Free Law School Outline - Class Notes Constitutional Law Parmet Pre-Spring Break

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Constitutional Law
Wendy Parmet

Wednesday, January 2, 2002 (Class 1)
Office Hours: Friday Afternoon, Room 77, sign up on door, or e-mail with a couple times. Will change hours when winter quarter ends. Course overview
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Start in 18th century. Need to know history, changes of constitutional law. (two weeks) Move to topical/doctrinal approach (three weeks). Structure of US government. Rights, complex issues.

"Crisis du jour" -- impeachment, election, this year--more somber crisis. Problem with constitutional law as it's taught: as if it's for lawyers. E.g., Rule 11 is for lawyers, constitution should not be. Much more than set of legal rules. Last year--constitution seemed controlled by courts, determining election. This year, so much going on without the courts. Discussion of dystopia: how to create constitution from scratch, implement, etc.. For Friday, read handout and #2 on syllabus.

Friday, January 4, 2002 (Class 2)
US Constitution--we will assume it is supreme, supported, etc..

Brief History of Constitution
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First decade of Constitution (1787-1797) determined by politicians and the people; courts almost played no role. Constitution was second document people lived under; original colonies had lose confederation with national congress. No national executive or court system. Consensus that confederation wasn't working; colonies were vulnerable to outside attack and internal revolt. Constitutional convention drafted new consntitution from scratch. Everyone knew Washington would be first president, but by second term divisions started to appear. 1796 first contested election, John Adams won. 1800 glitch appeared. Drafters had not foreseen party system and candidates running as team, thought first place candidate would be president, second place would be vicepresident. But with team both candidates got equal votes; leading to twelth amendment. First time new party came to power. Federalist Adams lost, Republican Jefferson won. In last couple of weeks before Federalists were out of legislative and executive, congress passed laws to stack the courts with federalists. Put John Marshall into Chief Justice position (was Adams' secretary of state). Wanted to put Marbury into power as Justice of the Peace, Marshall signed document night before leaving office to be replaced by James Madison as Secretary of State. Crucial turning point: First transition of power, war going on in Europe, Jefferson coming into power hatig Adams and Marshall, no one knowing what the courts did. Madison, succeeding Marshall, refuses to give Marbury the seal to become Justice of Peace. Marbury requesting writ of mandamus, to force Mr. Madison to hand over the seal. Claims supreme court has authority to issue writ by Judiciary Act of 1789 Issues o Is Marbury entitled to commission for office? o Is he entitled to writ? o Does law give him a remedy? o Can the Supreme Court issue the writ? o Is legislation constitutional (Section 13)? o Can Supreme Court find an act of congress unconstitutional? Is Marbury entitled to commission for office? o Yes, commission was done properly (of course, Marshall is ruling, who made the commission originally as secretary of state). Is Marbury entitled to writ? o Question is whether president subject to the law, i.e., can the president do whatever he wants? o Not everything president does is 'political', i.e., not everything is above and beyond the law, when right are vested, issue becomes for judiciary to decide. Jefferson is still subject to the law (i.e., President is not truly sovereign). o Is court then sovereign? Relationship between newly-ousted secretary of state and incoming president. o Court has power to determine what are vested rights. o Case decides that executive authority is limited by judiciary. Also decides that some things are purely political--"political question doctrine"--outside of purview of court.

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Does the law give Marbury a remedy? o Marshall poses principle that 'where there is a right, there must be a remedy'. o Marshall also holds that mandamus is the proper remedy for this right. Can the Supreme Court issue the writ? o Marshall looks at Section 13, claims it gives Supreme Court ability to issue writ. Is Section 13 constitutional? o Section 13 gives supreme court right to grant a writ of mandamus, but section is unconstitutional under Article III Section 2 of the constitution. Marshall reads Article III Section 2 as setting forth exclusive universe of Supreme Court jurisdiction. o Marshall holds that not only is executive subject to constitution, but also that supreme court is subject to constitution, can only exercise jurisdiction as specified under the constitution. o In making this ruling, Marshall gives court sense of authority, legitimacy, clearly defines court's jurisdiction. o Marshall had reason to believe Madison would ignore writ, thus by not issuing writ preserves legitimacy. Did not want to test the boundary of the supreme court's power. Stepped back from the brink relying on jurisdictional argument. o Could have stopped here, but Marshall continues to address judicial review. Can the Supreme Court find an act of unconstitutional? o Could have just decided whether his action was constitutional, but goes on to ask whether an act of congress is constitutional. o 'Traffic court interpretation': Marshall is just a judge, has to apply the law, but must look at all the law. If a law is invalid he can't apply it. Modest interpretation of Article III. o Does not 'strike down' law, just says he won't apply it because it's invalid. o More assertive interpretation: behind modesty of opinion, claiming that judges have duty to constitution and that judge's power comes from constitution. Gives us the sense that the courts are the guardians of the constitution. o Act that Marshall is finding unconstitutional was passed by most of the drafters of the constitution; this is the more 'hubristic' view of Marshall's decision. o Article III is superior to Section 13 because it 'comes from the people'. Since it is written, it must be paramount. o Case is about constitutional supremacy as well as judicial supremacy. o Marshall looks only to the text of the constitution; if power is not included within constitution itself, then that power does not exist. Reads constitution with 'presumption of narrowness'. o Marshall does not look at intent, desire of people, etc.. There are many modes of interpretation, but he looks only at text. o How does Marshall know court can find act unconstitutional? Essentially argues that it is 'self-evident'. Constitution only makes sense this way; almost a teleological argument. As if this is in the nature of the constitution. o Maybe framer would have thought congress should interpret constitution, but Marshall finds objective basis for court's power to interpret constitution, not subjective interpreturt can find act unconstitutional? Essentially argues that it is

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'self-evident'. Constitution only makes sense this way; almost a teleological argument. Looks only to 'objective basis', not subjective intent of framers. Extremely different mode of interpretation than his own interpretation of Article III Section 2--if he interpretted Article III Section 2 this way, he would not have found basis for judicial review. How important is judicial review?  Why should court be more trusted in preserving constitution than other branchs?  Whenever court declares law unconstitutional, it is claiming that the two elected branches were wrong. This was never done in the first years of the unconstitutional. Did not decide this again until Dred Scott.

Monday, January 7, 2002 (Class 3)
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Review of Marbury v. Madison o In Marbury v. Madison [5 U.S. 137], Marshall was both close reader of text of constitution but also practical/pragmatic. o Marbury proclaims courts power but also limits court's jurisdiction and the limits of political reality. o Marbury was fundamentally about the separation of powers (legislative, executive, judiciary). Also dealt with issue of federalism; relationship between branches of federal government and states. Marbury established judicial review of congressional decisions, to find them unconstitutional. But more common form of judicial review is over acts of states. o Issue of national uniformity--in this sense, review of state action is more important than review of federal action. o Constitution needed to have stronger national government than the articles of confederation. Articles only had legislature, no executive or judiciary. Question becomes, how much stronger? o Conflict became acute with enactment of the Bank of the United States.  Shortly after Treasury was ratified, Hamilton (Secretary of Treasury) sought to charter national bank. Would help in collecting taxes, managing funds. Also understood that bank would influence money supply.  Widespread concern about competition with state-chartered banks.  Conflict in interest rates: bankers (Northeast) prefer high interest rates, agrarians (south) prefer low interest. Sectionalization.  Jeffersonians argued vehemently against charter of bank, saw urbanization and capitalism as evil encroachment.  First bank was chartered, expired, 20 years later second bank was chartered for expediency.

McCulloch? v. Maryland
[17 U.S. 316] U.S. Supreme Court 1819
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Maryland passed law imposing a tax on all banks operating in Maryland not chartered by the State of Maryland. Maryland sues McCulloch? (local bank officials) for failure to pay tax. McCulloch? claims tax is unconstitutional. Supreme Court of Maryland rules for Maryland. Maryland's basic argument is that Federal Government can only do what is specified explicitly in Constitution; no clause about chartering corporations, thus government cannot do this. Maryland's fundamental premise is State Sovereignty. United States is a Union of States; similar to NATO. States are free to leave union and are not bound by its decisions under this conception. People ratified Constitution, not States. Although people live in States, they were acting in their capacity as people of the Nation rather than of the States. Although people ratified constitution in conventions in their states, Marshall explains this as not being particularly important--they had to meet somewhere, after all. States that Government's powers are enumerated, but no constitutional prohibition on implied powers. Paragraphs 16-17: Constitution is outline, needs to last, unlike legal code which can change over time. Paragraph 16: "In considering this question, then, we must never forget, that it is a constitution we are expounding." Rule of interpretation: read the constitution 'so it works'. Read it as a broad outline of a powerful government that will last for generations. Read the document pragmatically, so it endures. Article I Section 8 provides ends of government, must imply means to accomplish the powers attributed to the federal government. What is implied is means to end, but not the end. Federal Government has plenary power with respect to its powers, Maryland is only 'sovereign' with respect to powers not given to Federal Government in constitution. "Necessary and Proper" Clause o Maryland argues 'Necessary' is of absolute necessity, that it exists to limit federal government's power. o Marshall does not locate the implied power in the 'necessary and proper' clause, that is pre-existing. Implied power is 'inherent' in sovereignty, powers given to the federal government. o 'Necessary and proper' clause is in Section 8, which gives powers to the Federal Government, rather than Section 9, which restricts powers. o 'Necessary' could mean absolutely necessary, or be more general. Marshall interprets necessary in a sense which makes document work and creates stronger National Government. Article I Section 8 does not say that there has to be a bank. In fact, Marshall does not peg the power to enact a bank to any specific section. It is either everywhere and nowhere. Could probably delete any section of Article I and still have this power.

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Constitution does not mandate a bank, but congress has power to establish a bank. Marshall's conception of intent is very 'objective'--does not cite outside sources, notes, legislative history, etc.. He finds in text intent for constitution to be interpreted to survive crises. In Marshall's time, Framers of constitution were not revered legends as they are today, thus would not support Marshall's arguments as much if he could refer directly to their intent. Marshall's reading of intent is unverifiable, goes back to Locke. End still needs to be legitimate (enumerated constitutional power), means still need be not prohibited by constitution elsewhere. Paragraph 42: Judiciary will still strike down means that are prohibited by Constitution (Judicial Review) but will also strike down laws that are not necessarily towards the stated end. I.e., is End merely stated pretext for another end that is actually unconstitutional.

Group 6 is 'on' for Wednesday.

Wednesday, January 9, 2002 (Class 4)
Methods and Sources of Interpretation
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Unending question of interpretation from Marbury until today. Idea that when it is constitution we interpret it in a certain way. Many theories of interpretation (so single predominant theory): o Constitution as a text; interpretation is in plain language of text; read text narrowly; do not rely on extra-textual sources. o "Grand Style" of interpretation; intentionalist but in objective way; look at text holistically to figure out its meaning/intentionality. o Common Law: fairly conservative, not voice of "the people", thus some suspicion towards common law. But framers of Constitution, judges, etc., were trained in the common law. Not just the rules of the common law, but the reasoning of the common law. Deduction, looking to cases.  Marbury: idea that document is official when sealed; when there is a right there is a remedy, etc., are common law principles. o Natural Law: Divine, universal, indelible rights and norms. Framing generation was not all that religious, but found Natural Law important. Normative but not positive.  Most important example of natural law reasoning in the Declaration of Independence. Way of challenging positive law (e.g., King George's law).  More often than not assumed that common law and natural law were in harmony. What troubled the framers was mostly the statutory law of England, not so much the common law. o How much should positive law influence Constitutional interpretation?

