt any civil right that every citizen
                                 enjoys [ex: access to public accommodations]
                              14th A: if must be state action, it is here in this case anyway. inns & common carriers
                                 have long been considered to have public responsibilities & obligations at CL so
                                 sufficiently public. Inns, RRs, etc can be viewed as agents of the state.
                              Note: look out for when a seemingly private business may implicate the state sufficiently
                                 to submit it to constitutional guarantees
   Note:   Federalism and the Substantive Content of the State Action Doctrine
             Question is, is there good reason to conclude that the state is either implicated or apart of the conduct
                    o State action is obvious, if on exam, talk about the private actor and linking them to state action
       
                                                                                 th
              All of the other Amends are combined in state action by the 14 Amend
       
                                                                                                                                 th
              Civil Rights Cases established that individual invasion of individual rights is not the subject matter of the 14
              Amend
             United States v. Morrison (pg 1547) (2000)
                    o Facts: Congress had made the Act because they felt that the states were not doing enough to
                        protect women from gender based crimes and protection was necessary for equal protection
                                                                                                                              th
                    o H: Crt held that the Violence Against Women Act was beyond congressional power under the 14
                        Amend
                                                                                                                           th
                              Authoritative ruling that Congress cannot reach private conduct under Sec 5 of the 14
                                 Amend
                    o Crt rejected and qualified a possible view that the Civil Rights cases may stand for the proposition
                        that the states are the primary guarantors of the rights of their citizens, and that the fed gov may
                        protect those rights if—but only if—the states fail to do so

                                                                                                                                82
                                                  View is broad in the sense that it treats state failures to act as state action for purposes of
                                                          th
                                                   the 14 Amend
                                               View is narrow in the sense that it incorporates a federalism-based limit on the fed gov’s
                                                   power to act
                                     o Crt acknowledged that leg findings of bias in state criminal justice systems, but emphasized that
                                         Congress could not reach private conduct
                                               The act purported to do this by making ordinary people defendants, not state actors
                                     o Crt ruled regarding claim that the civil action was necessary to counteract state discrimination, that
                                         the remedy did not have a “congruence and proportionality” to the injury that it sought to prevent
                                               Because it did not punish state officials and applied uniformly throughout the nation, it
                                                                                                                                            th
                                                   was different from other cases in which Congress was allowed under Sec 5 of the 14
                                                   Amend
                  State Action and Individual Autonomy (pg 1548)
                           Principle about the scope of individual autonomy giving substantive content to limitations
                                     o Constitution is designed primarily to protect indiv. freedom, w/out some sort of state action
                                         doctrine, private autonomy would be subject to the same limitations as gov autonomy
                                               Instead of protecting indiv. rights from legislative interference, the Constitution might
                                                   subject them to judicial interference
                           When states regulate private conduct, or when the fed gov is using some other head of power, conduct that
                                is not unconstitutional can be made illegal
   Constitutionally Required Departures from Neutrality? The Public Function Doctrine
        o March v. Alabama (pg 1587) (1946)
                  Justice Black wrote the opinion
                           Facts: Case involved a company town – owned and operated by a corporation- and whether Jehovah’s
                                                                                                 st       th
                                Witnesses could distribute religious pamphlets there under 1 and 14 Amends even though the town
                                outlawed such actions
                                     o Jehovah’s Witness went around a Mobile, AL town trying to distribute religious pamphlets despite
                                         there being signs on the doors saying it was private property and a permit was needed. She was
                                         jailed when she refused to leave for violating a private property statute
                           H: Court found state action and a 1st A. violation
                                     o Court concluded that running a town constituted a public function – if it looks like a duck and
                                         quacks like a duck
                                               The more the owner of a property opens the property up to use by the general public, the
                                                   more the property owner’s rights become circumscribed by the statutory and
                                                   constitutional rights o those who use it
                                     o Public function doctrine in Marsh rested on 2 interlocking rationales
                                               1. Constitutional restraints were appropriate because company towns had the power to
                                                   undermine freedom as effectively as the state
                                               2. State intervention to control this power was not itself subversive of indiv liberty
                                                   because company towns were already open to the public and serving public functions
                                     o This company town is close enough to being a state down to assume the same responsibilities
                                               But how far can you push this?
