Constitutional Law 14th Amendment - Michael Klarman - 2009.docx

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Constitutional Law 14th Amendment - Michael Klarman - 2009.docx Powered By Docstoc


1. Doctrine/tests
2. Manipulability of doctrine/places where doctrine doesn’t give one obvious answer
3. Which approach to use? (textualism, political process theory, originalism)
4. Cases emerge from a socio-political context
5. Politics or law? Which one matters more?
6. What is the significance of court decision?

1. Binding nature of a past commitment; “intertemporal difficulty”
        a. Problem of exclusion → no democratic representation for a large segment of the contemporary population
        b. No participation by the current population
        c. Difficulty of amendment (requires 2/3 of both houses of Congress and ratification by ¾ of states)
        d. “Ordinary politics” are in conflict with the political climate of a past “constitutional moment”
2. Legitimacy of judicial review
        a. Undemocratic (Bickel’s “countermajoritarian difficulty”)
        b. Not authorized in the Constitution
3. Mechanism of judicial review and constitutional interpretation
        a. Textualism
        b. Original understanding/historical intent
        c. Stare decisis
        d. American traditionalism
        e. Social evolution and the “living Constitution”
        f. “Natural rights” and universal morality
4. Politics and divisiveness
5. Significance of judicial review  how important are courts to social reality?

1.    Constitutional Law applies in all jurisdictions
         a. Binds governmental (state) actors; does not bind private actors
         b. Exceptions: two clauses which apply to private as well as governmental actors
                     i. Article (“Art”) IV, Section (“Sec”) 2, Clause (“Cl”) 3: Fugitive Slave Clause. Slaves must be returned
                        to their owners, even if they had escaped to a state without slavery
                    ii. 13th Amendment (“Am”): Abolition of slavery
                   iii. 18th Am: Prohibition

1. Powers: Grants explicit power (original Con strategy to restrain Congress), limiting power that is granted
        a. Congress (Art I, Sec. A). When it acts, two questions are asked:
                    i. Was it within Congress’s granted powers?
                   ii. Does it violate someone’s rights?
                  iii. 14th Am: made Bill of Rights applicable to all States
        b. 10th Am makes the point that powers not delegated to the US are reserved for the States or the people
2. Rights: Protection of specific rights (9th Am make the point that not all rights must be enumerated)
        a. Roe v Wade: Right to privacy, no explicitly granted right to privacy in the Con
        b. Note: Con has no “State of Emergency” Clause or National Security override

Important Points on the Constitution
  The Exceptions Clause – Art 3, Sec 2, Clause 2: Says that Congress can change the breadth of the Supreme Court’s
   appellate jurisdiction – does not apply to the Supreme Court’s original jurisdiction (but Congress can put something
   in the SC’s original jurisdiction into its appellate jurisdiction)
  The Supremacy Clause – Art 6, Sec 2: The Constitution, the laws that further it, and treaties of the U.S. are the
   supreme law of the land (contrary state laws will not prevail)
  The Equal Protection Clause – 14th Am, Sec 1: Requires states to treat equally all similarly situated classes of people
  Due Process Clause – 5th Am: SC has used this clause to declare that the federal government must abide by the
   equal protection measures spelled out in the 14th Amendment
  Due Process Clause – 14th Am: Used to partially incorporate some of the Bill of Rights (see below)
  The Necessary and Proper Clause – Art 1, Sec 8, Cl 18: Very important to the McCulloch decision
  Commerce Clause – Art 1, Sec 8, Cl 3: Congress has power to regulate interstate commerce and trade with other
  The Due Process Clause has also been utilized to recognize unenumerated rights, like privacy (Roe v. Wade)
  Penumbras and emanations


1. Justifications for Judicial Review
        a. @ Marshall’s time
                    i. Textualism weak according to Klarman
                            1. Supreme Court is explicitly given “arising under” jurisdiction so naturally it must have the
                                power to check the legislature by interpreting the Const. and striking down laws
                            2. Judges take an oath to defend the Const.
                            3. Supremacy Clause (Art. VI, paragraph 2) says that laws are to be made “in pursuance” of
                                the Const. so all laws must be consistent and compatible with the Const.
                                     a. Klarman : not really an argument that the SC should enforce the compatibility of
                                          laws; also “in pursuance” probably only means “subsequent to”
                                     b. Klarman : Art. VI, paragraph 2  state judges are explicitly bound to follow the C
                                          notwithstanding any state laws or state constitutional provisions that are contrary
                                          (can be read as an authorization for state judges to engage in judicial review)
                   ii. Contemporary practice
                            1. Some in state court, although met with outrage
                            2. Federal judges did it in lower courts
                  iii. Some of the founders were ok with it, although opinion is not unified either way
                 iv. Although the strictly legal justifications for SC judicial review are weak, good policy reasons –
                       dangerous to let Congress determine the scope of its own power (fox-henhouse)
                            1. But then SC is also determining its own power
        b. General policy justifications
                    i. SC is least powerful branch and need someone to answer the question (can only react, no purse
                       or sword) [Hamilton]
                   ii. Formalist response: JR as something that enforces principal-agent relations btn Constitution and
                       legislature, keeps people at top; statutes = will of legislature and will of the people, through C must
                            1. Leads to dead hand problem esp. w/originally ltd access
                                     a. Ackerman: SC uses moment of C politics to overturn normal politics
                                     b.  Myth that C moment is free of self-interest, normal politics
                            2. Indeterminacy problem: judges will have to consult their own ideas, opinions when they
                                interpret their meanings
                                     a. Good excuse for formalism? Or is that disingenuous?
                            3. MK: used to think that Marshall was being disingenuous by picking examples of clear
                                constitutional text. Then discovered that Marshall may merely be manifesting the then-
                                common view allowing JR in cases of clear conflict, in areas of “clear judicial interest” like
                                jdxn, rules of evidence
                                     a. Clearly n/a anymore
2. Judicial review, protection of minorities, and non-democratic nature  counter-majoritarian problem of “Why allow
    unelected/unaccountable judges to contravene the supposed will of the majority?”
        a. This is a good thing. Our government is not absolute majority rule, we protect minorities in some cases.
            American Republic is not designed to be a direct democracy; “A pure democracy can admit no cure for
            the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to
            check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found
            incompatible with personal security or the rights of property.” [James Madison, Federalist No. 10]
                    i. How do courts decide which minorities get protected?
                            1. Text isn’t clear (controversy about meaning of BoR) and leads to dead hand problem
                            2. Political process theory – Ely, unenumerated rights are those you need to participate in
                                democracy (right to vote)
                            3. Natural law: principles of justice, God’s will
                            4. Contemporary social mores – no more dead hand, but
                                     a. Circular – protect minority based on majority opinion?
                                     b. Indeterminate, institutional competence
                   ii. Why not rely on other mechanisms?
                            1. Structure of federal government, Fed #10, larger constituencies, indirect election, long
                                terms in legislature
        b. Courts aren’t undemocractic
                    i. Less politically accountable, but not w/out popular checks
                            1. Appt process
                            2. Impeachable
                            3. Can remove jdxn
                            4. Have to worry about enforcement problems
                            5. Justices still part of their historical moment and culture  inevitable influences

              c.  Legislatures aren’t all that democratic
                        i. Public choice theory: legislation is a result of interest group bidding, naked wealth transfers
                                 1. Example : Terry Schiavo law despite 85% of nation against it
                       ii. Still might be better than courts, judges influenced too esp w/elections (Hanson)
                      iii. More direct solution to public choice problem = take money out of politics
                                 1. But currently given 1st amendment proctetion
             d. Final thought: minorities may be protected by the level of their commitment to an issue. If a minority cares
                  deeply and a majority is indifferent, why shouldn’t we allow the minority to prevail? Should we multiply
                  fervency of commitment by size of population in determining whose opinion prevails?
3.        Nature of constitution: comes from the people, not a compact between states
             a. SC gets to step in to protect individual rights when Constitution is violated
             b. Not that conflicts between state and federal government are conflicts between contracting parties
             c. Re: McCulloch, Constitution ≠ statute; Congress must have means to accomplish objectives in Const;
             d. Why have words in C if you don’t think that SC enforces rights?
                        i. Danger w/relying on JR
                                 1. Diminish incentives to be vigilant on political acts and rights
                                 2. If you have JR and its not used to strike st down, you legitimate it and make it worse
                       ii. Good if recorded rights
                                 1. Educate
                                 2. Give rallying cry to struggle against rights-diminishing actions
                                 3. Judges take it upon themselves to enforce rights if you write them down
4.        Methods of constitutional law

     1.      Evolving constitution
             a.    Pros: Reliance interests, learn from experience, adapt to changing circumstances
             b. Cons: constrain judges, stability, precommitment
     2.      Textual arguments
             a.    Necessary ≠ indispensable; no “express” requirement in 10th amendment; necessary is one of degrees, no “absolutely”
                   in front of it
     3.      Nature of Constitution/national government
             a.    Constitution ≠ statute; Congress must have means to accomplish objectives in Const; adaptability
             b. Shouldn’t be a judicial question to examine degree of necessity
                    i. Conflict with Marbury – legislature can’t be judge of its own power, but this is broadly granted here
                   ii. Alludes to the idea that if Congress that uses justification to do something it isn’t actually allowed to do, that act
                         would be unconstitutional
     4.      Political Process theory: courts have special role to play when legislatures cannot be trusted b/c of malfunction in political
             process, i.e. when people affected by legislature cannot vote
             a.    Maryland’s power to tax the national bank unconstitutional
                    i. Power to tax = power to destroy, and not all persons who had interests in the national bank had their interests
                         represented in the state legislature.
             b. Criticisms of theory
                    i. What counts as a flaw?; no assurance that legislature would have acted differently if flaw fixed; is theory
                         sufficient?; so beyond formalistic conception that theory has no limits
     5.      Natural Law: some things violate natural law so legislature can’t do it, even if not prohibited by Constitution
             a.    Calder v. Bull (1798) (pg. 74-5) (Chase’s opinion) – gov’t created to protect property so can’t take it from A to give to B
                                        i. Iredell: Court’s can only decide based on constitution, laws, etc.

         a.   Textualism
                      i. Hard to interpret, will have to bring judge’s own ideas into it and pretending its inevitable hides the
         b.   Original intent
                      i. BUT no one intent, hard to find; inevitably have to pick one
         c.   Evolving constitution
                      i. Living constitution
                   Pro                                                    Con
                   C is supposed to reflect popular will, but mores       Pre-commitment idea: point of C is to keep
                   change, circumstances change, don’t want C             politicians in line
                   to become irrelevant
                   Reliance interest over time                            Reliance interest: need a fixed C over lover time
                   Accumulated wisdom                                     Constrained judicial activism
                   Deference to leg on doubtful ?s has nothing to
                   do with the passage of time
                     ii. Translation or “soft originalism”  frame constitutional questions in very general terms and apply
                         the guiding principle of the framers’ commitments
                              1. Originalism breaks down and becomes indistinguishable from living constitutional theory
                    iii. Alternative: let Congress decide on changing mores; defer to Congress on old sodomy laws, bank,
                         etc BUT don’t let SC interfere on basis of new rights
         d.   Political process theory – SC regulates when democracy breaks down, malfunctions for some reason
                      i. Examples
                              1. Outsiders
                              2. Minority interests
                              3. Non-voters
                              4. Political criticism, political speech
                              5. Gerrymandering/access b/c incumbents will create their own rules that favor themselves
                     ii. BUT
                              1. Institutional competency: why trust judges more than legislation?
                                       a. Judges not necessarily going to be able to figure out what is best for majority
                                       b. No assurance that legislature would have acted differently if flaw fixed
                              2. Not in constitution, no argument to be found there about protecting minorities
                              3. Is this enough? Minorities in general lose in a majority, how do you tell when they lose for
                                  the right and wrong reasons
                              4. What counts as a flaw?
                              5. Is theory sufficient? so beyond formalistic conception that theory has no limits
         e.   Natural law – an act that violates “great first principles in the social compact” cannot be a law, court must
              strike it down
                      i. Problems
                              1. Indeterminancy problem: what happens when there are natural rights on both sides
                              2. Judges will just write morality into law. Their morality.
                              3. How will we agree on any national rights if slavery wasn’t one?
                              4. Antidemocratic that there are things that the leg can’t do that aren’t in the C
                                       a. BUT 9th suggests there are rights limiting the Congress that aren’t listed
1. Marbury (1803)
      a. Background:
                i. Conflict btn Federalists and Jeffersonians; at decision, courts were the only Federalist branch
               ii. Conflict over this issue even before this case goes to SC
                       1. Madison won’t respond to the SC’s show cause to the new Sec of State  SC wouldn’t be
                            followed if it demanded delivery
      b. Holding: president is subject to law, SC can order the President to do something, SC can invalidate
          unconstitutional laws
                i. “emphatically the province and duty of the judicial department to say what the law is;” this is the
                   “very essence of judicial duty”
               ii. SC gets individual rights, not political questions
      c. Reasoning:
                i. Odd order to Marshall’s opinion

                            1.   Is there a right?
                            2.   Is mandamus appropriate?
                            3.   Jdxn?
                                      a. Wants to make Jefferson look bad, defy him in one sense, w/out opening itself to
                                           possibility that Jefferson will ignore the decision and make SC look weak
                   ii. Statute-Constitution conflict
                             1. To get to judicial review, Court stretches, re: some, to find the conflict
                                      a. Marshall ignores 2 other interpretations of both §13 and Constitution that would
                                           find no conflict
                  iii. Marshall tends to argue from the “nature of things,” which would be odd today
         d. Theory:
                    i. Claim that the Court must enforce the Constitution not logical truism like Marshall pretends
                             1. Other options
                                      a. C could be a starting point that leg, representing majority, can depart from
                                      b. C is something that “the people” or other branches are supposed to enforce
                                      c. C is just “educational,” as per Madison
                                      d. Even today, some provisions off-limits for SC: Guaranty Clause, Impeachment
                   ii. Political genius of the opinion is that it leaves Jefferson nothing to defy
                             1. Marshall turns the judicial branch from powerless to almost equal 3 rd branch
                             2. Especially important after SC was submissive in Stuart (1803)
                                      a. Controversial, partisan, pro-circuit-riding bill that justices would have loved to strike
                                           down (note original questions about whether circuit riding was originally
                  iii. Echoes of nondelegation doctrine in the idea that President gets to appoint, but can’t fire officials
                       like Marbury
                             1. Note that later cases limit Congress’s ability to restrict the President’s ability to fire
2.    McCulloch (1819)
         a. Background
                    i. Marshall’s view on federalism heavily influence by war experiences
                             1. Generally, know for three things
                                      a. Strong nationalism
                                      b. Strong defense of property rights
                                      c. Efforts to protect national economic market from state econ interference
                   ii. Marshall’s political genius: when his Federalist Party was dying out, knows how to write broad dicta
                       when little is at stake to minimize opposition/outrage, etc.
                             1. Issues are can Congress charter a national bank and can Maryland tax that bank
                             2. Marshall wants to address the scope of national power and the nature of the union
                                 created by the constitution
                  iii. Compact theory
                             1. Maryland: constitution is a compact among states, not an expression of the will of the
                             2. Controversial not b/c of bank itself, but because of the Missouri Compromise and federal
                                 support for internal improvements
                 iv. Response: bank rechartered in 1832, Jackson vetoes as unconstitutional
                             1. Departmentalism: SC can have one view, and president another
                             2. Political branches: President obligated to make his own judgment (more consistent w/
         b. Holding: states have no power over federal institutions, federal supremacy  MD cannot tax the Bank of
             the United States branch; Congress has implied powers beyond those specifically enumerated coming
             from the NPC, SC can’t evaluate political question of necessity
                    i. Bank statute is constitutional under Art. I, §8 elasticity clause: “The Congress shall have power …To
                       make all laws which shall be necessary and proper for carrying into execution the foregoing
                       powers, and all other powers vested by this Constitution in the government of the United States, or
                       in any department or officer thereof”
                   ii. “States have no power to control the operations of the constitutional laws enacted by Congress”
                       and the power to tax is the power to destroy
                             1. b/c C is agreement by all people > states
         c. Reasoning: in order
                    i. Passage of time argument: b/c bank has been around, its Constitutional
                   ii. First principles/Natural law
                             1. In nature of C to only set out framework and leave out details
                             2. Constitution must be adaptable to various crises of human affairs p. 66
                                      a. Response: during crisis is exactly when you would want solid rules

                  iii. Text
                               Nothing says Congress can or cannot charter a bank
                                    a. Discussed at Convention  decided too controversial so there was a strategic
                                        decision to leave ability to charter corporations out
                            2. Other specifically enumerated powers in Art. I relate to bank activities  implied power to
                               create a bank
                            3. “Necessary and proper” creates additional powers
                                    a. Maryland responds that necessary controls the whole sentence and narrows the
                                        first 17 clauses  only most direct and simple route for Congress
                                               i. BUT if a limit, why not place with the rest of the limits?
                                    b. “Necessary” often modified w/language like “absolutely”
                                    c. 10th omits “expressly” unlike Articles of Confederation, implying the existence of
                                        implied powers
                 iv. Nature of national gov’t p. 64–5: why give national government power and then hamstring it?
                            1. Response: this assumes an always benevolent national government, which was not the
                               founders’ operating assumption
                  v. Political process: Court has to step in when democracy is likely to misfire
                            1. Maryland’s power to tax the national bank unconstitutional b/c power to tax = power to
                               destroy, which conflicts with the power to create and protect
                            2. Not all persons who had interests in the national bank had their interests represented in the
                               state legislature  favor national law
                                    a. BUT C says nothing about state taxes, there is no statute conflict
                 vi. Real question: what are the limits of implied powers?
                            1. “Let the end be legitimate, let it be within the scope of the constitution, and all means
                               which are appropriate, which are plainly adapted to that end, which are not prohibited,
                               but consist with the letter and spirit of the constitution”
         d.   Theory:
                    i. Marshall rejects compact among states argument, even though its not at issue in disposition of the
                            1. Convention just a proposal
                            2. Constitution was approved by the people
                                    a. Ignores the fact that the “vote” was state-by-state ratifying conventions, not
                            3. Cares b/c if you buy compact theory, federal gov’t not supreme
                                    a. SC can’t arbitrate disputes btn nat’l and state gov’t (it’s like disputes btn nations
                                        over treaties) and you are left w/only secession as a method of resolution
                   ii. If Founders had written national bank into C, is there any chance it would pass?
                  iii. Tension btn Marbury and McCulloch: constraints and court enforcement v. expansive
                       Congressional power and non-justiciability
                 iv. Pretext language on p. 68 – narrow judicial review that lets SC step in when Congress is only
                       pretending to exercise CC
                            1. Ex: Child Labor Law and fear that if left to states, competition will mean kids will keep
                               working  Congress bars child produced goods from IC  Congress lacks general police
                               power  SC strikes down the law
                            2. As hard to do as a motive inquiry


1. Kinds
          a. Federalism – state could do this, but national gov’t can’t impose it on all states
                     i. Example; Lopez
          b. Individual rights – no one can do this
                     i. Example; Eichmann and flag burning
2. Sources of power: starting assumption is that federal government has nothing other than what C gives
          a. Enumerated – 17 clauses
          b. Inherent – sweeping
          c. Versus states and assumption that states get whatever C denies it
                     i. Art 10, Sec 1 “No state shall”
                    ii. 14th Amendment “No state shall”
3. Original constraints
          a. Judicial enforcement (not primary mechanism for FFs)
          b. Structural constraints
                     i. State senates select national senate
                    ii. Electoral college elects president

                      i. Republican’s commitment to federalism, small gov’t
                     ii. Antebellum Dems: party of states’ rights
4.    Contemporary constraints
          a. Changed structure
          b. Ideology = mirage that parties adopt when it helps them
                      i. Example: Terry Schiavo, Oregon assisted suicide, Antebellum and Fugitive slave act
                     ii. Distinguish substantive (white supremacy) versus trans-substantive (local participation) interests in
                    iii. Substantive issue today – competing views on gov’t redistribution
          c. Compensating adjustment beefs up judicial review to police Congress, reduced b/c of increasing
              international importance, mobility, interdependent markets
5.    Pros/cons
                Pro                                   Con
                Citizen participation                 Fed 10 problem: nation is larget and more diverse, so
                                                      national gov’t harder for interest groups to take over
                Experimentation                       Race-to-bottom: state sompetition will undermine
                                                      advantageous policies like child labor,
                Encourage efficiency in gov’t         Makes it hard to implement national policy when
                                                      one needed
                Check on gov’t oppression             Cost-externalization, protectionism
                Maximizes preference                  Lose out on economies of scale
          a. For originalists, pros and cons make no difference
          b. Note that pros/cons are different sides to the same coin
6.    Moderate cut back on federal power
          a. CC: Lopez found a line, which Morrison may have pushed further
                      i. If jdxl hook is enough, Lopez did very little
          b. Cut back more substantially on Sec V
                      i. After Boerne, congruence and proportionality are substantive limits
          c. TSP is unanswered question; if Dole is still good law, congress can do anything
          d. Commandeering isn’t allowed, but its largely symbolic b/c Congress can achieve same ends w/sonditional