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Caulder v. Bow (sp?) (cb110), Justice Chase: Vested rights, from common law. Violation of Natural Law to take away vested right. Natural law in this case trumps positive law. If state takes property that is vested, this is violation of natural law and thus null and void.  Justice Ardell's response: Court is not empowered to nullify legislature's action just because it violates natural law. Court is restricted to constitution, not to natural law. In 19th century, these issues arose continuously with respect to two major issues:  Rights of property  Slavery

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What if you are a judge in 1840 having to rule on a Fugitive Slave Act case?
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Can you use Natural Law to justify a ruling that is ostensibly contradicted by Article IV, Section 2, Clause 3 which seems to support Fugitive Slave Act? o Natural Law must be interpreted, may be interpreted differently by different judges. o Could find some other techicality to make 'the right ruling'? o Maybe find another constitutional basis, (bill of rights) o Could rule according to Law, but include in opinion statement of injustice Federalism Issues o States Rights: States should be able to determine slavery (would allow freedom in Massachusetts). o Federalism: Natural law should apply everywhere; if it's wrong in Massachusetts it would be wrong everywhere. o "Fidelity to federalism is fickle"--depending on circumstances interests align with States Rights or Federalism.

Dred Scott v. John Sandford
[60 U.S. 393] 1856 Supreme Court (cb183) Donald Ferenbach (sp?) book about Dred Scott case in citations.
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Missouri Compromise: set line for slavery. Thought to ease the tensions but tensions increased with each new legislative act. Scott is slave who travels with Emerson, is taken North into territory which under Missouri Compromise would be devoid of slavery, and then is returned to Missouri. Emerson dies, Scott is sold to Sandford, sues for freedom. Scott sues in Missouri courts, loses, appeals to Federal Court. Case is diversity case. Could have been decided on res judicata (already decided by Missouri courts), or collateral estoppel (issue of citizenship already decided in other case; Scott is not a citizen under Missouri case, thus no diversity). Taney rejects States Rights notion of citizenship: States can make people citizens of the State, but not make them citizens of nation. What about National definition of citizen, including constitution?

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Taney looks at intent through 'historical documents' -- not looking at text (like Marshall did) but looking at extra-textual sources. Under Taney's view, no African-American, free or slave, can ever be a citizen of the United States under the Constitution. Theory of 'originalism' suggests meaning of Constitution is fixed; Supreme Court's job is to do what framers intended.

For Friday, look at second half of opinion, constitutionality of Missouri Compromise, civil war, Lincoln-Douglass debates.

Friday, January 11, 2002 (Class 5)
Next Week's Schedule:
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Monday, Assignment #6, Group 10 (Ryan P) Wednesday, Assignment #7, Group 15 (Ryan S) Friday, Assignment #8, Group 19 (Davida)

Dred Scott v. John Sandford
(continued) [60 U.S. 393] 1856 Supreme Court (cb183)
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Strong nationalist holding--not States' Rights approach Originalism: what did the drafters and people at the time think? Looks at extra-textual sources. o How much of the Constitution is 'ours' and how much is a document we must follow? Ambiguity in Diversity provision of Constitution: cases and controversies between 'citizens' of one state and of another. Who decides what is a 'citizen'? Citizens as recognized by the states, or by the Federal Government? o Taney could have said 'a citizen of Missouri is whoever Missouri says is citizen' and could have gone further and said 'Missouri does not recognize slaves as citizens', thus no diversity jurisdiction. But this would not have had an impact on African-Americans in free states. By interpreting citizenship to be national issue, Taney decides diversity clause (and privileges and immunities) uses federal definition of citizen. o Thus citizen such as Frederick Douglass does not have privileges and immunities to travel to slave states and be guaranteed rights of citizens. Very powerful vision of Federalism. McColloch? established Congressional supremacy over States Rights; Taney here establishes Judicial supremacy over States Rights.

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Taney also goes further to find 1820 compromise unconstitutional, although should not necessarily have approached this after finding no subject matter jurisdiction. Although this may have provided alternative basis for Taney's ruling. o Only second time that Supreme Court found act of congress unconstitutional (after Marbury). o Missouri Compromise violates due process rights of slave owners (Fifth Amendment of Constitution). o In McColloch?, Marshall wrote 'let the end be legitimate and the means not prohibited'--in this case, Taney finds the means are prohibited by the Fifth Amendment. o Taney is concerned with 'substantive due process' rights, not procedural due process rights. Does not matter what opportunities for hearings Sandford might have to contest whether Dred Scott was brought North of the line, the problem, for Taney, is the conclusion that Sandford is deprived of his property if he has gone North of the line. o Natural Law argument: laws that take from A to give to B are not law--'taking from Sandford and giving to Scott'. Not reading Natural Law as above the Constitution or Positive Law, but reading Natural Law into constitution. Court concludes that African-American cannot be citizens and that Congress cannot take steps to limit expansion of slavery in Western territories.

Lincoln-Douglas Debates
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Lincoln wants to change Dred Scott decision--will abide by decision, but decision is not by infallible platonic guardian. I.e., the Supreme Court's decision is not the Constitution. Not unconstitutional for Congress to pass legislation in contradiction to Supreme Court. We are only bound to follow letter of decision. Very dynamic view of Constitution. Douglas: "We must respect the court"--more typical lawyer's viewpoint. Taney had hoped that everyone would follow Douglas' viewpoint: "That's the law, thus we can stop fighting about slavery."

Although Lincoln lost the Sentorial race, he won the Presidency in 1860. Between Election and Inauguration, seven states seceded from the Union. Was this Constitutional?
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Seceding states saw Constitution as a voluntary partnership which they could walk away from, like a Contract. Northern states: union of people, not of states. Lincoln was not abolitionist, wanted Congress to prohibit expansion of slavery, thinking that eventually slavery would be diluted economically. Goal of war was preserving the union. No one argues secessionist argument anymore. This constitutional question was essentially decided on the battlefield.

Prize Cases

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Question of whether Lincoln's war actions were Constitutional without congressional preapproval Court holds that while President doesn't have power to declare war, does have power to respond to aggression. Looks at Act of Congress which gives President authority to resist force Interpretive style is similar to Marshall's; part of argument is to be guided by pragmatism. Not very concerned with textual interpretation. Taney in dissent accepts conclusion that President has right to fight back but not to take property. Cannot divest ship owners of rights.

Monday: Start with lawfullness of Lincoln's conduct and ask about Constitutionality of Suspension of Writ of Habeus Corpus and Emancipation Proclamation. Can one be unconstitutional without the other so being?

Monday, January 14, 2002 (Class 6)
Constitutionality of Lincoln's actions Article I, Section 9: "can suspend habeas corpus in case of rebellion or invasion." Early into Civil War, Lincoln suspends writ of habeas corpus.

Ex parte Merryman
[17 F. Cas. 144] 1861 (cb223)
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Taney is circuit judge in this case; Supreme Court justices used to 'ride the circuits'. Merryman is petitioning for habeas corpus; that his very arrest is illegal. Taney: only congress can suspend Habeas Corpus as per the constitution. Lincoln's response: the constitution is silent on President's ability to suspend habeas corpus, Article I Section 9 does not say only Congress can suspend habeas corpus. Lincoln ignores Taney's ruling. Essentially, there is an emergency, this is no time to worry about separation of powers. Was Lincoln's action constitutional? Do ends justify the means?

Emancipation Proclamation
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Abolished slavery only in states which were in active rebellion (not New Orleans, for example, which was occupied by Union) Could Congress have abolished slavery in 1863? Would this have been constitutional? Lincoln still believed States were part of the union, run by rogue governments. Emancipation is being issued as a military act, in Lincoln's role as Commander in Chief.

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Historical trend in the United States: balance between States and Federal power vacillitates with peace and war (likewise, between Congress and the President). Is the problem lack of fidelity to the constitution or the specific actions being taken? (e.g., Emancipation Proclamation vs. President Bush's Military Tribunal)

14th Amendment
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After war and Lincoln's assassination, Congress passes the 13th and 14th amendment. 13th amendment: abolishes slavery and involuntary servitude throughout the United States. 1866 Civil Rights Act (cb246). Questions as to whether Congress had authority to enact this legislation lead to 14th amendment. Congress did not recognize former Confederate States for ratification of 14th amendment. Problems with Article V of the Constitution, which requires 2/3 of each house and 3/4 of State Legislatures. Congress required States to ratify 14th amendment to be 'readmitted' into Congress, yet Union maintained that Confederate States never left Union. Meanwhile, South is under Military Rule, new governments are being constituted. Should 14th amendment be held constitutional, given its unusual adoption? o States/country have 'acquiesced' over 100+ years. o Policy arguments for keeping 14th amendment. o "What is in constitution is what survives test of time." o 14th amendment is most litigated and cited part of Constitution. Section 1 o Self-enforcing o Defines citizens: all persons born or naturalized in United States and subject to jurisdiction (overrules Dred Scot). o "Privileges and immunities clause". o Due process o Equal protection Section 2 o Abolishes 3/5 compromise (where slaves are counted as 3/5 of a person) o Limits congressional representation in those states that don't fully open their franchise--provides incentive for States to have universal suffrage (later, 15th amendment is supposed to create universal franchise, but this doesn't work either) Section 3 (legal disabilities of confederates) Section 4 (civil war debt) Section 5 o Gives Congress power to enforce provisions of this article.

The Civil Rights Case
[109 U.S. 3] 1883 United States Supreme Court (cb285)

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Congress in 1875 passes 'public accomodations act', prohibiting segregation on basis of race in places open to public. Case is challenging constitutionality of act. Pre-cursor to Civil Rights Act of 1964. Passed during Reconstruction period when Radical Republicans had control. Plaintiff claims Congress lacks authority to enact Public Accomodations Act. Previous cases where Congressional authority was challenged: McColloch? and Dred Scott. In this case, Congress has 13th-15th amendments to support its act. 13th amendment argument: whether public segregation/discrimination is badge of slavery, Section 2 of 13th amendment authorizes congress to eliminate slavery. Justice Bradley reads 13th amendment section 1 fairly narrowly, says this case has nothing to do with slavery. Foreshadowing of affirmative action debate: former slaves shouldn't have 'special treatment' since they have ceased to be slaves. Law prohibiting segregation is special treatment. Compare to Marshall's argument in McColloch?, where he finds means of establishing a bank 'necessary' in the sense that it helps achieve the end, rather than 'absolutely necessary'. Bradley is thus reading Section 2 narrowly as well (which empowers congress to take steps necessary to effect Section 1). Key holding: Section 1 of 13th amendment applies to private people. Congress can prohibit people from being slaveholder. But 14th amendment applies only to acts of the state, not private actors like inn-keeper or tavern owner.

Group 10 still on for Wednesday. Then we will go on to Plessy v. Fergusson (Group 15) and Slaughterhouse.