                           Landmark – public function doctrine
                                     o Finding state action of otherwise state conduct
                                     o Public function doctrine- if a private entity is acting as the state does, the Crt will treat the private
                                         entity as if it were the state (ONE WAY OF PROVING STATE ACTION)
                                               Doctrine has been narrowed very rapidly so that only a few things can qualify
                                                          Logan Valley 1968
                                                                  o Shopping mall case
                                                                  o The reason why people who have a message want to get it out in the
                                                                      shopping mall is because there is a crowd
                                                                  o The private property is more like a company town
                                                                  o Crt later said a mall is not a town
                                     o States are able to protect indiv rights more vigorously under their own constitutions, than the US
                                         Constitution
                           Dissent: Justice Reed
                                     o Believed in the rights of the private property owner to deal w/ his property as he saw fit
        o The “Public Function” Theory and the Passive State
                  There are limits on the extent to which the state may escape constitutional restraints by “delegating” to private
                      parties functions traditionally performed by the state
                  “White Primary” cases
                                                                                                                                               83
            Facts: Series of cases involving the effective exclusion of blacks from Texas elections
            H: Discriminatory policies of “private” political orgs can be attributed to the state
                 o Nixon v. Herndon (pg 1589) (1927)
                                       th
                            H: 14 Amend had been violated when blacks were denied ballots in the state Democratic
                                Party primary pursuant to a Texas statute
                                       Texas rewrote the statute to provide that the State Exec Comm of the party in
                                           power could prescribe the qualifications of its members for voting
                 o Nixon v. Condon (pg 1589)(1932)
                            H: Crt found the denial of the franchise to blacks was unconstitutional
                                       Because the committee was acting under authority expressly delegated by the
                                           state, the Crt reasoned that its decisions could e attributed to the state
                 o Grovey v. Townsend (pg 1590) (1935)
                            Facts: Policy of racial exclusion had been adopted by the state party convention w/out
                                specific statutory authorization
                            H: Crt held that there was no state action and therefore no constitutional violation
                                       In Crt’s view, exclusionary policy was voluntarily adopted by the Democratic
                                           Party, which was not an organ of the state
                                                o Policy was no more than a refusal of party membership which “the State
                                                      need have no concern”
                 o Smith v. Allwirght (pg 1590) (1944)
                            H: When the privilege is also the essential qualification for voting in a primary to select
                                nominees for a general election, the State makes the action of the party the action of the
                                State, thus the Crt overruled it’s decision in Grovery,
                            The state action finding seemed to rest on the “public function” performed by party
                                officials and on actual state involvement in the primary election process
                            Crt also suggested that the state had an affirmative constitutional obligation to prevent
                                private orgs from abridging electoral rights
                 o Terry v. Adams (pg 1590) (1953)
                            Facts: Blacks were excluded from “pre-primaries” held by Jaybird Democratic Association,
                                a Texas political org. Jaybirds maintained that they were not a political party a tall but
                                rather a self-governing voluntary club. Their election was not regulated by the state
                                       However, white voters generally abided by the “recommendations” of the
                                           Jaybirds, and the Jaybird Pres testified that the org’s purpose was to keep blacks
                                           from voting
                                                                                                    th
                            H: 8 justices agreed that the exclusion of blacks violated the 15 Amend, but there was
                                no majority opinion
                                       Justice Black (+3 others) focused on the state’s failure to control private conduct
                                           that effectively deprived black of political power
                                       Justice Frankfurter (individually) found state involvement because state election
                                           officials had participated as voters in the Jaybird primary
                                       Justice Clark (+4 others) found the record established that the Jaybirds operated
                                           as part of the Democratic Party, which existed under the Texas law
                                       Justice Minton was the sole dissenter
   Modern Crt has been reluctant to burden private entities w/ constitutional requirements through the public function
    doctrine
         Currently, the function must be traditionally an exclusive state function in order to be subject to the
             Constitution
         Jackson v. Metropolitan Edison Co (pg 1594) (1974)
                 o Justice Rehnquist wrote the opinion
                 o Facts: Metropolitan, a privately owned utility holding a certificate of public convenience issued by
                      Penn Public Utility Comm, terminated Jackson’s electrical service for allegedly no paying his bills
                            Jackson argued that her due process rights were violated because she was not permitted
                                a hearing before the power was shut off
                            Public Function Doctrine is one way the Plaintiff could try and make her case
                                       How could you prove private function?
                                                o Utility company has a monopoly
                                                o This is a necessity
                 o H: Crt rejected Jackson’s argument that all businesses affected w/ public interest’s are state actors
                      in all their actions


                                                                                                                          84
                                                   Used doctors, lawyers, optometrists as an example of industries that act in the public’s
                                                    interest and are regulated by the state, but their actions are not considered actions of the
                                                    state
                                     o Crt recognized that one way you could show public function is by
                                                Look at prior public function cases White v. Alabama, we look at several distinguishing
                                                    characteristics
                                                          Traditionally
                                                          Exclusively
                                                In order to apply public function doctrine, must prove that it is
                                                          Traditionally done by the state (AND)
                                                          Exclusively done by the state
                                                                  o Almost exclusively in real world usage
                                                There are a lot of things in our world that have influence between the state and the
                                                    private business
                                                          This does not convert the private entity into a state entity
                                                          Must focus on the individual conduct that the Plaintiff is complaining about
                                                In this case, did the state require Jackson Edison to terminate their service w/out a
                                                    hearing?
                                                          NO
                                                          Same situation as Flagg Brothers
                                                                  o State did not compel the warehouse to sell the belongings of people
                                                                      who did not pay, they just said that they could
                                     o Dissent: Justice Douglas
                                                Analogy between a public utility and Drs etc. is not appropriate because the public utility
                                                    is the only provide where as there are choices for Drs ect
                                     o Dissent: Justice Marshall
                                                Electric power is supplied by the government in many communities
                                                Thought the “public function” doctrine was read too narrowly
                             Hudgens v. NLRB (pg 1595) (1976)
                                     o H: Marsh does not apply to picketing on the grounds of a private shopping center
                                                Distinguished Marsh on the ground that shopping centers invited the public onto their
                                                    property for only a limited purpose
                                     o Application to Shopping Centers – equivalent to a company town
                                     o Malls didn’t like people handing out literature, can’t exercise 1st A. rights here unless we let you
                                     o Court said like a town in Marsh but later pulled back and said that there are more differences than
                                          similarities – people don’t live there, they just seem to and doesn’t have the same characteristics
                                          of a town
                                     o Not going to recognize a shopping mall as state action
                   One area where states have gone on their own in their state constitutions – thought the court got it right at first (NY,
                      CA)
   Judicial Action and the Theory of Government Neutrality
        o Shelley v. Kramer (pg 1561) (1948)
                   Justice Vinson wrote the opinion
                   Facts: Several cases relating to the validity of court enforcement of private agreements, also known as restrictive
                      covenants, whose purpose is to exclude people based on their race or color from owning or occupying certain real
                      property
                             Black families had purchased homes that had restrictive covenants signed by property owners in the
                                 neighborhood that prohibited occupancy by nonwhites
                             State courts had upheld the provisions and issued injunctions in favor of the white property owners
                             Issue here is whether the enforcement by state courts of the restrictive agreements in these cases may
                                 be deemed to be the acts of the States; and if so, whether that action has denied the petitioners of the
                                 equal protection of the laws which the Amend was intended to insure
                   H: But for the intervention of the state courts, petitioners would have been free to occupy the properties in
                      question w/out restraint
                             Uneasiness w/ the reasoning, too broad
                             Judicial adjudication will be involved in almost every case that comes along
                   Question of state action – is this state action or is it a private K between some people? Court found state action but
                      difficult to explain why – if you have to go to court to debate your property rights, then that is state action
                   Court explains that the state does not have the right to stand between a willing buyer and seller and prevent the sell
                      on racial grounds.