                    1935                    1936                 1937                         1937
                   Schecter                          Butler                  Court packing      Steward Manufacturing

                            1936                      1936                              1937                 1937
                           Carter Coal               Tipaldo           West Coast Hotel        Jones & Laughlin
                                                                    Beginning of switch
1.    Pre-1930s: mess w/little application at all before 1890s b/c Congress didn’t do much economic regulation until then
          a. 1920s brought inconsistent results in the interstate cases
                     i. Hammer (1918) – SC strikes down Child Labor Act 5-4 based on perceived underlying motive to
                        statute forbidding interstate movement of goods produced by children
                             1. Adapted pretext language from McCulloch, but overruled in Darby, Palmer (swimming
                                 pool case)
                             2. Dissent: should give deference to facial link to commerce
                    ii. Shreveport cases (1914) – railroad rate limits ok b/c intrastate rates have “direct effect” on
                        intrastate rates
                                                Conflicting precedent going into New Deal
2.    1935 – 36: 18 statutes struck down
          a. Cases
                     i. Schechter Poultry (1935) – NIRA bureaucracy creates (AKA farms out to big business) codes of fair
                        competition by industry unconstitutional b/c Congress can’t reach local commercial conditions
                        that aren’t in the stream on interstate commerce; Congress can’t regulate national economy
                             1. Distinguished from Shreveport cases
                                      a. Stream stops once meat is inside New York
                                      b. No economic discrimination
                                      c. RR safety implicated if intra and inter cars have to share lines
                                      d. Reductio ad absurdum if this is IC; gov’t argument requires too many logic steps

                    ii. Carter Coal (1936) – NIRA-like law but for coal industry unconstitutional
                             1. Nationally important industry, history of volatile strikes, violence
                             2. Explicitly rejects the idea that national gov’t would be able to come in to do something just
                                  because it would be difficult for the states to do it individually
                             3. Formalist distinction between regulating commerce and regulating production
                   iii. Butler – Agricultural Adjustment Act limiting agricultural production levels unconstitutional because
                        Congress can’t regulate production, beyond scope of spending power
          b. Basic doctrine:
                     i. Formalist distinction btn commerce, labor and production
                    ii. Formalist interest in manner of effect (direct v. indirect), not magnitude of the effect
                             1. Direct = railroad rates, Coronado Coal b/c the intent of the strike reached was to disrupt
                                      a. *** intent of Congress in regulating matters***
3.    Turning point: new test based on substantiality test
          a. Cases
                     i. Tipaldo (1936) and SDP right to negotiate wages, K means no minimum wage law
                             1. No one likes the decision
                             2. FDR calls out the Court for creating a “no man’s land”  court packing plan after
                                  landslide election in 1936  switch in time that saved nine w/Robert’s different vote
                    ii. Jones & Laughlin (1937) – overturns Schechter by upholding National Labor Relations Act (~like
                        coal act that applied across industries); now: substantial economic effect required for Congress to
                        regulate the industry
                             1. Switch from formalism w/focus on effect p. 207 (leads to very fact-specific case)
                             2. Stream of commerce re-characterized as only one example of what is w/in Congress’
                   iii. West Coast Hotel (1937) – minimum wage law ok
          b. Explanations for switch
                     i. Progressive: Reactionary justices blocked New Deal for political reasons  intimidation 
                    ii. Revisionist: meaningful legal differences btn 1936 and 1937 cases
                             1. Unanimous in Schechter  really about federalism
                             2. Roberts was ok w/overturning Adkins, but wasn’t asked to until WCH
                             3. Roberts had changed his vote before packing plan unveiled
                             4. Real revolution was w/the younger justices
                                      a. Rehnquist may have started revolution back
4.    Gates wide open: keep rejection of formality, “direct” effect but drop substantiality requirement
          a. Darby (1941) – SC refuses to do motive inquiry, ok’s “Darby bootstrap” to allow Congress to reach intrastate
              acts if Congress finds it to be “necessary and proper” way to implement the Const’l ban on interstate
              movement p. 208
                     i. Lets Congress do anything indirectly that it can’t do directly
                    ii. Independent support in the need to avoid race-to-the-bottom phenomenon (rejects Hammer)
                   iii. Calls 10th amendment an unnecessary truism
          b. Wickard (1942) – national crop limits can reach noncommercial production intended for home-use only
                     i. Realist Jackson easily and casually tossed aside the Constitutional question on agricultural
                        production not for home use w/aggregation and substitution
                             1. Aggregation
                                      a. Similarly situated never self-defining. It’s a substantive question
                                                i. Becomes important w/EP
                                      b. What level of generality is appropriate? Farmers? Wheat farmers? Etc. 
                                           Substantive, again
                    ii. Jackson agonized and in the end opted for what he believed was the end of meaningful judicial
          c. Next 55 years = nothing struck down on CC
          d. Explanations for change
                     i. Political process theory: states can protect themselves, its not the Court’s job to protect them,
                        that’s interference
                    ii. Doctrinal incoherence: if SC can’t come up w/non-arbitrary doctrine/standard sometimes it
                        abandons an area
                             1. Ex: gerrymandering, proportionality review from criminal sentences
                   iii. Guilt by association: federalism too tied up w/White Supremacy
                             1. Note this is only accidental
                             2. Could be why federalism revivable
                  iv. Generational: switch reflected the Justice’s experiences with government
          e. NPC w/in CC: unclear how closely tied interpretation of the NPC w/in CC is w/NPC in general
                     i. Scalia in Raich?

5.    Civil rights cases
           a. Oddly, Title II Civil Rights cases upheld under CC, not EPC
           b. Context
                        i. Gap btn no state action and stopping private discrimination b/c of state action doctrine
                                1. SC doesn’t take Shelley and background rules seriously, keep restrictive state action
                                2. Congress creates Title II to create a right where SC didn’t find Constitutional right
                                         a. Courts stretch Congressionally-passed §1982 as far as possible, but can’t get
                       ii. CRA of 1875: provision guaranteeing struck down by SC b/c Congress couldn’t create a EP remedy
                           under Sec V where there was no Sec I violation
                                1. Was enough to stop all white Democratic primaries, then Democratic clubs
                                         a. Product of WWII
           c. CRA of 1964 uses CC to avoid embarrassment of overturning SC
                        i. Similar to common-carrier, travel-related things are easier to reach (hotels, trains, etc.)
                                1. Travel  interstate travel = IC
                                2. People have liberty right to travel?
                                         a. Would have had enough votes to overturn 1875 CRA cases, but wouldn’t have
                                               been willing to reach sit-in issues
                       ii. Logic w/respect to restaurants
                                1. Racial discrimination depresses black travel
                                2. Discrimination depresses economy
                                3. Less pork in interstate travel
                                4. Like w/Wickard, aggregate all restaurants to get substantial interest
                                         a. w/aggregation, does that mean that if CRA is successful in stopping pervasive
                                               discrimination, one segregated restaurant today would be ok?
           d. Cases
                        i. Katzenbach v. McClung (1964) – CC allows Congress to ban discrimination in restaurants
                       ii. Heart of Atlanta (1964) – CC allows Congress to ban discrimination in hotels, even clearer effect
                           than Katzenbach b/c travelers need a place to stay when they travel through states
6.    Modern doctrine
           a. 3 categories of cases justifying exertions of power under Commerce Clause
                        i. Use of channels of interstate commerce (rivers, interstates, etc.)
                       ii. Use of instrumentalities of interstate commerce (person/things in interstate activities, even if threat
                           only from intrastate activities)
                      iii. Klarman’s most important: those activities that substantially affect interstate commerce, although
                           different if activity ≠ commercial
           b. General pattern:
              Liberal                                       Moderate                                 Conservative

                 Steven, Souter,                    O’Connor, Kennedy                              Scalia, Thomas,
                 Ginsburg, Breyer               majority-makers who make                                      Rehnquist
                                                it clear they’ll only go so far.
            c.   Issues/ambiguities
                         i. Relevance of Congressional findings (missing in Lopez, but unimportant in Morrison
                        ii. Commercial/non-commercial distinction
                                 1. Relying on distinction could lead to uncertainty
                                           a. Parental Child Support Enforcement Act – money, but family law related
                                           b. Federal Carjacking Law – jdxl hook, steal car as substitute for buying?
                       iii. Traditional local area of regulation – how much does this matter?
                      iv. Jdxn hook – rewritten after Lopez, not challenged yet
                                 1. MK: if that’s enough, exercise in futility to limit CC b/c today everything and everyone
                                      moves in IC, so there would be no real protection
                       v. Lopez limited to criminal laws? But Morrison is civil
                      vi. Is Scalia’s “larger effort” more than just formalism?
                     vii. Is there an underlying assumption that states will do this on their own, so federal laws aren’t
                                 1. Distaste for Congressional credit-seeking, looking for cheap points
                     viii. Is this just knocking out extremes or is this a serious retrenchment of federalism?
                                 1. Look at what happens with environmental laws or the Clean Water Act
            d.   Cases
                         i. Lopez (1995)
                                 1. Facts/Issue/Holding: SC strikes down Gun Free School Zone law as outside Congress’ CC
                                 2. Reasoning:

                                a.   Concern that being too loose with #3 will let federal gov’t reach “traditionally
                                     local” areas like curriculum, family law, etc. p. 216
                                b.   CC concerns commercial regulations, this isn’t commercial
                                           i. New formalism w/ commercial and non-commercial regulation distinction
                                c.   Thomas’ concurrence
                                           i. Willing to reconsider everything after the 1930s and dramatic “wrong turn”
                                              in Laughlin
                                                   1. Get rid of rationale #3, substantial effect test
                                          ii. Critical of federal police power or anything approaching it
                                d.   Kennedy and O’Connor’s response
                                           i. Lesson to draw from ND conflict was that SC shouldn’t be impudent,
                                              formal categories are too imprecise, interest in stable jurisprudence b/c of
                                              reliance interest  cannot go back to 1800s
                                          ii. Changed economy another reason can’t go back
                        3.   Theory
                                  a. Surprising when handed down, moment of change
                                  b. Original intent v. reliance: when can you go back? When is it a good idea to
                                     change course? When liberal ideas become conservative...
                 ii. Morrison (2000)
                         1. Facts/Issue/Holding: civil remedy for victims of gender violence against their attackers
                         2. Reasoning:
                                  a. The claimed effect on commerce is too remote.
                                            i. Congress’s argument is that women will be deterred from traveling and
                                               engaging in business in interstate commerce
                                           ii. No market for abuse against women
                                  b. Regulation of noneconomic activity
                                  c. Risk of erasing the distinction between national and local authority
                                  d. No jurisdictional element
                                  e. There were Congressional findings, but court struck them down
                         3. Theory:
                                  a. SC might have been influenced by its perception of the statute as useless
                                            i. Perpetrators are usually judgment proof
                                           ii. States already have laws against violence against women
                                          iii. Explains the difference between Morrison and Katzenbach
                                  b. Less attenuated than Lopez, Congressional findings here, civil statute
                                  c. Like Lopez, noncommercial and no jdxl element
                iii. Raich (2005)
                         1. Facts/Issue/Holding: law banning homegrown pot constitutional b/c it is necessary and
                             proper way to accomplish national goal
                         2. Reasoning:
                                  a. Lopez regulated a particular isolated activity, but this statute deals w/narcotics
                                     use generally  local provision is part of a larger plan
                                            i. Unclear/unimportant whether NPC use is general, or under CC
                                  b. Regulation of economic activity substantially effects the success of the national
                                            i. Deference to Congress
                                  c. Relies on Wickard and aggregation principle
                                  d. O’Connor would require a stricter std of scrutiny over whether the particular
                                     provision is needed
                                            i. Protecting interest in federalism
                         3. Theory: this opens up doctrine to legislative packaging

1. Mirrors the CC evolution?
         a. Butler  Steward Machine  Dole (not a retrenchment?)  nothing...yet
         b. Section V has City of Boerne as an analog to Lopez
                 ***open question: will current court cut down on the TSP?***
2. From Art. 1, Sec. 8, Clause 1: tax to provide security and general welfare
         a. Three interpretations
                   i. And Congress can provide for general welfare wholly independent of raising taxes and spending
                         1. Two separate powers
                  ii. Madison: Can tax and spend for general welfare, but general welfare = only ends in clauses 2-18

                     iii. Hamilton: Tax and spend for general welfare where general welfare > clause 2-28; adding means,
                          which can be used for additional ends
3.    Evolution
          a. Butler (1936)
                    i. Facts/Issue/Holding: Agricultural Act that paid farmers to under-produce unconstitutional exercise
                       of the TSP
                            1. Congress can’t spend money to get farmers to produce less b/c that invades the reserved
                                rights of the states;
                            2. Congress cannot “purchase regulation” nor employ federal incentive schemes that
                                amount to “coercion”
                            3. 10th amendment idea on production no longer good; taxing and spending is
                   ii. Reasoning:
                            1. Role of the court is not to approve or condemn legislation using the justices’ preferences,
                                only to announce judgment on the Constitutional question (formalist view)
                            2. Problem with end:
                                     a. Roberts accepts Hamiltonian take on TSC, but adds limitation from 10 th
                                                 i. TSP not limited to first 8 clauses
                                                ii. BUT 10th means that some things are so local that Congress can’t reach
                                                         1. Makes the 10th amendment mean something, contra Darby
                                     b. If Congress can’t pass quotas under CC, re: Carter Coal, then shouldn’t be able to
                                          do it indirectly through TSP p 287
                                                 i. If there aren’t some limits on spending then Congress can do almost
                                                    anything, subvert states’ powers  enumerated powers out the window
                                                         1. BUT wouldn’t this mean you are adopting Madison’s view that you
                                                              can only do indirectly what you can do under enumerated
                                                         2. Absurd to say that can’t regulate through taxes; they all do that
                            3. Problem with means: no “voluntary” compliance here
                                     a. Coercion b/c forcing inappropriate choice on farmers, go along or face financial
                                     b. Can’t purchase submission on state-only issues and call it voluntary
                                                 i. Odd (weak) argument saying that giving the money subject to
                                                    contractual obligations is bad
                            4. Dissent wants weaker limits, but still would require two
                                     a. Genuinely national purpose
                                     b. No coercion w/ test of coercion = coercion if fear loss, not if hoping for gain
                  iii. Theory:
                            1. Views of the 10th amendment: whether 10th takes a bite out of powers C otherwise gives to

                                     CP                     10th       CP                            10th

                                              Butler/non-truism                       Darby/truism
                             2.   How do you tell the difference btn coercion and invitation
                                      a. Plea bargaining as something that expands your rights
                                      b. MK: some sort of understanding that both options are something court could get
                                         you to do independently?
            b.   Steward Machine (1937)
                      i. Facts/Issue/Holding: Court upholds offers of federal tax credits to employers who participate in
                         state employment comp. programs
                             1. Court can use conditional spending to induce compliance, achieve results indirectly
                             2. Analogy to Jones, switch in TSP clause
                     ii. Reasoning:
                             1. Differences from Butler
                                      a. Conditional taxing, not spending
                                      b. Putting pressure on employers to lobby state leg to adopt unemployment 
                                         pressure on states, not individuals
                                      c. Only Hughes and Roberts think they are reconcilable
                             2. Not coercion b/c taxpayer pays in response to local legislature; it’s a general tax w/no
                                  burden on specific individuals
                                      a. Mentions difficult philosophical tension btn temptation and coercion, but then
                                         conclusorily states that this is only temptation

         c.   South Dakota (1987)
                    i. Facts/Issue/Holding: ok to condition federal highway funds on adopting national drinking age of
                           1. Would be totally ok under CC, if not for 21st amendment
                           2. Use TSP power instead to be “nicer” and give “option”
                   ii. Reasoning:
                           1. Rehnquist supplies limits to the TSP
                                   a. Pursuit of general welfare
                                             i. Defer substantiality to judgment of Congress
                                            ii. Like “public purpose” under takings clause, but eviscerated in Kelo
                                   b. Must be explicit about conditions
                                             i. Not a real limit, just canon
                                   c. Nexus requirement: must show that the condition has a connection to the reason
                                       the funds are being appropriated
                                             i. O’Connor dissents saying the stated limitation not met in this case
                                   d. Other Constitutional requirements must be complied with
                                   e. No coercion
                                             i. Real puzzle
                  iii. Theory:
                           1. Coercion prong
                                   a. “relatively mild encouragement” re Rehnquist
                                             i. Suggests that the % of funds is relevant
                                                     1. But why? If 5% is important enough to get all the states to fall in
                                                         line, seems like a small % could be enough to coerce
                                                     2. Shouldn’t the effectiveness, not random number, be
                                   b. How do you know states don’t comply because its just a good idea?
                                   c. Coercion if state can’t impose either of the options on you on its own?
                                   d. Coercive if take something away, invitation if it adds an option?
                                             i. Which one is federal gov’t? turns on whether you think gov’t is taking st
                                                state has a right to. Ex: if fed gov’t didn’t take money from taxpayers,
                                                state could get at it. If gov’t has a right to the money, then offering it back
                                                to the state is an invitation. If not, its coercion. What is not leaving a waiter
                                                a tip? Punishment or declining to reward?
                                                          baselines problem
                                                              Tends to be determined on an historical basis. If st is new,
                                                              like welfare, can condition receipt on searches. Can’t
                                                              condition police and fire protection on not running abortion
1. Basics
         a. Section. 1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are
            citizens of the United States and of the State wherein they reside. No State shall make or enforce any law
            which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
            any person of life, liberty, or property, without due process of law; nor deny to any person within its
            jurisdiction the equal protection of the laws.
         b. Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this
         c. Section I is self-enforcing, but Congress enforces Section V
                    i. Given law for black rapists of white victim, Congress can either
                            1. Remove to federal court
                            2. Criminalize enforcing the law
                   ii. Historical note: originally the 14th only gave enforcement power to Congress
                            1. Didn’t trust Southern judiciary
                            2. Put in Sec I as insurance policy for when Rep’s not in power
         d. Four ways to conceive of I/V relationship
                    i. Sec V gives power solely to Congress to remedy Section I violations
                            1. Narrowest
                   ii. Congress can forbid actions that courts have not yet ruled in violation of Section I, but only as long
                       as Court subsequently agrees
                  iii. Congress can fobid activity beyond what a judicial interpretation of Section I is, if it is remedying or
                       deterring Sec I violations
                            1. Phophylactic rule
                 iv. Congress can re-define Sec I rights, independently of the courts
                            1. Broadest

            e.   Example: Washington v. Davis
                       i. Can Congress forbid facially neutral laws w/a disparate impact?
                                1. Prophylactic rule because of how hard it is to prove disparate impacts?
                                2. Can Congress just disagree with the Courts and call the rules violations of Sec I?
            f.   For a realist, it makes sense that Sec V, CC, and TSP would all contract together, but a formalist wouldn’t
                 see the relation btn the three powers
                       i. In the 1960s, SC and Congress were finally working in the same direction and SC wasn’t going to
                          discourage Congress
                      ii. By the 1990s, SC swings conservative, but Congress is still passing liberal laws like 1991 CRA, ADA,
            g.   Usually, C is a floor and not a ceiling
                       i. Problems come when caught between one ceiling and one floor, like w/ FEC and states’ rights
2.    Cases
         a.      Lassiter (1957)
                        i. Facts/Issue/Holding: literacy tests for voting are not a facial 15th violation
                       ii. Reasoning: there is a rational relation btn wanting a competent electorate and requiring literacy,
                           ok despite disparate impact
            b.   Katzenbach v. Morgan (1966)
                        i. Facts/Issue/Holding: Congress bans English literacy tests in VRA to protect Puerto Ricans in New
                           York; Court holds that this is a Constitutional exercise of Congressional power under the 15 th
                               1. Sec V, not CC, b/c voting rights involved
                               2. 15th Amendment forbids discrimination in suffrage, then gives Congress power to enforce
                                        a. Same difficulty w/determining the scope of the right as w/14th
                       ii. Reasoning:
                               1. How can we make this consistent w/ Lassiter
                                        a. Didn’t say that literacy tests were valid regardless of the reasons for adoption or
                                            the way in which they are applied
                                                   i. Court assuming Congress made findings that test has discriminatory
                                                      motives or implementation
                                        b. Adopting prevention and deterrence model of Congress’ power
                                        c. Court gets to expand rights, but not contract them, from what Court has
                               2. Dissent: if letting Congress expand rights, does this mean that it can contract them as well?
                                        a. Attempted “one-way ratchet” response not a good logical argument
                      iii. Theory:
                               1. New definition – Congress gets to disagree with the courts – but is it really driven by the
                                    fact that voting is such an important right?
                                        a. Ely and political process theory
            c.   City of Boerne (1997)
                        i. Facts/Issue/Holding: Congress enacts RIFRA to overturn Smith and require SS for FEC cases; Court
                           says only applicable w/respect to federal statutes b/c Congress doesn’t have the power to define
                           what a 1st amendment violation is
                       ii. Reasoning:
                               1. Altering ≠ enforcing
                               2. Congress can regulate more broadly than Court-defined rights only in order to
                                    deter/remedy right violations subject to the congruence and proportionality test
                                        a. Congress must be moving in the same direction as the right
                                        b. Can’t be so broad a regulation that most of the activity prohibited isn’t a violation
                                                   i. Nexus test: less rigorous than necessary, more than minimally related
                               3. [Unlike w/race, not plausible that generally applicable laws motivated by religious animus,
                                    so not appropriate to shift the burden like in the race context]
                      iii. Theory:
                               1. Rejects the broadest understanding of Congressional power under the 14th amendment
                               2. Protecting federalism, not individual rights
                                        a. Congress is contracting states’ rights, as determined by the Senate
                               3. Can be read narrowly: SC doesn’t like Congress trying to correct it
            d.   Morrison (2000)
                        i. Reasoning:
                               1. Not congruent and proportional to create a private right of action even if state inaction =
                                    state action
                                        a. Not a stretch to call inaction action, it was exactly the problem that Sec I authors
                                            were dealing with
                       ii. Theory:

                         1.   Shows Boerne to be taken seriously b/c no state action involved, but Sec V claim still fails

1. Two parts to the doctrine
        a. Usery/Garcia – law of general applicability that affects state gov’ts along w/individuals
                     i. Example: employment laws. Do states get an exception?
        b. Commandeering – federal law that regulates states in traditional functions as government; conscripting
             states into federal regulatory scheme
2. Commandeering as interruption of normal democratic process
        a. Muddying lines of accountability w/diffusion of responsibility
                     i. BUT wouldn’t it cut the other way: clear when Congress mandates, much more confusing with
                        subtle inducements
                    ii. Also, states have a clear interest and ability to clarify who is really responsible
3. Original intent
        a. There was some clear commandeering in the 1790s: Congress required state judges to do some things like
             decide on immigration, hear petitions about ship seaworthy-ness, that were executive jobs
        b. Ambiguous language, disagreement over Hamilton
4. Possibility that enforcement creates perverse result of more federal bureaucracy
        a. In 1780s, most pro-state ppl like the idea that state officials would be involved in executing federal law b/c
             of the idea that they could act sort of like a filter, moderating device
5. Just symbolism? Congress can accomplish this stuff through conditional spending...
6. Usery (1976)
        a. Facts/Issue/Holding: Court holds Congress cannot enforce federal minimum wage and overtime law on
             state employers when employees in question are acting in areas of traditional gov’t functions
        b. Reasoning:
                     i. CC would be applicable, but 10th amendment shields state gov’t from federal interference in areas
                        of traditional governmental functions
                    ii. Independent 10th amendment restriction that takes a bite out of the CC
                             1. In its role as more than a truism
7. Garcia (1985)
        a. Facts/Issue/Holding: overturns Usery, no 10th amendment immunity
                     i. Blackmun changes his mind
        b. Reasoning:
                     i. No reason for SC to enforce the 10th amendment; there are other, more appropriate, ways for
                        states to protect themselves in the normal political process, structure of the federal system
                    ii. “traditional state gov’tal functions” test is unworkable
                   iii. Dissent: predicts future overturn
                             1. Probably five votes to do that today, waiting for the right case
8. New York v. US (1992)
        a. Facts/Issue/Holding: federal scheme nuclear regulatory scheme incorporating states as regulators
             unconstitutional as to part requiring states to take title to waste it can’t dispose of
                     i. Two other provisions ok
                             1. Financial encouragement
                             2. Congressional consent to violation of dormant CC
                    ii. Attempt to deal with radioactive waste problem by setting up a scheme to encourage states to
                        provide for their own disposal  Congressional stamp of approval on agreement reached
                        between states
        b. Reasoning:
                     i. Financial encouragement is clear case of conditional spending
                    ii. Congress can always consent to a violation of the dormant CC
                   iii. O’Connor draws line at take title provision b/c Congress can’t impose either condition (assuming
                        debt or building disposal sites)
                             1. Per se can’t command state legislatures to do something
                  iv. Original understanding of C reflected important shift: fed gov’t gets to regulate people directly,
                        not the state
                             1. Although, not clear that people is a switch, not an addition
                   v. Federalism is there to protect individuals, not states, so state consent n/a
                             1. White: this will only increase federal power
        c. Theory:
                     i. Dormant commerce clause: CC interpreted as independent limit on state regulatory authority
                             1. If Congress doesn’t regulate, states can’t jump into the void
                             2. Ex: NJ can’t tell Philadelphia they don’t want their garbage anymore, unless Congress ok’s
                    ii. Per se violation to command state legislature? How do you know if its per se, or balancing like in

                   iii. Is this just form over substance?
                              1. Could regulate low level waste directly, or tell states to do it or else Congress will
                              2. Could authorize states to reject waste from other states
                  iv. Why does O’Connor like original understanding here, but not in Lopez?
                              1. Maybe, idea is that you go with original intent unless you have to go w/precedent to
                                   protect reliance interests
                   v. What relevance to state consent to the plan?
                              1. Does it really increase state autonomy to set up conditions that don’t allow states to K with
                                   each other?
9.  Testa (1946)
         a. Facts/Issue/Holding: state courts must hear claims arising under federal law to the same extent they hear
              state law claims
         b. Reasoning:
                     i. Art VI, Supremacy Clause explicitly contemplates commandeering state judges
                    ii. Omitting leg and exec branches suggests it can’t be done to them
                   iii. MK: incorrect. Supremacy Clause really just says that if there is a federal claim in a state case,
                        courts must apply federal law
         c. Theory:
10. Printz (1997)
         a. Facts/Issue/Holding: Brady Bill provision requiring state or local law enforcement to do background checks
              unconstitutional b/c Congress can’t commandeer state executive branch
         b. Reasoning:
                     i. Scalia says there is a bright line rule saying that nat’l gov’t cannot conscript law enforcement.
                             1. Impossible to distinguish btn policy making and purely ministerial functions


1. Misleading labels
         a. Federalism is also about separation of powers
         b. Vertical v. horizontal
2. Who’s the activist now?
         a. W/structural issues, most activist judges are conservative
         b. Conservative judges are those most willing to strike down laws
         c. Thomas wants to rethink entire CC
         d. Scalia wants unitary executive (pres at top of executive pyramid, w/ability to fire everyone below him),
             which means the entire modern admin in unconstitutional
3. Is complete judicial passivity an option here?
         a. Analog to Wexler and his idea that states can protect themselves
         b. Is there no need for judges to get involved when the struggle is btn Congress and President?
         c. Different than the minorities and individuals involved in individual rights cases
         d. James Madison would be on board w/letting political actors fight it out w/each other
                    i. As a descriptive matter, though, states play a very different role w/respect to Congress; why would
                       we assume that relations btn the braches would continue to match original understanding?
                   ii. BUT relying on self-correction could be dangerous if instead, the president just keeps getting more
                       and more powerful
4. Court was relatively unengaged in SoP until 1970s, then did quite a bit
         a. Ex: line item veto, legislative veto, Budgetary Deficit Act, various federal commissions
         b. Why the change?
         c. Does the engagement make a difference when the court’s involvement has been limited to small issues
             and it abdicates on the big ones?
                    i. Worse, Court strikes down compensating adjustments made in response to the big changes they
                       refuse to touch
5. How powerful is the Court?
         a. Doesn’t try to declare presidential was declarations unconstitutional
         b. Re: Jackson in Steel, Congress needs to be the one to kick up a fight b/c SC can’t play much of a role in
             determining who wins in a power struggle
6. Formalism v/ functionalism
         a. Formalism: text, original understanding, precedent
                    i. Scalia, Black in Steel
                   ii. Chadha and leg veto
         b. Functionalist: look behind SoP and see what fxn the founding fathers were trying to do

                      i. Is one branch unduly aggrandizing power at the expense of another?
                     ii. Is leg inconsistent w/core fxn of one brance?
                    iii. White in Chadha: leg veto is just a method for Congress to recapture lost power
          c. SC tends to switch back and forth btn approaches
          d. Rename functionalism “translation”: escape dead hand problem by focusing on FF’s underlying principles
               and apply them to changed circumstances
                      i. In theory, still bounds on judges
                     ii. “soft originalism”
          e. Criticisms
                      i. Formalist:
                               1. Pointless: new reality today which FF weren’t thinkgin about
                               2. Impossible: text won’t answer these questions
                               3. Black’s categorical leg v. exec approach is just odd
                               4. Stuck w/dead hand problem
                     ii. Funcionalist
                               1. Invitation to judicial subjectivity
                    iii. Translation
                               1. Seems hopelssly indeterminate; can’t know what the framers would think; they would
                                   disagree among themselves
                               2. Incoherent: treat some aspects (divided power is good) as constant, others as variables
                                         a. Something arbitrary about what is constant and what is cariable
                               3. How do we know that the FF would be committed to SoP today, with all the changed
7.    What is the best way to accomplish SoP?
          a. Montisqueay/classical: split them into totally separate branches
          b. Madison/checks and balances: blend powers, make them all rely on each other
                      i. If FF wanted some blending, how can you tell whether a particular encroachment is ok?
8.    Traditional SoP based on simplistic incentives notion
          a. Members of each branch have incentive to expand their own branch
          b. Personifies branches, but individuals have different incentives (re-election, prestige, eventual switch to
               another branch, party alliances over branch identity, avoiding responsibility, etc.)
9.    SoP cases often have pretty big background factors that judges know about, but don’t mention
          a. Truman and Korean War = very unpopular, but not mentioned  how good is Steel is president is popular?
          b. Same w/tapes: SC makes Nixon had over right before impeachment
          c. Even worse b/c so few cases, so less precedent
                                          precedent probably not very binding in SoP cases

1. Steel Seizure (1952)
         a. Facts/issue/holding: President can’t use CIC to stop a strike in the face of express Congressional
                  i. Korean “police action” was, threatened strike  presidential orders mills taken over to stop
                     potential catastrophe for economy and war effort using CIC power
                 ii. Odd that decision comes down 9-0
                         1. Today, alt theory of sole vesting;
                                 a. President claimed he could seize political combatants and hold incommunicado,
                                       regardless of what Congress does
                                 b. Wire-trapping ban = interference w/sole Pres power to enforce laws, protect
                                       nation from terrorism
         b. Reasoning:
                  i. Black: formalist  brief, formalistic opinion. President gets power either through
                         1. Congressional delegation
                         2. Inherent in Art II powers
                                 a. Saw this as creating policy, seizing property = inherently legislative
                         3. Not clear how Black knows what is inherently legislative or inherently executive
                                 a. Line btn policy making and enforcing notoriously hard, why gave up in ND
                 ii. Jackson: anti-formalist  framework p 361
                         1. Congress has explicitly or implicitly authorized action
                                 a. Maximum power
                                 b. Only limit is Constitution
                         2. President acts w/out grant and w/out disapproval
                                 a. Relies only on independent powers
                                 b. Twilight zone where lines btn president and Congressional power are unclear
                                            i. Congressional silence, contemporary events, etc. all play a role
                         3. President takes actions contrary to express or implied Congressional will

                                    a. Only own constitutional power minus Congressional powers
                                    b. Presumption against finding presidential act constitutional
                  iii. Jackson places into category 3 b/c of prohibition in statutes in the neighborhood
                           1. Taft-Hartley Act: presidential seizure provision didn’t make it into anti-union bill
                           2. Bill authorizing seizures only when gov’t K breached
                           3. Dissent finds more attenuated approval
                 iv. Art II analysis
                           1. Contrasts foreign with domestic spheres  president has greater FA powers
                           2. Rejects the notion of emergency powers: FF wanted President to have to go to Congress
                              to get emergency powers
                                    a. But Congress only has one emergency power: suspending WoH

         c.   Theory:
                   i. Three categories versus spectrum

                              implied                genuine                 implied           explicit
                               grant        grant          uncertainty       prohibition      prohibition

                   ii. Problems with inferences
                           1. Hard to know someone’s intention in failing to do something
                           2. Chadha problem: Congress must use bicameralism and presentment to do something
                               legally, but here Congressional silence (non-bicameral) is having legal effect
                           3. Especially problematic today w/cases on war and emergency powers
                                    a. Possibly easier for judge’s political views about underlying matters to come into
                  iii. Unclear if domestic and foreign affairs are still separate today when terrorists come into the US and
                       domestic spheres

1. Congress doesn’t say much about separation of powers in foreign affairs, but over time the President has
    accumulated a lot of FP powers
        a. SC has stayed mostly silent on these power shifts
        b. Today, President gets us into war, then Congress approves de facto, ex poste
                    i. Congress gives open-ended authorization or, like in Kosovo, just doesn’t cut off funding
                   ii. Congress has an interest in going along, b/c it doesn’t want to be on the hook for st they can’t
2. Sole organ theory
        a. Not clear what FF would have wanted
                    i. Although there is no “sole organ” language; Congressional approval was needed on treaties;
                       President doesn’t even have all the war-making powers since Congress gets to raise armies,
                       declare war
                   ii. Some at the time of the FF already concerned that the enumerated powers were too broad
        b. Justifications
                    i. President is unitary when Congress is multiparty  clear voice you need for FA, clearer authority,
                       easier to make the decisions
                   ii. President has better access to info, sources of info
                  iii. Secrecy needed in FA and its easier for president to keep secrets than Congress
        c. Concern that if taken to its logical conclusion, it could mean that president gets to do a lot of things in the
             face on Congressional disapproval (that’s what Bush Admin thought)
3. Problems w/limiting FP to enumerated powers
        a. Always arguments about emergency powers, inherent powers
        b. Hamilton was expanding w/in a few years w/the National Banks, Washington’s neutrality declaration
        c. Chinese Exclusion Act: first Congress legislation restricting US immigration
                    i. Naturalization power ≠ entering country
                   ii. SC says its inherent in the notion of sovereignty
4. War powers
        a. FF didn’t focus on how to get into war and wage war
                    i. Clear didn’t want one person to have the power to get the country into war
                   ii. Some were concerned about a structure that would require wars to be run by committee
                           1. Earlier drafts gave Congress the power to “make war”
                           2. Final version provided split functions: Congress declares war (one-time thing) and president
                                manages the war
        b. Problem left when there are sudden invasions and insurrections
                    i. Clearly understood that President had the power to repel invasions, but didn’t put it into the C

            c.   Leaves: what happens when there is no dramatic event and instead a slow series of events leading
                 towards war
                      i. Seems like what FF envisioned
                     ii. Recently, President has taken this power onto himself  declare/make splt dramatically changed
                             1. Factors explaining the change here:
                                      a. Nation’s international role gone from puny to sole national superpower
                                      b. Technological changes
                                      c. Nuclear weapons changed the balance of power
                                      d. General change in the role of the President as he has become the embodiment
                                          of the nation (media, general power expansion)
                                               i. Change C to reflect changed circumstances?
                                                       1. Tension w/Thomas: expansice presidential role, but narrow CC
                                                       2. Political question SC has no business answering?
5.    Cases
         a.      Curtiss Wright (1936)
                         i. Fact/issue/holding: Presidential powers are at their broadest w/respect to foreign affairs, where
                            President may have inherent, extra-constitutional powers > Art. II
                                1. Corporation sold arms to Bolivia + Congressional delegation to President to determine if
                                     arms embargo was needed for peace
                                2. Two questions:
                                         a. Violation of non-delegation power?
                                         b. What inherent power might the President have to do this?
                        ii. Reasoning:
                                1. Despite active NDD at the time, weaker argument here b/c we are in FA where President
                                     powers are at the max  less strict NDD in FA
                                2. The nat’l government has FA powers > enumerated powers b/c the “natural” powers of
                                     sovereign powers were inherited by the US from Great Britain, not the states
                                         a. Doesn’t matter what inherenet FA powers the states delegated to the nat’l
                                              government b/c they weren’t theirs to delegate
                                         b. E.g., Congress could still declare war, even if C didn’t say it could
                                         c. This dicta over inherent powers lead to questions about who gets to exercise them
                                               sole organ language on p. 372
                       iii. Theory:
                                1. Why does Sutherland get to go to original understanding on CC, but can go with
                                     functionalist concerns here for presidential powers?
                                2. How do you distinguish btn domestic and policy areas?  Medellin
            b.   Medellin (2008)
                         i. Facts/issue/holding: President cannot order state courts to follow ICJ order when ICJ holdings
                            aren’t self-enforcing and Congress hasn’t enforced
                        ii. Reasoning:
                                1. Agreement to ICJ jdxn ≠ agreement to self-execution b/c presumption is non-self-
                                     executing and Congress made no clear statement
                                         a. Dissent says this is against past practice and indicated conservatives letting their
                                              political, anti-internationalism color their judgment
                                2. Since non-self-executing, in Jackson 3
                                         a. Note negative inference from silence
                                         b. Something circular about logic: why does “some” enforcing action have to come
                                              from Congress. Assuming the conclusion here.
                                3. In Jackson 3, have to make DA/FA distinction, which is impossible here, but conservatives
                                     say that the president can’t do this w/out Congressional approval
                       iii. Theory:
                                1. Turns tables on logic in other SoP cases like Hamdan, Hamdi
                                2. Possible distinctions?
                                         a. Hamdan and Hamdi about more traditional areas of executive, national security
                                         b. Medellin is also about federalism?
                                                    i. But SC suggests Congress could make order self-executing if it wanted
                                         c. Commandeering? SC seems ok with the idea that Congress could commandeer
                                              state judges.
                                3. Note unusually limited view of executive power from conservatives
            c.   First Gulf War (1991)
                         i. Congressmen brought suit asking to stop Bush from going to war  not ripe b/c no impasse yet;
                            Congress must fully exercise power attempting to stop President before courts can step in
                                1. Like Jackson in Steel Seizure: Congress must fight for itself