Wednesday, January 16, 2002 (Class 7)
Civil Rights Cases
(Continued) [109 U.S. 3] 1883 United States Supreme Court (cb285)
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13th amendment only applies to slavery and things closely associated with it (not discrimination) 14th amendment can only apply to state action, not to private discrimination. Section 5 limits congress to enforcing section 1. Bradley's approach to constitutional analysis. Can't look too closely at history, because Civil Rights Act was passed by mostly same congress as 14th amendment. 1876--reconstruction essentially ends in compromise in deadlocked election. Looks only as text. Harlan's Dissent:

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Need to read 13th amendment more broadly, it's not just about slavery qua slavery. Looks at intent and purpose of amendment. Not looking at intent in extratextual way (as Taney would). Looks at case law. Brings experience outside of legal world to bear on his interpretation.

Plessy v. Ferguson
[163 U.S. 537] 1896 United States Supreme Court
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Louisiana has statute that requires separate coaches by race and criminalizes sitting in the wrong coach. Plessy sat in the wrong coach and was arrested. Brown dismisses 13th amendment claim immediately (this is not about Slavery). 14th amendment: there is state action, but: o Does not deny equal protection because it applies to all races equally. o Relationship between people is governed by police power. To Justice Marshall, Police Power was whatever States had left after Constitution. To this court, Police Power is whatever States legislate. o Brown says State can use Police Power as long as it is reasonable. Does not violate equal protection (because of application to all races). o That people feel inequality is irrelevant to Brown, what matters is the language of the Statute. Formalistic analysis. Compare Brown's thinking to Marshall's: Marshall believed power of congress stemmed from people; as long as ends are reasonable and means are not prohibited. Relationship between Federal Government and States is malleable, wants to be deferential to legislature. In Civil Rights Case there is a clear dichotomy: individual relationships are subject to the State Police Power, State to Individual is subject to Federal Government. Boundaries between State and Federal government come from legal boundaries, enforced by the Court, static for Brown/Bradley? (not like Marshall's conception). Harlan's Dissent: o Looks to experience again--knows this isn't about equality. Not satisfied with formalism. o Claims Constitution must be colorblind. o Harlan expresses strong racist views even if he believes races should be equal before the law. In particular believes in discrimination against Chinese immigrants. o If we get rid of discriminatory statute, people might continue discriminatory conduct, but this is okay.

Court generally read reconstruction amendments narrowly, gave them little power to redress power imbalance between races, but did increase their reach in dealing with economic interests.

Slaughterhouse Cases

[83 U.S. 36] 1872 United States Supreme Court
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Louisiana passed law prohibiting slaughtering in city anywhere except in certain area, gave Crescent City Company monopoly. New Orleans was slaughtering capital of North America, given proximity to Mississippi River and Gulf of Texas. Sickliest city in the country with lowest life expectancy. Water supply came from where carcasses were dumped. During Civil War Union army limited slaughtering to certain locations, Yellow Fever decreased. 14th amendment, equal protection: segregation in Plessy was not violation. 13th amendment was all about 'free labor', thus this is form of servitude. Butchers claim denying them the fruit of their labor is violation of due process. Formal inequality: if crescent city gets monopoly then everyone is not being treated equally. Miller's Opinion: o Sanitation and health laws are within police power. Regulating trade of butchering is among the most traditional, common, historic types of refulations. o Reads all the amendments in the context of abolition. Civil War was not about butchers, it was about slavery. o Methodology of intentionalism: we know what amendments are about. o Equal protection is about racial inequality, not about butchers. o Reads Due Process clause as concerning procedure, not content of rules.

Will start with Privileges and Immunities clause on Friday.

Friday, January 18, 2002 (Class 8)
Wednesday's class (assignment 9) group 20 (Iris) is 'on'. Friday's class (assignment 10) group 23 (Sean) is 'on'.

Slaughterhouse Cases
(continued) [83 U.S. 36] 1872 United States Supreme Court (cb326)
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Privileges and immunities clause argument: Miller holds 14th amendment is about privileges of United States Citizenship, not about State citizenship. Baron v. Baltimore, 1830s case, addressed issue of whether States had to protect rights in Bill of Rights. Court held that it only applied to the Federal Congress and not to the States. Bill of Rights was intended to limit Federal Power.

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Rights citizens have against State are only the rights that citizens previously had against Federal Government. Miller lists rights that Federal Citizens have very narrowly. Appears to be the same rights people had before Civil War. Many of drafters of 14th amendment actually thought it would extend rights to States. Miller is very careful to define privileges and immunities in a way that it had little utility; after this case, this clause was dormant for about 100 years. Was worried that expanded language would have no end to application--everything become constitutional question. Field's dissent: reads 14th amendment much more expansively. Should provide butchers in Louisiana with Federal protection. 14th amendment has intrastate implications; State needs to respect it with respect to its own citizens. Natural Law appeal: taking from A and giving to B cannot be legal because it violates Natural Law. Bradley's dissent: Because one butcher is being favored to the disadvantage of another, Natural Law is being violated, using the 14th amendment as the justification. Bradley had previously held that Congress could not use the 14th amendment to prohibit discrimination.

Class will trace over time how 14th amendment is used with respect to race and how it is used with respect to economic regulation. Years after Civil War and after Reconstruction, profound social change, challenges, industrialization. People become wage laborers rather than farmers, rapid immigration. Movements to regulate increasingly large and impersonal corporations. Corporate bar began to understand that 14th amendment could be used to stop economic movements against them. 1886 Santa Clara case: corporations are persons for the purposes of the 14th amendment. Munn v. Illinois: Court upheld regulation of Grain Elevator prices. Acceptable because Grain Elevators are vested in Public Interest. Starts to move towards allowing 14th amedment applicability to economic regulation, even though in this particular case the regulation is upheld. Suggests other industries that are less vital to public interest may be able to use 14th amendment to challenge regulation. Most frequently litigated issue in this period is railroad rate regulation. Court holds that railroads can be subject to rate regulation, but only if it is reasonable as determined by court.

Lochner v. New York
[198 U.S. 45] 1905 United States Supreme Court
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Third in trilogy of 'infamous supreme court cases'. Is case wrong on facts, on theory? Question is why is this case so hated. New York Statute to impose a maximum number of working hours on bakers. Baker's argument: outside of police power, interferes with ability to make contracts.

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Constitutional argument: right to sell labor is part of liberties protected by 14th amendment. For Peckham, police power is small island in sea of island. Includes health, safety, morals, and public welfare and order. Compare to Marshall: whatever powers are not given to congress are the police powers. For Marshall, the Federal Government has enumerated powers, whereas Peckham believes State Government has enumerated powers. Hypothetical: if State decided all houses must be painted lavender for aesthetic purposes, Peckham would not allow this. Need to look very tightly between ends and means. Or "everyone must have donut for breakfast." Peckham worries it is going to be too easy for State to declare some connection between its legislation and some legitimate purpose. Peckham thinks this is really a 'labor' regulation, not 'health' regulation. Outside of legitimate police powers. To be legitimate police power, Peckham finds regulation needs to protect general public, not just baker. Doesn't find any basis for this, even though there are facts (used by dissent) that do sugest public health would be improved by this regulation. May be justifiable for State to protect those who can't protect themselves (miners, women). Allows common law categories to protect those who have traditionally been protected, but just seems to declare that bakers do not need protection. Harlan's Dissent: o Agrees that police powers are limited, but willing to bring in outside sources to determine whether regulations are for health. Looks at studies, data, etc.., to find that regulation is legitimate. Holmes' Dissent: o Rejects this conception of police power (at least in this case). o Line between acceptable and unacceptable police powers is not fixed. Determined by the people; boundaries picked by social conventions which may change. o Nothing is self-evident. o Doesn't want to protect workers, nor does he want to protect businesses. Great adherent to social darwinism. o Under Holmes' conception, Constitution imposes few restrictions on legislature, very little judicial review. o Does make exception for 'fundamental rights'. Is problem treatment of Constitution (Peckham's lack of attention to framer's intent), treatment of Police Pwoer (as limited), misunderstanding of facts? Conservative jurists tend to criticize Lochner on basis of misapplication of Constitution.

Next class: one-half on New Deal (8), start Second Reconstruction (9).

Wednesday, January 23, 2002 (Class 9)

Office Hours Thursday morning this week (rather than Friday) Lochner Era Judicial Characteristics
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Integration of common law doctrines/norms/baselines into interpretation of constitution Assumptions about dichotomies. Deduction from a priori categories is how you decide new cases. Job of court to make sure everything was put in proper category Court doesn't parse text. Not evident what is source of constitutional authority in Lochner. 14th amendment case about power of state but same reasoning used with respect to power of congress under 5th amendment Similar modalities for interpretation under Article I--moved away from deference to legislatures Under McColloch? Court allowed bank under broad definition of commerce; under Lochner commerce became very limited, defined, narrow category: e.g., railroads. But manufacturing, building, baking were not commerce. Thus shut down Sherman Antitrust Act as applied to sugar manufacturer. Struck down child labor laws. Congress tried to tax goods made by children. This too was found unconstitutional. Commerce, taxing, and spending powers of congress (and state legislatures) read very narrowly by Lochner era court. Mode of constitutional interpretation really came to a head during Great Depression. Previously criticism was more limited to academic and progressive communities.

New Deal
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Congress (and states) passed a number of statutes that significantly impacted day-to-day lives of people and the economy. Nibia case: court upheld State Law setting minimum price for milk under 14th amendment due process challenge. State is free to adopt whatever economic policy may reasonably promote public welfare. 1935, ''Schechter Poultry Corporation v. United States (cb426): Court threw out an unconstitutional 'National Industrial Recovery Act' in 'Sick Chicken Case', act which prohibited sale of sick chickens. Non-delegation doctrine: NIRA gave too much power to administrative industrial boards for setting industry standards. Furthermore, congress had exceeded its authority because statute applied only within states (not interstate commerce). 1936, Morehead case: court invalidated New York's minimum wage law for women. NIRA concept: each industry would get together and determine industry standards to prevent deflation. Roosevelt won by very large margin in 1936, was concerned that Court would be hearing key cases on New Deal legislation. In particular, National Labor Relations Act and Social Security Act (old age insurance, survivors benefits, etc..).

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Roosevelt proposes plan for congress to past statute whereby there would be an additional justice for every judge over 70. Was this constitutional? Is constitution 'above the political fray'? Congress never passed the 'court-packing' scheme. The fact that this was even called a 'court-packing' scheme suggests that the idea of judicial independence at this stage was entrenched; supreme court had earned a degree of legitimacy and respect. Despite failure of Roosevelt's scheme, court switched its method of constitutional analysis to be more favorable to New Deal legislation.

West Coast Hotel
1937 United States Supreme Court (cb427)
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Case about minimum wage for women. Overruled earlier cases which invalidated minimum wage for women (e.g., Morehead from year before). Not just change of heart but also change of tone is notable in this case: o Opinion states 'freedom of contract' is not in constitution. Sounds like Miller in Slaughterhouse cases. o Community is not obligated to provide 'subsidy for unconscionable employers'. o Baseline is not natural: denying minimum wage is subsidy for employer, enhances employer's bargaining power. o Liberty is not some natural law phenomenon, it is part of social organization. Opinion switches the taking; now, by denying minimum wage, government is actually taking from employee to give to employer. o Employer had no a priori right under God to choose what he wanted to pay (draws from Holmes), legal realism. Hughes is not simply putting things into categories. Social context is important in opinion. Another basis for State Action: taxpayers are going to have to support these women if they can't earn a minimum wage. About as close to socialism as Supreme Court will ever come, just one year after Morehead. Overrules Atkins, effectively overrules Lochner.