                             Problem is that there are 3 parties to the K – other property owners are not willing
                                                                                                                                              85
                    Douglas explained Shelley as Public Function Doctrine – if private parties try to engage in zoning practices, assume
                     zoning of the state
                  Prof. Tribe – as a general rule, court is opposed to restrictive covenants
                           On the merits, once you have found state action, restrictive covenants are unconstitutional
                           Cuts too deeply into the public sphere
   Pure Inaction and the Theory of Gov Neutrality
        o When the Crt confronts hard state action cases, it typically organizes the inquiry into 2 rubrics
                  1. Sometimes (but rarely) the Crt find s that a private actor must be subject to consti. requirements because the
                     state has delegated a traditional state (or “public”) function to a private entity
                  2. Some the Crt finds that a private actor must be subject to constitutional requirements because
                           A. state has become entangled w/ a private entity; OR
                           B. state has approved, encouraged, or facilitated private conduct
        o Pure Inaction
                  Deshaney v. Winnebago County Depart. of Social Services (pg 1549) (1989)
                           Justice Rehnquist wrote the opinion
                           Facts: Child was beaten so severely by his father he sustained permanent brain injuries that left him
                              retarded and confined to an institution for life. Child and mother brought claim that the state’s social
                              worker who was alerted to the situation but did nothing, deprived the child of his liberty in violation of the
                                                              th
                              due process clause of the 14 Amend
                           H: Gov generally has no duty to protect individuals from privately inflicted harms
                                    o Case reflects deeply entrenched belief that the Const is a charter of negative liberties—rights that
                                         restrain the gov—and not a creator affirmative rights to gov services
                           No constitutional violation because the child was not a ward of the state and the abuse occurred in the
                              hands of a private party
                           Crt recognized 2 narrow situations where the gov has a duty to protect against privately inflicted harms
                                    o 1. Where the gov has limited the ability of a person to protect himself/herself
                                    o 2. Special relationship exists between the gov and the injured person
                                               Ex: where gov took an affirmative step to place the person in danger
                           Dissent: Brennan joined by Marshall and Blackmun
                                    o Disagreed with Crt using the absence of positive rights in the Const to find in favor of gov
                                               Brennan would have focused first on the action that Wisconsin had taken with respect to
                                                   the child and those like him, rather than on the actions that the State failed to take
                                                         WI law instructs citizens and gov entities to depend on local social services to
                                                            protect children from abuse, if the department fails in this duty, there is no one
                                                            there to step in
                                                                 o Essentially, an abused child is worse off by the existence of such a
                                                                     program
                  Flagg Brothers v. Brooks (pg1551) (1978)
                           Justice Rehnquist delivered the opinion
                           Facts: Brooks was evicted from apartment and city marshal arranged for storage of her possessions in
                              petitioner’s warehouse. Flagg sent Brooks a letter threatening to sell her possessions is she did not pay for
                              the moving and storage of her belongings. Brooks sued claiming that if her belongings were sold w/out a
                              hearing, it would violate the due process clause
                                    o Brooks relied on a series of decisions in which the Crt had held that due process requires that
                                         debtors be afforded a hearing before a creditor can utilize remedies involving the deprivation of
                                         property
                                    o Issue: Whether a warehouses’ proposed sale of goods entrusted to him for storage, as permitted
                                         by New York UCC, is an action properly attributable to the State of New York
                           H: Flagg Brother’s actions may not be attributed to NY
                           Crt stated that it has never held that a State’s mere acquiescence in a private action converts that action
                              into that of the State
                           Crt rejected Brook’s argument that the state has a duty to act here, Crt stated that this is no different than
                              when the state refuses to provide a remedy for private deprivation of property after the passage of time
                           Dissent: Justice Stevens joined by White and Marshall
                                    o Distinction between “permission” and “compulsion” on the one hand and “exclusive” and
                                         “nonexclusive” on the other cannot be determinative factors in state-action analysis
                  Lugar v. Edmondson (pg 1555) (1982)
                           Justice White wrote the opinion
                           Facts: Lugar was indebted to Edmondson Oil, who sued him in state crt. Pursuant to state law, Edmondson
                              Oil filed an ex parte petition for judgment attachment of Lugar’s property. Acting on the petition, the clerk

                                                                                                                                            86
                              of the stat crt issued a writ of attachment, which was executed by the county sheriff. This sequestered
                              Lugar’s property, even though he remained in possession of it. State crt held a subsequent hearing on the
                              propriety of the attachment and ordered it dismissed because Edmondson had failed to establish statutory
                              grounds. Lugar then brought action in fed crt alleging that Edmonson had acted jointly w/ the state to
                              deprive him of this property w/out due process of law
                          H: Lugar had established sufficient sate involvement to make out a due process violation
                          “Fair attribution” to State:
                                   o 1. Deprivation must be cause d by the exercise of some right or privilege created by the State or by
                                        a rule of conduct imposed by the State or by a person for whom the State is responsible
                                   o 2. Party charged w/ the deprivation must be a person who may fairly be said to be a state actor