                                  a.   Tension w/O’Connor in New York on federalism, refusal to allow waiving of
                                       federalism rights b/c too important and there to protect individuals
        d.   Kosovo (1999)
                   i. Arguably worse than Gulf War I b/c Congress didn’t declare war AND one branch of Congress
                      clearly disagrees w/what Clinton does
                          1. Clinton uses air force under presidential powers only
                  ii. Courts say not ripe b/c Congress hasn’t cut off funding and hasn’t barred President from using
                                 if Congress is paralyzed and unable to bar or declare war (if no party is filibuster-proof)
                                President can wage war
        e.   War on Terror (2001)
                   i. Congress’ Joint Resolution w/vague language
                  ii. Hamdi (2004)
                          1. Facts/issue/holding: ok for President to hold alleged enemy combatant and US citizen
                               incommunicado for several years b/c Congress authorized and President has independent
                               powers to do this under war powers
                                   a. AUMF
                                   b. §4001, which overturned 1950s Emergency Detention Act, which gave President
                                        power to detain suspected communists
                          2. Reasoning:
                                   a. O’Connor’s plurality
                                               i. Congress authorized the action, which avoids the hard Category 3
                                                       1. A little suspicious w/Congressional limitation in §4001
                                                       2. Not clear what she would say if Hamdi was seized in US
                                              ii. IR question: what process due? SC looks to Matthews balancing test (MK:
                                                  utterly indeterminate b/c of how easy it is to manipulate interests,
                                                  speculative on costs)
                                                       1. Notice
                                                       2. Meaningful chance to contest facts
                                                       3. Before neutral arbiter
                                                       4. Lawyer (but not clear when in the process you get this)
                                             iii. Concern that if war went on forever, the Admin’s position is that they
                                                  could hold US citizens incommunicado forever
                                   b. Souter and Ginsburg concurring opinion differing on AUMF and §4001 question
                                               i. Congress didn’t authorize this: clear statute and would need explicit
                                                       1. AUMF too vague, clear Congress wasn’t contemplating this
                                              ii. Steel seizure 3: maybe president could do this in a genuine emergency
                                                  but after two years, you’re not in an immediate emergency anymore
                                                       1. Relies on 1972 states
                                             iii. Would reverse on SoP grounds, but go along to create a majority
                                   c. Scalia and Stevens: there are only three options: suspend writ of habeas, charge
                                        as a terrorist, let him go. No emergency “4th” option
                                               i. Calls determination of something as an invasion a non-justiciable issue
                                                       1. Not clear where originalist Scalia gets this
                                              ii. Limits to US citizens
                                             iii. If you want another option, amend the C
                                   d. Thomas – ode to presidential power
                                               i. Ignores IR issues – only DP is President’s good faith determination you were
                                                  an enemy combatant
                                              ii. Says cat 2, but can guess he’d say president can still do this if cat 3
                          3. Theory:
                                   a. How do you tell when you’re in a real emergency? How do you tell when it ends?
                                   b. Scalia’s limit on presidential power is one of the examples where he sticks to
                                        originalist guns, against political inclination (flag burning, confrontation rights for
                                        child molesters)
                                   c. Fxlst argument that its good to give President broad powers b/c its easier to hold
                                        one person accountable and you avoid diffusion of responsibility
                                               i. Souter’s response: President has incentive to overprotect security and
                                                  under-protect IR b/c they know they’ll be blamed if there is a second
                 iii. Hamdan (2006)
                          1. Facts/Issue/Holding: SC finds no authorization to set up military commissions included in
                               authorization to use force

                               a. Also finds that other statutes have barred the military commissions
                               b. And that President doesn’t have independent powers to do this
                        2. Reasoning:
                               a. Has Congress successfully stripped ct’s jdxn?
                                         i. Since McCardle (1868), Congress has broad power to strip SC’s jdxn 
                                            only question is whether they have done so
                                        ii. Language could be stretched to do it, but SC requires explicit language
                                            b/c presumption is against stripping
                               b. Does AUMF authorize president to set up military commissions?
                                         i. Maj: use of force says nothing about tribunals, that is a question Congress
                                            wasn’t considering at the time  have to look at other statutes
                                        ii. Dissent: use of force entails figuring out what to do w/captives
                                                1. Don’t have to reach the question of Presidential powers in the
                                                     face of a Congressional ban
                        3. Theory:
                               a. Predictable, naked partisan split on question of first impression
                 iv. Boumediene (2008)
                        1. Facts/Issue/Holding: Congress responds to Hamdan w/authorizing statute, suspends writ of
                           habeas w/respect to Guantanamo and SC, modified process set up for prisoners; SC says
                           can’t suspend habeas and that the modified process isn’t adequate
                        2. Reasoning
                               a. (Kennedy for majority)
                               b. Habeas required b/c Guantanamo = US territory and aliens traditionally entitled to
                                         i. MK: absurd
                               c. Must be able to at least review all the evidence offered including exculpatory
                                    evidence, court must be able to remedy violations


1. Uncertain area
          a. Very little text here
                      i. Can president be sued? What removal power does the President have? What is the extent of
                         executive privilege against turning over documents, people, etc.?
          b. No precedent until last 40 years
          c. No original understanding at any helpful level
                              for cynic, means that judges have to just make it up
2. Executive authority – When can the Court order the President to do something? Force the executive branch to do
          a. Issue in Marbury, Aaron Burr’s treason prosecution  issue ducked or compromise reached
          b. Mississippi v. Johnson (1867) – SC says can’t, even if a law is unconstitutional, get injunction against
               President keeping him from enforcing a statute
                      i. Have to go about the process a different way
          c. Nixon (1974)
                      i. Facts/issue/holding: presidential privilege exists, but is not absolute; district court will do a
                         balancing test for each piece of information asked for, staying “sensitive” to presidential privilege
                             1. Note: during this process, Nixon can raise notion of presidential immunity w/a straight face
                                  b/c went unresolved for so long
                                      a. Still don’t know if you can indict a sitting president
                                      b. Amazing how little clear law there is
                                      c. This is an area w/frequent compromises
                     ii. Reasoning:
                             1. Nixon’s claim: President must have privilege b/c of the importance that he be able to get
                                  confidential advice
                                      a. Court finds a relative privilege, in which the competing interests (having evidence
                                          for prosecution vs. president having confidential advice) are weighed to make a
                    iii. Theory
                             1. Nixon’s strongest legal claim (that court can’t review at all w/complete refusal by him)
                                  unavailable to him b/c of political pressure
                             2. w/ competing interest, not clear what level of generality
                                      a. Aggregate effect of hundreds of subpoenas?
                                      b. Aggregate prosecution’s interest in this case or in CJ system, in general?
                                      c. Very easy to manipulate

            d. Open questions:
                      i. Criminal, not civil case?
                     ii. What if Congress, not the Court, issues the subpoena?
                    iii. What if the info the President wants to protect is about the military or diplomacy?
                   iv. Surrounding political consequences in Nixon were really bad. What if pres is more popular?
          e. Take home: president is not immune from judicial process
3.    Suing the president
          a. No original discussion, not addressed for 200 years
          b. Nixon v. Fitzgerald (1982)
                      i. Facts/Issue/Holding: 5-4, Court holds that President has absolute immunity from suits based on in-
                         office conduct
                              1. Note: against former president, so there is no worry about distraction
                     ii. Reasoning:
                              1. If you can sue the President, you’ll chill his aggressive exercise of his function
                              2. There are alternatives, like impeachment and elections
                                       a. Note, always other alternatives, only sometimes invoked
                              3. Between absolute and qualified immunity, this privilege is absolute
                                       a. Not clear how they tell the difference (what distinguishes this one from
          c. Jones (1997)
                      i. Facts/Issue/Holding: Court hold that sitting President is not absolutely protected from lawsuits
                         based on prior conduct; balancing test
                     ii. Reasoning:
                              1. Distinct from Nixon
                                       a. Conduct before took office, so no chilling effect
                                       b. Suit brought while in office
                              2. Rejects absolute privilege, saying that it is enough that the court will be “sensitive” to
                                   Presidential needs
                              3. Combines Steel Seizure and Nixon to come up with the rule
                                       a. But  ≠ subpoena
                                       b. Steel seizure was about executive officer, not the president
                    iii. Theory:
                              1. Missed the boat on their interest balancing: must higher costs than thought
4.    Criminal prosecution: clear you can reach President after he leaves office, unclear that that creates a negative
      implication that you can’t do it while in office
          a. Note that permissible ≠ compelling; question is btn absolute and limited
5.    Impeachment
          a. Questions about the standard from when the House can charge w/ “treason, bribery, other high crimes”
                      i. Is indictable offense necessary? (order not to wake him during a nuclear attack)
                     ii. Is indictable offense sufficient? (DUI)
                    iii. If must be particularly egregious offense, which egregious, indictable offenses
                              1. St like treason and bribery  selling out country’s interest
                                       a. FF very concerned about a bribable president
                              2. Maybe, more generally, st about abusing public trust?
                                       a. But what if President murders wife? That’s pretty awful...
                   iv. Two sides, which always carried out in a partisan atmosphere
                              1. Low threshold raises the fear of a President serving at Congress’ pleasure
                              2. High threshold makes sure that President is strong, but do we want to be stuck
                                   w/universally acknowledged bad person as president?
                              3. Additional consideration: maladministration?
                                       a. Policy differences would justify  again fears about Presidential/Congress balance
                                             compromise on examples of abuse of public office, abuse of public trust
          b. FF didn’t address the standard carefully at all, only set up the mechanisms
                      i. FF gave what sounds like a judicial role to Congress b/c didn’t think the Court had the stature
                     ii. Vague std invites partisan split: all agreed needed 2/3 to remove, but not whether he should be or
                    iii. Especially bad b/c not much precedent
          c. Klarman: public opinion should matter w/impeachment
                      i. “high crimes” have nothing to do w/protecting minority rights, so no comparison to reasons to
                         ignore public opinion in EP, IR cases

1. Common dynamic: Congress tries to respond to new imperial presidency by reclaiming some powers  does SC
     allow the compensating mechanism?

            Court accused of waffling back and forth
                   i. Formalist: hard look at definitions and traditional roles and then strike down
                  ii. Functionalist: looks at whether there is a “real threat” to presidential powers and allows
         b. Starts w/NDD
                   i. During 1930s, Schaecter = require an intelligible principle
         c. Other types:
                   i. Legislative veto, by one or more houses, to admin actions w/out new statute
                  ii. Tinkering w/appointment and removal provisions to keep them from being too accountable to
                           1. Congressional role in appointment
                           2. Limit President’s ability to fire, no fire-at-will
2.    Removal/Appointment
         a. More explicit language on appointment powers  fetishized
                   i. Inferior v. principle officers
                  ii. Nothing on removal, though
         b. Same forest for the trees problem as w/leg veto
         c. Controversy over removal from Day 1 w/two camps
                   i. Unitary executive power
                           1. Sec I, Clause I: “executive power shall be vested in the President” as opposed to the
                                “presidential branch”
                           2. Art II, Sec. 3L he shall take care that laws are executed  inference that needs fire-at-will
                                ability to ensure faithful execution
                           3. Fxnly, an easy way to assign responsibility
                  ii. Joint responsibility: if need Congressional support to appoint, need consent to remove OR if
                      Congress can create and insulate executive officials, does limiting to good cause removal really
                      encroach on President?
         d. Historical examples
                   i. 1st Congress and Foreign Minister
                           1. Senate must concur in removal
                           2. President has inherent removal powers
                           3. Congress has power and should use it to delegate removal to President
                                     a. 2, 3 form coalition  statute letting President remove, btu not answer and no clear
                  ii. Reconstruction: Congress tries to limit Johnson’s ability to fire generals, Cabinet Members, who are
                      running Reconstruction  Tenure in Office Act
                           1. President Johnson calls Act unconstitutional, violates the Act, fires Stanton 
                                impeachment  later SC aggress statute was unconstitutional
3.    Cases
         a. Chadha (1983)
                   i. Facts/Issue/Holding: judge grants special hardship, Congress overturns, SC strikes down
                           1. Sudden SC interest in legislative vetoes: hard to explain SoP re-invigoration
                  ii. Reasoning:
                           1. Issue 1: ok for a piece of law to be aimed at one, single person?
                                     a. FF very against this
                                     b. Powell’s opinion sounds like this might be his problem, but a companion cases
                                          proves this isn’t the real issue
                           2. Issue 2: SoP
                                     a. Formalist considerations: violates the text to let one house only enact legislation
                                                 i. Doesn’t matter if its convenient, there are bigger considerations behind
                                                    FF’s actions, like freedom
                           3. SoP Rebuttals:
                                     a. Formalist: but this is just Congress delegating power to one of its branches. Why
                                          different than delegation to agency?
                                     b. Functionalist: this is just Congress trying to reclaim some power it used to have
                                                 i. Why should SC be ok with the big transfer of power, but not the little one?
                                                ii. White wants to address the problem in terms of “core” functions and
                                                    whether Congress is aggrandizing itself
                                                         1. Points out that otherwise, Court is striking down a couple of
                                                             hundred statutes
                                                         2. Will only worry if the veto violates the spirit of SoP
                 iii. Theory:
                           1. SoP creates odd bedfellows
                           2. Result of decision is widespread defiance
         b. Meyers (1926) : unitary executive theory says that Senate can’t require Senate advice and consent to fire
            quintessentially executive officer b/c need accountability in the executive

                       i. Answer to Jackson, given by a former president
            c.   Humphrey’s Executor (1935) : statute limiting presidential ability to remove FTC members (only for cause, no
                 at-will) challenged under Myers, SC says its fine b/c
                       i. No power reserved in Congress
                      ii. FTC makes rules, investigates and prosecutes, adjudicates  exercises all 3 kinds of power
                                1. Unclear if you need both, if one is automatically enough?
            d.   Buckley (1976) : b/c FEC officials engage have duties representing all 3 kinds of power, they are “officers of
                 the US,” not “other officers,” so Congress cannot appoint any members on its own; “officer of the US” = any
                 appointee exercising significant authority
            e.   Morrison (1988)
                       i. Facts/Issue/Holding: independent counsel statute insulating prosecutor from executive control
                           constitutional b/c office is not an office of the US, no reserved Congressional power, not enough of
                           a limit on President
                      ii. Reasoning:
                                1. Rejected unitary executive
                                2. Not office of the US b/c
                                         a. Limited tenure
                                         b. Ltd jdxn                                     not important enough to be officer of US
                                         c. Can be fired at will by AG
                                                  i. Could go the other way, though
                                3. Interbranch appointments ok (Independent Prosecutor appointed by special 3-judge DC
                                    panel) b/c nothing in the C to stop them, and some tradition of them
                                4. Fxnlly good b/c if there are allegations of Executive corruption, don’t want President to be
                                    able to stop investigations
                                5. Scalia’s dissent on textual grounds and fxnlst grounds. BUT
                                         a. Not “all power” in the clause
                                         b. Functional concern that truly independent  might be bad shouldn’t matter to him



1.    These are issues where no gov’t can do something b/c it violates IR
2.    What does equality mean?
          a. All laws make distinctions  point of law is making classifications and treating things, people, act differently
          b. Possible meanings
                      i. Certain groups are specially protected/some classifications are especially suspect
                     ii. Certain classifications are off-limits
                    iii. Protecting certain interests
                   iv. Need to have a rational cnxn btn classification and gov’t interest
                              1. How important does the interest need to be?
                              2. How close does the nexus have to be?
          c. SC has done some of all of this
3.    Basic rationality test turns out to be very deferential
          a. “the C’l safeguard is offended only if the classification rests on grounds wholly irrelecant to the
               achievement of the state’s objective. State leg are presumed to have acted w/in their C’l power despite
               the fact that . . . laws result in inequality. A statutory discrimination will not be set aside if any state of facts
               reasonably may be conceived to justify it.”
                      i. Why imagine facts?
                              1. They are often contested; shouldn’t matter if the Court disagrees, reasonably, with the leg
                              2. Views of facts are driven by ideology, underlying values and don’t want Court’s values
                                   and ideology to matter
                     ii. Purpose: actual or possible?
                              1. Cleburn = actual
                              2. Fritz = possible; re: Rehnquist, SC only interested in best (legal) purpose Congress could
                                   have and
                                       a. Doesn’t matter if you know what the actual purpose was. Doesn’t matter if the
                                           law’s results directly contravened the stated purpose
                              3. So deferential because its too hard to figure out the purpose?
                                       a. But purpose is central to other doctrines
          b. Generally a rubber stamp, but there are a handful of MRR + cases
4.    Two sets of questions
          a. Objective: what is permissible? Not permissible? How important does it have to be?

             Nexus: not “wholly irrelevant”  weakest form + only look at what facts might be conceived to justify (not
             what reality is)
5.    Why so much deference?
         a. Evidentiary problem: most laws can be explained as either private or public-regarding (or both) and its
             hard for courts to decide which they are
         b. What counts as a public purpose?
                   i. Redistributing wealth?
         c. Interest group pluralism is fine
                   i. Public interest = sum total of all private interests
         d. Are judges any more immune from private interest group pressure?
                   i. Elections ,etc. today show that interest groups are onto the fact that they can work to elect “their
                      kind” of judges
6.    Cases
         a. Naked interest transfers explained away
                   i. Railway Express (1949) ban on “advertising vehicle” except for delivery vehicles ok b/c could be
                      that loitering vehicles would be less careful, etc.
                          1. It is no requirement of equal protection that all evils of the same genus be eradicated or
                                none at all.”
                          2. Concurrence: there is a real difference btw. doing in self-interest (newspapers, etc) and
                                doing for hire (advertising-only).
                  ii. Lee Optical (1955): statute banning non-optometrist opticians from replacing/duplicating frames,
                      except for sellers of ready-to-wear frames ok b/c could be encouraging frequent eye exams
         b. Cleburn (1985)
                   i. Facts/issue/holding: court invalidates zoning board ordinance that turned down mentally retarded
                          1. Example of MMR+
                  ii. Reasoning
                          1. Doesn’t want heightened scrutiny b/c there are good reason to classify based on mental
                                disability in other contexts
                          2. Examples of + aspect
                                    a. Court asks why ok for elderly home, but not ok for mentally retarded
                                                 i. Railway Express is an example of the Court not asking these kinds of
                                                    comparison questions
                                                ii. Legislature is usually allowed to solve problems one step at a time
                                    b. Court looks at the record instead of positing possible reasons that the leg could
                                          have thought that mentally retarded posed a greater threat
                          3. Rejects the idea that fears that middle schoolers would vandalize, etc are an ok reason
                                    a. Consumer preference/public discrimination could be an ok justification
                                    b. Same as w/the custody case
                          4. Marshall point out the higher standard
                                    a. Want a spectrum for EP cases
                                                 i. Fear that that’s just results driven
                                                ii. Won’t have any rule for lower courts to follow
                 iii. Theory
                          1. Court must think that there is something different about mentally retarded, as opposed to
                                    a. If had subjected to higher std, that implies that there is something presumptively
                                          wrong about classifications based on that characteristic, b/c burden switches to
                                    b. Suspicion must be driving the SC’s decision here  must think that prejudice,
                                          which is never acceptable, is the reason for the classification
                                                 i. Indeterminacy problem: How you distinguish justified disapprobation from
                                                    illicit prejudice
                                                ii. Motive problem: how do you distinguish btn diff legislator’s motives?
                          2. Why would a higher standard be appropriate here?
                                    a. Exclusion from political participation
                                    b. Impairment to political participation
                                    c. Immutability
                                    d. History of discrimination
                          3. Isn’t the consumer preference/society’s stickiness reason rejected here the basis for the
                                gradualist solution in Brown?
         c. Moreno (1973)
                   i. Facts/issue/holding: denial of EP for Congress to refuse food stamps to non-related households
                  ii. Reasoning
                          1. Brennan explains that the law is there to prevent hippies form getting food stamps

                          2.   Animosity towards a group; bare desire to harm a politically unpopular group is never
                  iii. Theory
                           1. But its always possible to recharacterzie a law as a legitimate exercise of Congressional
                                moral disapproval of hippies and a desire to give incentives to ppl to not live that way
                                     a. How is it different from a tax break to married people?
                                     b. If this moral choice isn’t ok, how do you know that?
                                     c. Where in the C does it say that moral calls are off limits
                                                i. Real issue side-stepped
         d.   Romer (1996)
                    i. Facts/issue/holding: CO referendum reversing local anti-discrimination laws and creating a C’l ban
                       on making sexual orientation a protected class is based on an impermissible moral purpose and is
                       a violation of EP
                   ii. Reasoning
                           1. Hard to understand as based on anything other than hatred  illegitimate
                           2. Scalia’s dissent:
                                     a. This is moral disapproval
                                     b. Not like race or gender, just saying we don’t want ppl to do this
                                     c. Only mild disapproval, don’t want to elevate status, not a burden
                           3. Discussion of two possible interpretations
                                     a. One is no special status
                                     b. Other is judge couldn’t approve of normal, neutral discrimination claim based on
                                         sexual orientation
                  iii. Theory:
                           1. Could reframe as a decision to devote more resources to race and gender b/c we think
                                discrimination there is worse
                           2. MK: would have been more honest for the Court to say its morally wrong to classify based
                                on sexual orientation, to morally disapprove on sexuality grounds
                                     a. Problem would be: where in Constitution do you get that?
         e.   Beazer (1979)
                    i. Facts/issue/holding: employment regulation denying jobs to methadone users is permissible
                       classification under MRR
                   ii. Reasoning
                           1. Rule is over-inclusive and underinclusive, but still ok
                                     a. Some users are safe
                                     b. Some other conditions are more dangerous
                           2. Real v. proffered rationales don’t matter
                           3. Close enough nexus btn real world facts and proffered justification
                           4. Potential disparate impact not enough w/out proof that its motivated by racism
                           5. Dissent wants to strike down b/c
                                     a. Irrational discrimination
                                     b. Form of race/poverty prejudice
                                                i. MK: it’s the under-inclusivenss: why target heroine but avoid drunks, etc?

