Chris-Constitutional Law Outline by Jasonpet

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									Constitutional Law Outline
Individual Rights
I. Background to the Constitution A. June 1776 1. Continental Congress appointed committees to draft a declaration of independence and to prepare the articles of confederation. a. Within a month, Congress approved the Declaration of Independence. b. The Articles were submitted to the states in 1777, but did not take formal effect until 1781. i. Some say the Articles are better conceived as a treaty among a group of small nations than a charter for a single nation. aa. Did not seem to work. c. January 1786, the Virginia assembly adopted a resolution calling for an interstate conference that would take into consideration the trade of the United States, examine the relative situations of trade of the individual states and consider how far a uniform system in their commercial regulations may be necessary to their common interests and their permanent harmony. i. Lead to the Annapolis Conference aa. Practical authority and legal mandate were limited. 1. Report proposed another meeting to devise further provisions that were necessary to render the constitution adequate to the exigencies of the Union. a. Congress met in Philadelphia and drafted the new Constitution. i. State representation in the new Congress aa. Each state would receive equal representation in the Senate. bb. Distribution of votes in the house would be proportionate to the sum of the whole number of free persons and 3/5 all other persons. ii. Congress was also getting the ability to directly tax the citizenry. iii. Given the power to regulate interstate and foreign commerce. iv. Article 1, §8 aa. “Power to make all Law which shall be necessary and proper for the carrying into execution the foregoing powers. b. The Constitution in this form was lacking an explicit protection of the rights of the citizenry. i. Was sufficient support for a bill of rights. aa. Ten amendments were ratified in 1791. II. Freedom of Expression and States’ Rights in the Late Eighteenth Century A. Bill of Rights became the focal point of an intense controversy regarding the scope of the first amendment guarantees of freedom of speech and press. 1. The Sedition Act (1798) a. If any person shall write, print utter or publish i. any scandalous and malicious writing or writings against the government aa. with intent to defame, or bring them into contempt or disrepute, or to excite against them the hatred of the people of the United States, or

to stir up sedition 1. for opposing or resisting any law or any act of the President done in pursuance of such law or of the powers vested in him by the Constitution 2. or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the US, their people or government a. such person shall be punished by a find not exceeding $2,000 and by imprisonment not exceeding two years. b. §3 i. Establishes that defendants can give the truth of the allegedly libelous material as evidence in their defense. ii. Gave the jury the right to determine law and fact. aa. Under traditional seditious libel laws, courts would not allow the truth of the libel to be proved in court. bb. Jury had previously only been allowed to decide only the question of whether the defendant had published the libelous material. 1. Judges decided the questions of law a. Whether the defendant had made the remarks with malice and whether there were of a bad tendency to sedition. c. Background of the Sedition Act i. Washington was elected President by unanimous electoral college vote. It quickly developed that Washington allied himself with the Federalists. aa. Washington, however, billed himself as a man without a political party. ii. Adams was elected Washington’s VP and won the election when Washington stepped down. aa. The victory was contested. iii. The Sedition Act was then passed. aa. Many viewed the Sedition Act as a Federalist measure to silence the opposition and keep themselves in power. 1. Federalist prosecutors were vigorous in using the Act against critics of the government. d. The First Amendment i. The passage and implementation of the Sedition Act sparked fiery debates over the scope of the First Amendment and the proper realms of state and federal power. aa. In England, freedom of speech and press meant freedom from prior restraint. 1. Government could not censor political material prior to its publication. a. Once the material was in print, its author, printer and publisher could still be punished for criminal libel.


2. Central question in the United States a. Whether the limited meaning of freedom of press also held true. bb. Original understanding of the First Amendment 1. Some think evidence shows that the framers did not intend any change to the definition of common law libel. 2. The popular trend, however, was for freedom in speech and the press. a. Some think freedom of the press was the primary concern of the generation that wrote the important documents of the time. e. The Kentucky and Virginia Resolutions i. The Sedition Act also raised questions about who had the authority to interpret the Constitution. aa. Act was opposed by resolutions adopted by the legislatures of Kentucky and Virginia 1. Had been written by Jefferson and Madison a. Declared that the Sedition Act violated the First Amendment i. Different natures of the British and American governments demonstrate why freedom of the press in America cannot be equated with the English common law restriction against prior restraint of seditious libel. aa. In England, people’s rights only needed to be protected from the executive because Parliament has absolute power. bb. In the United States, the people retained absolute sovereignty and the power of all the branches of government was limited. ii. The fear behind the Sedition Act was that the government under Adams might attempt to eliminate political criticism, create a one-party press, and by controlling public opinion insure a Federalist victory in the upcoming election. aa. **Jefferson’s and Madison’s readings of the First Amendment laid the foundation for all subsequent interpretations of the First Amendment. III. Judicial Review of State Legislation A. Power of the courts was thought to be grounded in the Constitution. 1. Supremacy Clause a. Constitution and the Laws of the United States made in pursuance of, and all treaties made, shall be the supreme law of the land. i. The judges in every state shall be bound thereby, anything in the Constitution or the laws of any state to the contrary notwithstanding. b. Construed as a mandate to all that judges of previously independent states were bound. 2. Article III, §1 declares that the federal judicial power shall be vested in one Supreme Court, and in inferior courts as Congress may establish.


3. Article III, §2 delineates the scope of the federal judicial power a. Shall extend to all cases in law and equity arising under the Constitution i. The Supreme Court shall also have appellate jurisdiction in such cases, limited by the exceptions made by Congress. 4. Article III therefore means that if a state court passes on a Constitutional issue, its judgment is reviewable by the Supreme Court. 5. Judicial Act of 1789 (Section 25) a. Provided for Supreme Court review of final judgments of the highest court of a state in which a decision in the suit could be had in: i. Drawn in question was the validity of a treaty or statute of, or an authority exercised under the United States and a decision is had against their validity. ii. Question of the validity of a statue of or authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity. iii. Drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed under it. 6. It was finally established and agreed upon that the Supreme Court had authorit to revise the judgments of state courts. 7. It was also established that there was a federal judicial power to determine the Constitutionality of state laws. a. This is the idea behind vertical review. B. Judicial review of Congressional legislation 1. The concept of horizontal review. 2. Precedents for judicial review a. No provision of the Constitution explicitly authorizes the federal judiciary to review the constitutionality of acts of Congress. i. Intent of the framers in terms of this is still an area of dispute. aa. There may not be a clear consensus that the federal judiciary should review the constitutionality of the acts of congress. 1. There is also not a consensus that they should not. a. Several decisions of the 1790’s seem to presuppose that the federal judiciary had the power. 3. Marbury v. Madison (1803) a. Outgoing President, John Adams, named forty-two justices of the peace for the District of Columbia under the Organic Act (which was passed on the same day by Congress). i. William Marbury was one of the justices named. aa. The commissions were signed by Adams on his last day in office and signed and sealed by acting Secretary of State, John Marshall. 1. The formal commissions were not delivered by the end of the day. a. Thomas Jefferson, the new President, treated those appointments that were not formalized by delivery before Adams left office, as null.


i. Marbury and other affected colleagues brought a writ of mandamus to the Supreme Court to compel Jefferson’s Secretary of State, James Madison, to deliver the commissions. b. Issue i. Whether the Constitution give the Supreme Court the authority to review acts of Congress and declare them, if repugnant to the Constitution, to be void? c. Holding i. The Supreme Court has the power, implied from Article VI, §2, to review acts of Congress and, if they are found repugnant to the Constitution, to declare them void. aa. President is authorized to appoint certain officers to carry out his orders. 1. Their acts as officers are the acts of the President and are not subject to examination by the courts. 2. Where these officers are given by law specific duties on which individual rights depend, any individual injured by breach of such duty may resort to the laws of the United States for remedy. a. Marbury had a right to the commission and Madison’s refusal to deliver it was a violation of that right. i. This case is therefore one for mandamus. aa. What court should issue it? 1. Judiciary Act of 1789 established and authorized US courts to issue writs of mandamus to courts or persons holding office under US authority. a. Madison, therefore, falls within the Act. 2. If the Supreme Court is powerless to issue a writ, it must be because the act is unconstitutional. a. Article III provides that the Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls where the state is a party. i. In all other cases, the SC has appellate jurisdiction. aa. Marbury urged that since Article III contained no restrictive words, the power to assign original jurisdiction to the courts remains in the legislature. 1. If Congress is allowed to distribute the original and appellate jurisdiction of the SC, then the constitutional grant of Article III is form without substance. a. For the court to issue mandamus, it must be an exercise of appellate and not


original jurisdiction (as Marbury wants). i. To issue a writ ordering an executive officer to deliver a paper is to create an original action for that paper. aa. This would be an unconstitutional exercise of original jurisdiction beyond the power of the court. 1. It would be repugnant to the Constitution. d. Marbury is important because it established the principle of judicial review against federal government officials. e. Constitution is the paramount and fundamental law. i. Has control over lesser laws like statutes aa. Constitution  federal statutes and treaties  state law 1. The latter two must comply with the Constitution. ii. Article III grants federal courts judicial power aa. Marshall says, in Marbury, that this extends to disputes that arise under the Constitution. C. The protection of property rights 1. Fletcher v. Peck (1810) a. Fletcher brought suit against Peck alleging breach of warranty of title. i. The case was a result of the Yazoo land-grant scandal aa. Bribes had persuaded a majority of the 1795 Georgia legislature to pass a law allowing the cheap sale of 35,000,000 acres of state land to private companies. 1. Much of the land had already been resold to innocent purchasers by the time the 1796 Georgia legislature passed an act attempting to rescind the conveyance. a. Fletcher contended that the state did not have the power to rescind its contract with Peck, who held the title to the land grant. b. Issue i. Can a state, having passed a law which is, in its nature a contract, later divest those absolute rights that have vested under the contract by repealing the law? c. Court says no. (Marshall’s opinion) i. When a law is in its nature a contract and when absolute rights have vested under that contract, repeal of the law cannot divest those rights. aa. A grant, in its own nature, amounts to an extinguishment of the right of the grantor and implies a contract not to reassert that right. bb. A grant is a contract executed, the obligation of which still continues and cannot be impaired by action of the Georgia legislature. 1. Therefore, the statute passed by Georgia was ineffective to cancel the original conveyance to Peck’s predecessor in interest. a. A state law, no matter how offensive, can’t be stricken unless it


violates the Constitution. a. Here, Article I, §10 (the Contracts Clause) says that a state can’t pass a law impairing the obligations of a contract. i. This extends to both executory and already performed contracts. ii. Also applies to individuals and states who draft contracts. aa. The Constitution does not explicitly exempt governments. i. Presumption to include them unless excluded. d. Johnson’s Opinion i. The state can’t do this because it violates natural law. aa. The Constitution is there to vindicate natural law. 1. Natural law is the law of nature a. Ordained by God i. There are certain legal principles that are divinely ordained. aa. All legitimate governments must honor them. bb. They include due process of law and property rights. 1. There is no need to write them down because they are universally true. ii. Contrast natural law with positivist law aa. Under positivist law, a court can invalidate a state or federal law only if it violates a specific written provision in the Constitution. 1. Judges cannot invalidate laws on the concept of natural law. bb. Positive law is essentially the body of written law which must be applied by the courts. 1. Came into favor in the late 1800’s. D. The Constitution and Morality 1. Can you interpret the Constitution as allowing an act that you consider to be immoral? a. Cherokee Nation v. Georgia (1831) i. Through various treaties with the United States, the Cherokees has been allotted approximately four million acres of lands within the territory of Georgia. aa. In 1827, gold was discovered on tribal lands. bb. That same year, the Cherokee nation declared themselves independent and adopted a constitution. 1. Georgia legislature responded by passing “Indian laws” that annulled all of the Cherokee laws, usages and customs, divided their lands into separate counties under state jurisdiction, and prohibited the Cherokee legislature and courts from meeting. a. As an assertion of sovereignty over the tribe, the state tried a Cherokee for a murder he committed on the reservation.