                                              I.e. because actor is a state official, has acted together w/ or has obtained significant aid
                                                  from state officials, or because his conduct is otherwise chargeable to the State
                          Crt has consistently held that a private party’s joint participation w/ state officials in the seizure of disputed
                                                                                                                         th
                              property is sufficient to characterize that party as a “state actor” for purposes of the 14 Amend
                          Dissent: Justice Powell joined by Rehnquist and O’Connor
                                   o Private actor did not act in conjunction w/ state official
                 Note: The Problem of the Passive State
                 Note: Shelly v. Kraemer, State Inaction, and the Theory of Gov Neutrality
        o Burton v. Wilmington Parking Authority (pg 1570) (1961)
                 Facts: Black man is refused service at a coffee shop
                 Crt states that you must decide state action on a state by state basis
                          Clark finds public parking garage and the coffee shop being in a public owned building as evidence of
                              appearance of public place
                                   o US flag was outside
                                   o State is benefiting arguably by the coffee shop through rent etc
                                              They are not separate entities
                                   o Gov could have put a nondiscrimination clause in the lease, yet they chose not to do this
                                              But they are responsible for this, they accepted the discrimination of their tenant, they
                                                  should not have
                          Example of the other main theory of state action
                                   o Making the case for state action breaks down into 1 of 2 different theories (both are heavily
                                        restrained these days)
                                              1. Public function theory
                                                       Private actor is or is appearing to perform a public function state action
                                              2. Authorized or encouraged by state
                                                       If the state gives the private actor the ability to do something wrong and the
                                                           state benefits from itstate action
                          Like Walsh v. Alabama there is no reason to believe they are on private property
        o Civil Rights Act of 1965
                 Most of the cases involving race discrimination involving private entities disappear
                 State action cases keep coming to the crt, but rarely do they involve due process
        o Olympic Case
                 Congress gives the Olympic Commission the right to license the word Olympics
                 Wouldn’t allow the “Gay Olympics” a license
                 Fails on the grounds that Congress did not compel the Commission to not give the license to the Gay Olympics
        o NCAA
                 NCAA private institution disciplined Jerry Tartanian
                 Crt ruled that there was not state action, the school made an independent decision
        o 2 Approaches
                 Public Function Doctrine
                 State authorized or endorsed or was heavily involved in the action
                          Jackson v. Metropolitan Edison
                          Flogg Bros case
        o Arguably, there is a reason why the Crt would be a lot less hesitant to push public doctrine in race based cases than
            procedural due process cases
   Procedural Due Process
        o Unenurmerated rights
                 To what extent is there right to autonomy, privacy
                          Found as a process of due process liberty
        o Reading the due process clause literally, one could conclude that maybe there should be no such thing as substantive due
            process clause
                                                                                                                                           87
          But this is water under the bridge
o   The overwhelming number of cases where due process is an issue are still procedural
o   Due process has to give you appropriate procedures before doing so
          3 different kinds of cases that you can find in various areas of the law
                   1. Jurisdiction
                           o Especially personal jurisdiction
                   2. Rights and procedures in the Crim Justice Process
                   3. To what extent is there due process procedural protection, to some sort of procedural deprivation, has
                       there been a due process violation?
                           o Breaks down into 2 separate question
                                      Before we can determine whether or not you have a due process claim, we have to
                                          specify whether a right specified under the due process clause has been violated
                                                Deprive you of life, liberty, or property
                                      Nature of the deprivation (what degree?)
                                                More procedural protection before the State executes you than before the State
                                                    kicks you out of school
o   Right privilege
          Gov can give or take the right to something away as it wants
o   New Property
          Rejected the right privilege distinction
          Property is a state law matter, not a constitutional one
o   How do we know for sure whether you have a property interest
          Not defined by common law
          But the Crt. did not say that every time the gov takes action against you and deprives you of something, you do not
              necessarily have a property claim
o   Liberty is construed in and of itself
          Not every liberty interest makes it
          Test
                   Sometimes it has to be liberty + something else
                           o Ex: reputation (just reputation does not get you there, there must be some other infringement on
                                your liberty to boost it
                   To the extent that your liberty interest is adequately protected by state remedies, then the Crt is probably
                       not going to rely on constitutional liberty interest
o   4 different conceptions of Due Process in this course:
          Procedural
                   PDP breaks down into various pieces [not all listed here]:
                           o Due process concepts wrt jdx [personal, in rem, notice, service, etc]
                           o Capital punishment rules from DP [shows there is sliding scale of how much DP]
                                      If govt rejects you for a job, govt does not have to explain why [no DP]
                                      On the other hand, dealth penalty cases [state is depriving of most important aspect:
                                          LIFE!] so DP is very lengthy & extreme.
                           o What we’re covering: Civil context issues where youre deprived of something [not life, but
                                lib/prop+ & you argue that you’re entitled to something more than what govt gave you.
          Incorporation
                   BOR incorporated/applied against states through DP clause 14th A.