1. Dred Scott (1857)
        a. Facts/issue/holding: Dred Scott was not a citizen of Missouri and Congress didn’t have the power to ban
             slavery in federal territory
        b. Reasoning:
                    i. Southern states have provisions barring free blacks from entrance, can’t vote, can’t marry whites
                           1. But, women can’t vote, whites can’t marry blacks
                   ii. Goes to original, racist intent of C
                           1. Not clear why Taney distances himself from “their” racism, when US is still racist
                  iii. Congress has the power to make “needful” regulations for territories
                           1. “needful” regulations provision limited to territories at the time of the C
                           2. Can create gov’t, but can’t micromanage
                           3. Would violate slave owners DP rights (first SDP mention)
        c. Theory
                    i. SC not always on right racial side
                   ii. Delegating contentious issues to court not always a good idea
                  iii. Ambiguity of the concept of minority rights
                           1. Slave owners were a minority too
2. Civil Rights Cases (1883)

            a. Facts/issue/holding: Congress doesn’t have the power to mandate full and equal access to public
               accommodations b/c Congress can’t reach the private action involved
          b. Reasoning:
                      i. Without state action, there is no 14th violation
                     ii. Dissent:
                              1. These places have state licenses  state action
                              2. Common law requires open access w/reasonable rules, which it said racial restrictions
                                  were  state action
                              3. State action exists on a spectrum from statute to private home; not unreasonable to draw
                                  a line that pulls this in as reachable state action
          c. Theory:
                      i. SC can intervene against the interests of racial minorities
                     ii. Justices are influenced by public opinion and by 1883, US has given up on Reconstruction
3.    Plessy (1896)
          a. Facts/issue/holding: separate but equal is consistent w/EP
                      i. Part of anti-canon
          b. Reasoning:
                      i. Distinguish btn political and social equality
                              1. 14th had nothing to do w/social equality
                     ii. Separate doesn’t necessarily indicate inferiority
                              1. Blame blacks for choosing to imply that fact
                    iii. Schools = obviously acceptable example of segregation
          c. Theory:
                      i. Facts on ground explain why no cases brought demanding equalization
                     ii. Ingrained prejudice, belief in biological differences played into ambiguity in text  rxn was a
                         “yawn of indifference”
                    iii. Note 7-1 Plessy to 9-0 Brown switch
                              1. Same laws, original understanding, etc.
                              2. Changes are in social context:
                                       a. WWII
                                       b. Nazis
                                       c. Soviets
                   iv. Low political power  less judicial protection
                              1. Ironic, given concept of court’s role
                              2. Courts don’t side with you until you have respectability

1. Brown was a case where the Justices knew the moral answer, but struggled to make that the legal answer
       a. Once the outcome was clear, a lot of reluctance to end up on the wrong side of history
                i. Forces for unanimity
                        1. Good for the Court
                        2. Easier to go with morals if you vote doesn’t make a difference
       b. A lot of concern about the South’s reaction
       c. Justices felt hemmed in by precedent
       d. MK’s axis of judicial decision making
                                          political axis


                     legal axis

                              indeterminacy                      clear


                    i. Different ppl prioritize the axis differently
                            1. Douglas might think that doing justice is properly under the legal axis, or might only care
                                about political
                            2. Some justices pride themselves on separating personal from political
                   ii. Generally:
                            1. The clearer the law, the harder to go against it.

                              2. BUT the stronger the politics, the easier to go against the strict law
                    iii. Brown = example of a place where despite a seemingly clear legal answer, political preferences
                         take over
                              1. Jackson ok w/decision if characterized as a political decision
2.    2 doctrinal questions:
          a. Descriptive: Why is segregation unconstitutional? Why not enforce Plessy?
                      i. Separate but equal ≠equal in fact
                              1. But could it have been?
                     ii. Segregation depends on an assumption of inferiority
                    iii. Segregation conveys a message
                   iv. Purpose of segregation is to harm blacks
                    v. Takes account of race
                   vi. Court thinks that integration is a positive good demanded by C
          b. Normative: How do we defend Brown as right as a constitutional theory?
                      i. Text BUT
                              1. No one thought that segregation violated EP for first 80 some years
                                       a. They just thought that laws on the boks had to apply equally. Days nothing about
                                           the internal terms of the law.
                     ii. Original understanding BUT
                              1. Congress and segregated DC schools
                              2. State ratification w/segregated schools
                              3. Occasional references to school deseg during the break to assure opponents that the 14th
                                   wouldn’t touch them
                              4. Civil v. political v. social rights
                              5.  political problem for originalists
                                       a. Bork: Framers’ mistake to think that segregation and equality were compatible
                                                   i. Not clear which they would have chosen
                                                  ii. Not clear they made that mistake
                                       b. Bickle: memo on racist original understanding focused only on civil rights, but
                                           compromise btn radicals and moderates resulted in broad language w/intention
                                           of delegating to later generations
                                                   i. Very speculative
                                                  ii. So open ended it poses problems for originalists who like rules, etc.
                                       c. McConnell: focus on 1975 CRA and equal access; schools provision was in 1875
                                           CRA and there was a majority in each house that thought 14 th Sec V gave it that
                                           power, but thwarted by filibuster
                                                   i. Passage of time: 1875, not 1868
                                                  ii. Statute ambiguous on integration
                                                 iii. Relationship btn Sec I and Sec V more complicate
                    iii. Political process theory: black systematically disenfranchised PLUS systematic disapportionment
                         PLUS Senate rules favoring white, senior, Southern Senators BUT
                              1. Obvious solution would be to fix the right to vote
                              2. Not clear that fixing the political process would fix the problem (blacks not a majority in the
                              3. Controversial what a “properly fxning” political process is
                   iv. Substantive justice argument: racial segregation is wrong, therefore it violates the constitution,
                         therefore the Court must strike it down
                              1. Very unsatisfying theory; most are uncomfortable w/letting Justices decide moral issues
                    v. Living Constitution: BUT
                              1. How do you know when things have changed enough? Reed’s point
                                       a. 17 states still mandate segregation, 4 states + DC have it as an option
                    this is just one decision we think is obviously right, but it remains hard to justify normatively w/out
                   adopting the substantive justice argument
3.    Brown II: remedy
          a. Southern states refused to participate
          b. Usually, get an immediate remedy to violation of C rights, here got gradualism and vagueness
                      i. Vagueness and gradualism – the opposite of what the NAACP wanted.
                     ii. Brown II was celebrated as a victory by white southerners.
                    iii. Southern federal judges are given the discretion to implement Brown, and are likely to sympathize
                         with white southerners.
                   iv. White southerners saw Brown II as an act of weakness, when SCOTUS thought they were basically
                         extending an olive branch
4.    Post-Brown
          a. After handing down Brown II, SC backs away from desegregation for almost a decade
                      i. Exception: Cooper (1958) – SC refuses to give Little Rock a reprieve on desegregation

                              1. Political pressures made it an easy case
                              2. Justices have to back up Eisenhower, who is finally coming over to their side
                              3. Misleadingly strong decision
                     ii. Only re-enters field once the other branches have caught up
           b. Cases
                      i. Prince Edward County (1964): where system of tuition grants and tax credits have caused the
                         public school system to close down, SC can order schools to reopen
                              1. C not clear, no right to education
                              2. Profound embarrassment w/respect to Soviets in the 1960s
                     ii. Green (1968): SC invalidates freedom-of-choice school plans despite the fact that they can be
                         characterized as unreachable private choice
                              1. Court announces it will rule based on how well the plans work
                              2. Concerns
                                        a. Not really free choice b/c threats to blacks still credible
                                        b. Motive behind choosing freedom-of-choice plan
                              3. Note: particular to rural schools where there weren’t segregated housing patterns
                    iii. Swann (1971): SC splits the difference, approves busing at discretion of the judge, but bans racial
                              1. Doctrine
                                        a. Presumption against single race schools
                                        b. Can use proportionality as a starting point
                                                   i. But no revisions to reflect demographic shifts
                              2. First big city, urban school district  background segregated housing patterns  first case
                                        a. De jure v. de facto distinction and state action question
                                        b. Only if housing segregation is de jure can the Court can act
                                                   i. Court never formally says that it is de jure, but you can see it probably
                                                      influencing its decision
                              3. The court has authorized a remedy that has the effect of undermining residential housing
                                        a. Whites have moved out to the suburbs, but the court allows the busing to keep the
                                             schools integrated
                   iv. Keyes (1973): SC approves district wide plan based on finding of deliberate segregation in only a %
                         of the district
                              1. First Northern case w/ state C’l bans on segregation
                                        a. SC finds state action in surreptitious acts to maintain segregation
                                                   i. Gerrymandering pupil attendance zones
                                                  ii. Placement of new schools
                                                 iii. Teacher assignment policies
                              2. Generous presumptions: if you prove a %, get
                                        a. Segregation in one part of the district had effect elsewhere in the district
                                        b. Good evidence of discriminatory intent elsewhere
                                                  district-wide remedy and can reach effects of segregated housing patterns
                    v. Milliken (1974): no inter-district remedies w/out proof of inter-district violations
                              1. 5-4 decision, product of Nixon appointments
                              2. Pro/Con
                                      Criticisms                                          Support
                                      Ct says preserving admin lines is more              Is SC powerful enough to mandate
                                      important than remedying C’l violation              busing in face of public diapproval?
                                      Not like the gov’t has noting to do w/blk           No way to stop white from fleeing
                                      center-white suburbs split (subsidized              further, going to private school
                                      suburbanification w/interstates, money to
                                      whites to move out of center)
                              3. Note: this means that big Southern districts have to bus, meaningfully integrate but
                                  Northern, smaller districts, are off the hook
5.    Period of stasis through the 1990s
           a. Fairly generous presumption for intradistrict desegregation + Ban btn districts = fortuitous who got bused
              and who didn’t, based on district lines drawn a long time ago
6.    Shift away from voluntary desegregation
           a. Shift in court composition
                      i. Burger  Scalia
                     ii. Powell  Kennedy
                    iii. Brennan  Souter
                   iv. Marshall  Thomas ***
                    v. White  Ginsburg

                   vi. Blackmun  Breyer
         b.   Dowell (1991): school board can take action w/effect of increasing segregation if there are acceptable
              interests in the step and if the district has reached unitary status
                     i. “Has school board complied in good faith for a reasonable period of time AND have vestiges of
                        past discrimination been removed to the extent practicable”
                    ii. Desegregation orders were not intended to last forever, schools released at some point
                             1. Once they have made up for past sins
                   iii. Suggests that further segregated housing ≠state action
         c.   Missouri (1995)
                     i. In Missouri I, SC ok’d huge funding increase, order to increase taxes in violation of state C
                    ii. In Missouri II, SC rejects continued plan as going too far, focus must be on specific case
                             1. Salary increases too remote from violation; not clearly necessary
                             2. Refusal to find unitary status based on test scores
                                        a. Note: whoever bears the burden of proof on unitary status will probably lose

1. Why should racial classifications be treated differently?
        a. Text
                   i. BUT says EP, nothing about race specifically
        b. Original understanding
                   i. BUT goal was to protect civil rights (contracting, owning property, etc), but neither social nor
                       political rights (schools, voting, juries, etc.)
        c. Political process theory and access prong
                   i. BUT apply today, never applied in the North
        d. Political process and prejudice (out of Caroline)
                   i. BUT how do you tell if losses in political process are because of small numbers or prejudice,
                       justifiable disapprobation or prejudice?
                             1. Especially an issue b/c making the distinction entails the kind of moral judgments that
                                 political process to supposed to avoid
                             2. Example: race versus same sex marriage; easier to see the substantive view behind the
                                 finding of prejudice when the characteristic is more controversial
        e. Societal consensus against it
                   i. BUT odd b/c why are courts, least democratic, making this decision? Couldn’t the federal
                       government suppress outliers?
                  ii. Klarman – descriptively this rationale has a lot to offer
        f. Normatively, its just wrong to do this
                   i. BUT where does this come from? Again, seems anti-democratic
        g. Irrational
                   i. BUT then MRR should be enough protection
                  ii. BUT some racial classifications are rational (drug carrier statistics, terrorism, jail segregation)
        h. Discrete and insular
                   i. BUT neither one is necessary nor sufficient
                             1. Religion ≠discrete
                             2. Physical disability ≠suspect classification
                             3. Gender ≠insular, but = suspect
                  ii. Ackerman – being discrete and/or insular is actually a political advantage
                             1. Discrete – if you can’t exit the characteristic, only option is to fight
                             2. Insular – if very dependent on the group, easy to pressure reluctant members to join the
                             3. Ex: African American who can’t exit bus boycott versus gay who can go to Colorado with
                                 straight friends
        i.   Immutability of race
                   i. BUT neither necessary (religion) nor sufficient (mental disability)
                                       consensus argument is good descriptively, but no good normative rationale 
                                      deep irony that you only get EP once you don’t need it as much  main use of EP
                                      doctrine is to strike down laws designed to advantage (AffAction, voting districts)
2. What is the function of the doctrinal test the courts have developed?
        a. Multilayered
                   i. SS = necessary to a compelling government interest
                  ii. MRR = rationally related to a legitimate interest (hypothesized 2x)
        b. Purpose
                   i. Ely – ferret out illicit purpose
                             1. Suspicious of race classification because of the history of racial classifications
                  ii. Fist – protect disadvantaged groups from further, unnecessary burdens
                             1. “Group rights” position

                     iii. Note: these two split when it comes to facially neutral laws that hurt minorities
                             1. Ely – purposivist, so they are ok
                             2. Fist – impact is key, so they are not ok
3.    Cases
         a.      Strauder (1879)
                        i. Facts/Issue/Holding: under EPC of 14th amendment, state can’t use facially racial classifications to
                           keep all blacks off of juries, out of jury pool
                                1. Does not hold that the state can’t draw distinctions among citizens based on gender, land
                                    ownership, age, education, etc.
                                2. Does not hold that a  has a constitutional right to a jury that includes members of his/her
                       ii. Reasoning/Major points
                                1. Key move by majority is re-characterizing the right infringed as the civil right of the , not
                                    the political right of the potential jury members
                                2. Dissent points out that this holding is in tension w/the original intent of the 14 th amendment
            b.   Korematsu (1944)
                        i. Facts/Issue/Holding: Korematsu, Japanese-American citizen refuses to leave his home for
                           internment camp during WWII. Executive Order 9066, issued by military commander, required all
                           persons of Japanese descent—including U.S. citizens—to report to “Assembly Centers”. Court
                           upholds the order, saying it was based on a public necessity rather than racial antagonism.
                       ii. Reasoning/Major Points:
                                1. Facially discriminatory laws are subject to strict scrutiny, but not automatically invalid
                                          a. Burden is on π, no evidence required from 
                                2. Court asks two questions:
                                          a. Are these reasons good enough?
                                                     i. “Pressing public necessity,” like national security is a compelling
                                                        government interest
                                                    ii. Also claimed it was for the Japanese’s safety
                                          b. Are they the real reasons?
                                                     i. Deference to military
                                                             1. Took the military’s word that the exclusion was compelled by
                                                                 security, so Korematsu was excluded because of national security
                                                                 not because or his race
                                                             2. Black ignores good evidence that law was discriminatory
                                3. Dissent: Proposes MRR for military orders, but still finds law invalid b/c there is no rational
                                    basis for confining ALL Japanese people because some may be disloyal.
                                          a. Clearly underinclusive
                                4. Jackson’s dissent: “zone of inactivity” for courts, won’t use court to legitimize military
                                          a. Won’t touch the military order
                                          b. But will overturn the criminal conviction
                      iii. Theory
                                1. MK: easier to teach Korematsu after 9/11 b/c easier to understand the circumstances and
                                    conditions that allowed this kind of thing to happen w/ blessing of several of the biggest
                                    civil rights Justices’ blessings
                                2. Would a decision coming out the other way have meant anything?
                                3. Concerns about inducing a dales sense of being able to rely on the courts to protect
                                    citizen’s rights against executive branch (from Jackson’s dissent)
                                4. Like w/Brown, what are the sets of criteria that define an emergency situation?
                                          a. Problem of regression: in real emergency, why follow the criteria?

PURPOSE OR EFFECT? – What happens when you have a facially neutral classification?
1. Underlying question: what do you have to show to show EP violation?
        a. Doctrine says disparate impact not enough, need to show bad motive (Washington v. Davis)
        b. Ely v. Fist  depends EP is about purpose or impact
        c. Pro/Con on should we allow disparate impact
                  Pro                                                Con
                  Equality means that the same rules apply to        True equality requires accounting for
                  everyone                                           difference
                  Avoid race-consciousness                           Disparate impacts are product of past
                                                                     discrimination, which we are still responsible for
                  If we require equal outcome, gov’t has to be       Requiring proof of purpose is too
                  wealth distributive. Not originally clear that was underinclusive

                  even Constitutional

                   Note: Could have an intermediate position requiring some substantial gov’t justification, burden shifting
2.    How rigorous should the standard for discriminatory intent be?
          a. Stevens in Washington: blurry lines btn purpose and effect, allow lots of inferences
          b. Instead, Court took Feeney path: discriminatory purpose is more than intent as volition or awareness of
               consequences; because of not merely in spite of
                     i. Must be a conscious motivation, ok if its only a causal component
          c. Examples of bad purpose: Yick Woo, Gomillion
                     i. Note: can find discrimination in discriminatory administration
3.    Problems with unconscious discrimination
          a. Disparate impact test offers no remedy for that
4.    Basic Doctrine
          a. If facially neutral, and show disparate impact and disc purpose, get SS
                     i. Then gov’t must show its necessary to a compelling purpose
          b. If can’t show a discriminatory purpose, then you get Lee Optical minimum rationality review
          c. Not enough to just show a disc purpose; must show that disc purpose was a but for cause for the law
                     i. Village of Arlington Heights: property must be rezoned for low-cost housing, but authority refuses to
                        rezone the property; Court: this is fine – not a pattern of discrimination
                             1. Burden shifting: one plaintiff shows that discrimination has been a motivating factor, the ∆
                                 must show that the statute/action would have occurred even without the discriminatory
                                 purpose, i.e., discriminatory purpose ≠ sole purpose, but just a motivating factor
                    ii. Doesn’t have to be the only purpose
5.    Theory in general
          a. Ct’s more likely to see disparate impact as evidence of bad intentions with reiterative experiments (jury
               pool) rather than one-shot experiments (passing statute)
          b. Ct applies disparate impact standard differently in different situations
                     i. Employment, residence, etc. = strict standard of inferring purpose from effect
                    ii. Jury selection, voting = evidence that wasn’t enough in Davis is enough in Rogers
                   iii. BUT Klarman: not persuaded that conservative majority wouldn’t think Washington v. Davis applies
                        across the board today.
6.    Cases
          a. Palmer v. Thompson (1971)
                     i. Facts/Issue/Holding: Swimming pools closed down to avoid integration, Court holds 5-4 this doesn’t
                        violate the EP clause
                    ii. Reasoning: Too difficult to ascertain the motives behind an enactment; incoherent for group entity
                        to have one purpose
                             1. Futile to strike down for motives if facially neutral b/c then Congress can come back and
                                 re-pass for other reasons
                                      a. MK: not convincing, just expression of doubt about Court’s ability to determine
                                          true motive
                             2. Same law might then be constitutional in one place and not another
                                      a. MK: not sure why that is an argument against this; if motive really is what matters
                                          then it makes sense that this is true
                             3. Objections
                                      a. Same bad message as in Brown
                                      b. Hard to reconcile with Washington five years later
          b. Washington v. Davis (1976) (MK: most important since Brown)
                     i. Issue/Facts/Holding: test to become a police officer that had a disparate impact on black citizens;
                        Court holds must look at motive – disparate impact is not dispositive
                             1. Disparate impact does not necessarily prove purpose because Court defined purpose so
                             2. If discriminatory purpose, strict scrutiny applies, but if not, minimum rationality applies
                    ii. Theory:
                             1. Answers the question of “What does equality mean?”
                                      a. Equal results?
                                      b. Right to be free from a process contaminated by racially tinged thinking?
                             2. Would it have been appropriate to institute some sort of burden shifting?
                             3. Change from long history of ignoring the motives behind enactment; always been able to
                                 challenge the application of the law
                                      a. Now same Davis rule applies to both cases; example = Yick Woo

            c.   Batson (1986)
                       i. Facts/Issue/Holding: use of peremptory challenges to strike jurors based only on race
                      ii. Reasoning:
                              1. State prosecutor is taking race into account in a way that disadvantages minorities
                              2. Dissents
                                          a. No disc: each side is removing because of race; the removal isn’t an insult
                                              directed at one race
                                                    i. Response: Loving racial classifications are the problem, even with equal
                                          b. Peremptories are just different; we don’t require good reasons by definition here,
                                              so race classifications should be ok
                                                    i. Response: arbitrary is ok, but race is a bad reason and no bad reasons
                     iii. Theory:
                              1. Nightmare in application
            d.   McKlesky (1987)
                       i. Facts/Issue/Holding: Statistics show that in GA the race of the victim predicts death penalty, GA
                          looks like it is undervaluing black life, SC says no EP violation b/c not adequate proof of disc
                              1. Alt claim: court system is a repeat experiment. The fact that the effect exists shows that
                                    somewhere in the system someone is taking race into account impermissibly
                      ii. Reasoning:
                              1. No proof of discrimination in ’s specific case
                              2. If this claim succeeds, all of criminal justice system threatened
                              3. Solution might require eliminating juries
                              4. Prosecutors need their discretion
                              5. Standing issue: remedy would mean more executions of blacks
                                          a. MK: none of these are good reasons. Better justification is Powell’s post-bench
                                              explanation that after Batson all  gets is the right to the fairest jury possible, the
                                              best the existing system can do