United States v. Carolene Products Co.
[304 U.S. 144] 1938 United States Supreme Court
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Challenge to act of congress under 5th amendment, regulating milk fat (Filled Milk Act). Equal protection clause: Stone argues that there is no equal protection clause under 5th amendment, thus there is no argument here. Stone differentiates a facial challenge to statute rather than a challenge to statute as applied. Carolene Products is challenging statute facially. When statute is challenged facially, Stone holds that court should be more deferential to congress.

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Stone applies 'rational basis' test. Police power must have legitimate rationales (public health, for example). Stone uses presumption of constitutionality, burden on party challenging statute to prove statute is unconstitutional. (unlike Lochner where there seems to be a burden to prove constitutionality.) Stone is open to looking at facts (again, unlike in Lochner, even though health challenge was probably stronger in fact in Lochner).

Williams v. Lee Optical
[ 348 U.S. 483] 1955 United States Supreme Court
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Similar challenge as Carolene Products, but this time relying on 14th amendment and equal protection against State Law. Opinion very similar to Stone's in Carolene. No legislative record in this case, however. Douglas finds that there could be a rationale for law, thus even despite lack of record or proof that these are good reasons, Douglas finds this can be a reasonable connection to public health. Fundamentally accepting idea that 'it is right of people to pass stupid laws'--put faith in democratic process.

Are these questions really for the court?
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Lochner: need to prove to court that legislation is constitutional. Carolene: constitution does not protect us from all the stupid laws in the world, this is okay. Legacy of New Deal due process reinterpretation. Decisions for voters to make--policy/political debates--that voters should decide.

Will pick up with Footnote 4 on Friday, and continue with Brown v. Board of Education. Group 23 is on for Monday (off from Friday).

Friday, January 25, 2002 (Class 10)
Next week's assignments:
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Monday, Assignment 10, Group 23 Wednesday, Assignment 11, Group 5 Friday, Assignment 12, Group 6

New Deal

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Court has stepped back from reviewing substantive due process of legislative action. Still feels need to attach legislative action to public health, but in general give great deference to legislature. Coming close to 'rubber-stamping' what legislatures are doing, at least in the realm of due process. Started to come into conflict with Marbury v. Madison. If everything is deferred to legislatures, stupid and oppressive laws could be passed.

United States v. Carolene Products Co.
[304 U.S. 144] 1938 United States Supreme Court
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Footnote 4: There will still be some cases where court will apply strict scrutiny: o Minorities. Presumption of constitutionality is to defer to legislature because this is the democratic political process. But in cases where legislature may not be representing the interests of all, the presumption may not be valid. o Essentially turns table from twenty years before: now court will not give presumption of constitutionality with respect to race issues but will presume constitutionality for economic legislation. o Bill of Rights and 14th Amendment: Courts had found 1st and 5th amendment to be incorporated into 14th amendment through due process clause--liberty includes freedom of speech and religion and right against uncompensated takings. o Political Rights (related to concerns about minorities) o Moves much more into policy outcomes. Job of constitution is to make sure the democratic process functions and allows for decisions to be made based on policy. o Establishes two tiers of review (heightened scrutiny), but does not explain outcome in higher tier.

Brown v. Board of Education
[347 U.S. 483] 1954 United States Supreme Court
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Plessy had been read as giving green light to Jim Crow laws, segregation, etc.. Even by early 20th century, as Court was becoming increasingly pressured to take cognizance of 'real world'. Court began to apply Plessy in less formalized way. Plessy began to be read as separate but equal, but that was not what Plessy meant at the time: equality for Plessy was a matter of whether statute was applied equally to all races (i.e., didn't ask if train cars were as good for blacks and whites, just if the statute separating races was applied to all races). With graduate school cases, equal began to mean more equal 'stuff'. Court notices that segregated institutions are almost never really 'equal'. World War II: consciousness of racism of fascists, migration of blacks to Northern cities where they could vote. Cold War: change in attitudes regarding segregation and Jim Crow in United States.

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NAACP decides that it will no longer challenge resource inequality; it will litigate case as if resources were equivalent. Challenges segregation itself. Method of Constitutional Analysis: o Examine history. But finds this hopeless, fundamentally ambiguous. Schools were different at time of adoption of 14th amendment than in 1954. o Departure from 'original intent': schools are different from what they were. Or: times are different. Original intent was to depart from that intent. AlternativelY?: intent of framers is found only in words, constitution is objective collective document. o Conservative judges adhere to originalism, point to Lochner as court not holding to originalism. o Looks at psychology/sociology: people are not equally protected by laws. o Is it right to use sociology as a basis? If sociology is only basis, then might get different result if science points otherwise. Other possible basis (not explicitly mentioned): natural law. Was also used in Lochner, Dred Scott, and Plessy.

Monday, January 28, 2002 (Class 11) (Assignments 9-10)
Brown v. Board of Education
(continued) [347 U.S. 483] 1954 United States Supreme Court
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Questions about how was Brown decided, what does it mean, etc..

Bolling v. Sharpe
[347 U.S. 497] 1954 United States Supreme Court
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Question of DC public school system segregation; run by federal government this not under 14th amendment. Warren finds segregation unconstitutional under Fifth Amendment due process clause, even though in United States v. Carolene Products said no equal protection in constitution [304 U.S. 144] 1938 Supreme Court. Difficult to find basis for desegregation in Fifth Amendment: no textual evidence, no intent. Was difficult even under 14th amendment, but at least there the amendment was passed following the Civil War and the Civil Rights Act. Possible justification under Fifth Amendment: today, we know liberty means equality.

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Pragmatic justification--because Brown was so controversial, letting federal government off with segregation is big problem politically. Problem of history: what do we do when we see all the problems of history?

Overemphasis of Constitutional Analysis: too much reliance on constitution and courts to achieve social justice. Brown did not change things all that much in reality, although it did provide some legitimacy to movement. Persistent themes:
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Relationship between the federal government, the states, and the people Courts, congress, and the president Why should Courts figure out these relationships? Are questions of constitutional law all for the courts? What do we mean by liberty and equality? Similar problems arise at all times.

Course now will turn from history to doctrine...

Congress' Power under Article I
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Court's attitude towards power of congress has changed over time. Marshall was very concerned in McColloch? to read congressional power very broadly: though it is limited, it is plenary in its power. Taney interpretted congressional power very narrowly. Lochner-era court also read congress' power very narrowly. Switch in time that saved nine: not only a switch about substantive due process, but also a switch about reading congress' power under Article I.

National Labor Relations Board v. Jones & Laughlin Steel Corp.
[301 U.S. 1] 1937 United States Supreme Court
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Before the changeover, court would not allow federal government to regulate labor conditions because it was not found to be 'interstate commerce' -- manufacturing was not commerce, and workers in the factory were not interstate, and concerns about labor condition were not commerce. (Article I, Section 8 Commerce Clause). Court examined factory and industry and discovered that manufacturing plant was part of integrated unit that went across entire country. Jones is intermediate opinion: doesn't allow congress to regulate everything, but does open up the categories from precedent. Opinion could be limited to large plant doing business across states.

United States v. Darby
[312 U.S. 100] 1941 United States Supreme Court
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Fair Labor Standards Act. Statute does not allow shipment of goods that were produced in violation of the wage and hour limits set out by federal government. Also prohibits employers from making any goods in violation of standards. Shipment of goods is reachable by interstate commerce provision, even though basis of legislation is not necessarily commerce per se but labor standards. Second provision, prohibiting manufacture of these goods, is also constitutional because it substantially effects interstate commerce even if the manufacture and sale is entirely intrastate. Bootstrapping argument--15(b) becomes prophylatic method for enforcing 15(a). Court dispense with old arguments about manufacturing and commerce being separate activities. Deferential to congress, similar to Carolene Products (same judge, within a few years). Issue here is federal government rather than state, but similar analysis.

Wickard v. Filburn
[317 U.S. 111] 1942 United States Supreme Court
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Agricultural Adjustment Act restricted amount of wheat that could be grown in order to prevent wheat prices from dropping. Defendant grew wheat for own family past limit, quintessential intrastate case. Court allows Act to be enforced since even wheat grown for its own consumption effects market. Fifth amendment issue must be analyzed separate from Commerce Clause.

Wednesday, January 30, 2002 (Class 12)
Trend was to allow Congress to interpret Commerce Clause power of federal government. Issue has been regulations on individuals and corporations (eating wheat, working hours, etc.) Thus Court has been ruling on balance between Congress and State in regulating individuals. Another issue is individual rights, under Bill of Rights or 14th amendment. Was the problem with Wickard individual rights or federalism? That federal government shouldn't have regulated person's consumption of wheat and that state should have, or that no one should be able to.

Third question: separation of powers. Who decides if it is state or federal? New Deal Court was primarily grappling with Separation of Powers issue. They had lost faith in themselves; in the clarity, certainty, enduring nature of categories. If Civil War decided anything, it was that the States were 'under' the union, not co-equal partners. Arguments for and against federal power. Should federal government have power to regulate someone's consumption of wheat? All laws limit rights; New Deal theorists and legal realists believed in the absence of a law there is an underlying law which is limiting other's rights.

Civil Rights Act of 1964
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Not until 1964 did Congress pass another national Civil Rights bill affecting public accommodations. 1883: 14th amendment only applies to State Action, Woolworth's is private actor. Ollie owns restaurant, wants to exercise 'individual rights' to exclude African-Americans from his restaurant. Title II of Civil Rights Action prohibits segregation in places of public accomodation (very similar to 1866 acts). Title VII prohibits discrimination in employment, includes gender (Title II does not include gender). Congress did not want to rely on 14th amendment because they were regulating things that were not state action, which is why they were found to have acted unconstitutionally in 1883. So they rely on Commerce Clause. Justice Douglas would prefer that Civil Rights Act rest on 14th amendment, because this is more authentic, genuine approach. Would have to overrule case law to rest on 14th amendment. Difficulties in establishing intention. Most importantly: would eliminate the intermediaries of Congress and the State between the people and the constitution. Would limit individual freedom significantly. Wickard Analysis: if everyone does what Ollie does, there will be an aggregate effect on the economy. Also, food comes from out of state, customers, etc.. Basis for finding grounding in commerce clause. Motivation of congress is irrelevant under this conception. Congress' power under commerce clause is plenary. Is the end of integration and ending oppression worth violating the 'principles' of limited federal government, etc.?

Spending/Taxing? Power vis-a-vis Federalism
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Power to spend is enormous. E.g., any restaurant that is segregated has to pay triple taxes. Before the 'switch in nine', court did not allow Congress to use taxing/spending to buy or cajole regulation.