                           o Bloom prefers: P & I was intended to apply BOR to states but see Slaughterhouse
                   Can think of incorporation cases in 2 ways:
                           o Separate doctrine from SDP [Bloom likes this]
                           o Aspect of SDP [majority thinks this]
          Substantive
                   Unenumerated Rights
                           o Unumerated rights that apply to either states OR fed [Roe, Glucksberg, etc]
                           o Earlier instances of this doctrine [Lochner, Trayner in Dred Scott]
                   EP Principal [5th A]
                           o Bolling v. Sharpe: couldn’t use 14th A EP to invalidate segregation in DC schools so used 5th A EP
                                instead.
     History of PDP

            o    1st half of 20th century: right/privilege distinction [govt givith & govt can taketh away]
                       right/privilege principle: state gives you a “privilege” *something you’re not entitled to+ so ct can take
                           it away w/o PDP bc it’s a privilege & not a right
                                                                                                                                 88
           Massachusets Policeman Case
                 Police officer fired for free speech activities. P claimed govt cant just fire him bc didn’t like his
                     free speech. DP claim.
                 H: for D. “you have right to freedom of speech but not right to be a policeman.”
                 also implicated unconstitutional conditions as 1 answer to rights/priv distinction.
o   1960 – 1970s: primary PDP revolution
         Raich law review article said should reexamine def of “property” in light of new deal, govt entitlements
            [public assitance, disability, etc] so get rid of right/privilege approach. [1964]
         Goldberg v. Kelly – adopted view of Riach article. There are govt entitlements!
                 Facts: Welfare recipient sued when welfare privileges were suspended w/out a hearing
                 H: For P, Crt held that a welfare recipient’s interest in continued receipt of welfare benefits
                     was a “statutory entitlement” that amounted to “property” w/in the meaning of the due
                     process clause
                 Main: there are govt entitlements! Even if govt didn’t have to give you your benefit, they did,
                     so developed relationship & property interest so govt cant deprive you of that benefit w/o due
                     process!
                 Note: only talking a/b administrative, NOT legislative deprivation. If leg decides want to
                     change the law, that’s not a PDP issue *may be a SDP challenge+ but no right to notice/right to
                     be heard [PDP] when Congress changes/makes new laws.
                 Might stand for that you are entitled to a full hearing whenever you are deprived of a
                     particular type of liberty
         5 issues in PDP:
                 source & definition of “property” & “liberty”
                          o old: used to use right/privilege distinction
                          o but now after Roth & Sinderman, Definition of prop: based on reasonable
                               expectations to continue receipt of a benefit
                          o source must be from the STATE!
                                     there must be something from state law giving you this property int that
                                         might otherwise be considered a mere privilege [ex: work from govt].
                                     it does NOT have to be from the statute/K. if everyone operated under this
                                         assumption that you should expect to keep your job, that might be enough
                                         to be a property interest. [Perry]
                          o COULD arg that there is still some right/priv distinction bc govt still holds the cards –
                               they can restrict your DP by being very careful a/b not committing in K, statute,
                               common perception, etc.
                          o property is different from Liberty [there is presumption of liberty, don’t need govt to
                               give it to us. But there is no presumption of property interest]
                          o why must you still show state gives you this prop interest? bc cost would be too high
                               if every time you got any type of benefit from govt they couldn’t change mind w/o
                               dp.
                 what is purpose of process you might receive?
                 What process is due?
                          o Goldberg told us sometimes need hearing, but what kind of hearing?
                          o Use Mathews balancing test.
                 timing of hearing: before/after deprivation? Both?
                          o After Mathews, generally accept notice + posttermination hearing as long as there
                               are retroactive remedies available!
                 Exactly what processes are you entitled to? What are the elements?
                          o Sliding scale – depends on the case.
         Roth & Sinderman [1972] (pg 943)
                 Justice Stewart wrote the opinion
                 Facts: teacher employed by state univ. wasn’t rehired & sued bc didn’t get hearing in
                     connection w/ nonrenewal process. No statute/custom suggested he had reason to believe he
                     was going to be rehired.
                 H: for D. no property int here bc prof had no reasonable expectation of being rehired.
                          o Since no property int, govt doesn’t even have to tell P why fired him.
                          o Person must have more than an abstract need or desire for something, must have
                               more than a unilateral expectation of it
                                     Must have a legitimate claim of entitlement
                          o Note that liberty interests don’t necessarily have to come from Constitution, at some
                               point liberty is something the Crt can discern from circumstances
                                                                                                                    89
        
                                                                                                    th
             Requirement of PDP apply ONLY to the deprivation of interests encompassed by the 14
             Amend’s protection of liberty and property
                  o PDP protections is NOT INFINITE
         Dissent: Justice Marshall
                  o Believes everyone who applies for a gov job is entitled to it unless the gov can
                       establish some reason for denying employment
   Perry v. Sindermann [1972] (pg 945) companion case to Roth
         Justice Stewart wrote the opinion
         Def of prop: based on reasonable expectations to continue receipt of a benefit
         Facts: P was prof at college that didn’t have tenure system. But commonly understood that
             would basically have tenure as long as he teaches satisfactorily. Laid off.
         H: for P. even though no K provision or statute, the general understanding fostered by the
             college gave P a reasonable expectation to not be fired.
   Mathews v. Eldridge [1976] (pg 952)
         Justice Powell wrote the opinion
         Facts: P receiving disability benefits. Terminated based on med ev that no longer disabled.
             Arguing he shouldn’t have to wait a full yr for a hearing w/o his benefits. Wants like Goldberg
             where got trial PRIOR to deprivation.
         H: for D. the paper trial was enough DP in this case.