1. Should we treat all racial classifications the same or is there a meaningful diff btn good and bad ones?
2. Doctrinally, this translates to should we apply SS? Practically, translates to uphold or not?
         a. Liberals – Will uphold even under SS if they think it’s a “good” law
         b. Conservatives – Scalia and Thomas ok w/almost conclusive presumption
         c. Today, all turns on Kennedy, who has always struck down AffAction plans, but takes pains to leave the door
             a crack open
3. Debate basics
         a. Policy/legal arguments:
                Pro                                            Con
                Backwards looking: AA is attempt to make Wrong for gov’t to base treatment of ind on race/group
                up for past injustice                          id (? Where in Constitution does Scalia get this moral
                Forward looking: need AA for diversity’s       Prophylactic: too hard to tell the diff btn malign and
                sake                                           benign classif’s
                                                               AA actually harms minorities (Thomas, O’Connor p 560)
                                                               (contrast w/Washington emphasis on purpose)
                Gov’t always harms innocents                   AA harms innocents
                (note: b/c of deference to leg, less           (more imp these translate to Con Law)

         b.      Pure policy arguments (kind that becomes relevant for Posner: AA is inefficient, overbroad, racially divisive
         c.      Court’s shift over time: Powell  O’Connor  Kennedy = arguable shift rightwards
4.    Cases
         a.      Bakke (1978)
                           i. Facts/Issue/Holding: Court finds UC Davis’ AA program w/ explicit quota a violation of the EP
                          ii. Reasoning:
                                  1. SS applied even if minority benefitted
                                          a. MK: more like SS minus
                                  2. Compelling gov’t interest in diversity, redressing past discrimination
                                  3. Problem is nexus: quota isn’t necessary for diversity
            b.   Croson (1989)
                         iii. Facts/Issue/Holding: City Counsel can’t institute AA program for city contracts

                    iv. Reasoning
                             1. No compelling gov’t interest shown
                                      a. Can’t appropriate Congressional findings, must be locally specific
                                      b. Concern that some contractors will get benefit w/out suffering past harms
                                                i. Then it starts to look like remedy for past harms and not AA at all
                     v. Theory
                             1. If apply SS strictly, will be hard for any AA to pass, will be by nature underinclusive if
                                 have to prove all instances of discrimination (both the general and for the individual)
                             2. Concern that the City Council here is majority black
                                      a. Lose the rationale for interference of protecting the minority
                             3. Compare to Fullilove, which said a similar program ok if created by Congress b/c of
                                 special section V powers
        c.   Adarand (1995)
                    vi. Facts/Issue/Holding: Court remands to district court to apply SS b/c plan presumed
                         disadvantage based on race
                   vii. Reasoning:
                             1. Always SS
                                      a. Problem = inescapable presumption that racial status implies economic
                                          disadvantage  poor fit
                                      b. Abandon local/national distinction
                             2. O’Connor goes out of her way to point out that SS will not always be fatal
                   viii. Theory
                             1. With Powell gone, shift from willingness to use remedying general past discrimination as
                                 a compelling government interest  w/Wygent, have to show past, provable
                                 instances of discrimination by the political body creating the policy
                                      a. Fear among all, even liberal justices, that remedy interest is too wide open

        d.   Grutter (2003)
                      ix. Facts/Issue/Holding: Court upholds MI’s flexible law school AA policy, but strikes down its
                           number-based undergrad policy as EPC violation
                       x. Reasoning:
                               1. O’Connor says there is important distinction btn mechanical, predetermined diversity
                                   bonuses and opaque, holistic evaluation
                                        a. Can’t be single deciding factor, but can affect decisions as one of many
                                        b. Responses
                                                  i. Is secrecy really better? Seems like Kennedy’s dissent almost suggests
                                                      he’d prefer the undergrad program b/c it would be easier to see
                                                      what schools were doing and pressure them to do better
                                                 ii. Anything more than pure formalism?
                               2. Conflict between no racial balancing in one part and importance of perception of EO
                                   in another
                               3. Suggests sunset provision
                                        a. Ginsburg’s concurrence takes issue
                               4. Dissents: effective doctrinally b/c the majority is so disingenuous in refusing to come
                                   out and say that its not interpreting 14th as requiring colorblindness, racial balancing
                                   and redression ok
                                        a. Anti AA: too lax SS, does damage to doctrine; “critical mass” is cover for racial
                                            balancing; doesn’t show exhaustion
                                        b. Thomas: goes one step behind argues that there is no compelling interest in
                                            an elite law school even if there is a compelling one in diversity, so school
                                            should use race neutral options to get diversity that would sacrifice academic
                                                  i. MK: wrong, re: Washington b/c having an elite law school only
                                                      creates a disparate impact
                      xi. Theory
                               1. Important amici briefs by military, Fortune 500 companies  AA as part of status quo 
                                   conservative to want to support it
        e.   Parents Involved (2007)
                     xii. Facts/Issue/Holding: Seattle and KY school districts chooses to implement school choice plan
                           that takes race into consideration. Court holds plan in violation of EPC
                               1. Intersection of schools and AA
                     xiii. Reasoning
                               1. Kennedy
                                        a. Plan unconstitutional b/c didn’t exhaust other possibilities

                                         b.   Leaves door open to some race-based classifications
                                                     i. Racial diversity certainly compelling
                                                    ii. Ok to have racial purpose if don’t categorize individuals, avoid race-
                                                        explicit language (i.e., school placement, magnet schools, etc.)
                                         c. Not prepared to say constitution is colorblind
                                2.   Roberts, for court
                                         a. SS applies
                                                     i. Remedying past discrimination could count, but school district hasn’t
                                                        met its burden here
                                                             1. No proof in Seattle
                                                             2. KY district found unitary
                                                    ii. Diversity has counted, but n/a here b/c less imp in primary school
                                                        than college
                                                   iii. Ranges in plan meant schools pursuing racial balancing, not critical
                                                  iv. Fails means/ends test: no exhaustion, no showing that alternatives
                                                        were tried
                                3.   Dissents share sense of outrage
                                         a. Breyer dissent: points out the many alternatives attempted
                                         b. Stevens: 30 years ago, not one justice would find voluntary taking race into
                                              account unconstitutional
                                                     i. Fn in Swann: of course voluntary busing is ok
                                                    ii. Real paradigm shift: this was something not at all considered in
                                                        original doctrine
                                         c. Call out conservatives for going “big government” and activist
                     xiv. Theory
                              1. Colorblind Constitution
                                     a. Brown quote perverts the original ’s aim
                                     b. Conservatives choose one interpretation of Brown, don’t explain why they
                                         choose that one
                                     c. Certainly not in the original understanding, not in Harlan’s Plessy dissent
                              2. Example of conservative court activism


1. What std?
         a. Justices never explained move to SS in race cases, so the first discussion came with the sex cases
         b. Comparison
         c. Political process cont:
                    i. ♀’s attitudes are shaped by status quo  false consciousness argument
                           1. Like Jim Crow’s most insidious injury
                           2. Might be true, but how do you fit into C theory?
                                     a. All good societies will convince citizens its right
                                     b. Can’t let judges (enlightened?) tell ♀ what’s right for them
                   ii. ♀ at a disadvantage b/c of underrepresentation?
                           1. Probably b/c most see men as “correct” political leaders  process or substantive
                                 problem?  political process theory crumbles into substantive judgment
                  iii. ERA: evidence that ♀ don’t need protection by judiciary OR support from coordinated branch for
                       SC helping ♀ reach equality?
         d. Originalism: difficult case for them to make on why sex is protected classification
                    i. Bork: backed off his idea that ♀ aren’t protected by 14th

              Similarities                        Differences
              Both blks and ♀ need to read        Purpose of 14th amendment race protection (♀ not included in
              14th at a higher level of           15th, explicit sex disc in 14th)
              History of past discrimination      Racial minorities are a min, ♀are majority; to make minority
                                                  argument for ♀have to go to protecting an idea, which seems
                                                  like its taking it a bit far PLUS not all ♀ are in the minority on these
                                                  kinds of issue, some agree w/ ♂
              Immutable characteristic            Actual disenfranchisement; 19th enacted freely (but blacks have
                                                  vote now, and still protected)
              Trait is generally irrelevant       Greater belief in sex-based differences; continued social
                                                  differntiation in roles, expectations, etc, where we are more
                                                  committed to racial equality
              Both groups disproportionately
              poor  less political access

                      ii. Scalia: no one would propose a law forbidding ♀ from being lawyers today. Ridiculous
                          hypotheticals should not change the doctrine
                     iii. Two ways to have it both ways
                               1. Interpretive intent: bound by writers’ intent
                               2. Translation/”soft” originalism: just look at overarching purpose
                                        a. Both are hard to contain, constrain judges the way conservatives want
          e. MK: no argument satisfying normatively
                       i. Originalism stretches too far
                      ii. Political process theory leaves the normative argument
                     iii. Emerging social consensus is the best descriptive argument, but leaves door open for judges to
                          answer moral questions, read pulse of society (what legislature is designed to do)
2.    Stereotype cases look easy in retrospect and probably weren’t to difficult for the Justices
          a. Based on old, archaic stereotypes
                       i. Reed: better business sense
                      ii. Orr: men are breadwinners
                     iii. Hogan: men don’t want to go to nursing school
                    iv. Frontiero: women, not men, are economic dependents
          b. But justices’ biases cut opposite ways on gender, like w/sexual orientation
                       i. Old
                      ii. Educated
          c. Conventional to distinguish stereotype cases from “natural differences”
                       i. Not clear to many that the difference btn socially created differences and natural differences
                               1. (Socially created) stereotype v. biological difference?
                      ii. Even when natural difference is present, its not clear that that difference is really what is driving the
3.    Cases creating the doctrine
          a. Geduldig (1974): SC finds that discrimination based on pregnancy ≠ discrimination based on sex b/c not all
              women get pregnant
                       i. MK: Ridiculous, only women are burdened by the statute
                      ii. Congress overturns the Court w/Pregnancy Discrimination Act
          b. Reed (1971): SC strikes down gender classification assuming superior male business abilities as irrational,
              under MRR (+)
          c. Frontiero (1973): SC overturns statue making economic benefits automatically available to ♀military
              spouses, but not to ♂ military spouses
                       i. Disagreement over standard
                               1. 4 SS
                               2. 4 to strike down under MRR
          d. Craig (1976): law w/sex-based age limits to purchase beer unconstitutional b/c can’t base law on social
                       i. Intermediate scrutiny announced: substantially related to an important purpose
                      ii. There is some evidence supporting the classification, but
                               1. SC assumes no biological difference
                               2. Laws shouldn’t perpetuate the stereotype
          e. JEB (1994): SC says can’t use peremptories in a gendered way, even though there is social science data to
              back up the idea that certain genders are good for certain sides
                       i. No biological difference, only socially constructed
                      ii. Can’t legitimize and perpetuate these socially constructed differences
                     iii. Scalia’s dissent: absurd, these peremptories aren’t insulting ♀the way exclusion from juries was
          f. VMI (1996): VMI must admit women b/c not necessary to exclude women to offer adversarial method;
              might be the case that most women would not want to attend VMI, but some would and some could cut
              it, so have to let them
                       i. Ginsburg upping IS to exceedingly persuasive justification
                               1. Sounds like if there is one ♀out there, VA has to comply
4.    General comments
          a. Unclear that standard makes any difference in the case outcome
          b. Because there is usually empirical support based on real social differences, Court has to say that socially
              constructed differences are not ok and law shouldn’t perpetuate them
          c. Court went after dead wood; could have gotten controversial if went after things like draft, rules banning ♀
              from combat

1.  in most of these cases = disadvantaged man
        a. Law is problematic for ♀ b/c of “benign” stereotypes  hard for justices to see the harm to ♀, who are the
             historically disadvantaged class  they only see the material advantage
        b. Example: Kahn, where Ginsburg lost

2.    Affirmative action v. based on stereotype: hard to tell the difference sometimes
           a. Ex: Orr – assumes AA is the actual purpose, not a post-hoc rationalization
                      i. Pro: shouldn’t require ♀ to pay alimony b/c of job market discrimination, future and past
                     ii. Con: law based on stereotype, been around forever
                              1. SC rejects law
3.    In natural difference cases, its hard to see how much work the natural differences are really doing
           a. Michael M and Nguyen seem like stereotypes are at the bottom of the classification
4.    Affirmative action cases
           a. VMI (1996)
                      i. Fact/issue/holding: Virginia did not have exceeding persuasive justification for excluding women
                         from VMI’s adversative method
                     ii. Reasoning:
                              1. VMI II no good:
                                       a. Less prestige
                                       b. Different method based on what “most women” would want
                                                  i. Perpetuates stereotypes, punishes ppl who don’t meet gender norm
                              2. Need exceedingly persuasive justification for gender-based gov’tal action & it must be the
                                  actual state purpose
                              3. Ginsburg accused of “smuggling in” new std
                                       a. Scalia claims she is requiring perfect fit (seems like maybe she is; if one ♀ wants
                                           and can handle VMI, have to give it to her? P. 640)
                              4. Careful to leave the door open to same sex education: diversity of educative methods is a
                                  good reason, but you have to show that it is the real reason and have to have equal
                                  options for men and women
                                       a. Didn’t meet that burden here
                              5. Rehnquist’s concurrence: interesting after dissent in Fronteiro suggests that he thinks C has
                                  nothing to say about sexual classifications
                    iii. Theory:
                              1. What’s left?
                                       a. Sex-based AA, but motive matters
                                       b. Separate bathroom facilities, although that seems based on convention and
                                       c. Dress codes: could you bar men from wearing dresses? Boys from wearing
                              2. Doesn’t matter if VA claims there wouldn’t be enough demand for ♀ VMI, EP rights belong
                                  to individuals, not classes
           b. Califano v. Goldfarb (1977)
                      i. Fact/issue/holding: SS law that required widowers, but widows, to prove dependency unC’l b/c
                         admin convenience was not the real purpose – based on presumption that wives are usually
                              1. Actual purpose inquiry
                     ii. Theory:
                              1. Compare to Webster and ok for different SS calculations based on gender
                                       a. Only Powell and Blackmun see the difference
           c. Califano v. Webster (1977):
                      i. Facts/issue/holding: SS law to help out by including fewer low earning years
                     ii. Theory: Justices flip, imagine an ok purpose, uphold law
           d. Geduldig (1974)
                      i. Fact/issue/holding: pregnancy discrimination is ok b/c its grounded in real, natural differences
                         between the sexes
                     ii. Reasoning:
                              1. No sex classification based b/c doesn’t apply to all women
                                       a. MK: b/s, only women are burdened; it’s sex-based, like a statute applying to AfAm
                                           men > 35 is race-based
                    iii. Theory:
                              1. Early on in gender doctrine, and they thought that calling it sex classification was
                                  automatic overthrow
           e. Michael M (1981)
                      i. Fact/issue/holding:
                     ii. Reasoning:
                              1. Clearly sex classification in addition to natural difference
                              2. Two concerns
                                       a. Why not punish old woman/young boy sex?
                                                  i. No risk of teenage pregnancy there
                                       b. Why not punish both man and girl?

                                                    i. To help enforcement (girls won’t report if they are afraid of punishment)
                                                   ii. To equalize burden
                             3.   MK: if this is IS, should the state have a burden to show these are their real purposes?
                                      a. Real purpose is probably to protect female chastity, which it too stereotypical to
                    iii. Theory:
                              1. Bad case, can’t be reconciled
            f.   Nguyen (2001)
                      i. Fact/issue/holding: Court upholds different rules for children born abroad to unmarried parents
                         based on whether mother or father was s US citizen b/c classification is related to a real biological
                              1. Extra hoops for US fathers to jump through
                     ii. Reasoning:
                              1. Can’t be based just on empirical evidence that men are more likely to father and bolt
                                  w/no relationship
                              2. Biological difference that women are necessarily present at birth  opportunity to form
                                  relationship and proof of biological relationship
                                      a. Offensive notion that biological tie is better
                                      b. Why isn’t DNA rule a better, neutral alternative under IS?
                              3. Have to talk about opportunity for relationship, not actual relationship, otherwise making
                                  assumption based on stereotypes about soldiers leaving children around the globe
                    iii. Theory:
                              1. Ct probably concerned w/interfering in immigration (Stevens certainly) and making US
                                  accept tons more citizens
                                      a. But could level down in neutral way
5.    Sum-up
         a. Unlike race cases, SC was not leading the way
         b. Idea of real biological differences remains, along w/idea that some social conditions deserve deference
             (same-sex bathrooms)
         c. Mostly exhausted today, since most statutes are gender-neutral and that is all that is required
                   i. Disparate impact a dead-end for the most part
                  ii. Real inequalities aren’t the reasult of sex classifying statutes
                           1. E: childcare  job and family harder for women, but no law mandates that
                 iii. Reflective of a general problem of Con law: focus on negative constraints, not positive
                      entitlements to gov’t assistance


1.    Initial puzzle about which doctrine to use
            a. Two options
                      i. 14th EP (Romer)
                     ii. Fundamental Rights and SDP (Bowers)
                              1. Lawrence contained both analyses
            b. Approach looks similar under both b/c can get to SS w/fundamental rights, or MRR w/ordinary liberty rights
                      i. Just like all laws make classifications, all laws impinge on liberty  MRR for most laws
            c. In the end, in Lawrence, both come down to “gov’t can’t legislate based on morality  gov’t interest not
                ok  why does it matter which route you take?
2.    What is the right way to treat sexual orientation?
            a. Theoretical exercise SC hasn’t run through since Romer = MRR
                      i. Cops out by invalidating under MRR +
                     ii. States have
            b. Courts look at 4 factors, but there’s really no way to evaluate them objectively
            c. 4 factors
                      i. History of discrimination
                              1. But, finding discrimination requires substantive call on whether its ok to treat the group,
                                   trait, behavior, etc. differently
                              2. Maybe past discrimination gets you presumption of current discrimination? That might be
                                         a. Still requires moral judgment of how group should be treated
                     ii. Political powerlessness
                              1. But, how do you know if min is losing b/c of process failure or just small #s?
                                         a. First, again have to reach moral question of how the political process ought to
                                            treat the group: if you think gays should have marriage, fact that they don’t is
                                            evidence of failure and vice versa
                              2. Measuring difficulties

                                      a.  Gays > blacks b/c less popular, but more concessions, interracial marriage is less
                                          controversial than ss marriage
                                      b. Blacks > gays b/c they have interracial marriage
                              3. Examples
                                      a. Karrigan: gays politically powerless b/c don’t get ss marriage versus gays have a
                                          lot of power, got a lot of legislation, just not this one
                                                 i. Karrigan majority starts w/premise that gay marriage is good b/c that is
                                                    necessary to infer from its absence that discrimination is the reason there is
                                                    no gay marriage
                                      b. Fronteiro: ♀ powerless after get Congress to pass ERA
                                                 i. Absurd b/c ERA shows they have power?
                                                ii. Or, ♂ are the one that passed ERA and they only passed it b/c ♀ are so
                                                    powerless that giving them the ERA was costless
                              4. Past powerlessness remedied for blacks and women, but still get heightened protection
                      iii. Immutable
                              1. Empirical debate
                              2. Why is this relevant?
                              3. Immutable really just means so constitutive of personality that we won’t let state regulate
                                 and punish it
                     iv. Discrete and insular
                              1. Ackerman
                      bottom line, this analysis just hides the real work of the underlying moral judgment of how gay
                     people should be treated
3.    Cases
         a.      Bowers (1986)
                      i. Facts/issue/holding: Ct holds that state criminalization of sodomy ok under MRR
                     ii. Reasoning:
                             1. No fundamental IR to sodomy
                                       a. Read Roe, Griswold narrowly as being about reproduction
                             2. Morality is an acceptable governmental interest
                             3. Privacy of the home is irrelevant
                             4. Blackmun’s dissent: right to be let alone, which included privacy both for certain decisions
                                  & in certain places
                    iii. Theory:
                             1. White, ex-pro-athlete, really wants to hear the case
                                       a. Very anti-gay, anti-woman
            b.   Romer (1996)
                      i. Facts/issue/holding: Colorado C amendment banning special protection for gays violates EP b/c
                         animus is never an ok gov’t interest
                     ii. Reasoning:
                             1. Majority, Kennedy, analyzes under MRR to avoid suspect class inquiry
                                       a. MMR+
                             2. Broad versus narrow reading:
                                       a. No special protection
                                       b. No protection at all
                                       c. Kennedy claims he’s bound by state court’s narrow interpretation, but still brings
                                           broad into the opinion
                             3. Only state interest = animus, like Moreno
                                       a. Scalia differentiates: this is expressing moral disapproval; conduct v. identity
                                                  i. This is the mildest form of disapproval
                                                 ii. Concerns that rule here on no moral disapproval will invalidate polygamy,
                                                     prostitution, animal cruelty
                             4. Ignores Bowers
                    iii. Theory:
                             1. CO’s failed (or potential) defenses
                                       a. Freedom of association: employers should be able to not hire gays if they want
                                       b. Resource conservation: race, gender disc are the real problems
                             2. Confusion on both sides over the baselines issue
                                       a. Equality v. special treatment
                                       b. Talking nonsense b/c don’t address which group gays should be compared to
                                                  i. Blacks?
                                                 ii. Opticians?
                             3. Political process rationale
                                       a. Is it ok to put gays as a greater disadvantage than everyone else with repect to
                                           disc laws?