Steward Machine Company v. Davis
[301 U.S. 548] 1937 United States Supreme Cout
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Court upheld taxing/spending an constitutional for achieving policy ends. Court is deferential to congress. Tight boundary of taxing/spending effecting only commerce is lifted. Social Security Act is based on spending power. Power of federal government is ultimately in able to do deficit spending, taxes.

By the 1980's, Congress could do almost anything it wanted to, with limitation of individual rights/Bill? of Rights. 1987 Rehnquist became Chief Justice, things started to change.

United States v. Lopez
[514 U.S. 549] 1995 United States Supreme Court (cb512)
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Federal issue is whether federal government can pass law prohibiting gun possession near school. (individual freedom is right of kid to bring gun to school).

Finish Lopez, Morrison on Friday, ask if Civil Rights Act is constitutional. Should get to New York v. United States.

Friday, February 1, 2002 (Class 13) (Assignments 11-12)
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Optional TA Review Session and Problem: Monday, February 11, Room 97, 3:154:30pm Monday 2/4: Assignment #13-Group #7 Wednesday, 2/6: Assignment #14-Group #10 Friday, 2/8: Assignment #15-Group #15

United States v. Lopez
(continued) [514 U.S. 549] 1995 United States Supreme Court (cb512)

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Holds Gun-Free School Zones Act of 1990 beyond the scope of congressional power under Commerce Clause Lopez was the first case since Roosevelt's 'court-packing' plan where Supreme Court strikes down congressional legislation under commerce clause objection. Sets up categories: congress is on 'surer ground' when it regulates something that is economic claiming it will have a substantial effect upon commerce. Problem: how do you know what is 'economic' and what is 'non-economic'? o Child labor, for example--is that economic or non-economic? o Rehnquist will allow more 'steps of separation' between an economic activity and commerce than between a non-economic activity and commerce. Of course, noneconomic activity will rarely have a tight nexus with commerce. o Non-economic seems to mean 'traditionally in the realm of the states' Compare to Warren's opinion in Brown: education is so different from framer's era that you can't look back to interpret constitution. Rehnquist, instead, finds education was traditionally in the realm of the states--but to what is he looking? The 1700's? Two readings of Marbury--one is to just apply the law, the other is to be the ultimate safeguard of the constitution.

Justice Rehnquist's Opinion
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First, Congress can regulate (1) channels of interstate commerce, (2) instrumentalities, (3) substantially affects interstate commerce. Previous courts did not use categories, just looked for rational basis. o Channels--Darby--can regulate items in commerce. o Instrumentalities--railroads, things that facilitate categories. Proper test is whether activity 'substantially effects' interstate commerce (claims this keeps with case law--looking back). Presumes that federal power must be read narrowly, otherwise 'anything goes'. Divides 'substantial effects' category into 'commercial/economic' and 'noncommercial/non-economic'. Court is more willing to find substantial effects in regulation of commercial/economic activity. Even Wickard (presumably the limit) involved 'economic activity' in a way school gun possession does not Seems to re-establish economic/non-economic categories Slippery slope: costs of crime/national productivity argument could go to all crimes No general police power. Would have to pile 'inference upon inference' to find this constitutional. Congress' powers must be enumerated! Structural reading of the constitution: court's job to determine federalist balance. Return to categorical kind of thinking that was present in pre-New Deal court.

Justice Kennedy's Concurrence (with O'Connor)
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Jones & Laughlin Steel, Darby, etc., are all still good law.

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Stare decisis, idea that commerce clause interpretation is so entrenched that court is not going to mess with it Still is role for court. Separation of powers, checks and balances, judicial review no one questions judiciary's role. Question is federalism. Discussion of 'double security' from having two governments, more liberty, federalist papers. One might think political process should take care of federalism. But--no structural mechanisms, 'momentary political convenience', thus the court has some role in federalism. Legislation is not dumb--reasonable end. But end is not constitutional for federal government. Policy argument: states need to experiment, serve local ends, different ways to prevent guns in schools. Only at very end does Kennedy mention lack of commercial nature. Seems to be based mostly on theory. Does look at Framers, but acknowledges change in commerce over time necessitates re-interpretation.

Justice Thomas' Concurrence
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Thinks all Commerce Clause Jurisprudence has gone too far. Strict textual-intentionalist argument: why would framers have included certain powers in section 8 if they thought federal government could just have everything necessary for interstate commerce? Intratextual analysis: looks at commerce and affect in other places in constitution. Tenth amendment has been 'turned on its head' 'Substantial effects' test should be reexamined The 'wrong turn' was the Court's dramatic departure in the 1930s from a century and a half of precedent Thomas would be willing to return to original understanding, although stare decisis/reliance might be problem. 'Today, it is enough to say Clause certainly doesn't empower congress to ban gun possession'.

Justice Stevens' Dissent
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Agrees with other dissenters, says Congress should be able to regulate a number of substances. Guns are articles of commerce, their possession is consequence of commercial activity. Look at reality: whatever the framers thought in 1789, it's a different world today with respect to guns.

Justice Souters' Dissent
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Brief review of history--supreme court was bad when it made highly formalistic decisions, good in New Deal and Civil Rights cases. Accuses majority of Lochnerizing.

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Analogy both to commerce clause and due process clause of fifth amendment. Rational Basis test--good test, no reason to change it. Stare decisis. No need for findings--judiciary's job is not to rethink legislative action. Slippery slope theory (witness slippery slope from Jones & Laughlin).

Justice Breyer's Dissent (joined by Stevens, Souter, Ginsburg)
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Court must judge whether congress could have had rational basis, not whether it would have made same decision Goes to great empirical lengths to prove rational basis for legislation, says rational basis test should still be applied Simply apply pre-existing law to changing circumstances Holding is contrary to modern Supreme Court decisions Problem of distinction etween "commercial" and "noncommercial" transactions Threatens legal uncertainty in area of law that is settled

South Dakota v. Dole
[483 U.S. 203] 1987 United States Supreme Court (cb533)
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Issue: Can federal government condition highway funds on drinking age? Majority Holding: Yes--congress can regulate indirectly what it can't regulate directly, unless not in pursuit of general welfare or conditions not related to the purpose and intent of the program funded (Rehnquist and six others) O'Connor's Dissent: Linkage between national interest and conditions is too attenuated. Both over- and under- inclusive. Brennan's Dissent: 21st amendment reserves alcohol regulations to states.

United States v. Morrison
[529 U.S. 598] 2000 United States Supreme Court (sp1)
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Differs from Lopez in that there is a significant congressional record supporting economic effects of gender-based violence.

Justice Rehnquist (Majority) Opinion
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Rehnquist still presumes constitutionality, allows for Jones & Laughin Steel standard Non-economic, criminal conduct was key in Lopez--not 'some sort of economic endeavor' Interstate violence is still constitutional 'Slippery slope' theory--if you can regulate this, what can't you regulate? Says this case is about family law or crime--neither of which is commerce. 'No civilized system of justice' would not provide a remedy for Brzonkala, thus everything is okay.

Justice Thomas' Concurrence
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Good decision, but we should throw out the 'substantial effects' test entirely

Justice Souter's Dissent (joined by Stevens, Ginsburg, Breyer)
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Again, not court's job to second guess congress. Mountains of data, findings, showing effects of violence against women on interstate commerce. Far more rationale here than in Heart of Atlanta Motel. Gives lots of evidence as to economic relevance Still thinks its a bad law, but that's not for court to decide Dissent not based on 'logic alone'--history also shows that categorical exclusions are unworkable. Lots of appeal to precedent 'necessary and proper'--indicates that power was not supposed to be limited Cites bad 19th-early 20th century decisions Laissez-faire economics motivated blind formalism before; Souter claims this is why current court rules as it does. Historical record indicates that framers did not actually intend to prevent federal government from infringing on State Police Power Politics should resolve federalism issues 17th amendment weakened state power, it was okay States don't even want this power; they support law Court's position is incoherent; decisions will be decided on an ad hoc basis.

Justice Breyer's Dissent (joined by Stevens, in part by Souter and Ginsburg)
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Highlights incoherence of economic/non-economic categorization Court emphasizes how 'economic' it is, but not how 'local' it is Congress' role to determine federal/state balance--they have incentive to do so. Too hard for court. Maybe solution will be congressional procedural for balancing interests, but majority's view is totally wrong.

National League of Cities v. Usery
[426 U.S. 833] 1976 United States Supreme Court (cb552)
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Challenge to Fair Labor Standards Act as applied to state governments as employer. Rehnquist holds law to be unconstitutional--although within commerce clause power, finds it violates 10th amendment and would leave the States without any separate existence.

Garcia v. San Antonio Metropolitan Transit Authority

[469 U.S. 528] 1985 United States Supreme Court (cb555)
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States don't need judiciary to protect them from congress, the structure of the constitution creates the protection they need from federal government. Current holding is that law still needs to pass Lopez test.

New York v. United States
[505 U.S. 144] 1992 United States Supreme Court (cb576)
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Congress passed law regulating how States dispose of radioactive waste, mandates directly how State has to comply Statute is directed specifically at States, rather than Garcia which applied to everyone Statute instructs state legislatures to handle radioactive waste in a certain way. O'Connor finds spending provisions to be legitimate; Congress can use its spending power broadly to achieve certain ends. Provision specifically commanding state legislatures violates structure of constitution. Not exactly 10th amendment or commerce clause; rather both: 10th amendment creates interpretive gloss on commerce clause. We should read commerce clause narrowly when congress is attempting to regulate states in this manner. When only state is regulated, accountability and political lines are defused.

Start on Monday with Printz.

Monday, February 4, 2002 (Class 14) (Assignments 11-12)
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Optional review Monday, February 11, 2002 at 3:15pm in 97 Cargill. Review problems are currently available in Jan McNew?'s office. Read all problems and all attached articles. We will be assigned one of the review problems for a smaller meeting with Professor Parmet.

Congress' options when acting under the commerce clause:
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No person shall... o No person shall carry a gun into a school. In this case, congress is not directly regulating the states. Look to Lopez, Morrison. Set up scope of Congress' direct regulatory authority. No person or state shall... o Congress defines regulated entity to include states. E.g., 'No employer shall', including public employer. In Usery, Court seemed to say Congress is barred

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from this activity, particularly when it is treading upon something that is traditionally a state function. o Usery was overruled in Garcia, where Blackmun spoke for the majority, that if legislation is valid as applied to people, then it is valid applied to people and states. Blackmun argued in 5-4 opinion that is too hard to determine what is a traditional state function, and that the people and congress can determine the properly balance here. o Dissent warned they would return. Since then, Court has not directly overruled Garcia, although it does seem to have circumscribed it. The State shall... o O'Connor reads tenth amendment as an interpretive tool to understand Article I. Under this reading, Congress is not permitted to say the state shall or the state legislature shall. Congress cannot commandeer state and state legislature. o In New York, regulating low-level radioactive is a legitimate activity of federal government, but it cannot be done in this way. o Bases of opinion  History: federalist papers  Prior to the Constitution, Congress could only regulate States, but not individuals. O'Connor reads decision to add direct regulation of individuals to subtract direct regulations of states. Highly debatable interpretation.  History creates a structure of federalism.  Worried about accountability. If Congress tells States to regulate individuals, then the individual regulated doesn't know what political entity is responsible for regulation.  Stevens' dissent, echoes Blackmun in Garcia: Federalism is protected by structure of constitution, not by judiciary creating doctrines. The State shall receive funds if it...