         Test: Mathews balancing test to decide what procedures are required when there has been a
             deprivation of life, liberty, or property & DP is required (cost/benefit analysis): weigh
                  o Importance of interest to individual
                  o Ability of additional procedures to reduce risk of erroneous deprivation and
                  o Gov’ts interests
         Questions
                  o 1. What is the nature of the deprivation?
                  o 2a. What is the likelihood of error?
                             Is the record relatively clear or are there some ambiguities and errors?
                  o 2b. What value would be had by additional procedures? Would they be likely to
                       make a difference?
                             Primary why someone would be receiving additional protection is that he
                                 was unable to call witnesses, etc., he is seeking more procedure to prove
                                 that he is entitled to continued benefits
                  o 3. What is the cost of this going to be?
                             The more procedures you have the greater the cost and the longer the relief
                                 is delayed if it is granted
         Why is paper hearing enough here? Nature of the dispute is medical – whether he is disabled.
             This is sort of issue where Drs make their diagnosis, someone capable of assessing info makes
             the decision.
         Why might P have been entitled to more of a hearing here? Since ct looks at likelihood that
             hearing would accomplish something for complainant, here P has strong arg bc stats showed
             that these cases usually mistaken & reversed.
         What type of case should need hearing/have cross exam, etc?
                  o Where govt says you weren’t doing your work but you say fired bc they didn’t like you
                       [ex: your political views, etc]
                  o Nature of ev/credibility will play a role.
                  o Goldberg – welfare benefits & ability to live is big! Need hearing!
         Question here is whether Plaintiff is still disabled, Crt says most of the evidence is written,
             therefore there is little credibility of evidence questions to decide
                  o Crt said there are full retroactive benefits if Plaintiff wins, therefore there is no
                       serious deprivation
                             There is a possibility of complete benefits
         Dissent: Brennan, Marshall concurs
                  o Too much presumption that terminating disability benefits w/out a hearing is only a
                       limited deprivation
         Critiques of Mathews Approach:
                  o Doesn’t factor in participatory factor *ppl want to feel like they were heard+
                             Counter: how weighty is this in a mass-benefits context?
                  o Balancing test is very discretionary.
         Unresolved issues after Mathews:

                                                                                                         90
                          o   To what extent are you entitled to a hearing at all?
                                    Sometimes won’t get one at all [a lot of the prison cases]
                                    Are you entitled to a hearing where you can bring in your own witnesses?
                                        They are expensive
                                              Generally, no. If your issues are resolved on paper, your SOL
                          o   If an actual hearing is warranted, does it have to be pre/post termination?
                                    Notice + post termination Is probably the rule as long as you have opp for
                                        retroactive make-whole remedies.
                                              You are entitled to notice, but are you entitled to a hearing?
                                                      o Post-deprivation hearing will suffice if you are entitled to a
                                                           hearing
                          o   How much process should you be entitled to?
                                    Extremely flexible
                                    How expensive and time consuming is the hearing going to be?
                                    Judicializing things, making them adversary, does not necessarily serve the
                                        interests involved
                                              Keeping things more informal may be more instep w/ the
                                                 institution/organization
                                    Lopez: VP satisfied DP by telling kid why throwing him out.
                                              Contra Goldberg: welfare case got a whole civil trial
                                                      o Note Goldberg is extreme & most cts will think too $$$
o   1980s
            Cleveland Bd. of Educ. v. Loudermill [1985] (pg 945)
                   Justice White wrote the opinion
                   Facts: Loudermill was hired as a security guard by the Cleveland Board of Ed. On his job app,
                       Loudermill stated that he had been convicted of a felony. Board discovered he had been
                       convicted of grand larceny and Loudermill was fired via a letter.
                   H: For Loudermill because Ohio statute clearly granted civil servants property rights to their
                       employment.
                             o In order to lawfully remove property right, DPC requires a procedure that carefully
                                weighs the interests of the gov in removing the property against the interests of the
                                private party in retaining the property
                                      Must have notice and opportunity to respond
                             o There was no strong reason to delay the opportunity to respond until after
                                termination
                             o Crt held that there was a significant interest of employees to retain their jobs which
                                outweighed the interests of the state to remove employees quickly
                   Establishes:
                             o Even when have relatively serious charges at serious cost to govt, cant get rid of you
                                w/o giving you PDP.
                             o Rejection of Rehnquist’s “bitter w/ the sweet” *his notion that where govt gives you
                                the prop interest, they can define your procedural rights as part of interest]
                                      Can’t do that. Basically defining DP out of the pic if that’s allowed.
                   Dissent: Rehnquist
                             o Is it the Crt’s job to second guess these procedures?
                                      No, the person got something and the state got something
                                                There was a contract and Plaintiff got the benefit of the contract
                                                        o Majority rejects this here
                                                State cannot tie the procedural rights to property
                                      The state can through giving you something of value, then limit the
                                          procedural protections given to you
                             o Crt rejects “bitter w/ the sweet” because it is essentially a revitalization of the
                                procedural interest
                                      Consistent w/ the direction the Crt has taken regarding PDP
                   Assuming we have a procedural/property interest and we have been relieved of it, how do we
                       tell how much procedure are we entitled to?
                             o Minor suspension is presumably not as serious as the death penalty
                             o There will have to be some sort of differentiation
o   A citizens participatory interest have costs such as hearing costs
          If gov must spend $$ on procedural safeguards it will have fewer resources at its command and the
             result may be that welfare benefits or salaries are diminished
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                                         Hearings may not benefit the people they were established to benefit then
                Procedural Due Process
                     o Unenurmerated rights
                               To what extent is there right to autonomy, privacy
                                         Found as a process of due process liberty
                     o Reading the due process clause literally, one could conclude that maybe there should be no such thing as
                          substantive due process clause
   Takings Clause
        o 2 Ultimate issues
                  1. Has there been a taking?
                           Has he gov taken your property in a way that entitles you to compensation?