i. Cherokee appealed to the Supreme Court. aa. Court directed the state to appear. 1. In response, the state ordered his immediate execution. a. The Cherokee Nation appealed to the federal government to support their claim against Georgia for abrogation of its treaty rights. i. Jackson responded by saying that the President had no power to protect them against the laws of Georgia. aa. Cherokee Nation then attempted to invoke original jurisdiction of the Supreme Court by describing itself as a foreign state, not owing allegiance to the United States nor to any individual state in the union. bb. Cherokee Nation claimed Georgia had violated the Contracts Clause 1. Argued that treaties were contracts of the highest character and the most solemn obligation. b. Court rejected that the Cherokee Nation was a foreign state and dismissed the claim for lack of jurisdiction. i. Marshall wrote an opinion for himself aa. Recognizes the Cherokee Nation as a domestic dependent nation. 1. Have a distinct government and culture. 2. Don’t have absolute power like other governments. a. Under the Indian Commerce Clause, Congress has power over them. 3. Relation to the United States resembles that of a ward and guardian. a. Look to the government of the US for protection b. Rely on its kindness and its power c. Appeal to it for relief of their wants d. Address the President as their father e. Any attempt by a foreign nation to acquire their lands would be looked upon as an act of hostility towards the US. i. Problem is that ward/guardian relationships end when the ward grows up. ii. Johnson’s Opinion aa. Claims here to be concerned with the legal questions. 1. This is in contract to his opinion in Fletcher v. Peck where he is concerned with natural law. E. Women’s Citizenship 1. Leading principle in Constitutional law is equality. a. Most of the important cases involve claims that a group is not being


treated fairly. i. Women were considered citizens but were denied political rights aa. Based on a theory about the relationship between the obligations of political citizenship, economic dependency, and family structure. 1. Only independent male property owners could vote. a. It would thought that men would account for women’s interests. i. Upon marriage, wife’s legal entity merged into her husband’s. aa. One person under the law. 2. Distinction between the public realm of active citizenship and economic activity and the private realm of domestic relations. a. Relations between heads of households were relations between free and equal citizens in a public realm. b. Relations between men and women or between masters and servants were domestic relations within a private household. IV. The Taney Court A. The major issue throughout this period concerned the constitutional implications of burgeoning economic development. 1. Much of this was accompanied by a noticeable increase in the use of eminent domain by state and municipal governments and quasi-public corporations. a. State courts began elaborating doctrine under state constitutional provisional provisions governing compensation for takings of property. i. Charles River Bridge v. Warren Bridge (1837) aa. Established the principle that public franchises should be narrowly construed. 1. Where ambiguous, a legislative grant of a public corporation to a public enterprise should be construed to serve the public. a. Since plaintiff’s charter to operate a toll bridge was not in its terms exclusive, it would not be read to prevent the state from chartering a bridge nearby i. Would be such even if this wiped out the economic value of the investment based on the original charter. ii. West River Bridge Co. v. Dix (1848) aa. Plaintiff’s franchise did not preclude the state from expropriating its bridge upon payment of compensation. 1. All government grants are implicitly subject to the state’s power of eminent domain. 2. Another big issue was the authority of local municipalities within states to issue bonds. a. Gelpcke v. Dubueque (1864) i. Diversity action by the holders of municipal bonds issued as part of a railroad promotion. aa. The city defended its nonpayment of the bonds on the ground that the issuance of them was beyond the Iowa Constitution. 1. The City’s interpretation was supported by an Iowa Supreme Court decision which overruled a number of earlier decisions


requiring cities to make good on such debts. ii. The US Supreme Court refused to follow the state supreme court’s interpretation of the laws. aa. Court stated that the sound rule regarding contracts was that if the contract, when made, was valid by the laws of the State as expounded by all departments of the government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of legislation, or decisions of its courts altering the construction of the law. 1. Same principle applies where there is a change of judicial decision as to the constitutional power of the Legislature to enact the law. 3. Privileges and Immunities of state citizenship and personal mobility among the states a. Privileges and Immunities clause, Article IV, §2 i. The citizens of each state shall be entitled to all privileges and immunities of citizens in several states. aa. Means that if citizens of state A are in state B, they are entitled to the same treatment as citizens of that state. 1. Applies only to fundamental rights a. Under the following categories i. Security of your own person ii. Right to own and transfer property iii. Right to participate in court activities aa. Can sue or be sued 2. Exceptions a. Can forbid a non-state corporation from doing business i. A corporation is not a citizen. ii. Incorporation is a special privilege which is not required to be extended to foreign incorporators. b. State are not bound to extend the rights that apply exclusively to its residents. b. Interstate mobility i. Crandall v. Nevada (1868) aa. Crandall refused to pay a capitation tax levied by Nevada upon every person leaving the state by train, stage coach, or other vehicle for hire. bb. Issue 1. Do all citizens of the United States have the right to freely pass and repass through every part of the country? cc. Court said that all citizens do have the right to pass through every part of the country. 1. The tax, inasmuch as it does not institute any regulation of commerce of a national character, or which has uniform operation over the whole country, the Commerce Clause was not violated.


2. All citizens have private and public interests which may require them to travel across state boundaries. a. If all states started imposing taxes, a citizen’s right to freely travel would be seriously violated. B. Slavery 1. The interstate slave trade a. Groves v. Slaughter (1841) i. Mississippi was a slave state aa. Provision of the constitution forbade the importation of slaves into the state for sale there. 1. Provision was challenged as a restriction of interstate commerce. ii. Issue aa. Does the state constitution require the passage of activating legislation to implement a provision of the constitution? iii. Court said that the Mississippi constitution was not self-executing. aa. There must be a law passed by the legislature to put it into effect. 1. (This is not actually true) iv. Concurrences (actually discuss the Constitutional issues) aa. McLean 1. The power over slavery belongs to the states. a. Each state has the right to protect itself from the avarice and intrusion of the slave dealer. 2. Slaves are not articles of commerce a. Leading and controlling quality of persons by which they are designated in the Constitution. bb. Taney 1. This is an issue of state’s rights. a. The Constitution leaves slavery to the states. cc. Baldwin 1. Each state has the right to legislate on the subject of slavery. a. Its laws are, therefore, the test of what is property. i. If the state recognizes slaves of the property of those who hold them, they become the subject of commerce between the states which so recognize them. aa. The traffic in them may be regulated by Congress. ii. Classifying slaves as people causes slavery to not make sense. aa. You can’t sell people. 2. Fugitive Slaves a. Prigg v. Pennsylvania (1842) i. Prigg was an agent for a slave owner. aa. Asked a Pennsylvania magistrate to issue a certificate for removal of an escaped slave back to Maryland. 1. Federal statute provided for a federal judge or magistrate to issue a certificate in proper cases, but the magistrate refused. a. Prigg went ahead and forcibly removed the slave back to Maryland.


i. He was convicted of violating a Pennsylvania law that made it a crime to remove a negro from the state into slavery. ii. Does Congress have exclusive power to legislate regarding a slave owner’s right to reclaim his slave? iii. Fugitive Slave Act aa. Allows owners to seize a fugitive slave and bring him before a federal judge or state magistrate, who was required to give a certificate to the owner or agent upon satisfactory proof that the person so seized or arrested does, under the law of the state or territory from which he or she fled, owe service or labor to the person claiming him or her. iv. Article IV, §2 aa. Ensures slaveholders absolute rights of slaves as property in every state. 1. Function was to protect slaveholders from having their property rights meddled with in non-slave states. v. Court says that Congress does have power to legislate. aa. Article IV protects a slave owner’s right to reclaim his slave and specifies that a slave cannot be discharged from service or labor in consequence of any state law or regulation. 1. Power must be exclusive to Congress. a. To give the states concurrent power, in the absence of legislation by Congress, would have been to give them the power to destroy the very rights of the slave owner that the Constitution specifically protects. b. States have the right to enact valid police power regulations affecting fugitive slaves, but they cannot interfere or obstruct the just and constitutionally protected rights of an owner to reclaim his slave or with the remedies prescribed by Congress to aid and enforce the same. vi. There is not a part of the Constitution that gives Congress exclusive power in this area. aa. Story does not say that there is an express constitutional provision. 1. Says where the Constitution writes down particular rights and duties, but is silent on how they should be implemented, you must imply that Congress has the power to implement them. a. Fundamental principle of Constitutional law is that state and federal power are concurrent. i. Unless it is explicitly stated otherwise. aa. Story says that fugitive slaves are inherently a national matter subject to federal law to be applied uniformly. bb. Story says that the Pennsylvania law is unconstitutional because it punishes the master for using self-help to recapture a slave. 1. Constitution does not say that a master can capture a slave via


self-help mechanisms. 2. Effectively intimated that the slave owner could only rely on self-help and the federal courts. a. The state courts were precluded from becoming involved in slave recapture. vii. McLean’s Dissent aa. The Constitution established the right, but did not give the remedy. 1. Congress can set up a remedy that it thinks is appropriate to protect the right. aa. A slave owner does not have a statutory right to ignore the judicial processes set-up and decide to use self-help. b. Dread Scott v. Sandford (1857) i. Dread Scott was taken with his master to the free state of Illinois and the free part of the Missouri territory. aa. After they returned to the slave state of Missouri that his master died. 1. Sandford became the administrator of the estate. 2. Scott attempted to bring a diversity action in federal court based on his claim that his residence in the free jurisdictions had liberated him from his status as a slave. a. He insisted that he was a citizen of Missouri and therefore, entitled to bring suit against Sandford, who was a citizen of New York. b. Sandford argued that a former slave could not be considered a citizen of the United States or Missouri. ii. Issue aa. Can a former slave be a citizen so as to qualify to bring an action in federal court? iii. Those who were slaves or who are descendents of slaves are not citizens in the sense of meaning of the Constitution. aa. Not entitled to maintain an action in federal court. bb. Based on the history of the Constitution 1. Neither that class of persons who had been imported as slaves nor their descendents, whether they had become free or not, were acknowledged as part of the people. a. Were considered mere property. b. Were not among those who were citizens of the several states when the Constitution was adopted i. That is the time frame that must be utilized in determining who was included as a citizen in the Constitution. aa. Because he was not a citizen, Scott cannot maintain the action. c. Also consider that even free states recognize blacks as inferior. cc. Original Intent 1. Taney’s argument is one of “original intent” or “originalism”


aa. The only way to amend the Constitution is by amendment. 1. If no amendment, document should be read as it stands. 2. Requires historical research to determine what the framers intended the Constitution to mean. a. Theory is though, that once justices start injecting their own opinions there isn’t a need to have laws. 3. Article V provides for Constitutional amendments a. Framers knew they could not see the future. b. Amendments are done by “We the People” and not the courts. 4. Taney does an analysis of the US Government over its first sixty years. a. Cites the executive branch and opinions of the attorney general that blacks are not citizens of the states. b. 1790 – passage of naturalization law i. Emphasizes the idea that blacks are not free aa. Problem with this rationale is that the rights of aliens does not have anything to do with determining the rights of citizens who were born in the US. c. Militia law i. Majority says that militia was limited to white males aa. Dissent says it was limited to “able bodied” males 1. This did not have anything to do with citizenship. iv. Curtis’ Dissent aa. At the time the Constitution was adopted, free persons descended from Africans held in slavery were considered by several of the states to be citizens thereof. 1. Every free person born on the soil of a state who is a citizen of that state by force of its constitution or laws is also a citizen of the United States. a. Majority rests on an untenable assumption – that no one can be deemed a citizen of the United States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen. i. In all states there are numerous citizens who cannot vote and cannot hold office, but who still are citizens. aa. Must be citizens because they voted to ratify the Constitution. 1. Would not have voted for such if they were not included. v. Bigger issue in Dread Scott was citizenship aa. Distinction between state and US citizenship 1. This becomes more important after the Civil War bb. What individual rights do citizens enjoy? 1. Privileges and immunities does enumerate privileges and


immunities. a. Merely says that if you are a citizen and you go to another state you have to be afforded privileges and immunities. c. Fredrick Douglass and the Lincoln/Douglas Debates i. Fredrick Douglass and Textualism aa. Read the words of the Constitution and give them their plain meaning. 1. The text of the Constitution can be read as being anti-slavery. 2. Way to abolish slavery is to elect those who are against it. ii. Lincoln and Stephen Douglas had a series of debates. aa. Douglass said if he had taken an oath to uphold the Constitution, he would have to object to a bill that went against it. 1. It does not matter what his personal feelings were. bb. Lincoln said he did not believe such. 1. Favored a shared constitutional interpretation. a. Members of each of the three branches have a duty to interpret the Constitution. i. Lincoln would prohibit slavery because that is what the Constitution meant to him. C. The President as Commander-in-Chief 1. In times of war, Constitutional law is suspended in many ways. a. Article II i. President is the Commander-in Chief . aa. Does not really defined what it means to be commander-in-chief. 1. Language says that we want civilian control. 2. The Supreme Court tried to articulate some restraints on the President. a. Essentially, how the President chooses to respond is his discretion. b. The President in times of war i. Depends on: aa. The strength of the President bb. The magnitude of the military crisis cc. President’s relationship to congress dd. The strength and calculus of the Supreme Court ee. The Constitutional rights that are at stake 2. Lincoln as Commander-in-Chief a. Blockaded the confederacy b. Suspension of habeas corpus i. Persons deprived of liberty can challenge the legality of their detentions in court. ii. Article I, §9 authorizes suspension, by Congress, to protect the public safety. aa. Does not explicitly say Congress 1. Congress’ powers are enumerated in Article I.