Printz v. United States
[521 U.S. 898] 1997 United States Supreme Court
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Federal law to control handguns, interim measure compels State Law Enforcement Officers to do background checks. Sheriffs challenging law on the basis of New York. In that case, Court ruled that congress could not 'commandeer' state legislatures; in this case, the challenge is to the commandeering of the executive. Scalia examines constitutional history, finds rare examples of federal government ordering state executives. In early days, judicial and executive functions were often blended. (Historically, State judicial was always bound to Federal Law--supremacy clause and full faith and credit clause). State officials routinely are instructed to apply Federal Law. e.g., 'No person shall labor for less than $5/hour'. This will be enforced by State Judges. Having judges enforce federal law, under Scalia's interpretation, is different from having Sheriffs enforce federal law.

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History, for Scalia, does not support a practice of federal commandeering of state executive branches. Scalia does not rest his argument on history, however, but finds that the answer is found in the structure of the constitution. Structure will not be properly realized if congress has press into service all the state officials. If Congress wants background checks, it could: o Have federal government perform checks itself o Federal government can also provide monetary incentives Justice Thomas' Concurrence: o Raises problem of 2nd amendment--problem is individual rights, not States.

Reno v. Condon
[528 U.S. 141] 2000 United States Supreme Court
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States were selling State Driver License databases; Federal Government passed bill forbidding sale of this information. Concern that stalkers and others would use this information for bad ends. Attorney General of South Carolina, plaintiff, suing Janet Reno as United States Attorney General. States challenged Driver Protection Law, claiming it was analogous to Printz, which attempted to force States unconstitutionally. Congress is being very specific in compelling inaction, rather than Printz where they were compelling action. Case illustrates 'bluriness' between categories of federal regulation (i.e., regulation of people vs. state vs. both). Congress could have directly regulated people: 'it is illegal to buy or sell driver's license information'. But congress chose to regulate the States directly. Brady Bill (Printz) could be reworded to appear as inaction. Federal government can still require action, as well: States have to report kidnapping to FBI. Puts boundaries (though unclear) on Printz. For long period from the 1930's until the 1990's, Court almost never overruled Congress. Since then, there has been abrupt change of doctrine. Court is much less deferential to Congress.

Other Sources of Federal Authority--Post Civil-War Amendments
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13th, 14th, and 15th amendment created new individual rights. Individual rights are protected from State Action, but problem with applying civil rights amendments to individual action, thus commerce power was generally used to protect civil rights of individuals against other individuals. One area that was not brought under commerce power: voting rights.

South Carolina v. Katzenbach
[383 U.S. 301] 1966 United States Supreme Court
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Congress passed Voting Rights Act of 1965, in response to lack of enforcement of 15th amendment. Voting Rights Act suspended literacy tests and required state voting regulations to be approved by the Federal Government. Chief Justice Warren, writing for Court, found that South Carolina should be barred from administering literacy test. Courts hadn't been able to insure uniform nationwide compliance with Voting Rights under 15th amendment. Thus Congress passed Voting Rights Act, allowing Attorney General to bring in Federal Marshalls and insure voting rights. Warren starts by citing McCulloch? v. Maryland, which usually means the Court will ask if the means justify the federal ends, and usually finding that they do. Black's dissent: concerned about Federal-State structure. Finds Voting Rights Act too intrusive.

Katzenbach v. Morgan
[384 U.S. 641] 1966 United States Supreme Court
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Challenges constitutionality of section of Voting Rights Act in Puero Rico; that knowledge of English is not required to vote. Much harder case than South Carolina for Court to decide. No record of New York's malfeasance. Court could see that Act was legitimate means for resolving problem in South Carolina, harder to see in New York. Court had specifically held that English Language Requirements was a constitutional voting requirement (discussed in Lasseter case in Harlan's dissent), presents further problem for Supreme Court. No judicial history of New York using language-based requirements to enforce racial disenfranchisement, unlike situation in South Carolina. Justice Branon starts, again, with McCulloch?, suggesting again that he will be deferential to congress. Congress can make its own vision of what constitutes commerce. There are some activities which clearly would be unconstitutional under 14th amendment, but a rational congress might think that if you have a literacy test and if you keep Puerto Ricans from voting because of language requirements, people might not be elected to represent their interests, and thus political actors might take unconstitutional actions applying to them. Circuitous route, similar to Darby and other rational basis decisions. Second alternative ground for decision: (cb491) Maybe Congress could disagree with Court in Lasseter. Congress has different facts, might see world differently; they might believe that English language requirements might violate equal protection clause.

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Suggests that Congress itself has coequal interpretative powers with Supreme Court. (see Lincoln-Douglas debates.)

Start on Wednesday with Footnote 8 on cb490. Continue with City of Boernes, Morrison, and preemption.

Wednesday, February 6, 2002 (Class 15) (Assignment 13-14)
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Research packet available outside Jan McNew?'s office. Review problem also there--be sure to get it for Monday's review session with TA.

Katzenbach v. Morgan
(continued) [384 U.S. 641] 1966 United States Supreme Court
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Court upholds Congress' ban on literacy tests on two bases: o Puerto Ricans might not receive equal city services if they are not represented in government, which the court has found to be unconstitutional. o Congress can decide for itself that literacy requirement is unconstitutional. Congress can disagree with court's decision in Lassiter. Court is essentially 'going out of its way' to find constitutional rationale for Congress' act. Increasing deference to congress brings with it this possibility of encroachment on States Rights. Reconstruction amendments: adopted specifically to give federal government power over states; states specific role for congress. Unlike commerce clause expansion cases which don't have this kind of basis. Commerce Clause was product of Constitution of 1787 which may have had a broader conception of States rights than post-Civil War amendments. Does this case seem like congressional invalidation of court's earlier decision in Lassiter? Brennan's second rationale comes quite close to saying that congress can tell the Court it was wrong in its prior holding. Footnote 10 (note a in book): congress cannot limit rights against Supreme Court, only expand them. Congress's ability is 'one way ratchet'. Problem: sometimes expanding one person's rights is seen as limiting another person's rights. Usually not the case that you can expand some people's rights without interfering with other people's rights; voting rights are peculiar (counterargument of other people's votes being diluted is weak).

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Under this interpretation, what if congress says: 'Supreme Court got it wrong in Roe v. Rade, fetus is really a person, we need to extend rights to fetus.' Is this an 'upwards ratchet'?

City of Boerne v. Flores
[521 U.S. 507] 1997 United States Supreme Court (cb536)
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City denied Archbishop right to expand church because of historical preservation/zoning issues. Archbishop sued under Religious Freedom Restoration Act, which set strict standard for government to limit religious practices. In Smith case, Supreme Court denied earlier 'balancing test', holding that neutral laws of general applicability may be applied to restrict exercise of religious freedom, unless the individual can show intent behind the law to limit religious freedom. RFRA was passed in response to Smith, very popular, denying governments the ability to limit religious freedom, even with facially neutral statutes that do not intend to abridge religious freedoms. Under Morgan standard, Supreme Court would probably be deferential to Congress, since it was extending protected rights (Free Exercise). Kennedy, writing for Court, strikes down RFRA, since it goes beyond being a remedial power and effects a substantive change in constitutional protections. Kennedy would allow federal government to only act to prevent unconstitutional state acts, as interpreted by the Court. To the extent that Morgan suggests that Congress has co-equal power of interpretation with Court, Court is rejecting that basis--other basis for decision was stronger basis. Congressional means have to be congruent and proportional to ends. Switches burden of proof from individual to the State. No rational basis test. Compares this case to South Carolina v. Katzenbach, there the means were proportional, because the Court had already found specific States to have violated constitution. In this case, not enough evidence of religious discrimination in all 50 states to warrnt this act.

What happens when Boerne meets Lopez?
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Gender-based violence is itself (perhaps) violation of equal protection. States may not be adequately remedying that. State Action Requirement under constitution--see Civil Rights Cases, Boerne. Rape, even if it is gender-based, is not violating of Equal Protection Clause. Congress thought that gender-based violence was so discriminatory that it deprived equality of women. Rehnquist: Even if Congress thought this, gender-based violence is not violation of 14th amendment, it is just a state crime, not a 14th amendment issue. Response: problem is not the rape, the problem is the State's inadequate response to the rape. Thus there is state action, according to proponents. Act is needed to remedy State action.

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Rehnquist: but consequence is not to state officials, but against the perpetrators of crimes themselves.l Again, Congress has not proven to the Court that all 50 States have discrimination based on gender-related violence. Shift to burden on Congress to demonstrate ubiquity of problem. 'Congress has not made prima facie case of section 1 discrimination in all fifty states.' Very heavy burden on congress. Breyer's dissent: Congress as legislature has different way of amassing evidence and reaching conclusions. Should not be judged as if it were a litigant in Federal Distirct Court. If Congress, in good faith, accepts Court's constitutional interpretation, then Court should defer to congressional fact-finding methods, which are different from Court's. Supreme Court is imposing a demand for 'court-like' evidece in this case.

Kimmel
(sp44)
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Technically, deals with sovereign immunity. Court has held that, in general, individuals cannot sue the state. States have immunity from people in Federal Court. Congress can abrogate sovereign immunity when it acts under reconstruction amendments (but cannot abrogate under Section 5 of commerce clause). Law prohibits discrimination on basis of age and employment. Question is whether State employee can sue State for age discrimination. Not the Heart of Atlanta question; just limited to whether law is based on 14th amendment. Court finds law overreaches: not congruent and proportional. Not sufficient evidence that States were engaging in widespread discrimination. Makes it extremely difficult for Congress to pass Civil Rights Laws. Three Civil Rights Laws have been struck down recently, all on the Boerne analysis. Court acknowledges that discrimination goes on, but wants to leave resolution to the States. All of these cases are decided 5-4, with same 5 justices on one side, same 4 on the other side. Dissent does not acquiesce, even on basis of stare decisis.

Generally, we see return to pre-New Deal concerns and standards. Deductive, formalistic methodology with clear rules and clear tests, rather than deference to Congress. Also, originalism and history (which were not present in pre-New Deal court). Rehnquist Court has invalidated more legislation in last 5 years than all Courts in prior history. What happens when congress passes statutes that apply to States that are, themselves, constitutional?

Pre-Emption

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Can only occur when and if Congress has authority to act. e.g., Congress cannot pre-empt on bringing guns to school, or criminal prosecution of violence against women. Act must be constitutional. Inevitably, when Congress acts constitutionally, it is doing something to displace State power. If State passes law under its police power, and Congress passes law under Article I power, what occurs?

Gade v. National State Wastes Management Association
(materials)
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Federal government imposes standards for hazardous waste disposal. States also have their own standards. Can State still impose its standards? What if State standard is more stringent than Federal standard? O'Connor gives mode of interpreting pre-emption: pre-emption may be express or implied, by congressional intent. In one sense, pre-emption is in statutory interpretation. Constitutional issue: Supremacy Clause of constitution makes clear that congressional law is supreme. This is an example of implied pre-emption; not written into statute.

Friday, will pick up on 'how does Congress find implied pre-emption'. Will go on to talk about Horizontal Federalism.