                  2. And did the gov. take property for public use?
                           Cannot take property for anything other than public use
        o Eminent Domain Clause
                  2 requirements
                           1. All takings must be for public use
                           2. Even if taking is for public use, must be accompanied by compensation
                  Seeks to redistribute resources
                           Reflects a judgment that, if gov is seeking to produce some public benefit, it is appropriate that the
                              payment come from the public at large (taxpayers) rather than from identifiable indiv.
                                   o Public willingness to pay for the transfer suggests that some general public good is at work
        o Hawaii Housing Authority v. Midkiff (pg 975) (1984)
                  Justice O’Connor wrote the opinion
                  Facts: Land in Hawaii was only held by a few people, so the state of Hawaii made a law to help more people own
                     land. Land owners said the taking was not for “public use” and therefore the act was unconstitutional
                  H: Upheld the statute based on state police power and that there is a conceivable public purpose
                  If the state can simply say “this is something we can accomplish”, the Crt might give it complete deference
                  Establishes doctrinally the Crt saying “this is really not our business”
                  From state justification, there isn’t a free market
                  Straightforward argument is that there is not a public use here, at the end of the day, a private owner will own the
                     property
                           No one can go to the property still
                  How do you get around public use?
                           Crt said if Hawaii thinks this is a public use, okay w/ them
                           The argument could still be made that it is not a public use, but public purpose is enough
                  This is one of the clearest examples of the Crt changing the literal meaning of the constitutional text by substituting
                     language
                  When the Constitution means public use, it means public use!
                           Crt gets by this, use/purpose is the same thing
                  Crt used two devices to produce deferential judicial posture in guarding against transfers of property from one
                     private entity to another private entity for the later’s benefit
                           1. Scrutiny of the ends
                                   o Must be public
                           2. Scrutiny of the means
                                   o Low requirement
                                   o Loose means/end connection
        o Kelo v. City of New London (pg 976) (2005)
                  Justice Stevens wrote the opinion
                  Facts: Pfizer announced it wanted to build a new $300 million research facility in New London, a city that was in
                     need of economic revitalization. The city council approved a redevelopment plan that would allow Pfizer to have
                     land owned by private citizens. Citizens challenged the taking on the ground that it violated the public use
                     requirement
                  H: Crt upheld condemnation, deference to the state leg
                           Condemnation does not need to be open for public use literally, it just has to be for a “public purpose”
                           Okay here because there was a comprehensive plan for the property
                  Kennedy concurred
                  Dissent: O’Connor, Rehnquist, Scalia, and Thomas
                           “Opened up the floodgates”
                           Thought the majority ultimately deleted “for public use” from their standard
                           Distinguished precedent cases because they were correcting “affirmative harm on society”, not so here

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                    Shifting analysis from use to purpose, you undermine the takings clause
          This case caused a legislative backlash in most states
o   Pennsylvania Coal Co. v. Mahon (pg 979) (1922)
          Justice Holmes delivered the opinion
          Facts: House owners wanted to stop coal company from mining under their property because doing so would have
              destroyed their home. A contract had been executed by the coal company allowing them to remove the minerals,
              but gave the homeowner’s surface rights. Penn. had enacted Kohler Act forbidding mining in cases where it would
              destroy “any structure used as a human habitation” w/ exceptions including where the mineral rights were owned
              by the comp. and the homeowner has surface rights and the home is more than one hundred and fifty feet from any
              improved property belonging to any other person
          H: For the company, the statute is a violation of police power as the Kohler Act constituted a taking, Company must
              be compensated
                    Conflict: On the one hand the state is saying it has the right to exercise its police power thus there is no
                       taking, on the other hand the company is saying by using the police power it is a taking
          This is not a clear transfer of title kind of taking
                    This is a regulatory taking
          Questions is
                    Can there be such a thing as a regulatory taking?
              Foundational case for regulatory taking
                    The takings clause is not limited to formal transfers of property
                    State has a right to regulate property in a way that would diminish the value of the property and the state
                       does not have to compensate for this diminishment every time because it would cost the state too much
                    Taking can be regulatory or formal
          At some point there can be regulatory taking, but depends on case by case basis
                    If it has gone too far, than cannot be a regulatory taking (yes, it is vague)
                    Area where ad hoc, case by case standard has to govern
                            o Question of did they go to far?
          Crt talked about the importance of coal mining’s profitability
          Dissent: Brandies
                    Right to do what you please with your land is not absolute!
                            o Impositions imposed on landowners by the leg is a police power, but it is okay because they
                                exercise the power for public good
                    Here, it is the restriction of noxious use
                    Stated that as long as the state is attempting to protect against some form of harm, “noxious”, that cannot
                       be a taking
                            o Holmes is unwilling to accept this because he doesn’t want to keep state’s from doing things that
                                are for the public good
                    Gov has the right to regulate property heavily, to the point where the land is worthless, but damages must
                       be paid
                    When the gov cuts deeply into property rights, the public should pay for it instead of forcing the private
                       landowner to shoulder the burden
                            o Part of the states taxing right
                    Tried to come up w/ a more hard line approach, wanted the line to be drawn at “noxious” use
                            o Is the use a serious harm to the public?