a. Article II is about the President. iii. John Merryman was arrested for participating in the destruction of railroad bridges following an antiwar riot in Baltimore. aa. Question that arose was whether or not the President could suspend habeas corpus? 1. Taney asserted that Merryman’s detention was illegal on two grounds a. President, under the Constitution and laws of the United States, cannot suspend the privilege. Also cannot authorize any military officer to do so. b. A military officer has no right to arrest or detain a person, not subject to the rules and articles of war, for an offence against the United States except in and of the judicial authority and subject to its control. i. If a person is arrested by the military, it is the officer’s duty to immediately deliver him to the civil authority to be dealt with according to law. 2. Merryman was freed. 3. Taney was ignored by Lincoln. a. While addressing Congress later, Lincoln said the President would be justified in ignoring one provision in the Constitution to fulfill his role as President. i. The habeas corpus provision does not specify who has the power. aa. Can’t assume the framers expected the President to wait until Congress was assembled before reacting to an emergency. 1. This may actually be listed in the Constitution though. 2. President’s actions may also only be allowed if Congress was not in session. c. Emancipation i. Lincoln opposed the expansion of slavery into the western territory. aa. He was not necessarily opposed to slavery. ii. Emancipation Proclamation (1863) aa. Slaves in certain states were free. 1. Executive government of the United States, including the military and naval authorities, were to recognize and maintain their freedom. bb. President said he did it as an action warranted by military necessity. 1. As President, felt that he had the right to take actions to best subdue his enemy. cc. Also President’s duty to preserve the union. 1. Felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.


dd. Proclamation was not a general declaration of freedom. 1. Stated that he was unprepared to declare a constitutional competency in Congress to abolish slavery in the States. V. From Reconstruction to the New Deal A. Race Discrimination 1. History of the adoption of the Fourteenth Amendment a. Shortly before the end of the Civil War, the Thirty-eighth Congress proposed the Thirteenth Amendment. i. Ratified later that year. aa. Abolished slavery (worded as involuntary servitude) 1. Its purpose was to overrule Dread Scott. a. This was one of the few times that a Constitutional Amendment directly overruled a Supreme Court precedent. 2. Applies to all action, whether public or private. b. The Black Codes i. Threatened to restore the freed blacks to their antebellum status. aa. Applied unequal penalties for Blacks for recognized offenses bb. Specified offenses for Blacks only 1. Laws that prohibited blacks from selling liquor or keeping weapons. cc. Series of restraints on the business dealings of blacks. dd. Provisions concerning contracts for personal service. 1. Specific enforcement of labor contracts against freed blacks a. Provisions to facilitate capture should one try to escape. ee. Vagrancy laws 1. Made it a misdemeanor for a black to be without a long-term contract for employment. a. Penalty was a fine payable to a white man i. White man could then set the “criminal” to work for him. c. The Civil Rights Act of 1866 i. No discrimination in civil rights or immunities among the inhabitants of any State or territory of the United States on account of race, color, or previous condition of slavery or involuntary servitude. aa. Exception was punishment for a crime where the party was duly convicted. ii. All have the same rights to make and enforce contracts, to sue, be parties, and give evidence ,to inherit, purchase, lease, sell, hold and convey real and personal property iii. To the full and equal benefit of all laws, shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary nothwithstanding. aa. Some said the scope was narrow, some said it was broad. d. The Fourteenth Amendment i. Only applies to state action aa. No state shall abridge the privileges and immunities of US citizens. bb. Can’t deprive persons of life, liberty, or property without Due Process


cc. Can’t deny persons equal protection under the law. ii. The purpose of the Fourteenth Amendment was to avoid irrational discrimination. aa. Was intended to formalize the Civil Rights Act of 1866 by extending civil rights. bb. Did not confer political rights iii. Unusual procedural history aa. Requirements of Article V 1. 2/3 of each house must propose an amendment a. Then subject to ratification by the states i. Assent of 3/4 of the states necessary to make it part of the Constitution. bb. Surrender at Appomattox effectively brought the Civil War to an end. 1. In principle restored the Union. a. Johnson, Lincoln’s successor, offered to welcome back the members of the Confederate if they agreed to ratify the Thirteenth Amendment. i. Eight states joined those who had never left to provide the necessary 3/4 ratification. cc. In 1865, the Republican majorities in the Thirty-ninth Congress exercised their Constitutional power to judge the qualifications of its own members 1. Used to exclude the men from the former Confederacy who had been elected to the House and Senate. a. Reason behind this was if these men were allowed to stay, the legal consequences of the war would be restricted to the addition of the Thirteenth Amendment and nothing more. i. The Democrats would have more then enough power to block any other Constitutional Amendments. aa. Now that blacks were counted as whole persons, the population of the South would increase. 1. More power in the House and the Electoral College. dd. Fourteenth Amendment was presented to a Congress missing the Southern exclusions. 1. Amendment only received the necessary 2/3 of the vote if the excluded members are ignored. a. Not enough to ratify the Amendment though. i. The Fourteenth Amendment was understood as changing the balance of power in America. aa. Appeared to work a fundamental transformation of the American government from one in which the states were supreme to one in which the national government would have vast new powers over the states. b. Congressional phase of reconstruction i. First and Second Reconstruction Acts were passed.


ii. The defeated states were occupied by the US military. aa. Old government were dissolved and new were created, required to accept black suffrage. 1. New members would only be allowed in the House and Senate if the Fourteenth was ratified. a. New Jersey and Ohio tried to rescind votes, but were not permitted to do so. i. Attempted withdrawals were not considered legally effective. 2. Strauder v. West Virginia (1880) a. Strauder, a black man, was indicted for murder in the Circuit Court of Ohio County, West Virginia. i. After trail he was convicted of the charge. aa. On appeal, Strauder argued that he was denied rights to which he was entitled under the Constitution because under state law, blacks were not able to serve on the grand or petit jury. b. Issue i. May a state prevent blacks from sitting on juries? aa. Court said no. 1. The Fourteenth Amendment is one of a series of Constitutional provisions having a common purpose. a. Namely all the civil rights that the superior race enjoys for blacks. 2. Fourteenth Amendment declares that the law in the states shall be the same for the black as for the white. a. No discrimination by law because of the color of their skin. 3. Words of the Amendment contain the necessary implication of a positive right to exemption from unfriendly legislation which implies inferiority in a civil society. a. It was unclear exactly what the drafters intended in terms of jury service. i. Question of whether it was a civil or a political right? aa. Some did not think that jury service was a civil right. 1. The cour there wanted to give the Fourteenth Amendment a liberal construction to help achieve its purpose of eliminating racial descrimination. 4. Based on the above, the West Virginia statute is clearly discriminatory. a. Very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of laws, as jurors, because of their color is an impediment to securing to individuals of the race the equal justice which the law aims to secure. i. Key here is that the blacks and whites possess the necessary qualifications to be jurors. aa. Strauder is not asking for twelve black jurors.


1. He wants them to be whites or blacks – just those who possess the necessary qualifications. c. Case brings up two themes that become significant in determining whether a group constituted a suspect classification and whether the legislation in question violates constitutional prohibitions. i. Whether the class is one that has been historically the victim of societal discrimination? ii. Whether the legislation in question tends to stigmatize that class in the eyes of society? 3. The Separate But Equal Doctrine a. Strauder contains language that promises full racial equality. i. In the opinion, Justice Strong also refers to the blacks “abject and ignorant” condition, “unfitted to command the respect of those who had superior intelligence.” aa. The court never retreated from its specific holding in Strauder, but the decisions during the next several decades seem more responsive to the assumption of black inferiority then the goal or racial equality. b. 1877 – End of Reconstruction. i. The black was abandoned as the ward of the nation. aa. Giving up of the attempt to guarantee the freedman his civil and political equality. bb. Also the acquiescence of the rest of the country in the South’s demand that the whole problem be left to the disposition of the dominant southern white people. 1. South’s adoption of extreme racism was due to the relaxation of the opposition. ii. Came about by the election of Tilden as President. aa. Southern Democrats abandoned their support Tilden and supported the seating of Hayes in exchange for the end of Reconstruction. c. Plessy v. Ferguson (1896) i. Plessy, who was 7/8 white and whose skin was white, was denied a seat in an all white railroad car. aa. When he resisted, he was arrested for violating a state law which provided for segregated “separate but equal” railroad accommodations. 1. Plessy appealed the conviction on the basis that separation of the races stigmatized blacks and stamped them with the “badge of inferiority.” a. Claimed that segregation violated the Thirteenth and Fourteenth Amendments. 2. Trial court found Plessy guilty on the basis that the law was a reasonable exercise of the state’s police power based on custom, usage and tradition in the state.


ii. Issue aa. May the state segregate the races in “separate but equal facilities or accommodations? iii. Court said that the state could segregate. aa. This was a valid exercise of the state’s police power. 1. Where there has been established custom, usage, or tradition in the state, it may continue to require such segregation as is reasonable to preserve order and public peace. a. Definition of police power i. The power of a state or local government to regulate private conduct for the health, safety and welfare of the general public. 2. This is not a “badge of slavery” under the Thirteenth Amendment. a. Also does not violate any of the provisions of the Fourteenth. i. The enforced separation is not a badge of servitude or inferiority, regardless of how Plessy and other blacks deem to treat it. ii. The railroad cars are physically equal. iv. Decision gave the Fourteenth Amendment a very narrow construction under the law. aa. Essentially allows the states to treat blacks unequally under the law. 1. Equal protection only requires “tangible equality.” bb. Court also looks at this decision as if riding in a railroad car is not a “big deal.” 1. Being on a jury was a big deal in Strauder. 2. Riding in a railroad car actually is a big deal because it is the day-to-day social contracts that reinforce the idea that if you are black and living in Louisiana, you are inferior to your white neighbors. cc. Court thinks that there would be violence if the two races were mixed. 1. Therefore, it is reasonable to keep them segregated. a. Public order must be kept. v. Harlan’s Dissent aa. The statute interferes with the personal freedom of individuals to freely associate with others. 1. The Constitution is colorblind. a. All citizens must, therefore, be treated alike. i. Blacks are not subordinate or inferior. aa. Are citizens and entitled to all the provisions that citizenship entails. 1. Enforced separation is an impermissible


burden on these privileges and freedoms. bb. Finds it obvious that racial discrimination is the point of the statute. 1. The states are doing things like this because they think blacks are inferior. cc. Reasonableness does not matter. 1. The issue is whether or not the legislature has authority to do this under the Constitution. dd. Assets that this decision will prove to be “quite as pernicious as the decision made by this tribunal in Dread Scott.” 4. Creation of the State Action Doctrine a. The Civil Rights Cases (1883) i. §1 if the Civil Rights Act of 1875 aa. All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres and other places of public amusement. 1. This is subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. ii. §2 aa. Makes a violation of §1 a misdemeanor and also permits an aggrieved party to recover a civil fine. iii. Cases arose out of the exclusion of blacks from inns, theaters, and a railroad on account of their race. iv. Civil rights cases are about federal law. aa. Contrast with Strauder and Plessy which are about state law. bb. The Fourteenth Amendment only prohibits racially discriminatory conduct by the states. 1. Nullifies and makes void all state legislation and state action which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies them equal protection under the law. 2. Gives Congress the power to enforce appropriate legislation. a. Congress can adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts. i. Does not invest Congress with the power to legislate upon subjects which are within the domain state legislation. ii. Does not authorize Congress to create a code of municipal law for the regulation of private rights. aa. Legislation must, therefore, be predicated upon State laws or state proceedings and be directed to


the correction and operation of their effect. 1. In these cases, Court held that until some state law had been passed, or some state action through its officers or agents has been taken, which is adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under the Amendment, nor any proceeding under such legislation can take effect. a. If a black person is injured by a private citizen, the remedy will fall under state law. cc. Court examines the Act to see if it makes reference to a state violation of the Fourteenth Amendment. 1. Act is found to make no reference to such. a. Does not profess to be corrective of any Constitutional wrong committed by the states. b. Does not make its operation depend on any wrong committed. v. Essentially, it is held that Congress can enact corrective legislation under the Fourteenth Amendment, but not primary. aa. Fourteenth Amendment is also restricted to state action. 1. Private citizens who own hotels, etc. can discriminate. vi. Harlan’s Dissent aa. There are badges of incidence with relation to slavery. 1. The Thirteenth Amendment does not only prohibit slavery, but also badges and incidents of slavery. a. Burdens and disabilities constitute badges and incidents of slavery. i. Power to enact direct and primary legislation to protect. aa. Congress may enact laws to protect the people against deprivation, because of their race, of any civil right granted to freeman in the same state. 1. Such legislation may be direct and primary. a. May operate upon states, their officers and agents, and also upon such individuals and corporations as exercise public functions and wield power and authority under the state.