Friday, February 8, 2002 (Class 16) (Assignments 14-15)
Next week's assignments:
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Monday, February 11, Assignment #16, Group #19 Wednesday, February 13, Assignment #17, Group #20 Friday, February 15, Assignment #18, Group #23

Gade v. National Solid Wastes Management Association
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Pre-emption is both constitutional and statutory, is also doctrine of federalism. If federal statute pre-empts state statute, then constitution says it overrules--Supremacy Clause. If you are concerned about state rights, one approach is to limit Congress' power under Article I; another is too interpret pre-emption more narrowly. O'Connor in Gade: there are two types of pre-emption, express and implied.

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Why not just have express pre-emption? o Not practical; Congress doesn't expressly state pre-emption, but not possible for citizen to comply with both Federal and State statute (conflict pre-emption, when it as almost physically impossible to comply with both). o Comprehensive Scheme. Sometimes Federal legislation seems to be intended to totally cover an area, pre-empting State law. O'Connor looks at Statute as a whole, finds that it was Congress' intent to protect workers and the public. Statue sets that if State does not want to adopt OSHA, they need to submit a plan (18(b)). Suggests this means that OSHA was meant to pre-empt State law. Also looks at 18(c); standard that State wants to set can't effect commerce. Reads all provisions of OSHA together to find congressional to pre-empt. Finds that this is conflict pre-emption. But is it physically impossible to have both standards? Impossible to conform with both sets of rules and have unifom system. Kennedy disagrees that this is conflict pre-emption, suggests it is expressed--'implied expressed pre-emption'. Unusual distribution of justices--seems to switch normal roles on Federalism questions This alliance occurs in pre-emption cases repeatedly. Souter: why not just read State Statutes narrowly? Traditional approach to read statutes so as to not create constitutional conflicts. O'Connor: Would rather have one regulatory scheme than two. Souter's constant references to Lochner include allusion to laissez-faire economics. O'Connor and Kennedy are worried about too burdensome a regulatory scheme on business. If highest principle was adherence to state sovereignty, probably would not find preemption in this case (could construct rule of construction that would only find preemption when expressly provided). Pre-emption is thus considered statute by statute.

Horizontal Federalism
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What happens when Congress has done nothing to regulate certain area between States? Very rare that Congress has actually done nothing, always ask if there is a federal law which pre-empts. In 1820 there was almost never pre-emption, now there almost always is. Are there limits on what States can do apart from pre-emption? o Obviously: 14th amendment, Bill of Rights. o What about limits within Article I? Article I has a few specific textual limits for what States can do:  Article I Section 9-10: prohibits States from taxing each other's goods.  Technically, no other textual restrictions.  Court in early 19th century read grant of power in Article I Section 8 as preclusion of power from States.  Early theory was that Congress' power of interstate regulation was something that Congress 'had', thus states did not have it.

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Problem with this theory: early on Congress did little to regulate interstate dealings.  Overwhelming majority of constitutional cases before Civil War involved interstate regulation by the states, dormant commerce clause. Why have a dormant commerce clause? o Congress can't do everything, Court should police interstate transactions. o Could argue that Congress can pass laws when it wants to stop states from interfering with interstate tranactions. Justice Stone in Carolene Products: sometimes States can't be trusted, when they interfere with religion, etc. Uses similar reasoning for Court's power in horizontal federalism cases. Democratic theory idea: Tobacco farmers in North Carolina can't vote out politicians in Masachusetts who outlaw tobacco products. (but: can't Massachusetts citizens vote on whether or not they want health hazards associated with tobacco.) Where do you draw line between ostensibly health/safety regulations to protect state's citizens and that also interfere with interstate commerce?

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City of Philadelphia v. New Jersey
[437 U.S. 617] 1978 United States Supreme Court (sp15)
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New Jersey passed law prohibiting waste from being imported into state New Jersey Supreme Court finds law constitutional First, Justice Stewart finds that waste is clearly commerce Then: is the Statute facially discriminatory? o If we look at statute, and it 'sorts the world into two groups', in state from out of state, then it is facially discriminatory. o Don't need to examine effect or purpose for this analysis. New Jersey's argument: purpose of statute is protect citizen's health and safety. Court finds that facial discrimination is per se unconstitutional (although this can't be found textually in constitution.) Exception to rule: quarantine laws. Not to discriminate against interstate commerce, but to prevent noxious items from entering. I.e., not about commerce, but about the good itself. Could create law to keep cattle who have been exposed to hoof and mouth disease out of state. Dissent: doesn't see why state can use quarantine law, but can't reject trash. New Jersey is doing all it can do--can't ban citizens from creating trash. Rehnquist is in Dissent (unusual from "States' Rights" point of view): should see tenth amendment as empowering New Jersey to do whatever it wants. States' Rights means letting some States do what other States don't want them to do. Burden is now shifted to State to explain why it is absolute necessary to discriminate against other States. Almost impossible for State to pass law that facially discriminate.

When law is not facially discriminatory and there is nothing 'fishy' going on, Court is generally deferential to State Legislature. (i.e., banning cigarettes entirely to protect lung health). If it

appears that facially neutral is pretextual, court might be more willing to intervene (i.e., banning cigarettes so people will purchase Massachusetts Cigars.)

C & A Carbone, Inc. v. Town of Clarkstown
[511 U.S. 383] 1994 United States Supreme Court (sp21)
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Carbone ignored New York state law requiring all trash passing through town to go through town's waste processing center. Financing scheme for landfill. For Monday, why is this law unconstitutional? Look at problem in materials for Monday. May start Assignment #16, election issues: why the electoral college, and should we get rid of it?

Monday, February 11, 2002 (Class 17) (Assignments 15-16)
C & A Carbone, Inc. v. Town of Clarkstown
(continued) [511 U.S. 383] 1994 United States Supreme Court (sp21)
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Distinction between Facial Discrimination (Per Se) and Facially Neutral but disparate impact Discrimination between states/against states ('balancing test'). Clarkstown policy requires all trash passing through city to go through city's processing center. Is Clarkstown policy facially neutral? o Doesn't mention location of those who are subject to ordinance (in contrast to Philadelphia) -- would thus appear to be facially neutral. Kennedy: creates a local preference. Not discriminating 'against' but discriminating 'in favor'--outside waste procesing facilities are thus being discriminated against. So close to facial discrimination that it should be considered per se violation, thus unconstitutional. Souter's dissent: law is constitutional because it aids government, not private actors, through partnership with Clarkstown plant that the government is going to take over in a few year. o Goal is not to discriminate against out-of-state plants, but to finance state's trash disposal. o Question of 'financing policy'--if the town wants to finance its trash collection in this way, this is for the town to decide. o Accuses court of Lochnerizing again.

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Hypothetical: people have to pay for public schools (usually through property tax), even if you don't have children who attend those schools. Does this violate dormant commerce clause? Note that Edison Corporation runs schools around the country. o By forcing people to pay for public school (whether or not they have children, and whether or not they go to public school), make it harder for Edison Company to come in to state and open business. o Compare fire departments--used to be only houses with fire department plaque (saying they had contributed to fire department) got fire protection. Not efficient.

Market Participation Doctrine
(cb617)
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When State wants to spend its money, it can choose to spend its money as it wants--e.g., can pay for education just in State. In Big Dig, can choose to only pay Massachusetts contractors. When State is acting like individual consumer (spending tax dollars), it can choose to favor its own. Exception to dormant commerce clause. Can create economic effects that are so overwhelming that they are in fact regulatory. E.g., State says to Hospitals in state--we will give you all health care money as long as you purchase all your medical supplies from Massachusetts companies. This 'choice' is then not really a 'choice' at all.

Privileges and Immunities Clause
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Also deals with burdens on out-of-state interests. Limited to people, not corporations. Issue of how States treat residents of other States. In Dred Scott, Justice Taney's conception of Citizenship denied all African-Americans privileges and immunities in all States.

Piper Case
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Article IV privileges and immunities are interstate vs. 14th amendment priveleges and immunities which are intrastate. New Hampshire would not permit non-New Hampshire residents from practicing law in New Hampshire. Supreme Court struck down New Hampshire law; priveleges and immunities clause protects rights which are fundamental to interstate harmony. Burden on State depriving these rights is to prove compelling state interests and no other way to do it. Court finds practicing law to be fundamental, even though voting is not (as isn't elk hunting). If voting were considered fundamental under this conception, anyone would be able to vote in State as they were passing through. Do State colleges violate privileges and immunities? Unclear from lower court decisions.

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New Hampshire could increase burdens on joining New Hampshire bar, as long as it is facially neutral.

Practice Problem
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Focus on ambiguous issues, where resolution would not be clear. Argue both sides, applying the cases to the particulars. 'Bioterrorism Prevention Act': designed to enhanced nation's capacity to prevent/respond to bioterrorism. Title II: Requires every lab possessing bioterrorist agent to acquire license from state, must prove to state safety precautions. Every laboratory license by state shall be examined every six months. o Does Congress have power/authority to enact this statute? o Most likely source of authority is Article I Commerce Clause. o Does Lopez standard put legislation within Congress' power?  Channels, instrumentalities, and substantially effect commerce o Does not seem to fit into channels or instrumentalities, but could it substantially effect commerce? o Pro-argument: Laboratories are 'economic activity' -- more like businesses than like schools and the home. Then, bioterrorism has enormous impact on interstate economy. o Con-argument: health and safety regulations seems to be at core of public police power, not given to Congress to regulate. o Look at Katzenbach v. McClung?, just like diners are businesses, can pursue moral or public health goal. o Under Prince: seems to commandeer state officials. Bioterrorism law seems to come very close to Prince. Title III: Does Congress have authority? 14th amendment. Not like Boerne. Statute requires state to 'remember 14th amendment', even when bioterrorism comes. Congruence and proportionality in Boerne and Morrison concerned Section 1. No New York or Prince issue under 14th amendment, only under commerce clause. Will do Atlanta statute on Wednesday and Bush v. Gore.

Wednesday, February 13, 2002 (Class 18) (Assignments 16-17)
Review Problem I

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Atlantis has health code that makes it illegal to possess anthrax bacteria. Atlantis company wants to acquire bacteria for research from laboratory supply company in state of Pacific. First Question: Is statute preempted by federal law? o Federal statute can only preempt state statute if it is constitutional. o Assuming federal statute is constitutional, look to see if there is any express preemption. o Nothing in statute suggests an explicit pre-emption intent or language. o Secondly, is there field pre-emption?  Since federal government is regulating 45 pathogens, could find that they intend to occupy the entire field.  Alternatively, federal government may only be creating federal floor. States could be free to supplement federal regulatinos.  Since States are supposed to be part of enforcement of federal regulations, could be case is an example of cooperative federalism, not intended to preempt state action. o Third, is there conflict pre-emption? o (could argue both ways for either) Federal statute might empower states to take action; this could overcome any dormant commerce clause concern since federal government is authorizing states to license pathogen laboratories. If there is no pre-emption and no empowerment, then move to dormant commerce clause analysis: o Is regulation facially neutral? Yes--does mention any other state. o Protectonism? Doesn't appear to create local preference. o Pike test: Burdens to interstate commerce vs. States' Interest. o Seems to be limiting and negatively effecting interstate business in germ supply. Might also prevent shipment of bacteria through state as well (on interstate transportation). o Compelling state interest can be argued--public health and safety of not having anthrax in state.