o   Miller v. Schoene (pg 982) (1928)
          Justice Stone delivered the opinion
          Facts: Virginia ordered private landowner to cut down ornamental red cedar trees as a means of preventing
              communication of a plant disease that would destroy nearby apple orchards. Red Cedar owner brought action
          H: For the apple orchard
          Crt ruled that the state did not exceed it’s constitutional power by deciding to destroy one person’s property to save
              another
                    There was great public concern here to save apple trees which permitted the state’s decision
                    No compensation for the cedar tree owners because the taking was for the public good
                            o Apple trees were very valuable, the cedar trees were not
o   Penn Central Transportation Co v. New York City (pg 983) (1978)
          Justice Brennan delivered the opinion
          Facts: NY adopted Landmarks Preservation Law in 1965 to save historical structures that encourages private citizens
              and organizations to maintain the landmarks instead of the city taking them. Owners of Grand Central Station
              wanted to either build an office building on top of the station or tearing down part of the station and building an
              office building. Commission refused both ideas, Company sued asserting that NYC’s actions constituted a “taking”

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                      Was an affirmative duty to what the landowner had to do such as keep the property in good shape
                      Before they could alter the property, they have to get permission from Commission
                      Property owner said that state was keeping them from making a lot of $$, they want compensation, this is a
                       taking
         H: For the Commission based on Holmes approach in Mahon
                   Brennan said there cannot be an ultimate test here, you have to reach a factually based decision
                   This case is distinguishable from Mahon (coal company lost all of it’s mining value in the property) because
                       the statute allowed for an out
                            o They could engage in development on the same city block, which they would otherwise not be able
                                 to do
                                      To the Crt, they were given something in return
                            o Property was bought a long time ago for the purpose of running a subway station, the land still has
                                 usage in the same way it was purchased for
                   To what extent does the gov. interfere w/ reasonable investment backed expectations
                            o Not the problem here
         Crt discussed factors it looks at when deciding whether a “taking” has occurred:
                   1. Economic impact of the regulation on the claimant
                   2. The extent to which the regulation has interfered w/ distinct investment-backed expectations
                   3. Character of the gov action
                            o “Taking” is more readily found where the interference w/ property can be characterized as a
                                 physical invasion by gov
         This case recognizes a difficult point
                   In Mahon, Holmes says there was a taking because the property was deprived of all economic value
                   One principle that comes close to a black letter principle
                            o Was the property deprived of all economic value
                                      Yes, strong case for considering it a taking
                            o Gets tricky when you ask what the nature of the property is
                                      What are we really talking about here?
                                                 We tend to speak about property as a “bundle of sticks”, bundle of rights
                                                          o Some rights are exercised differently from others
                                      When determining whether the gov has relived you of all of your property rights, the gov
                                           is going to want to zero in on what the right is
                                                 If the value of my air rights have been diminished wholly so that it is no longer
                                                     there, a taking has occurred
                                                          o The Gov is going to want to disagree
                            o Crt does not want to rule one way or another, but in this case it wants to rule for the gov
                                      Wants to rule based on the whole property, not each individual right
                   How much has the gov taken away?
                            o All rights or just some rights?
                   One other principle is zoning
                            o Legitimate public interest in zoning are legislative in nature, there is going to be a heavy
                                 presumption that it is tough to get anywhere w/ a zoning challenge
                                      Legislature has debated the issue and decided the matter in the public’s best interest,
                                           therefore it is probably going to be okay
                                      Strong presumption in favor of constitutionality
         Dissent: Rehnquist
                   Public at large is benefiting, then the public should have to pay for it
                            o Ought to be a taking
                   Average reciprocity of advantage (from Brandies in Mahon)
                            o The lack of average reciprocity of advantage is a taking
                                      Opposite of Brandeis, he believed evidence of this was not a taking
                            o If the gov through the police power is regulating for the public good and if in the process of doing
                                 that, it cuts too deeply into the interests of too many people than the public at large should pay for
                                 it
                                      On the other hand, if the gov. regulates and the regulation is spread amongst the public,
                                           then there is no taking because everyone will pay for it equally
o   Principles that are bright line oriented
         Keiser v. United States
                   Facts: Keiser created a dock for private use, state opened up dock for public use
                   H: It was a taking

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                         o    Right to exclude was violated here
                                    Core of right to private property is the right to keep trespassers off your property
                 One key principle the court adopts here is that if the gov violates your right to exclude other people or the
                     public at large, that is a taking
                          o Gov has to figure out what that is costing you and pay for it
         Loretto v. Telepromter Manhattan (pg 995) (1982)
                 Facts:
                 H: For the landowner, here the gov is requiring that a piece of your property be dedicated to physical
                     intrusion
                          o Crt agreed that landowner was suffering from a physical intrusion
                          o Just as the right to exclude is at the heart of property ownership, the right to exclude a permanent
                              occupation of your property is also a taking per se
                                    Gov only has to pay for the damage done
o   To what extent can the gov make a coercive deal with you
         Nollan v. California Coastal Commission (pg 996) (1987)
                 Scalia wrote the opinion
                 Facts: State would only issue Nollan a permit to rebuild his house if he allowed an easement to allow the
                     public to go across his property to the public beach on the other side of his property
                          o Notion is to create an easement for people to know that there is a public beach there
                 H: Crt says no, gov can’t do this
                          o Unless the permit serves the same purpose as the construction ban, then something smells fishy
                          o The state can’t open your property up to the public, without paying for it
                 State could not require you to open your property to an easement w/out compensating you
                 If there was a close nexus between the permit and the condition, okay, but not the case here
                          o The only reason why they are attaching a condition here is in order to take your property without
                              paying for it
                 What can the state do in terms of permit requirements?




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