B. The Protection of Economic Rights 1. The Fourteenth Amendment Limited a. Central purpose of the Thirteenth, Fourteenth, and Fifteenth Amendments i. Provide a new birth of freedom. aa. Central question proposed to the constitutional interpreters of the Fourteenth Amendment was what comprised the rights and freedoms presumably guaranteed. 1. Free labor ideology a. Although the races might not be fully equal in all respects, every human being had a natural right to purse his trade and reap the fruits of his labor. i. Slaughter-house Cases (1873) aa. New Orleans butches challenged a monopolistic slaughterhouse charter, which forced them to work at the Crescent City Slaughter-house or give up their trade. 1. Butchers claimed that by depriving them of the chance to practice their trade outside of the monopoly’s facilities, the law violated the most fundamental right in free labor ideology. a. Right to labor productively, to pursue their vocation and reap the fruits of their effort. bb. Purpose of the slaughterhouse was to remove from the most densely populated part of the city, the noxious slaughterhouses, and large and offensive collections of animals and locate them where the convenience, health, and comfort of the people require. cc. The Fourteenth Amendment has three clauses 1. Privileges and immunities clause 2. Equal protection 3. Due process a. States can’t deprive a person of life, liberty, or property without due process of law. i. The butches contended that they had a property right in their jobs. dd. Court said it was difficult to see a justification for the assertion that the butchers were deprived of the right to labor in their occupation or how the statute could be said to destroy the business of the butcher, or seriously interfere with its pursuit. 1. Such a regulation was also considered traditional. a. Unwholesome trades can be interdicted by law on the general and rational principle that every person should use his property so as not to injure his neighbor. i. Private interests must be made subservient to the general interests of the community. aa. The police power.


i. Police power cannot be defined. aa Depends on social order, the life and health of the citizen, the comfort and existence of a thickly populated community, the enjoyment of private and social life and the beneficial use of property. 1. Look and see if these regulations were a proper exercise of the power. a. This will only not be a proper extension if the charter was beyond the power of the legislature in LA. ee. Fundamental purpose of the Thirteenth and Fourteenth Amendments was the freedom of the slaves and their protection. i. Amendments establish that there is citizenship of the United States and citizenship of a particular state. aa. Different from each other and depend on different circumstances or characteristics of the individual. 1. Privileges and immunities speaks to citizens of the United States and not of several states. a. If there is protection for the citizens of states it is not mentioned. ff. In terms of the deprivation of due process, the court says that due process is about procedure. 1. Here there had already been a trial and, two appeals and a hearing before the Supreme Court. gg. Equal protection applies to the existence of laws in the states that discriminated against the newly emancipated slaves. hh. Bradley’s Dissent 1. Due process is not just about process and procedure. C. Judicial Activism 1. Lochner v. New York a. Lochner was fined for violating a state labor law which prohibited employment in bakeries for more then sixty hour a week or more then ten hours a day. i. Lochner permitted an employee to work in his bakery more then ten hours in one day. aa. He claimed that the law limiting the hours of employment violated the Fourteenth Amendment due process clause. b. Issue i. Is a state law regulating the hours bakery employees may work a valid exercise of state police power? c. The court says no, the state law was not a valid exercise of the police power.


i. The general right to make a contract in relation to one’s business is part of the liberty of the individual protected by the Fourteenth Amendment. (First time contract was included) aa. Right to purchase or sell labor is part of the liberty protected by this amendment. bb. States do possess certain police powers relating to safety, health, morals, and the general welfare of the public. 1. If the contract is one which the state in the exercise of its police power is right to prohibit, the Fourteenth Amendment will not prevent the prohibition. (Must be fair and reasonable) a. When, as here, the state acts to limit the right to labor or the right to contract, it is necessary to determine whether the rights of the state or the individual shall prevail. i. It is not sufficient to assert that a matter relates to public health. aa. Must have a more direct relation, as a means to an end, to an appropriate state goal, before an act can interfere with an individual’s right to contract in relation to his labor. (Reasonable means to an end test) 1. In this case, there is no reasonable foundation for holding the act to be necessary to the health of the public or of bakery officials. a. Statute is merely an interference with the rights of the individual. i. Such will be invalid unless there is some fair ground to say that there is a material danger to the public health or to the employee’s health if the labor hours are not curtailed. aa. Cannot be said that the production of healthy bread depends on the hours the employees work. bb. Trade of a baker is also not an unhealthy one to the degree which would authorize the legislature to interfere with the rights to labor and of free contract. d. Lochner is an exercise in substantive due process. i. The Supreme Court will decide what is fair and reasonable. aa. This cannot be an objective test. 1. Will invariably be an elitist view. ii. Lochner is important today because it underpins many of the important Supreme Court cases involving the right to privacy. aa. Court creates liberal notions of what liberty means. e. Harlan’s Dissent i. Whether or not the legislation is wise is not a decision for the court. aa. It is impossible to say that there is not substantial or real regulation


between the statute and the state’s legitimate goals. 1. Decision brings under the Court’s supervision matters which were supposed to belong only to state legislatures. ii. Reasonable means to an end test aa. Majority’s conclusions are wrong 1. Bakers work long hours and don’t get much sleep. 2. They are constantly exerting themselves around extreme heat. 3. Legislature has shown a substantial relationship between the law and its objective in protecting the health of the bakers. f. Holmes’ Dissent i. Liberty should not invalidate a statute unless it can be said that a reasonable person would say that the statute infringes fundamental principles of our people and our law. aa. Reasonable person might think this statute was valid. 1. Liberty is regulated by many state laws that have been held to be valid. a. Statutes are presumably valid because we live in a democracy. i. Presume constitutionality unless it goes over the line. ii. Does not think states need to meet the reasonable means to an end test. D. World War I and the First Amendment 1. Freedom of expression v. National security a. It is clear that the First Amendment can’t prohibit private speech. b. First Amendment involves a balancing test i. Modern test aa. Clear and present danger 1. Do the words used, under the circumstance, create a clear and present danger? a. Are you advocating subversive ideas designed to produce eminent lawless action? c. Most freedom of expression cases come up during wartime. i. Debs v. United States (1919) aa. Eugene Debs gave a speech expressing his deep opposition to the war. 1. Was the acknowledged leader of socialism who had gained over a million votes as the Socialist candidate for the Presidency in 1912. 2. Was convicted of espionage. bb. Court said the subject of the speech was not necessarily at issue. 1. Problem would arise if the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service and if such encouragement was directly given. a. Theme would then not be enough to protect the speech. 2. Character of any act depends on the circumstances under which it


was done. a. Question in every case is whether the words are used in such a circumstance and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to protect. i. Question of proximity and degree. aa. Things might not be allowed in a time of war that are otherwise permissible. 3. Jury could not find the defendant (Debs) guilty unless: a. The words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service b. Unless the defendant had the specific intent to do so in his mind. 4. Debs also had an influential position and was, as such, likely to incite people to act. a. Therefore, he can’t say certain things publicly. ii. Abrams v. New York (1919) aa. Defendants had distributed leaflets which told workers in ammunition factories that they were producing bullets, etc. to murder the Germans and their own in Russia and urged a strike. bb. Court affirmed a conspiracy conviction under a 1918 Amendment which punished urging curtailment of the production of war material with the intent to cripple or hinder the United States in the prosecution of the war. 1. Does not do to say that the only intent of these was to prevent injury to the Russian cause. a. Men must be held accountable for the effects which their acts are likely to produce. i. Plan of action here necessarily involved, the defeat of the war program for the United States. aa. Tried to prevent persons from working in ammunition factories. cc. Dissent 1. It is only present danger of immediate evil or an intent to bring about it that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. a. These were just leaflets and were not going to incite violence. i. Publishing the leaflets for the purpose of hindering the prosecution of the war would be actionable. aa. There needs to be intent to do the thing. iii. Gitlow v. New York (1925) aa. New York had a criminal anarchy law prohibiting publication of any material that advocated, advised or taught the duty, necessity or propriety of overthrowing or overturning organized government by force or violence.


bb. Court upheld the conviction of Gitlow under the Act. 1. Utterances advocating the overthrow of organized government by force or violence or unlawful means are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of police power. a. Court did agree that the states were limited in their power under the First Amendment. i. However here, the legislative body had determined that utterances of a certain kind involve such danger of evil that they need to be punished. aa. Government ultimately has the right to preseve itself. cc. Holmes’ Dissent 1. Thought that these were just fringe individuals. a. They should be tolerated as there is no present danger that the government is going to be overthrown. 2. Government does have the right to preserve itself. a. These people were not a serious threat. 3. Would rather have these people in public then drive them underground. a. If they are underground, there will not be a way to determine how much strength they are gathering. E. Freedom to Contract and Involuntary Servitude 1. Emancipation was not accompanied by the resources to give the free slaves the means to compete. a. The only thing the former slaves could sell was their labor. i. Therefore became indentured servants. aa. Bailey v. Alabama (1911) 1. There was a statute that said that taking money and not performing under a labor contract or refusing to return the money is a crime. a. Rule of evidence was that failure to perform the labor was prima facie evidence of a breach. i. It does not matter if the individual was injured or ill or in some way could not complete the service. 2. Issue a. Whether or not this was involuntary servitude? 3. The Thirteenth Amendment prohibits involuntary servitude. a. States were also prevented from passing peonage laws. i. Laws that required compulsory service to pay a debt. b. Majority said peonage was involuntary servitude. 5. Holmes’ Dissent a. Said that the statute didn’t punish breach of contract but the crime of fraud. i. If you promise someone that you will work for money and and then you knowingly and willingly fail to work, that is fraud. b. Case concerned simply the application of an evidentiary


presumption. bb. United States v. Reynolds (1914) 1. The Alabama Code authorized a person to appear as a surety for a defendant convicted of a misdemeanor and pay his fine in exchange for the defendant’s entering into an employment contract to repay the surety. a. Defendant thus avoided imprisonment, but was subject to damages and another conviction if he broke the contract. i. Defendant could avoid that imprisonment if he entered into another contract. 2. Reynold’s first contract was for ten months (as opposed to the two he would have had to spend in prison). The second bound him for twenty months (compared to four months in prison). 3. Court held that the surety system was designed to provide white employers with cheap black labor. a. Sureties were charged with violating a federal statute, enacted in pursuance of the thirteenth amendment. (Reynold’s contention) i. Prohibited enforcing the voluntary or involuntary service or labor of any person as peons in liquidation of any debt or obligation. b. Court found that forcing the convict to work to repay the debt under the constant threat of another arrest and eventual imprisonment qualified as involuntary servitude. i. Convict had not been re-arrested for failing to pay the fine and costs assessed to the state. aa. The surety had erased the debt. ii. Instead, he had been arrested for violating his contract with the surety. VI. Modern Constitutional Adjudication 1. Dramatic shift during the New Deal. a. Incorporation of the Bill of Rights against the states through the Fourteenth Amendment. i. Original Constitution did not have a Bill of Rights ii. Bill of Rights was, at first, limited. aa. Protected the rights of Congress and the federal government. 1. Only with the Reconstruction Amendments did the states start having the possibility of having suits against them in federal courts. a. The ratifiers of the Fourteenth Amendment seemed to intend to make all states obey all privileges and immunities. b. Framers intended for the privileges and immunities clause to be the way for the Bill of Rights to be applied to the states. i. The Slaughterhouse Cases took this away. iii. Application to the states aa. When the courts decided to put the Bill of Rights onto the states, they seized upon the Due Process Clause. i. First applies to the states through the Fourteenth Amendment.


aa. Congress or the states shall make no law establishing or prohibiting free expression. 1. By 1937, states can regulate anything having to do with economics. iv. Home Building & Loan Association v. Blaisdell aa. Minnesota passed the Mortgage Moratorium Law to remain in effect during the emergency created by the depression. 1. Law provided that the period for redemption from foreclosure sales could be extended for a specified time if the mortgagor obtained an order requiring him to pay a reasonable value of the income of the property or its fair rental value to the mortgagee. a. After passage of the law, the Blaisdells secured an order delaying the final foreclosure of their mortgage on the condition that they pay the property’s reasonable rental value to the Home Building and Loan Association. 1. Home Building brought an action against them to complete the foreclosure. a. Minnesota Supreme Court held that the Mortgage Moratorium was Constitutional. bb. Issue 1. Does the Contract Clause of the Constitution absolutely bar a state from passing any law which will impair the obligations of contracts? cc. Court said no. 1. The Contract Clause provides that no state shall pass a law impairing the obligations of contracts, but, even if such obligations will be impaired, a state may exercise its eminent domain power and or its power to protect the public’s health safety or welfare. a. These are essential attributes of the sovereign power and must be retained by the states. i. Must, however, be exercised reasonably. a. Means that only those means appropriate to accomplish the goals can be used. i. Mortgage Moratorium Law is reasonably necessary under the circumstances to protect the public’s welfare. aa. Therefore, even though it impairs the obligations of a contract it is valid. 1. Keys here are impairment for a reasonable amount of time and for a good reason. dd. Sutherland’s Dissent 1. Examination of history behind the Contracts Clause leaves no reasonable ground upon which to base a denial that the clause was meant to foreclose state action impairing the obligation of contracts primarily and especially in respect of such action aimed at giving relief to debtors in times of emergency. a. Time of emergency defense should not succeed because it