                                            i. Roadblocks cutting of access to some levels of politics
                                           ii. Lower ct said that A2 was bad b/c it took normal political rights away
                                               from gays
                                                   1. Support in Hunter v. Erikson (fair housing bar case)
                                                   2. Scalia response: this position would make anything in a state
                                                      constitution or federal statute unconstitutional
        c.   Lawrence (2003)
                  i. Facts/issue/holding: SC overturns Bowers and rules that state criminalization of sodomy violates 14 th
                     SDP rights
                         1. O’Connor wanted 14th EP
                 ii. Reasoning:
                         1. Kennedy
                                   a. Ordinary liberty interest in autonomy
                                             i. Spheres where state shouldn’t be omnipresent
                                                      1. Beyond no state in bedroom  spatial and more transcendental
                                   b. “when sexuality finds over expression” p 913 two takes
                                             i. Suggestion of special protection for the relationship
                                            ii. But still an emphasis on private choices
                                   c. At end of opinion makes it clear he doesn’t think this extends to ss marriage, state
                                       recognition, public prostitution
                                   d. Refers explicitly to evolving laws on this conduct, changes over time, using
                                       emerging norms to suppress
                                             i.  living constitution
                         2. O’Connor
                                   a. Weird opinion = refusal to admit error
                                             i. State cannot distinguish btn ss and os sodomy
                                   b. Goes out of her way to say that moral disapprobation is very different from
                                       interests like
                                             i. National security
                                            ii. Protecting long-standing traditional institutions
                                                      1. Attempt to save don’t ask don’t tell, marriage
                         3. Scalia dissent: moral justification is fine; makes it clear that this will lead to gay marriage
                                   a. Living constitution is ridiculous; point of the C is to be fixed
                                   b. If no morality interest, countless other statutes questionable
                                   c. Traditional = moral, marriage threatened by this opinion
                iii. Theory:
                         1. Sodomy criminalization on the unpopular end of the spectrum of leg on gay issues
                                   a. Case is more about suppressing outliers than anything else
                         2. Tension btn Casey (stand strong in face of criticism) and Lawrence (bow to criticism)
                         3. MK: dissent is right that the “no moral judgment” proposition will be hard to apply
                                   a. Better to be honest and say that this moral judgment is barred by C, like w/school
        d.   Same sex marriage
                  i. Facts/issue/holding: generally, a lot of ss marriage cases in state courts, but target state
                     constitutions b/c want to avoid SC review
                         1. MA = MRR
                         2. CT = IS
                         3. CA = SS
                         4. HI = impermissible sex classification
                 ii. Reasoning:
                         1. Baehr (1994): Compare to Loving: who I can marry depends on my sex/race and their
                              sex/race: formally, pretty impossible to disagree with
                                   a. But different intuition
                                             i. Loving was about white supremacy
                                            ii. Not as clear that Baehr was about male supremacy, seems more like its
                                                about heteronormativity
                                                      1. Delving deeper, maybe it is
                                                              a. Confounded b/c same groups that disapprove of anti-
                                                                  normative gender roles also seek to protect ♂ supremacy
                         2. Kerrigan (2008): Facially neutral w/ disparate impact  go to Washington v. Davis and look
                              for intent
                                   a. Again, compare to Loving
                                             i. Both talk about importance of marriage
                                            ii. But level of generality problem: person of choice, or regardless of race?

                                    b. Look at gov’t intent, but the real intent isn’t discussed b/c Lawrence took morality
                                       off the table
                                               i. Marriage is about encouraging procreation: but over and underinclusive
                                              ii. Children do better in “traditional” marriages
                                                       1. Studies on both sides
                                                       2. Ideology  which you believe
                                                       3. Seems to conflict w/kids’ interests to not let their parents get
                                                           married, especially when let ss couples adopt
                                             iii. Marriage as an institution will suffer
                                            iv. Custom and tradition
                                                       1. After Lawrence, not sufficient
                                                       2. Ppl do argue that we should be risk-averse and let leg handle it
                                             v. Bible says homosexuality is an abomination
                                                       1. First Amendment rules this one out
                                   c. Not giving the name “marriage” is important benefit being denied to gay couples;
                                       Constitution lists suspect classes, but others can be quasi-suspect – determine by
                                       typical analysis
                                               i. History of discrimination, political powerlessness (no power or they don’t
                                                  agree as a group? Women got ERA passed, but they got heightened
                                                  standard), immutability, discrete/insular minority
                           3.   Goodridge (2003):
                                   a. 13 states in 2004 adopt amendments barring SSM
                                   b. Issue came up in 2004 elections.
                                               i. Argument that SSM cost Kerry OH.
                                              ii. Some senate races lost because of this issue
                    iii. Theory:
                            1. Backlash:
                                    a. Examples:
                                               i. HI responds w/C’l amendment; AK responds with referendum
                                              ii. Laws passd refusing to recognize other states’ ss marriages
                                             iii. Liberal states like NY and WA rejected challenges after Goodrich and
                                    b. Causes
                                               i. Salience
                                              ii. Outpace public opinions, fail to reach median positions
                                             iii. Regional variation
                                            iv. Disparate intensity of preferences
                            2. Positive effects of litigation (Keck)
                                    a. Shift spectrum
                                    b. Motivational effect
                                    c. Crystallizing effectL makes ppl start thinking about new rights/things
                                    d. Changing opinion in MA and CT
                                               i. Might have happened anyways, but might have st to do w/court
                                    e. Demonstrate to people that the change won’t destroy the world
                            3. If Norcal decision comes to the SC, comes down to Kennedy and his competing desires

                                      Protect his historic reputation and        Really going to impose 6-state rule on the rest of
                                      come out on the “right” side          v.   the nation when he usually does the opposite

                           4.   What about courts is specific to backlash?
                                   a. Cts = culturally elite, divorced from constituents, disabled from understanding
                                       what backlash will be
                                            i. Ex: thought Roe about Catholics, missed fundamentalists
                                   b. Cts will be further out in front of public opinion than ledislators
                                   c. MK: doesn’t think its anything particular about the process of lititgation; not the
                                       case that people feel better when they’ve gotten the chance to participate in
                                       the process



1.    Overarching question: should the SC be in the business of enforcing unenumerated rights?

            a.  Sources
                       i. “natural rights”
                      ii. “privileges and immunities” clause
                     iii. DPC and SDP
            b. Con: completely undemocratic; just justices acting on their own moral opinions
            c. Pro:
                       i. Constitution seems to invite it: 9th amendment, privileges and immunities clause
                      ii. C not normatively defensible if C doesn’t protect “natural rights”
                               1. If there are “good” and “bad” things like slavery and C doesn’t deal w/them correctly,
                                     why follow C?
2.    Doctrine basics:
            a. Contrast procedural due process with substantive due process.
                       i. Doesn’t due process connote procedure?
                               1. So isn’t “procedural” redundant.
                               2. We only need it because we’ve created substantive due process (somewhat of an
                      ii. Procedural due process: notice and a hearing.
                               1. Hamdi, etc.
                     iii. Substantive due process:
                               1. Certain zones and liberty and property interest are free from government interference.
                               2. Griswold (procreation autonomy), Lawrence (sexual relations), etc.
            b. Doctrinally, this is due process because no legislature that went through legislative procedures would have
                decided (for example) to interfere with a couple’s right to use contraceptives.
                       i. But that’s a fiction: the legislature had its reasons.
                      ii. Really, the Court is identifying certain interests that the gov’t is not able to interfere with.
                     iii. Critics: judges are just making this up and putting their own values into the constitution.
                    iv. Supporters: they’re interpreting changing social mores, etc.
            c. Usually, simple MRR, but for fundamental liberty interests, SS
                       i. Today’s Court doesn’t like to find new fundamental rights, but it will strike down under SDP w/
                          heightened MRR
3.    Initial Cases
            a. Slaughter House cases (1873): court manages to read privileges and immunities clause almost completely
                out of the C b/c they are afraid that if they reach the opposite result, they’ll have turned almost all state
                regulations into potential C’l violations b/c PI is such a broad concept
                       i. Related concern that Art V would give Congress ability to regulate almost anything and destroy
                      ii. Internment of PIC means that the Ct later finds new rights under the DPC just because it doesn’t
                          want to admit error
                               1. In Lochner, have to invent right to K, even though liberty of K would make more sense as a
                                     privilege of citizenship
                     iii. Frankfurter v. Black on 14th incorporation  Black wins in piecemeal fashion
            b. Lochner (1905):
                       i. Facts/issue/holding: law limiting bakers’ working hours unconstitutional b/c it interfered w/their SDP
                          right to liberty of K
                      ii. Reasoning:
                               1. Not clear/direct enough relation between the means (regulation) and the end (health),
                                     which must be ‘appropriate and legitimate
                               2. Court believes it’s not about health, but about economic regulation; essentially: interferes
                                     with right to contract – not gov’ts business to tell adults which labor contracts to enter into;
                                     did not defer to legislative findings
                               3. Holmes’ dissent: constitution is not intended to protect certain economic theory, i.e. laissez
                                          a. Can’t second guess the legislature like this
                                          b. SC must defer
                     iii. Theory:
                               1. Slaughter house case cnxn and not under PIC
                               2. How do you distinguish btn interest transfer and public interest
                               3. Positions on Lochner
                                          a. Libertarians: Epstein/Gergen – totally good decision, leg is always about rent-
                                              seeking, stay out unless there is clear 3rd party harm
                                          b. Bork/Scalia: wrong b/c of Court’s methodology; discovering new rights is just
                                              judges writing policy preferences into law
                                          c. Tribe/Dworkin: wrong b/c Court found wrong sort of right
            c. Coppage (1915): strikes down law prohibiting Ks to not join unions (yellow dog Ks); Court: property rights
                inevitably result in inequalities – this is not for gov’t to interfere with

                       i. In fact, purpose of gov’t is to protect these inequalities
                      ii. Two ways to criticize this anti-redistribution part of Lochner, Coppage
                               1. Majority only sees state redistribution in foreground, missed the redistribution in the
                               2. Assume away gov’t’s background involvement. Where does C ban redistribution?
                                        a. Closest would be an original intention based on FFs as liberals
                                        b. Original understanding of 14th; Republicans are very pro-K-ing
                                                  i. But libertarianism is not a motivaotr for the 14th amendment, which
                                                      focused on helping Freedmen end discrimination (Freedmen bureaus)
4.    At the time Lochner was handed down, could have been an aberration, but then it hit a zenith in the 1920s
           a. Still allowed
                       i. Worker’s comp
                      ii. Max hours for ♀ (Muller, 1908) miners, (potentially would have ok’d miners)
                     iii. Anti-scrip laws
                    iv. Mas hour laws that applied across industries (Bunting, 1917), implicitly overruling Lochner
           b. Then, maximum w/change in Court composition. SC strikes down
                       i. Min wage for ♀ in (Adkins, 1923): harder to paint as for health and safety
                      ii. Price regulation outside areas affected w/public purpose
                               1. From Munn (1877): regulations only ok for industries “affected w/a public purpose”
                     iii. Barriers to entry: seen as rent-seeking by those already in the industry
                               1. Compare to Lee Optical
                    iv. Union protection legislation
                               1. Coppage
                               2. Truax (1921): some states were trying to keep judges from enjoining labor strikes; SC says
                                    deprivation of property b/c property owners have a property interest in conduction
                                    business free of hostile pickters
                                        a. Note unusual example of C interpreted to require gov’t action
5.    Great Depression
           a. Court changes w/new, more moderate Justices and Great Depression
           b. Cases
                       i. Nebbia (1934): Congress can regulate milk by setting a minimum price in order to help farmers
                               1. Ct now claims you don’t need a monopoly or a public purpose
                               2. “Affected” now means an industry “subject to control for the public good”
                               3. p. 753: about face from Coppage: “community is not bound to provide what is in effect a
                                    subsidy for unconscionable employers” NOT off-limits b/c of property rights
                               4. Post decision, most people think that wages can be regulated, but Tipaldo says no before
                                    WCH says yes
                      ii. Carolene Products (1938): filled milk regulation would have been struck down by Lochner-era court
                          as a naked interst group transfer
                               1. New court says: extreme deference to gov’t when regulating economies
                               2. Fn 4 about possible extraordinary deference cases
                                        a. Obvious
                                        b. Access prong
                                        c. Particular groups; discrete and insular minorities
                                                  i. But never addresses reason for prejudice
                     iii. Lee Optical (1955)
                               1. Demonstrates complete retreat from SDP; “day is gone” language


FREP basics
1. Basic doctrine (Difficult b/c cases don’t always use this language)
       a. Rights identified under EP or DP clause
       b. Similar to EP b/c focus is on equality, but instead focus is on interest being unequally distributed, not a
            group being treated unfairly
                   i. Example: voting, access to court, access to education  important interest
                  ii. But w/EP doesn’t matter how trivial the burden/interest: 1 cent tax on blacks unconstitutional
       c. Similar to SDP b/c inventing unenumerated rights (voting, access to courts), BUT focus is on equal
            distribution of right, not an absolute right
                   i. unlike w/ SDP, one remedy could in theory be to take away from everyone
                  ii. Griffen compared to Roe

                                       FREP             EP                              SDP
                                       Similar to       Focus on equality               Unenumerated rights
                                       Different        Focus on interest/right, not a Equal distribution of right, not absolute
                                       from             group                           entitlement
                       i. MK: oddness explained by Justices reluctance to reinvigorate SDP after killing it a few years earlier
                          than Skinner
                                1. But maybe it does sound less imperialistic to give leg a choice
           d. Skinner (1942): statute providing for sterilization for habitual criminals, but not all three-time criminals
               unconstitutional b/c treats similar people differently
                       i. Unclear if OK could have decided to sterilize all
                                1. Must include Buck in thinking (but criminality less obviously inherited than imbecility)
                                2. Also Nazis
                      ii. If sterilizing all would have been ok, does Douglas’ opinion make sense in saying that we should be
                          especially careful when distributing st very important?
                                1. Class element to differentiation: Douglas didn’t like possibility of class differentiation in
                                2. Race bias: gives unfettered discretion to AG in white supremacist state  inference that it
                                      will be unfairly applied
                                3. When dealing w/st very important, it makes sense to look a little more carefully to make
                                      sure things are evenly distributed
                                           a. But what is ability to procreate more important than liberty interest?
                                                      i. Douglas’ suspicion based on equal jail sentences for crime included and
                                                          not included in “habitual”?
2.    Limiting doctrine: Combination of (1) right that strikes ppl as intuitively important (2) element of state monopolization
      (3) disparate wealth effect (not wealth classification)
           a. Examples
                       i. Griffin (1966) : free trial transcript on appeal
                      ii. Douglas (1963): free lawyer on appeal
                     iii. Parker (1966): poll tax
                    iv. Boddie (1971): access fee for divorce court
                     v. Shapiro (1969): durational residency requirement for welfare
                    vi. Rodriguez (1973): disparities in public school finance b/c of reliance on local property taxes
                                1. Court puts its foot down w/Rodriguez, rejects the claim 5-4 and proclaims itself “not in the
                                      business” of identifying fundamental rights in EP
           b. Second factor is key distinguisher from claims that gov’t must provide bare subsistence or do wealth
                       i. Harlan in Boddie: stemming the tide that he feared would make all gov’t fees, tzxes wealth
                                1. Makes the point that its are state-action-ish
                                2. “the state’s refusal to admit these appellants to its courts, the sole means in CT for
                                      obtaining a divorce . . . must be regarded as the equivalent of denying them an
                                      opportunity to be heard upon their claimed right to a dissolution of their marriages, and, in
                                      the absence of a sufficient countervailing justification, a denial of due process.”
                                           a. From FREP to due process concern: state is the only place that you can do these
                                3. Escape any notion of a right to housing, education, wealth
           c. Doctrine is a little odd:
                       i. Court is constitutionalizing the emerging consensus that we should have sympathy for the poor
                                1. Same time as War on Poverty
                                2. Ok w/guaranteeing certain implied rights that can’t be denied based on property
                      ii. Shied away from
           d. Court draws the line at housing, etc. b/c composition changes w/Nixon appointees  Rodriguez
                       i. Interesting contrast btn Rodriguez and new rights in Roe, a few months earlier
                                1. Doctrinally easier w/Brown to find the right to education
                                2. Real concern is not with finding new rights, but with finding rights the gov’t has to fund,
                                      actively equalize
                      ii. Second example: Kras (1973)
                                1. Bankruptcy case that would be the logical follow-up to Boddie, but argument loses
                                           a. A new financial start in life is pretty important.
                                           b. The only place you can get it is from the gov’t.
                                           c. There is a disparate impact on the poor.
                                2. The argument loses by 5-4.
                                           a. Justices in conference say that Boddie must be kept in bounds. “No end to its
                                           b. Justices are worried about extending the right to counsel to all civil cases.