constitutes an effort to overthrow the constitutional provision by an appeal to the exact facts and circumstances which brought it into existence. VII. Economic Regulation, Federalism, and Separation of Powers A . United States v. Carolene Products Co. (1938) The establishment of economic due process. 1. Congress passed the “Filled Milk Act” which prohibited the shipment in interstate commerce of skimmed milk compound with any fat or oil other than milk fat. 1. Carolene Products was indicted for violating the Act. a. Claimed that the filled milk act violated the Fifth Amendment because Congress had not attempted to regulate the interstate shipment of oleomargine which substituted vegetable fats for butter fat. b. Also claimed that the act was void because it lacked a rational basis. 2. Issue a. In cases challenging the constitutionality of legislation affecting ordinary commercial transactions, will the Supreme Court apply the rational basis test? 3. In cases challenging the constitutionality of legislation affecting ordinary commercial transactions, the Supreme Court will apply the rational basis test. a. Legislation is not unconstitutional because it does not attempt to correct all similar evils at the same time. i. Congress can properly chose to control shipments of milk substitutes without regulating butter substitutes in the same manner. b Question is could Congress rationally believe that the Act was necessary for the protection of the general public? i. With legislation of this sort, there is a presumption that it is Constitutional. aa. This presumption is enough to sustain the Act. ii. Carolene products (the plaintiff) had the burden of showing that no rational basis existed for the act. ***The Fourteenth Amendment is not used here because it applies only to the states. B. Rational Basis Review 1. As long as the court can hypothesize some rational basis for the law, it will be upheld. a. There will be a more searching review when the law interferes with: i. Individual rights aa. The first ten Amendments, Equal Protection Clause, etc. ii. The law restricts the ability of the political process to repeal undesirable legislation. iii. If the legislation discriminates against a small and insular


minority. iv. Laws that restrict the ability of the political process to repeal undesirable legislation. C. Williamson v. Lee Optical Co. (1955) 1. Oklahoma passed a law that: a. Effectively prohibited opticians from fitting old glasses onto new frames or supplying new or duplicate lenses without a prescription from a licensed ophthalmologist or optometrist b. Made it unlawful to solicit the sale of frames, mountings, or any other optical appliances c. Prevented anyone engaged in the business of retailing general merchandise to the public from renting space or subleasing departments to any person purporting to do eye examination or visual care. i. Lee Optical brought suit asking the law to be declared unconstitutional and for state officials to be enjoined from enforcing it. 2. Issue a. Is a regulation enacted by a state within the constitutional bounds as long as it has a rational relation to a legitimate state objective? 3. A regulation enacted by a state is not beyond Constitutional bounds unless it has no rational relation to a legitimate objective of the state. a. It can’t be said that the regulations at issue in this case do not bear any rational relation to the legitimate objectives Oklahoma was pursuing. i. Regulations may be needless and wasteful. aa. It is for the legislatures, not the courts, to balance the advantages and disadvantages of these new requirements. 4. Lee Optical sets forth a minimum rationality test. a. The burden of proof rests with the challenger and not with the state. i. Court used to look consider what the legislator might have been thinking. aa. Now the court was concerned with what it was thinking. ii. Court used to also apply the test with some rigor. aa. Now there is no required burden of proof. D. The Takings Clause 1. The Fifth Amendment says that property can’t be taken for public use without just compensation. a. The government is free to take property as long as it is for public use and they provide just compensation. b. The court holds that the Due Process clause incorporates the takings clause against the states. i. Applies when a state physically invades or destroys the economic value of property. aa. Mann 1. Government rendered mining land worthless through legislation which caused the mines to collapsed. (Land use regulations caused subsidence.) 2. Classic case is where a state or local government decides that


to protect the public welfare they have to control X. ii. It is a question of degree when the regulation goes too far. aa. Most modern economic regulations devalue property slightly. bb. Modern society tolerates massive regulation. 1. In the 20th Century we have moved to a balance between public and private enjoyments/interests. a. Zoning is a way that government controls land use. i. Euclid upheld zoning laws because the court recognized the increasing population and the increasing complexity of life. aa. These things made instituting zoning easier. ii. Zoning is often used to discriminate. aa. Euclid used zoning to discriminate against Eastern European immigrants. iii. The modern court gives deference to state regulations. aa. Circumstances under which a state regulation will be found to be a taking: 1. Taking if the regulation doesn’t legitimately advance state interests. a. Usually a government can easily show that a regulation advances a legitimate state interest. 2. Taking if it denies an owner economic value and use of the land. a. Takes away the economically viable use of the land. bb. The government can only exercise eminent domain for public use. 1. This can be as broad as giving land to a corporation to build something. a. Increased tax revenues are considered to be a public use. cc. The court generally favors the government in takings cases. E. City of Boerne v. Flores (1997) 1. The Religious Freedom Restoration Act prohibited the government from substantially burdening a person’s exercise of religion, even if the burden is the result of a generally applicable law, unless the government has compelling interest and is using the least restrictive means. a. Flores sought a building permit to expand his church, a historic landmark. i. The City of Boerne denied the permit. aa. Flores sued invoking the RFRA. 2. Issue a. Does the RFRA unconstitutionally exceed Congress’ enforcement power under the Due Process Clause of the Fourteenth Amendment? 3. Court said the RFRA did unconstitutionally exceed Congress’ enforcement


power under the Due Process Clause. a. The compelling interest test is inappropriate in cases where general prohibitions are opposed by free exercise challenges. i. The RFRA violates the long tradition of separation of powers established by the Constitution. aa. The judiciary is to determine the Constitutionality of laws, while the powers of the legislature are defined and limited. 1. Congress can enact remedial, preventive legislation that deters violations. a. The RFRA is not a preventive law. i. It redefines the scope of the Free Exercise Clause. aa. Nothing in our history gives Congress the power to take such action. 1. Essentially Congress can enforce, but cannot create Constitutional rights. b. Court decides that it is going to force Congress to document the widespread Constitutional violations that their new legislation is going to get rid of. i. Court thinks this will promote the separation of powers. Put information in here about Smith? VIII. The Burdens of History: The Constitutional Treatment of Race A. Equal Protection 1. “No state shall – deny to any person within its jurisdiction the equal protection of the laws.” a. Applies with respect to racial equality. b. But can states actually discriminate? i. Yes. aa. Those who commit murder go to jail. bb. Don’t ask, don’t tell because heterosexuals are permitted to talk about their sexuality. cc. Every law in the US discriminates in some way. 1. To discriminate is to selectively impose burden or confer benefits. dd. Democracy 1. Interest groups and individuals compete. a. Laws will be passed with some people being benefited and some being discriminated against. ii. What kind of discrimination, then, is not going to be allowed? aa. Invidious or arbitrary discrimination. 1. “Reasonable” discrimination is fine. iii. Sometimes the ordinary democratic process is inadequate to protect certain minority groups.


aa. The key issue is which groups are entitled to special protection and why?

Classification Suspect Quasi-Suspect Ordinary

Standard of Review Strict Intermediate Rational Basis

Government Interest Compelling Important Legitimate

Means Narrowly Tailored Substantially related to the objective Reasonable

1. Examples a. Racial issues/ethnic groups are always suspect. i. In a suspect class, the government is almost always going to lose. aa. It is difficult to have a compelling interest. ii. Things in this category are, for the most part, biological. aa. You can’t change your race. b. Women and classification based on gender are in the quasisuspect category. i. It is a “crap shoot” who will win. c. Lee Optical is an example of an ordinary classification. i. The government will win most of the time. ii. Gays and lesbians are currently in this category. aa. However, it is rational basis with some teeth. 1. It is possible for the government to lose. c. Brown v. Board of Education (1954) i. Background aa. After WWII, people began questioning ideologies. bb. There was also a huge demand for labor and a huge growth in the production area. 1. Lots of blacks volunteered to fight and work in WWII. a. Began to wonder why they were doing this if they were not allowed to live like normal citizens. i. NAACP developed an incremental strategy to desegregate schools. aa. Started with law/graduate schools and moved down to grammar schools. 1. Idea was that by grad school an individual’s ideas have already been formed. a. Won’t be influenced by the other races. ii. Issue aa. Does segregation in schools violate the Equal Protection Clause? 1. The courts began looking at what the drafters of the 14th Amendment thought they were doing.


a. The court says that history is inconclusive in terms of what the 14th Amendment says about public education. i. Broad interpretation aa. Colorblind society – No racial discrimination. ii. Narrow aa. The South was rubble at the time the 14th was ratified. 1. There were not public schools and therefore, it is not possible to determine what the framers wanted. iii. It is clear that the intent was to extend Civil Rights to blacks. aa. It does not confer political rights like the right to vote. bb. It is not clear if it included the right to enjoy desegregated public accommodations. iv. The issues narrows to the effect of the segregation on public education. aa. Deprivation of educational opportunities will have a devastating effect on life. bb. Holding 1. The segregation of public schools is discrimination and a violation of the Equal Protection Clause. a. The act of discrimination itself violated the Equal Protection Clause. 2. Brown did not overrule Plessy. a. Segregation in educational facilities is inherently unequal. 3. Under the Equal Protection clause, a government cannot discriminate based on race. cc. Brown II dealt with remedies. 1. The court decided to leave desegregation plans to the federal government, local governments, parents, etc. d. What happened after Brown? i. Civil Rights Act of 1964 aa. It wasn’t until Congress, with a piece of legislation signed by the President, and Congress starting withholding money from schools until they desegregated that things started to change. ii. Green (1968) aa. Court held that freedom of choice plans for schools did not effectively desegregate. iii. Norwood (1973) aa. States couldn’t loan books to private schools that were segregated. 1. Before, under the state action doctrine, private schools could discriminate because they weren’t state actors.


iv. Missouri v. Jenkins (1995) aa. The Kansas City Missouri School District was found liable for failing to affirmatively eliminate the vestiges of the old segregated school system. 1. A remedial order was issued. bb. Issue 1. Is the court’s remedial jurisdiction for an intradistrict violation limited to an intradistrict remedy? cc. A district court’s remedial jurisdiction for an intradistrict violation of failing to desegrate public schools is limited to an intradistrict remedy. 1. Test scores are not the proper indicator of desegregation. a. The nature and scope of the remedy must be fashioned to the nature of the violation. b. Remedy has to attempt to restore victims to the position they would have been in absent discrimination. c. Judge has to consider the interest of state and local authorities in managing schools. 2. Test a. Whether the reduced achievement level caused by past discrimination has been remedied to the extent practicable? dd. Thomas’ Concurrence 1. The court assumes that anything that is predominately black must be inferior. a. The casual chain has been stretched too far. 2. Brown corrected held that racial segregation violated the Equal Protection Clause. a. The court was foolish by adding that racial discrimination caused feelings of inferiority in black students. i. Feelings of inferiority were caused by de jure segregation. aa. Segregation caused by law. bb. If social circumstances lead to segregation by race, there is nothing that can be done about it. 3. The court’s exercise of federal power is limited by Article III. a. The court can hear a case and issue a remedy. i. It does not have legislative power. aa. In this case, the federal judge exercised the ultimate legislative power, the power of the purse. 1. (Ordered salary increases to attract better teachers.) ee. Souter’s Dissent 1. Test scores play a role in the development of a proper unitary status record. a. Relevant in determining whether the improvement programs have cured a deficiency in student achievement. 2. Difficult to see how discretion was abused by the court’s


ordering of salary increases. a. Salaries would have fallen if the court had not ordered them increased. i. Exodus of competent employees would result and desegregation would be undermined. B. Race, National Origin, and Reasonableness 1. Korematusu v. United States (1944) a. Korematsu was an American citizen of Japanese ancestry. i. He was convicted in district court for remaining in a “military area” contrary to civilian exclusion order No. 34 of the commanding general of the western command. aa. The order directed that all persons of Japanese ancestry should be excluded from the area in order to protect against acts of sabotage and espionage during WWII. 1. Those of Japanese ancestry were to report to and temporarily remain in an assembly center and go under military control to a relocation center for an indeterminate period. a. Korematsu appealed on the grounds that the order denied equal protection. b. Issue i. Can apprehension by the proper military authorities of the gravest imminent danger to the public safety justify the curtailment of the civil rights of a single racial group? c. Apprehension, by the proper military authorities, of the gravest imminent danger to the public safety can justify curtailment of the civil rights of a single racial group. i. Such a classification is immediately suspect. aa. Therefore is subject to the most rigid (strict) scrutiny. 1. Pressing public necessity can sometimes justify such exclusions. ii. A compelling government interest is something that is urgent or overwhelming. aa. It is not enough to show racial discrimination. 1. Must show that the government did not have a compelling interest and that there were not the least restrictive means. iii. Judicial review of military decision-making aa. The court wants to protect individual rights, but can only do so to the extent practicable under the circumstances. 1. Strength of the President will probably be the strongest factor. a. The court will rarely clash with a strong President who has support. 2. The nature of the emergency is also critical. d. Concurrence i. Constitution commits more power to the political branches. aa. The court’s review was therefore whether these were reasonably


expedient military precautions. e. Jackson’s Dissent i. If a civil court does review a military duty, it has a duty to strike down a military order that violates the Constitution. aa. Thinks the court should maybe not review the issue at all. ii. It can’t be a crime to have Japanese parents and live in a state you are a citizen of. f. Murphy’s Dissent i. This case falls into the abyss of racism. 2. Korematsu was the beginning of the strict scrutiny standard of review. a. Under the Equal Protection Clause, the first thing you look at is, is the group being discriminated against? i. Is the discrimination by race or ethnicity or gender based? b. If the scrutiny is to be strict, the first thing the government must show is that it has a compelling interest. i. The interest in Korematsu was national security. ii. The Equal Protection Clause does not forbid discrimination based on ethnicity. aa. You can do such if you have a compelling reason and if this is the least restrictive means for achieving that goal. 1. How is Korematsu an example of the least restrictive means? a. The court did not require specific evidence of threat. C. The Anti-Discrimination Principle and the Suspect Classification Standard 1. When is a decision with a disproportionate impact a decision based on race? a. Harder to determine if a decision that has disproportionate impact is based on race or something else like necessary skills. i. Griggs v. Duke Power Co. (1971) aa. It does not matter if an employment practice is neutral on its face. 1. The test is how the requirement operates in the real world. a. Griggs construed Title VII of the Civil Rights Act to prohibit an employer from requiring high school diplomas of job applicants and subjecting them to a general intelligence test, where the effect was to disadvantage black applicants and where the criteria had not been demonstrated to predict job performance. i. Court emphasized that in North Carolina, there was racial discrimination in schools. aa. A typical job applicant had been discriminated against and, as a result, might not have a diploma or do well on an IQ test. b. Present impact reflects past discrimination. i. With cases like these, there is a judgment to be made regarding whether the present impact of the regulation reflects past discrimination. aa. A question may be how long the law recognizes the


past discrimination? ii. The employer here did not study the relationship between the requirements and the impact they had on the job. aa. The employees who did not meet the qualifications were performing satisfactorily. c. Griggs involved a statute i. The court determined that Congress’ intent was to shift the burden of proof to the employer. aa. Employer must prove that the present impact does not effect past discrimination. ii. Griggs cannot be used with government employers. aa. This is a situation of a private employer. iii. Washington v. Davis (1976) aa. Black applicants to become police officers were rejected because they failed the civil service test. 1. Black applicants brought an action claiming that the test was unlawfully discriminatory against blacks and therefore was in violation of the Fifth Amendment Due Process Clause. bb. Issue 1. Does a law or official governmental practice constitute invidious discrimination merely because it affects a greater proportion of one race than another? cc. The court says that a law or governmental practice must have a discriminatory purpose, not merely a disproportionate effect on one race, in order to constitute invidious discrimination under the Fifth Amendment Due Process Clause or the Fourteenth Amendment Equal Protection Clause. 1. Disproportionate impact may be relevant as evidence of a discriminatory purpose. a. Such impact is not the sole indicator of invidious racial discrimination forbidden by the Constitution. i. Standing alone it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny. aa. Plaintiff has to show that the government intended to discriminate. (Burden of proof) 1. There must be impact and the evidence of the impact must reflect intent. a. If you can do this you win, unless the government can rebut your showing. bb. The test here is racially neutrally neutral on its face. 1. It was designed to disqualify anyone who could not meet the requirements of the police training program. dd. Normally, classifications based on race are considered suspect and held to the strict scrutiny standard under the Equal Protection


Clause or the Due Process Clause. 1. Strict scrutiny is only applied when there is purposeful discrimination. a. The court here got out of applying strict scrutiny by saying that the discrimination was only incidental. iv. Key Point aa. When you bring a claim of racial discrimination, you have to show that it was intentional. 1. It is exceedingly difficult to prove intent. a. Governments that discriminate don’t tell you that they are doing so. IX. Affirmative Action A. Grutter v. Bollinger (2003) 1. The University of Michigan Law school had an admissions policy that requires officials to look beyond grades and test scores and at other criteria such as race, activities, etc. a. Grutter was a white female student who applied to the school with a high GPA and LSAT score and was rejcted admission. 2. When a government bases a classification on race, the standard of review is strict scrutiny. a. Government (or state) has to show a compelling government interest. i. Programs must be narrowly tailored to meet that interest. aa. Least restrictive means. ii. With strict scrutiny, if the government does not show a compelling interest, they lose. aa. Here, does the state have a compelling interest in attaining student body diversity in its university, and if so, why? 1. The University has a first amendment right o educational autonomy. a. Majority says the law school can’t do what it calls racial balancing. i. The law school can’t have a quota. 3. This case revolves around the idea of diversity in a law school. a. The need for diversity is so compelling in a law school because law schools exist to train lawyers. i. Lawyers must be able to interact with may different types of clients. aa. Many lawyers also become politicians - must interact with constituencies. ii. There is a need for the robust exchange of ideas, proper legal training, etc. that can only be brought about with diversity. b. Narrowly tailored/least restrictive means? (second prong of test) i. Key word here is “individualized.” aa. Michigan says there is an individualized assessment of each student. 1. They look at grades, LSAT, academic achievement, overcoming hardships, success in prior jobs, living abroad, etc. 2. Race is “plus factor,” but not a determinative factor.


4. The policy here also does not unduly burden other groups. a. They still get individualized attention. b. The program is to be for a limited duration. i. O’Connor, for the majority, thinks that affirmative action will, one day, not be needed. 5. Dissents a. Michigan is engaging in racial balancing. i. Number of blacks and native Americans is disproportionate. aa. If there viewpoint is so necessary, why are there not more? ii. There is a quota. iii. In prior cases, compelling interests have been national security and public safety. aa. The court is stretching the meaning of compelling. b. Thomas’ Dissent i. Michigan does not have a compelling interest in having a state law school. aa. There are lots of states that do not have law schools. bb. Every state and local government has truly compelling things like police officers and fire fighters. 1. Having a law school with a diverse student body is therefore, not compelling. B. Gratz v. Bollinger (2005) 1. Disappointed white applicants challenged the affirmative action policy used for admission to the undergraduate college at the University of Michigan. a. The program awarded extra points to any underrepresented minority. 2. Court held that the process was not narrowly tailored. a. Narrowly tailored means an individual evaluation. i. This case was about the allocation of a fixed number of spots. ***Most likely Grutter and Gratz were both unconstitutional. Diversity is not a compelling state interest, or the programs are not narrowly tailored.*** 3. Ginsburg’s Dissent a. There are two kinds of racial preferences i. Pernicious and benign aa. Difference between those that discriminate against and those that discriminate in favor of. 1. The Fourteenth Amendment was designed to prevent discrimination against the newly freed slaves. a. It is not concerned with discrimination in favor of. C. Racial Discrimination in Voting 1. From the 1940’s on, the Court has held that the 15th Amendment prohibits racial discrimination in voting. a. Baker v. Carr (Reapportionment Case) 1. The Equal Protection Clause applies to political and not just civil rights.


a. Representation in state legislators must be by population. i. One person / one vote. aa. If this was a constitutional mandate though, the electoral college and senate would be unconstitutional. b. 1980’s and 1990’s – Congress began to re-do districts into “majority” and “minority” classifications. i. Strict scrutiny has been applied, but the decisions are not conclusive. X. Sex Equality A. Was the Fourteenth Amendment designed to cover discrimination based on gender? 1. Purpose was to limit discrimination of the former slaves. a. Discrimination based on race, therefore, falls under the amendment. i. Test to see if something falls under the Fourteenth. aa. Look at immutability 1. Race and ethnicity are immutable. bb. Look at history of discrimination. 1. Is this a group that needs help? 2. Wording of the amendment is very general. a. “Persons” have to be treated equally. 3. Reed v. Reed (1971) a. Considered to be a watershed decision. b. The court struck down an Idaho law that required, as between a man and a women equally qualified to be administrator of an estate, that the man be chosen. c. The court purported to apply only rational basis review, but seemed to be requiring the government to show more. 4. Frontiero v. Richardson (1973) (Only plurality opinion) a. A servicewoman’s request for increased benefits for her dependant husband were denied because she failed to affirmatively demonstrate that her husband was dependent on her for over ½ of his support. i. The controlling statute provided that a serviceman may claim his wife as dependent without regard to whether she is actually dependent on him. aa. A servicewoman can claim her husband as a dependent only if she demonstrates that he is actually dependant on her for over ½ his support. b. Issue i. Are statutes providing stricter requirements for servicewomen’s husbands claiming dependency benefits than for servicemen’s wives claiming such benefits unconstitutionally discriminatory? c. Classifications based on sex, like those based upon race, alienage, or national origin are inherently suspect and must be subjected to strict scrutiny. i. There is a history of discrimination. aa. Women were still viewed as an inferior group. 1. There were not judged on their merits. ii. Sex, like race, is also an immutable characteristic.


aa. No relation to the ability to perform in society. 1. Statutory distinctions between the sexes often have the effect of invidiously regulating an entire class to an inferior statute. a. Therefore, a compelling state interest must be demonstrated to uphold such distinctions. i. Here, it is argued that Congress might have reasonably concluded that it would be cheaper and easier to presume that wives were dependent on their husbands while presuming that there husbands were not dependant on their wives. a. To withstand scrutiny, it must be shown that this practice is actually cheaper. d. Stewart’s Concurrence i. Doesn’t adopt strict scrutiny. aa. Doesn’t’ think the court has to go that far to decide the case. 1. Women will win under the rational basis standard of Reed. a. The “rational basis plus” standard. 4. Craig (1976) a. Government decides on intermediate scrutiny. i. There must be an important government interest. aa. Does not require a compelling government interest. ii. Law must also be substantially related to achieving that important government interest. 5. United States v. Virginia (The VMI Case) (1996) a. VMI is an all-male military college. i. A female student filed a complaint seeking admission to VMI. aa. The Court of Appeals found a violation of the Equal Protection Clause of the Fourteenth Amendment. 1. Virginal proposed a remedial plan under which a parallel program for women would be created an called Virginia Women’s Institute for Leadership. bb. Issue 1. Does the remedial measure satisfy the Equal Protection Clause? cc. The court says no. 1. Purports to apply intermediate scrutiny. aa. The Constitution’s Equal Protection principle is not satisfied if there is not substantial equality in the remedial measure. 1. Important government interest vs. exceedingly persuasive justification. a. To be exceedingly persuasive the classification has to serve important justifications that do not rely on archaic notions. b. Objectives must be genuine. i. They must describe the actual state purposes. aa. Can’t be rationalizations based on justifications for different grounds.


1. Can’t do it based on discrimination and then, later on, make-up reasons why you were not discriminating. a. Essentially, the means have to be substantially related to the end. i. Do not have to be narrowly tailored though. 2. VMI argued that if they admitted women, they would have to change their facilities and program. a. Also argued that there are lots of different varieties of schools in Virginia. VMI just has a different approach to education. i. If you are going to be a soldier you have to be tough. aa. Court rejects these arguments. 1. Admits that VMI is going to have to make some changes. a. Some women will be able to meet the physical and mental challenges of the school. i. The school can’t assume that no woman will be able to meet the rigors and thus, no woman will be admitted. b. Argued that admitting women will destroy prestige. i. Court says this claim has proven to be false at other institutions. aa. Harvard and Yale used to only admit men. 1. They are still as prestigious. c. In terms of the separate school for women, Ginsburg says this is a lot like “separate but equal.” i. The schools are separate, but not equal. aa. The woman’s school does not have the same status, alumni, etc. 3. The state is obviously discriminating against women by prohibiting them from going to VMI. i. Governments can discriminate if and only if they have some important compelling interest. dd. Rehnquist’s Concurrence 1. At the time VMI was formed, it was perfectly Constitutional to have an all male college. a. It is therefore, not fair to fault Virginia for pursing a perfectly Constitutional policy. 2. The appropriate time to look at this from is 1982 after Mississippi University. a. At this point a roughly equal school for women should have been set up. ee. Scalia’s Dissent 1. The Constitution is law. a . Law means that words like “equal protection” have meaning. i. Look at what the words meant to the people who drafted and


ratified the Constitution. b. VMI needs to be looked at based on history. i. No amendment and therefore, this decision is judicial activism. aa. Tradition stands until there is an amendment. 6. Personnel Administration of Massachusetts v. Fenney (1979) a. A Massachusetts statute gave an absolute lifetime civil service preference to all veterans, men or women, who were honorably discharged after at least 90 days of active service, with at least one day occurring during wartime. i. Because the great majority of individuals serving in the armed forces were male, the statute worked to their advantage in filling the state civil service positions. aa. Feeney had taken and passed a number of exams for better jobs, but each time she was ranked below male veterans who had lower test scores. 1. She brought suit alleging that the absolute excluded women in violation of the Equal Protection Clause of the Fourteenth. a. Feeney had tried to be in the armed forces earlier, but could not enlist without parental permission. b. Issue i. Does a state statute granting an absolute lifetime preference to veterans in public employment opportunities violate the Equal Protection Clause of the Fourteenth Amendment? c. The court says that the statute does not violate the Equal Protection Clause. i. Under the Equal Protection Clause, when you are claiming that the government discriminates, it has to be intentional. aa. It is very difficult to meet this intentional discrimination standard. 1. For equal protection there needs to be discriminatory intent and not merely impact. a. Impact is not totally irrelevant. i. If impact is traceable back to discriminatory intent, you might be able to show discrimination. bb. The classification here is, on its face, neutral. 1. The statute helps veterans. a. If you are female and a veteran, you are getting the exact same benefits as men. b. Also, men who were not veterans were also denied benefits. 2. Because classifications based on gender have traditionally been the touchstone for pervasive and subtle discrimination, they must bear a close and substantial relationship to important governmental objectives. cc. Court looks at the intent of the state.