         e.   Sum up: court today won’t expand EP rights, but on a close case, like NLB where its close, might be willing
              to nudge a little further
                   i. MLB v SLJ: expand the right to getting the transcript to the indigent
Voting rights
1. Initially no right to vote,
         a. Lots of restrictions
                      i. Property
                     ii. Sex
                    iii. Race
         b. Hard to say that re: orig understanding, C has much to say about a right to vote
                      i. 14th about civil, not political rights, so no help
         c. Stayed out of the area in
                      i. Breedlove (1937): poll tax ok
                     ii. Lassiter (1959): literacy test ok
         d. Today involved in
                      i. Apportionamnet
                     ii. Definition of scope of political community
                    iii. Voter dilution
                   iv. Political gerrymandering
                    v. Racial gerrymandering: compelled by VRA?
2. Special argument for judicial review in voting cases: anti-entrenchment theory
         a. Shouldn’t trust legislators b/c of their enormous self-interest implicated; a self-interest divorced from
         b. No C roots, must be defended on
                      i. Democracy grounds
                     ii. Good policy
3. Malapportionment
         a. Rural to urban shift  classic entrenchment
                      i. Principal problem: overly powerful minority w/maj power will never move to reapportion b/c its
                         against their interest
                     ii. Agency problem/legislative entrenchment: legislators are agents of constituents and not clear that
                         even the urban representatives of the majority will have an interest in reapportionment
         b. Baker (1962)
                      i. Facts/issue/holding: TN violates EP when it defies its state C by not reapportioning every 10 years as
                              1. Definite substantive effects on the ground
                     ii. Reasoning:
                              1. Not nonjusticiable per Brennan’s list of 6 categories of nonjusticiable, none of which fits
                    iii. Theory:
                              1. Should SC have gotten involved?
                                       a. Real democracy problem, that won’t fix itself
                                       b. Traditional interpretations of the C say no
                                                    i. Always had malapportionment
                                                   ii. Original intent didn’t envision this
                                                  iii. Precedent
                                       c. Willingness has something to do with Brown
                              2. Alternatives
                                       a. Ok under MRR, w/desire to build in minority protection, want all districts the same
                              3. Success story  reapportionment creates new constituents to defend the new status quo
         c. Reynolds (1964)
                      i. Facts/issue/holding: one person one vote
                     ii. Reasoning:
                              1. Rejects Stewart’s proposed test of no systematic frustration of the will of a majority
                              2. Rejects rationality requirement in district lines
                              3. Takes Baker one step farther – creates a standard by which to judge malapportionment
                                   cases When faced with malapportionment in AL, court creates the “one person, one
                                   vote” scheme:
                                       a. As much as practicable, apportionment must be such that one person’s vote is
                                             worth as much as another person’s vote.
                                       b. In essence, requires equal numbers of voters in each district
                    iii. Theory:
                              1. Re: Ely, one person one vote is easily administrable and eliminates judicial discretion, so its
                                   easier for judges to stay out of politics w/clear rule

                           2.   Despite shaky C’l grounds, Reynolds is more popular Warren decision b/c protecting the
                                majority is always popular
             Lucas (1964):
                    i. Facts/issue/holding: companion to Reynolds, can’t vote to malapportion
                   ii. Reasoning:
                           1. Majority can’t waive C’l rights
                  iii. Theory:
                           1. Analogous to O’Connor in NY
                           2. Less strong here b/c vote to equal apportionment is more like a group right
4.    Scope of political community
         a. Harper (1966)
                    i. Facts/issue/holding: no poll taxes
                   ii. Reasoning:
                           1. Standard sources would go the other way
                                    a. No original intent justification
                                    b. No argument from 14th amendment
                                    c. 24th amendment deliberately left out state elections
                           2. Douglas, by fiat, they are irrational
                                    a. Wealth, like race, is not germane to one’s ability to participate in the political
                                    b. Is he putting wealth in with race: suspect?
                  iii. Theory:
                           1. Justifications do exist, could get it under Optical MRR
                           2. Heightened standard for voting?
                           3. Fxlst justifications
                                    a. Anti-entrenchment?
                                                i. Hinges on who should vote
                                               ii. Can find both kinds of entrenchment
                           4. Politically easy case  suppressing outliers
         b. Why does political community expand w/out judicial intervention?
                    i. Calculations by existing interest groups or political parties that new voters will be on their side
                   ii. Something happens in the world to change how people think about an excluded group (WWII)
         c. Participation is a question we don’t just put up to a vote b/c it’s a question about the definition of
             democracy  “We don’t vote on constitutive features of democracy”
         d. Crawford (2008)
                    i. Facts/issue/holding: ok to require voters to show identification
                   ii. Reasoning
                           1. Concerns about voter fraud are good reason to have this law
                           2. Dissent: this is about keeping D’s from voting
                           3. Tension w/Harper: if voting in FR, need a compelling interest, tight fit
                                    a. Indiana didn’t have a burden to show the threat of voter fraud
                                    b. Absentee fraud is worse
                           4. Scalia wants to require a “substantial impediment” to invalidate
                  iii. Theory
                           1. Not worth trying to reconcile w/Harper; reflects change in composition
5.    Aggregation
         a. Two ways to think about it
                    i. Classification and disparate impact  Washington v. Davis
                   ii. Voting as FR, so can look at unequal impact
                           1. Claim that black votes are being wasted if system not set up to help them
                                    a. This is a group claim about a right to elect your own representative
                                    b. Usually, C doesn’t work this way; how effective your vote is is usually a question of
                                         how the political stars are aligned
         b. Which system, at-large or districted plan, is better for minorities?
                    i. Winner-take-all district b/c
                           1. Some council give counsel members individual decision making power
                           2. Alliances are more likely w/three individual people than with the body politic
         c. Allowed to do for racial reasons v. required to do what is best for minorities?
         d. Cases
                    i. Mobile (1980): Ct applies Washington v. Davis and implied no discriminatory intent where at-large
                       voting was remnant from Progressive Era
                           1. Dissent’s argument fails on the ground that the right they are demanding is a group right
                   ii. Lodge (1982): after 1982 VRA passed, Ct find that the same evidence that wasn’t enough in
                       Mobile and Washington is enough in this case to find violation
                           1. Claims to be demanding a showing of bad purpose

                           2.   Really just establishing an effects test to make the C match the VRA
                                   a. VRA requires equal opportunity to elect; if effects test-based...
                                                i. 14th concerns
                                               ii. EP and racial classification concerns
                             3. Really, no good legal argument
6.    Gerrymandering
          a. Political gerrymandering has two subdivisions
                     i. Bipartisan/incumbent
                             1. C’l doctrine fine w/this despite its anti-democratic aspects
                    ii. Partisan
                             1. Partisan majority trying to get even more seats
                             2. Partisan majority trying to project into future and protect against declining pop support
                                       a. Hard to see why either conceptualization is a good thing
                   iii. Both can be done very effectively, especially w/computers today
          b. Distinguished from racial gerrymandering
                     i. Different standard b/c cannot take race into account, can take political identity into account
          c. Solutions
                     i. Nonpartisan commission take over districting
                    ii. Computer program does it
          d. Cases
                     i. Bandimere (1986) p 145: Indiana gerrymandering created w/computer a justiciable question, but
                        has to met tough standard
                             1. Plurality’s hard-to-apply standard causes future Courts troubles
                                       a. Purpose
                                       b. Systematic and repeated partisan effect
                                                   i. But redrawn every ten years  when do you have time to show repeated
                             2. Powell and Stevens would be tougher
                                       a. Clear partisan purpose
                                                   i. MK: why are they ok with this?
                             3. Scalia, O’Connor, Burger: nonjusticiable
                    ii. Viath (2004): overturns Bandimere, but says that some gerrymandering is justiciable b/c Kennedy
                             1. Majority
                                       a. No clear, manageable std  ct shold stay out
                                                   i. How to measure a party’s political strength is hard (split ticket voting)
                                                  ii. How to figure out why the party didn’t realize its voting strength: weak
                                                      candidate? Weak campaign?
                                                 iii. How much gerrymandering is too much?
                                       b. Seems delegated to Congress under Sec 4, Clause 1 (same as liberals use in Bush)
                                       c. Lower courts always reject the claims, so its just a hallow invitation to litigations,
                                            discouraging Congress from dealting with the problem
                             2. Kennedy: reserves possibility of manageable std someday developed
                             3. Conservatives, generally, concerned about leaving the door open to mandatory
                                  proportional representation plans
7.    Racial gerrymandering
          a. Voting + affirmative action
                     i. Affirmative action = group right to be benefitted by race
          b. Slow path to recognition of a claim of race-based districting
                     i. VRA not as effective as it could have been b/c of the phenomenon of racial bloc voting and
                        multi-district voting plans
                    ii. Took 1982 and new VRA mandating equal opportunity to elect members of your race
                             1. Required to pick the best plan?
                             2. Bush admin interpreted it as a requirement to draw as many min-maj district as possible
                                  w/cynical realization that lumping all the minorities in one vote would make their
                                  incumbent Rep seats safer by draining Dem votes from all other districts
                                       a. Also increased # of minorities elected
                                       b. Questions about constitutionality and taking account of race like this
                           Constitutional                             Unconstitutional      Unclear
                           Old practice; if it is ok to do to Irish   Necessarily using     Unclear if the policy helps or hurts
                           Catholics, why not blacks                  stereotypes           blacks; important if take
                                                                                            purposivist view of 14th
                           14th has nothing to say about
                           political rights
          c. Cases

                   i. Gomillion (1960): Court struck down a race motivated district line, said under 15th this denied the
                      right to vote
                  ii. Thomburg (1986): two part standard: to comply with VRA, have to draw min-maj districts if meet
                      the following standard
                            1. Show racial bloc voting
                            2. Possible to draw minority majority districts that are
                                     a. Contiguous and
                                     b. Compact
                 iii. Shaw (1993): race based districting jusiticiable EP claim(first), if plaintiffs could show that it was so
                      irrational that it could only be because of race, strict scrutiny would be triggered; remand to
                      consider EP claim
                            1. Appearance of political apartheid
                                     a. Despite actual diversity of the district
                                     b. Doesn’t matter that the district could be conceived of as designed to help
                            2. Unclear if the bizarre shape is evidence of taking race into account, or the source of the
                iv. Miller (1995): strict scrutiny is triggered when a plaintiff shows that “race was the predominant factor
                      motivating the legislature”
                            1. Clarifies that odd shape isn’t the core of the violation, it is evidence of race predominating
                                over traditional, race-neutral districting principles
                            2. Not Washington v. Davis: here we have a race-neutral classification, but a higher
                                “predominating” standard
                            3. O’Connor takes pains to say that most min-maj districts are ok
                            4. SS  is VRA compliance a compelling interest?
                                     a. Later clarified that it is
                 v. Easley (2001): O’Connor flips and the same, oddly-shaped district as in Shaw is ok under EP law
                            1. Race is an ok proxy for political identification
                                     a. In fact, is better than self-identification b/c plan took black Dems instead of white
                                               i. Compare O’Connor in Metro Broadcasting where she said that can’t
                                                   assume diverse POV based on race
                                     b. Court doesn’t discuss what predominance means
                                               i. Both race and political id were but for causes
                            2. Challenged DC’s factual findings despite purported clearly erroneous std
                            3. O’Connor is just unwilling to kill the black caucus


1. Doctrine basics
         a. Fund Rights/EqP v. Subs DP
                   i. Both about fundamental rights, but with the first gov’t can equalize down.
                  ii. With Sbs DP, the gov’t can’t equalize down
2. Controversies
         a. Why Roe is ok, but Lochner’s not
                   i. Political process and ♀’s underrepresentation
                  ii. Moral philosophy and some rights as more important to autonomy; K < parental
         b. Should judges get to invent rights?
                   i. C invites it
                  ii. Dworkinian arg: const is not the be all and end all, some things have to be protected, const or not.
                 iii. Seidman: the 9th amendment is neutral as a positive argument for other rights. It just says that we
                      leave the rights where we find them
         c. Are there just some things that the gov’t should not do?
                   i. Sterilization example from Goldberg in Griswold?
                           1. Can only harm C to change it to meet impossible hypos
                           2. Will like w/one bad hypo to prevent unfettered judicial discretion
                           3. If that happened, Courts wouldn’t be any held (slavery, internment)
                           4. No good reason to think all the crazy will come from leg, not judges
3. Griswold (1965)
         a. Facts/issue/holding: penumbras and emanations from BoR create a right to privacy that prevents the state
             from criminalizing contraceptive use by married couples
         b. Reasoning:
                   i. Majority: right to privacy from combined BoRs p 833
                           1. “We’re not using Lochner.” This is not due process.

                              2. But if you call it penumbras and emanations, same result perfectly fine
                     ii. Goldberg: 9th amendment as evidence that founders believed there were basic rights not in the
                              1. MK: stronger
                    iii. Harlan: DPC case
                              1. Due process clause of the 14th amendment. Basic values implicit in the concept of
                                   ordered liberty.
                              2. Some govt behavior is so shocking to the conscience that it violates the const
                              3. Strong, MK: how does Douglas reject this w/straight face?
                   iv. Literalist Black: no privacy provision, so no privacy right
         c. Theory:
                      i. Is Douglas, majority just making things up?
                              1. The fact that there are specific chunks of privacy protected could indicate that the
                                   privacy right was intended to be limited to those specific areas
                     ii. Politically easy case, even conservative Harlan ok w/it
                              1. Douglas wanted to use associational right, but that’s political only  Brennan talked him
                                   into this
                    iii. Descriptive point: Griswold is the classic example of the Court taking a national consensus and
                         using it to suppress a couple of outliers.
                              1. Is that normatively defensible? Given that we have a federalist system?
                   iv. What level of generality?
                              1. Bedroom and married couples
                                        a. Harlan predicts evolution of C’l law if disqualify morality p. 836  why he cracks
                                             down on means
                              2. Procreation of married couples
                              3. Procreation of couples
                              4. Reproductive autonomy
                              5. Sexual autonomy
                              6. Lifestyle autonomy
4.    Roe (1973)
         a. Facts/issue/holding: ♀ have absolute right to abortion in first trimester, right subject to health and welfare
              restrictions in the second, right subject to state’s interest in potential life in third
         b. Reasoning:
                      i. FR under DP clause; subject to limitation for
                              1. ♀’s health and welfare starting w/ 2nd trimester
                              2. Protect potential life of the fetus starting w/3 rd trimester/viability  govt can forbid it
                                   except where it needs to protect woman’s health
                                        a. But viability seems sort of like an accidental fact, arbitrary boarder
                     ii. Fetus doesn’t get personhood right under 14th amendment
                    iii. Court says TX can’t and it won’t take a position on when life begins.
                              1. It’s hard to take that seriously.
                              2. How could the court be leaving that open?
                                        a. If life began at conception, shouldn’t the fetus be protected against being killed?
         c. Theory:
                      i. Scholars
                              1. Ely: indefensible; abortion criminalization is bad, but C has nothing to say about it
                              2. Gray: defends idea of unwritten C and FF’s belief in natural rights
                              3. Tribe: EC grounds, but only initially
                                        a. Religious motives don’t disable you from having an opinion on facially neutral law
                              4. Dworkin: natural rights, philosophy
                              5. Reagan/Ginsburg: sex discrimination grounds  If men got pregnant, abortion would be a
                                   sacrament.” (NOW)
                              6. Scalia/Bork: outrageous, anti-democratic, Lochner-inspired, made-up
                     ii. Different from Griswold
                              1. Not outlier-suppressing like Griswold: shutting down 46 states, not 2
                              2. Not as neatly libertarian
                    iii. Court misread public opinion
                              1. Public was with them for medically necessary abortions, not unlimited right to abortion on
                              2. Not just correcting legislative inertia like it thought
5.    Backlash: Consequences of Roe
         a. If states had been able to continue w/therapeutic laws, decriminalization statutes, would have continued
              to evolve possibly getting us to a better place
                      i. Politicians are better at compromise than Courts are

                       ii. Ginsburg: too far, too fast created the Right to Life Movement
            b.   David Garrow: Ginsburg is wrong on the history. In 1970, there was dramatic change in abortion reform,
                 but it ground to a halt, and states were halting the reform. Roe rescued this movement
            c.   Pro/con
                              Pro                                       Con
                              Legitimizing effect if SC is educative    Mobilized “Right to Life”
                              Increases # of abortions, lowers their    Demobilized pro-abortion groups
                              Created a legit market response          Exceeded the middle, compromise
                              self-enforcing?                           position  moderates become
1. Maher (1977)
        a. Facts/issue/holding: right against coercion, but state can thus make value judgment and induce, funding
            difference doesn’t create inappropriate amount of pressure
        b. Reasoning:
                  i. If no gov’t pressure, easy case
                          1. Abortion right is not an entitlement right: gov’t doesn’t have to susidize it
                                  a. Compare to Gideon: there gov’t is forcing you into Court so they have to pay to
                                       avoid unequal impact
                                  b. Poor ♀≠ suspect class  no disparate impact
                 ii. Once faced w/gov’t pressure on a right, two part test:
                          1. Nature of the right: Right to abortion is a right against coercion, not a right to gov’t
                                  a. Political identification versus jury trial, private school
                                  b. This one Court just tells you, like how the Court tells you if you have a right in
                                       general; definitional
                                  c. Roe is about criminalization  gov’t can induce
                          2. How much pressure is too much pressure:
                                  a. Providing pregnancy funding, but not abortion funding, is not enough pressure to
                                       become state action

            criminalization           withholding                        withholding public                 withholding abortion
                                      fire and police                    hospital access                    counseling (Rust)

                     civil                    deny all        withhold abortion                    Pro-life education
                    sanction                  welfare         funding (Maher)                      campaign

                     *** in all of these, the gov’t in withholding something that the C doesn’t require?***
         c. Theory:
                     i. Old right/privilege distinction – Used to be able to condition privilege on giving up a right
                              1. Made sense when gov’t did very little; very little gov’t offered ppl, less depended on the
                                    gov’t so taking away a privilege was unlikely to cost very much
                              2. Doesn’t exist anymore: when government does everything, gov’t could leverage away all
                                    your rights
                    ii. Same structural problem today w/gov’t bargains conditioned on giving up a right
                              1. Plea bargaining
                              2. Gov’t employment
                              3. Searches
                              4. Cruel and unusual punishment
                   iii. Easy answer to the gov’t bargain question would be always yes, or always no
                              1. If always yes  threat of no rights left
                              2. If always no  go against strong presumption that gov’t should have some control w/how
                                    it spends its money
                                         a. Note that this is conservative position for individual rights, but not for states rights
2.    Scholarship in unconstitutional conditions
         a. Nexus requirement: link btn benefit and withheld penalty
                     i. Powell in Meher
                    ii. Seems arbitrary: $ is fungible, $ gov’t gives for cause A can go to subsidize cause B in an
                         individual’s budgeting
                   iii. Can always manipulate around requirement: welfare/medicade distinction  Assistance to Poor
                         program (O’Connor in Raich)

            b.Historical baselines: if gov’t takes away st it has traditionally provided, it’s a penalty; if it’s a new law, it’s
              declining to subsidize
                      i. Disfavors recent additions. Why? No logical reason that new things are less important than
                         traditional things
         c. Predictive baselines: pridition of what gov’t would do it it couldn’t present the condition
                      i. Would DA charge the full 20 years if no plea bargain, or would it be a lesser tradition
                     ii. Gets at the idea that its wrong if the gov’t is presenting an empty threat
                    iii. Gets at intuition that expanding options is good
                   iv. But speculative, expanded choice set might not always be a good thing
                    v. Gov’t options might also decrease private options  expanded choice set is false notion
3.    Webster (1988): O’Connor backs off of overturning Roe, shift from trimester to viability
         a. Scalia turns on O’Connor (possibly pushing other justices away from his position)
4.    Casey (1992)
         a. Background
                      i. 1970s/1980s abortion restrictions (mostly struck down by SCOTUS):
                              1. Mandatory waiting periods
                              2. Informed consent regulations
                              3. Hospitalization requirements
                              4. Missouri’s Webster case: law said public employees couldn’t conduct an abortion
                              5. Spousal notification/consent
                                       a. Court said that a woman’s “vote” counts more than her husband’s
                                       b. Right must be to determine whether a person should be pregnant or not
                                       c. Not as much the right whether to be a parent or not (which would apply equally
                                            to men)
                              6. Parental notification/consent
                              7. Upheld if there’s a judicial bypass provision
         b. Facts/issue/holding: O’Connor clings to Roe by shutting down spousal notification, oks lots of other
         c. Reasoning:
                      i. 3 person plurality embraces O’Connor’s method: undue burden on right to abortion gets you to SS
                              1. Protection for abortion in 1st trimester limited to no state regulation that has the purpose or
                                  effect of placing a substantial obstacle in the path of a ♀ seeking an abortion
                              2. Must be an aggregate inquiry, b/c any of the regulations could cause a substantial
                                  obstacle in the path of a particular woman
                                       a. But inconsistent w/how she deals w/spousal consent provision
                     ii. Corrects Roe’s inadequate weighting of gov’t interest in potential life; must begin at conception
                    iii. Emphasis on need for Court to stand strong in the face of political criticism to remain credibility
                              1. Scalia: so you admit that you’re making a political caluculation? b/s
                   iv. Emphasis on stare decisis
                              1. But court is only keeping the part of precedent it likes  precedent not doing much work
         d. Theory:
                      i. Should have been enough votes to overturn Roe
                              1. Shows O’Connor and Kennedy’s political sensitivity
                              2. Scalia backlash effect

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