1. All the evidence shows that Mass. was trying to help veterans and not discriminate against women. ii. Feeny argues that you intend the obvious consequences of your actions. aa. The negative effect here is so obvious that it should be deemed intentional. 1. It should be found to be intent to discriminate on the basis of gender. a. Burden of proof, however, is on the state to justify the statute. i. Majority says even if the result was foreseeable, it was not intended to discriminate against women. 7. City of Cleburne, Texas v. Cleburne Living Center a. The city of Cleburne has zoned multiple-residence dwellings as R-3. i. Most R-3 structures required no permit. aa. Any proposed home for the mentally retarded did. 1. The Cleburne living center applied for such a permit. a. Because of objections from neighbors, the City Council refused the application. i. The Center challenged the ordinance as a denial of Equal Protection. b. Issue i. Are laws impacting the mentally retarded to be given heightened Constitutional scrutiny? c. Court says no. i. The mentally retarded are not a suspect class. aa. The court has defined certain characteristics to be so irrelevant to a person’s potential contribution to society that, when combined with their political minority status, the conclusion follows that they are entitled to special protection under the Equal Protection Clause. 1. Examples: race, alienage, and religious beliefs. 2. A retarded person’s status does not relate to his ability to contribute to society. bb. Ample evidence that lawmakers are responsive the retarded person’s plight. 1. They are not politically powerless. cc. If a large and amorphous class like the mentally retarded were given special Fourteenth Amendment Protection, it is hard to see where the process would stop. dd. All the government must show is a rational basis to deny the permit. 1. Court holds that they do not have that.


XI. Implied Fundamental Rights A. An implied fundamental right is whatever at least five justices on the Supreme Court decide it is. 1. Invention of the Warren court. B. Precursors to fundamental rights adjudication 1. Lochner a. Court said the dues process clause was not just about process and procedure. i. It had substantive meaning as well. aa. Liberty meant freedom of contract. 1. Government regulations infringing on freedom of contract could be struck down unless there was good reason for them. 2. Pierce v. Society of Sisters a. Oregon tried to require parents to send their children to public schools. i. Court said that even though it is not written in the Constitution, there is a fundamental right of parents to decide how their children are brought up. aa. Essentially parents have a right to direct their child’s education as they wish. 1. Parents can decide to send their children to private school and the state cannot prohibit them. a. Private education is a manifestation of the way a parent wishes to raise a child. 3. 1937 – Court eliminated substantive due process for economic regulations. a. States can pass laws regarding working health and safety, industry, etc. and they will not be struck down unless they are really odd. 4. Substantive due process for non-economic / social, moral, or cultural issues. a. Harkens back to the idea that within a man’s house, he is king and no legitimate government can enter and regulate. i. The Court is trying to carve out zones of personal liberty and privacy. C. Griswold v. Connecticut (1965) (court applies strict scrutiny to state laws affecting a social area.) 1. Connecticut had a law that did not allow the use of contraception. a. The theory behind the statute is that it will serve as a disincentive for having sex outside of the marriage. b. Griswold and Dr. Burton were convicted under the statute for counseling married people about contraceptives. 2. Issue a. Is the right to privacy in the marital relationship protected by the Constitution despite the absence of specific language recognizing it? 3. The court says yes. a. The various guarantees which create penumbras, or zones, or privacy include the First Amendment’s right of association, the Third Amendment’s prohibition against the peacetime quartering of soldiers, the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Fifth Amendment’s self-incrimination clause, and the Ninth Amendment’s reservation to the people of unenumerated rights. i. The CT law, by forbidding the use of contraceptives, rather then just


regulating their manner of sale, seeks to achieve its goals by means which have a destructive impact on a relationship. aa. The statute was too broad in its reach. 1. Because it includes married individuals it violates the Constitutional right to privacy. b. Douglas hates substantive due process and Lochner. i. He wants to pretend that the court is not inventing a new right in liberty. aa. But, if this was an explicit right, it would have been on the Supreme Court’s books far before it was. 1. The court really is applying Lochner. a. This time to social, moral, and cultural legislation. ii. Footnote 4 in Caroline Products says that the states can do whatever they want. aa. The court will heighten scrutiny when the law is in violation of a specific provision of the Constitution. 1. Douglas thinks a specific provision has been violated here. c. The fundamental right in Griswold that is being protected is the right to choose whether or not to have a child. i. The only part of the Constitution that this might fit under is the Fourteenth Amendment. aa. The government is allowed to invade fundamental rights, but only if they have a compelling reason to do so. 1. The government has to use the least restrictive means to achieve that interest. a. Compelling reasons are usually life or death matters. b. Law must be narrowly tailored to meet that objective. 4. Concurrences a. Goldberg i. The Ninth Amendment, while not constituting an independent source of rights, suggests that the list of rights in the first eighth amendments is not exhaustive. aa. The right here is a fundamental one that cannot be infringed on the “state’s slender justification in protecting marital fidelity.” b. Harlan and White i. The court should have focused on the Due Process clause and not specific provisions in the Bill of Rights in finding this law violative of basic values implicit in the concept of ordered liberty. aa. Fourteenth Amendment concept of ordered liberty. 1. Government can impose some order, especially on public conduct. a. More things are okay within the confines of the home. i. This includes marital privacy. 5. Dissents a. Argue that the majority is imposing their personal beliefs. i. This law may be silly, but states are allowed to make silly laws.


b. There is no claim that the statute is unconstitutionally vague or that the defendants were denied any of the elements of procedural due process at their trial. c. Ninth Amendment restricts the federal government to a government of express and limited powers. d. The Constitution is silent on the right to privacy. D. The Progression After Griswold 1. As the court begins to carve out the right to privacy, they hearken back to the right of a married couple to do certain things in their home. a. Idea of government not coming into the home. b. Protection of the sanctity of the marital relationship. 2. The Court then moves from the protection of the married couple to the protection of individual liberties. a. Problems when the court invents fundamental rights. i. Are they based on ideas of morality and goodness or are the justices trying to discern morality and goodness? ii. Where do the justices get their power to bind the entire nation to their conceptions of morality? aa. The Supreme Court is set up by the Constitution to not be in a good position to gather legislative facts and to be in touch with the people. 1. What if the court is out of touch with general public sentiment? a. Example: Lochner i. The public wanted progressive legislation and the court was adhering to the position that government regulation was bad and that laissez faire was good. 2. If contemporary morality is critical, why do the justices adhere to tradition? a. Justices apply legal principles to reach results that the public may or may not like. 3. Roe v. Wade (1973) a. Texas had a statute that made abortion illegal unless it was necessary to protect a mother’s life. b. Issue i. Does the Constitutional right to privacy include a woman’s right to terminate her pregnancy? c. Court says yes. i. The Constitution does not explicitly mention a right to privacy, but such has been found to exist. aa. This right, whether founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, or the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s right to terminate her pregnancy. ii. State regulating a fundamental right, like the right to privacy, may be justified only by a compelling state interest.


aa. Statute must be narrowly tailored. iii. Texas argued that the fetus is a person within the meaning of the Fourteenth Amendment whose life is guaranteed under that amendment. aa. Court says there are no decisions indicating such a definition for fetus. 1. Unborn have never been recognized as persons in the full sense. a. Texas may not, by adopting such a theory of life, override the rights of the pregnant woman that are at stake. iv. Woman’s right to privacy is not, however absolute. aa. Statute has a legitimate interest in preserving the health of the pregnant woman and in protecting the potentiality of life. (Two compelling interests of the state.) 1. Each interest grows in substantiality as the woman approaches term, and, will eventually become compelling. a. During first trimester, mortality in abortion is less then mortality in childbirth. i. At this point, in promoting its interest in the mother’s health, the state may regulate the abortion procedure in ways related to maternal health. aa. EX: License physicians and facilities bb. Cannot place undue burdens in a woman’s path. b. Prior to viability, the pregnancy can be terminated without interference from the state. c. After viability, the state, in promoting the interest in the potentiality of life, may regulate abortion except where necessary to save a mother’s life. i. Statute was too broad because it did not make a distinction between abortions performed early and late in the pregnancy. aa. There cannot be blanket restrictions on abortion. 1. We don’t know what an undue regulation might be. a. Some states require women to give written consent. i. This must be done with any surgery though. b. Doctors have been required to keep certain records. i. States generally keep medical statistics though. c. Minors must obtain parental consent. d. Court has struck down certain waiting periods. i. These were found to be undue burdens sufficient to trigger scrutiny of the law.


d. Trimester framework in summary i. First trimester aa. Have an unfettered right to abortion because it is fairly safe for the mother. ii. Second trimester aa. Courts can heavily regulate. iii. Third trimester aa. State’s interest in protecting the mother becomes compelling. bb. State’s interest in protecting life does as well. 1. This is when the fetus becomes viable. e. Rehnquist’s Dissent i. If a majority of the states have prohibited abortion, it is not something that is rooted in history and tradition. aa. States had regulations on abortion for at least a century. 1. Right to abortion was, therefore, not so rooted in history or tradition to be fundamental. ii. The trimester plan is judicial legislation. aa. Not based on legal principles. 1. The court is doing social policy. iii. The test to be applied is whether the abortion law has a rational relation to a valid state objective. aa. Believes the court is applying the compelling state interest test. 1. Application of this test requires the court to examine the legislative policies and pass on the wisdom of the policies. a. These are things better left to the legislature. f. Why is Roe important? i. Abortion remains a contentious issue. ii. Methodology of Constitutional interpretation used is highly contestable. 1. Court’s idea is that the Constitution is a living document that evolves with each era. a. Only body capable of interpreting it is the court because they are not subject to political pressure. 2. The other view is that this is judicial activism doing things that could not be done at the state level. 3. There were not legal standards to guide the court. a. In terms of precedent, the court had rejected the same claim a few years earlier. 4. What about Griswold? a. Difference between Griswold and Roe i. Griswold is driven by the notion that you can’t invade the


sanctity of the home, especially the marital bedroom. aa. Abortion is not something that is performed in your home. 1. Therefore, Roe is not a question of the government invading your private space. ii. States, with their reserved police powers, regulate medicine. 4. Planned Parenthood v. Casey (1992) a. Pennsylvania Abortion Control Act required: i. A doctor to provide a woman seeking an abortion with information designed to persuade her against abortion and imposed a waiting period of at least twenty-four hours between the providing of the information and the abortion. ii. A minor to obtain consent of one parent or a judge’s order before having an abortion. iii. A married woman to sign a statement averring that either her husband had been notified, her husband was not the father, her husband had forcibly impregnated her, or that she would be physically harmed if she notified her husband. iv. A public report on ever abortion, detailing information on the facility, physician, patient, and steps taken to comply with the act. aa. The name of the patient was kept confidential. bb. The first of the three provisions would not apply in a medical emergency. b. Issue i. Is a law unconstitutional as an undue burden on a woman’s right to an abortion before fetal viability, if the law places substantial obstacles in the path of a woman’s exercise of her right? aa. The US wanted Roe overturned. c. Court says that a law is unconstitutional as an undue burden on a woman’s right to an abortion before fetal viability when it places a substantial obstacle in the path of a woman seeking to exercise her right. i. For two decades people had relied on abortion as a right. aa. Roe should only be overturned if it proves unworkable or if new information arises which renders the decision unjustified. 1. Roe is neither unworkable nor based on outdated assumptions. a. Women still have the right to have an abortion pre-viability without undue interferences by the state. ii. Trimester system is done away with. aa. A viability system makes more sense because it is a standard that can be changed as technology changes. bb. Viability is the point when the fetus can be sustained without the mother. 1. Is then, the point at which the state’s interest in protection it outweighs the mother’s right.


iii. Roe recognized a state interest in maternal health and in protecting potential life. aa. Application of the rigid trimester framework often ignored these interests. 1. Trimester framework therefore rejected and an undue burden test is put in its place. a. Information requirement is not an undue burden. i. Truthful, nonmisleading information on the nature of the abortion procedure, health risks, and consequences to the fetus is reasonable to ensure informed choice, one which might lead a woman to choose to have the child. ii. The twenty-four hour waiting period does not create a health risk and reasonably furthers the state interest in protecting the unborn. aa. Requiring a period of reflection to make an informed decision is reasonable. 1. May increase cost or risk of delay, but can’t be called a substantial obstacle. iii. Prior cases have held that parental approval can be required as long as there is a judicial bypass. iv. Definition of medical emergency is not too narrow. v. Reporting requirement is reasonably directed to the preservation of maternal health, providing a vital element of medical research. aa. Statute also protected patient confidentiality. vi. Husband notification requirement imposes an undue burden on the rights of an abused woman who might fear for her safety and the safety of their children and are likely to be deterred from getting an abortion as surely as if the state had outlawed the procedure. aa. Husband has great interest in his wife’s pregnancy, but before birth the regulation of a fetus has a higher impact on the woman. d. Stevens’ Concurrence i. A burden is undue if it is too severe or lacks legitimate justification. aa. Information requirement, waiting period and parental consent requirements as well are husband notification are invalid. 1. Opinion reaffirms that a fetus is not a person under the Fourteenth Amendment. a. The state interest in protecting potential life is legitimate but not grounded in the Constitution. i. Woman has Constitutional liberty rights to bodily integrity and to decide personal and private matters. aa. State law may promote a preference for childbirth but decisional autonomy must limit the state’s power to interject into a woman’s personal views


what it thinks is best. ii. Informing a woman of the nature and risks of abortion and childbirth enhances decision-making. e. Blackmun’s Concurrence i. Court correctly reaffirms a woman’s right to abortion. aa. Right should remain fundamental and any state-imposed burden upon it should be subjected to the strictest judicial scrutiny. 1. Categorizing a woman’s right to abortion as merely a liberty interest is not sufficient. bb. Trimester system should be maintained. 1. No other approach better protects a woman’s fundamental right while accommodating legitimate state interests. a. Court cases do not create a list of personal liberties. i. Rather they are a principle account of how these rights are grounded in a general right of privacy. cc. In striking down the husband notification requirement, the Court sets up a framework for evaluating abortion regulations in the social context of women facing issues of reproductive choice. 1. Other requirements were upheld, but the Court’s standard allows future courts to hold that, in practice, such regulations are undue burdens. a. Reporting requirement does not further mental health. i. Many doctors will stop performing abortions because their names must be listed and they might fear harassment. f. Rehnquist’s Dissent i. Roe was wrongly decided and should be overturned. aa. Court’s decision, replacing Roe’s strict scrutiny standard and trimester framework with a new, unworkable undue burden test, cannot be justified with stare decisis. 1. Authentic decisions of stare decisis do not require do not require erroneous decisions to be maintained. ii. Fourteenth Amendment concept of liberty does not incorporate any all encompassing right of privacy. aa. Abortion is different from marriage, procreation, and contraception. 1. Terminates potential life and needs to be analyzed differently. 2. Historical traditions do not support abortion. 3. Liberty of a woman to have an abortion is protected by due process, but states may regulate abortion in ways rationally related to a legitimate state interest. a. All provisions in the Penn. law do so and are constitutional. g. Scalia’s Dissent i. Limits on abortion should be decided democratically. aa. Constitution is silent on abortion, and American traditions have


allowed it to be proscribed. bb. Applying the rational basis test, the Penn laws would all be upheld. ii. Roe was wrongly decided. aa. Assumed that a fetus is merely a potential human life. 1. The whole argument of abortion opponents is that the state needs to protect human life. bb. Failed to produced a settled body of law. 1. Did not resolve the issue of abortion. a. Made compromise impossible and elevated the issue to a national level where it has proven to be infinitely more difficult to resolve. cc. Court claims to rely on stare decisis, but throws out Roe’s trimester framework. 1. New undue burden standard is meaningless in application, giving a district judge the freedom to strike down any almost any abortion restriction he does not like. h. Analysis of Casey i. Justices don’t make any attempt to defend Roe on its own terms. aa. They don’t say that Roe’s constitutional interpretation was correct. bb. The important thing was that in 1973, the Court decided that there was an important fundamental right in abortion in the Constitution. 1. The court is not going to revisit this decision, whether it is right or wrong. a. Under principles of stare decisis, they have to adhere to their past principles. i. How do they reconcile cases like Brown then? aa. The implied argument is that the public changed and the role of the state in education changed. bb. Also increasing information about the harmful effects of segregation that weren’t available in 1896. cc. The same can be said for cases like Swift v. Tyson and Eerie. 1. There were just changes in the conceptions of law. a. Here, nothing has changed regarding abortion. i. The only difference is in the composition of the court. aa. Liberal justices have been replaced by conservatives. 1. A reversal of Roe would have then been the justices’ individual opinions and not a change in public opinion. a. Court says that because abortion and


popular opinion have not changed, if Roe is overruled, the court will lose credibility. i. People will figure out that the holding is just the opinion of the justices. 2. There is always going to be a division in terms of abortion. a. This is why the justices claim they can’t be swayed by public opinion. i. But, the justices did fear that if the overturned Roe public opinion would turn against them. aa. The long passage on stare decisis at the beginning of the opinion comes back to haunt Kennedy in his opinion in Lawrence v. Texas. ii. Casey holds that courts cannot put an undue burden on the right to abortion. (Pre-viability) aa. This would be a question of fact. 1. Cannot be answered with any mathematical precision. a. Cannot put a substantial obstacle in the path of a woman. 2. Purpose and effect a. Purpose means calculated to hinder a woman’s free choice. i. You are allowed to persuade women to not choose abortion, but you are not permitted to coerce. aa. This must be calculated to hinder a woman’s free choice. 1. Intent to keep a woman from choosing abortion. b. States can classify any law as persuasive rather than hindering. i. Makes the requirement more like a legal fiction then a hard/fast rule. c. What about effect? i. Does not matter if the law makes it harder or more costly to get an abortion. aa. If you have to wait, you are not prevented in total from getting an abortion. 1. A certain amount of time will, however, push this into the viability stage. bb. Under a normal strict scrutiny test, a government can burden an essential liberty has long as it has a compelling interest. 1. With an abortion, an undue burden is enough to strike down a statute. 5. Stenberg v. Carhart (2000) a. Nebraska has a statute that bans partial birth abortion. i. There are two procedures: D & X and D & E. aa. There is no dispute over D & X.


1. This is performed later after the fetus is viable. bb. Dispute is over whether the statue covers D & E. 1. This is performed in the second trimester, either before or after viability. aa. A majority of justices hold that the statute violates the Constitution. 1. The precise holding is that because the statute might sweep in pre-viability abortions, it violates the Fourteenth Amendment. a. O’Connor says that if the statute were to be redrafted to specifically ban certain types of abortion, certain justices would have no problem upholding the law. i. Highest official in NB says that the statute was only intended to cover post-viability abortions. aa. Court refuses to certify it to the NB. SC and relies on the justices’ own interpretation of state law. 1. Court should not have done this. a. Principle goes back to the beginning of the SC. i. States have the first and last word on the meaning of state law. ii. SC has the final word on federal law. a. The SC can invalidate state law under Article III. i. Gives the Court judicial power. aa. Judicial power is the right to render a judgment after applying the law to the facts of the case. bb. Individual positions of the justices 1. Stevens and Ginsburg a. Statute violates a woman’s right to abortion and that any distinction between D & X and D & E is irrational. i. Think NB. is trying to gut Roe. 2. Breyer a. Statute violates Casey because there is not an exception for the health of the mother. i. Roe and Casey say such has to exist. aa. Some doctors might think D & X is safe for some women in some circumstances. 1. This would make the judgment of each doctor controlling . a. Problems might arise in this area in


terms of euthanasia. b. Also says that the law places an undue burden on a woman’s right to abortion. i. Concerned about the statute sweeping in abortions pre-viability. 3. O’Connor a. If the statute were written more clearly or explicitly prevented abortions post-viability or included an exception for woman’s health, that would be okay. 4. Dissents a. Statute should be upheld because it does not violate the Constitution. b. Scalia i. Partial birth abortion is a barbaric form of killing a child. c. Thomas i. Agrees with Scalia, but adds that even if the Court assumes Casey is correct, the Court has overturned Casey in the majority and should admit it. d. Rehniquist i. The court has misapplied Casey. 6. Lawrence v. Texas (2003) a. There is a law that criminalizes homosexual sodomy. i. States can regulate public morals. aa. The criminal law is a way in which a majority of individuals express their morals. 1. Issue a. Whether the Constitution confers a fundamental right on homosexuals to engage in sodomy and hence, invalidates the laws of my States that still make the conduct illegal and have done so for some time. b. The court looks to the history of sodomy. i. Unlike a womans’ interest in having a child, engaging in sodomy is not a fundamental right. aa. Bowers v. Hardwick 1. Sodomy is not a fundamental right rooted in history and tradition. ii. The decision comes down to a reformulation of cases like Griswold, Roe, and Casey. aa. Those cases deal with privacy and the notion that if you are in your bedroom, you have a right to privacy. bb. There is a fundamental liberty interest in protecting private lives. 1. Privacy is an idea that is quite powerful to liberals and


conservatives. cc. Here, the focus is on dignity. 1. It is not so much that you have a right to privacy to engage in a homosexual act. a. The state law is actually compromising dignity as a person. i. Kennedy starts by talking about the freedom of consenting adults to have sex in their homes. aa. Then talks about the inherent dignity of gays and lesbians that the state can’t demean. b. When the court is trying to interpret the Constitution, they should also look to evolving practices in the states and the world. i. Western democracies have decided not to criminalize homosexual sodomy. c. Holding in Bowers should be overturned. i. Public opinion has changed and there has not been reliance on the decision. ii. Under the Due Process Clause, individuals have a full right to engage in private sexual conduct without intervention by the government. iii. TX statute furthers no legitimate interest which can justify its intrusion into the personal and private life of the individual. c. Scalia’s Dissent i. Emerging awareness – the fact that most states don’t criminalize sodomy is irrelevant. aa. The Constitution leaves issues like this to the state. 1. EX: Right to die, contraception, etc. a. Fundamental rights have to be rooted in American history and tradition. i. If the court were to follow the law, they would apply a rational basis test. aa. If the state has or could have had some rational basis for the law, it is upheld. 1. It does not matter if other states view the practiced as immoral or not. ii. Big argument is that if gays and lesbians have the right to autonomy in their relationships, why don’t they have the right to marry? d. O’Connor’s Concurrence i. Relies on the Equal Protection Clause instead of the Due Process Clause.


7. Romer v. Evans (1996) a. A Colorado Constitutional Amendment, known as Amendment 2, was adopted by voters. i. Preempted local ordinances from prohibiting discrimination on the basis of sexual preference. b. Issue i. May states enact laws prohibiting localities from proscribing discrimination against a class of persons? c. Court says no. i. States may not enact laws prohibiting localities from proscribing discrimination against a class of persons. aa. Amendment 2 imposes a broad rules on a singled named group, as it places a particular burden in terms of access to the political process. 1. Groups not affected by the law have greater access to the process. a. Clearly implicates the Equal Protection Clause of the Fourteenth Amendment. b. The law must bear a rational relationship to a legitimate government purpose. i. Amendment 2 does not serve a legitimate state interest. c. Different from a law that innocently discriminates against a group. ii. Colorado argues that they are not discriminating against gays, but are preventing them from getting special rights. aa. Say they want to treat everyone equally. 1. The court says that the Amendment singles out gays and lesbians as a class. a. Does not let them collect damages for discrimination. i. In effect, imposes a liability on them alone. bb. Also argues that they are doing this to protect resources. 1. The state needs to fight discrimination against other groups. a. If the categories keep broadening, some groups are not going to get sufficient assistance. cc. Protect the right of free association in the First Amendment. 1. Landlords should not have to rent to gays and lesbians. d. Scalia’s Dissent i. Constitution says nothing about whether or not governments may try and promote sexual morality by statutes. ii. Look at the world as if there is a culture war between those who adhere to tradition and morality and those who don’t. aa. Big issues are all part of this culture war. 1. The justices should remain neutral and allow the states to fight it out. iii. Amendment two prohibits special treatment of gays.


aa. The law still causes gays to be treated equally. iv. Equal Protection Analysis is silly. aa. Majority fails to cite any legal authority. bb. Gays are entitled to use the same political processes as everyone else. 8. Other Issues a. Gays in the military i. Don’t Ask, Don’t tell aa. Military can’t ask your sexual orientation, but a solider cannot announce it either. bb. After Bowers, this policy seemed to be Constitutional. 1. Romers put it in doubt. a. The majority seems to be singling out gays. i. Court is, however, extremely deferential to the wishes of the military. b. Same Sex Marriage i. In HI, the same sex ban was found to violate the Constitution. aa. The big question is does it violate the Federal Constitution? 1. This may come down to the difference between what you do in the privacy of your own home (sex) and what public laws do. c. Right to Die i. No Constitutional right to physician assisted suicide. aa. But, it is okay for the states to allow. 1. Scalia would say that this is a proper result. ii. Cruzan holds that you have a Constitutional right to refuse extensive measures to extend you life. aa. Each state can choose the burden of proof. VII. The Constitution and the Modern Welfare State A. After the New Deal there was a flood of labor and employment regulations. 1. The same thing was happening at the state level. a. Happened because people were desperate and were turning to the government for help.



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