Selection of the President
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So far, we have been discussing relationship between congress, the states, and the courts. Now will introduce relationship with president: look at federalism issues and separation of powers issues. Marbury v. Madison established President as subject to judicial review, set up constitutional issues. Lincoln and Roosevelt also played large roles in constitutional evolution. From 1876 until last year, candidate who got the most votes won the election. 1876 election resulted in end of reconstruction. 2000 election demonstrated that it's not the voters who pick the president, but the electors. Justifications for Electoral College:

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'Distrust of the common folk'--but in 1876 there was not widespread franchise anyway. o Number of electors is not proportionate to population--every state gets at least three. o Concern that if states expanded franchise they would get more votes. Would create competitive pressure on states to expand their franchise. o Original idea was a 'deliberative democracy'--electors would get together and discuss who was the best candidate. o Assumes voting block is the states. Do we want to conceive of the office of the Presidency as one created by the States or one created by the people of the nation? Problem with abolishing electoral college: would need to have 3/4 of states ratify constitutional amendment. But small states are benefited by electoral college, and each get 1 vote in constitutional amendments (even further exacerbating problem).

o

Bush v. Gore
[531 U.S. 98] 2000 United States Supreme Court (sp65)
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Review of decision of Florida Supreme Court to order state-wide recount. One week earlier Supreme Court had vacated an order of the Florida Supreme Court to do recount. Similar to dormant commerce clause causes--where Supreme Court reviews decisions of state courts. Per curiam decision--no specific claim of authorship--authored by 'court' (although generally thought to be authored by Kennedy). Very unusual to have a per curiam decision in such a contested split decision. Per Curiam opinion: o Florida Supreme Court violated the constitution by ordering standardless recount-did not provide equal protection. o Next question: can United States Supreme Court remedy this violation? o Court concludes not to remand to Florida State Court consistent with their opinion. Not enough time to do this before safe harbor period. o Congress had passed safe harbor--if electors are certified in time, they will be counted. 3 U.S.C. §5. Congress actually counts the vote, decides which electors will be selected. o Court presumes that State of Florida wants to take advantage of the Safe Harbor deadline. o But--Supreme Court was responsible for Florida not meeting deadline; also, did not give Florida a chance to express whether it wanted to meet deadline. o Justices in majority were same justices who had consistently advocated for state sovereignty; dissent (who usually voted for federal authority) wanted State Court decision to rule. Justice Rehnquist concurrence (with Scalia and Thomas). o State legislatures should chose method by which they want to pick electors.

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o o

Article II says State Legislatures shall mandate method by which electors are picked. To the extent to which Florida Supreme Court violated legislature it is unconstitutional. But: one would think it was a question of State Constitutional Law to interpret legislation in this case. Rehnquist is saying that State Courts have no say in enforcing State Law with respect to presidential elections. Article II restricts the ability of State Courts to construe the State's election system. Challenges legitimacy of Supreme Court in deciding this issue Should courts intervene in times of crisis? Dissent claims that the State was on its way to resolving this issue

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Dissent
o o o

Will go on to address Presidential Power on Friday.

Friday, February 15, 2002 (Class 19) (Assignments 17-18)
Administrative Notes
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Wednesday, February 20, Assignment #18: Group 23 is on Friday, February 22, Assignment #19: Group 5 is on Pick research topic by next Friday

President's Power
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Derive from Article II of Constitution Article I: Presidential veto, legislative power

Youngstown Steel Case
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Night before strike was called by the Steelworkers Union, President Truman ordered executive order for government to take possession of 85 steel manufacturing companies throughout country, claiming National Emergency to keep steel industry up and running because of presence in Korea. District Country issued preliminary injunction. Supreme Court granted writ of certiorari to consider constitutionality of executive order. Justice Black, writing for majority: o No law explicitly gave president power to seize steel mills, nor implicitly. o Since Nation is not at war, President cannot act as commander-in-chief. o Thus only legislature has power to seize mills.

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All opinions appear to assume that this would be within power of congress. Questions: o Did congress authorize this? o In the absence of congressional authorization, can the president do this on his own? Congress could have convened to approve president's action, but did not (unlike in the Prize Cases, where it was harder to convene immediately). Truman has tremendous union support; steel companies are suing Truman. Justice Frankfurter: o Truman's act implicitly violates Taft-Hartley act--Truman is violating a statute. Justice Douglas: o Looks at issue in terms of individual rights -- individuals being steel manufacturers. o Steel manufacturers have constitutional right against taking of property without just compensation. o Can't take without compensation, but President isn't in position to take, because he can't raise revenue (requires congressional enactment). o Clear delineation between lawmaking and execution of laws. o Draws much brighter line--regardless of history of Taft-Hartley, President would not be able to take action unless congress explicitly authorized it. o Administrative Law: Congress passes broad enactments, Executive goes in to fill the gap. o Douglas was brought to Washington to be head of Securities and Exchange Commissions--somewhat unusual that he is then arguing bright line between legislation and implementation. Three justices suggest that implicit congressional disapproval is problem--statutory background. Justice Jackson--the most interesting and important: o Dilineates three situations in which President has power. 2. Enacting congressional laws (carrying out congressional policy.) -- president's power is strongest. 3. No explicit grant of powers from congress--concurrent authority--gray area. Congress has not said yes or no. 4. When President is going against policy of congress, needs constitutional power to do so. o Jackson believes President is acting under third category--President is acting against Congressional policy (reading case like Frankfurter). o Recognizes overlapping and concurrent powers; uncertainty and tension about division of powers, no clear boundaries. o Talks about his political experience, and having been solicitor general. (also happens to be that he was a judge at Nuremberg Trials). o Pragmatic opinion. Understands constitution in light of political experience. In this era, court was often filled with Justices with political experience--now Justices tend not to be comprised of people who have engaged in public life. President's 'real' power: political power. If President is popular, he can get congressional support he wants to accomplish his goals.

o

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Political Question Doctrine: might not be able to litigate at all if Court finds that matter is political question, not subject to judicial determination.

Wednesday, February 20, 2002 (Class 20) (Assignments 17-18)
Administration
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Need to sign up for research paper assignment by Friday

Individual Rights
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Up until now, we have discussed federalism, balance of powers, etc., moving into individual and group rights now (for rest of course). Begin with State Action as gateway into individual rights. When there is State Action or Congressional Action, Courts can place limits. When there is only Individual Action, Congress or the States can regulate individuals. Congress can regulate individuals under commerce clause. States can regulate individuals under police power. Most state action cases involve whether the state is acting under its police power. Most difficult cases are those at the margin, where the defendant is claiming they are private person, not acting as state, while the plaintiff will claim that they are acting as state. Go back to West Coast Hotel: state 'inaction' is actually action--absence of a minimum wage requirement is a subsidy for sweatshop factories. i.e., absence of minimum wage is also law (common law is law). When parent instructs child, there are laws which support that right. Thus in some ways parent instructing child involves state action. However, extending state action this far begins to obliterate individual rights. On the other hand, overt state action seems to only occur when moving from status quo. In this understading, change is always subject to judicial review, but maintaining the status quo is never subject to judicial review. Would lead to very conservative court.

Shelley v. Kraemer
[334 U.S. 1] 1948 United States Supreme Court (sp31)
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Issue is whether state can enforce a private racially restrictive covenant--i.e., whether the equal protection clause of 14th amendment has been violated.

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Problem with state action is that conflict is between buyers and neighbors. Neighbors are claiming seller did not have right to sell to African-American buyer. Appears to be a private agreement rather than a state action. Justice Vinson: Property ownership is among civil rights protected by 14th amendment. Judicial enforcement and legislative action both constitute State Action. Focuses opinion on intervention of state court: Judge is state employee, acts as state. On the other hand, don't all private contracts and actions have some degree of judicial enforcement? Question: is this a theory of state action devoid of context, or is Vinson willing to see state action based on the context? Reasoning in Shelley is relatively rare. Other area where state action is always found without question--libel law. Private parties subject to constitutional restraints: states have to protect newspaper's rights to free speech. Area of especially highly regarded rights.

Rendell-Baker v. Kohn
[457 U.S. 830] 1982 United States Supreme Court (sp35)
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New Perspectives School, nonprofit school, school committee votes to fund public schol students there. Teachers claim they were discharged simply for speaking up, violation of due process. Plaintiff claims school is equivalent to state institution, even though it is nominally a private entity. Plaintiff doesn't make Shelley v. Kraemer argument--i.e., that state action creates the employment relationship--claim of school that it has the right to summarily dismiss its employment is inherent in state action, instead relies on fact that school is almost entirely publicly funded, functions like a public entity. Justice Burger: Start with assumption that private entities are private. For something to be public, it mut be something that has exclusively been a public function. But is there anything which has ever been exclusively public? Tax collection, judiciary, maybe (but tax collection has been contracted out, and private mediation exists). Burger's key holding: if state had compelled school to dismiss teacher. Would this case have come out differently if it had been brought by a student of school claiming discrimination?

Friday, will talk about Brentwood and then First Amendment.

Friday, February 22, 2002 (Class 21) (Assignments 18-19)

Next Week
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Monday, March 4: Assignment #20, Group 7 Wednesday, March 6: Assignment #21, Group 10 Friday, March 8: Assignment #22, Group 15

Rendell-Baker v. Kohn
(continued) [457 U.S. 830] 1982 United States Supreme Court (sp35)
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Issue of whether private school whose income is primarily from public sources is subject to constitutional requirements under state action doctrine. What if plaintiff had been a student? Would result have been different? o School's interaction with students was much more heavily regulated by State than its interaction with teachers. o Students were placed in this school, generally had no choice. What distinguishes state actors from non-state actors? Defense contractors, the Federal Reserve Bank, private schools, etc.. Might it be the nature of the underlying issue be at stake?

Brentwood Academy v. Tennessee Secondary School Athletic Association
[2001 U.S. Lexis 964] 2001 United States Supreme Court (sp39)
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Is Tennessee Secondary School Athletic Association a state actor? TSSAA is a nonprofit membership corporation formed to regulate interscholastic sports. Receives incomes from public schools by dues, no other authority for interscholastic regulation. 5-4 split, majority opinion written by Souter. Entwinement theory: sets up a number of criteria for entity to be considered to be entwined with government action. Distinguishes Rendell-Baker by suggesting that Rendell-Baker was about public function test, while this case is about entwinement test. Thus there is state action in this case, even though there wasn't in Rendell-Baker. Souter couldn't purport to overrule Rendell-Baker or he wouldn't have five votes. Can't make a decision based solely on formalism. 'Winks and nods'. Deciding vote is O'Connor--so Souter's opinion is essentially to convince O'Connor. Thomas' dissent: explicit about reading State Action narrowly. Worried about individual rights. In this case, two corporate entities are concerned (Brentwood and TSSAA). Of course, either reading impinges on individual rights.

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Concern also about state sovereignty. In the absence of State Action, TSSAA's action is private action subject to State Police Power. Thus this could impose requirements on States to act against individuals; i.e., limits State Sovereignty. Thus Thomas' dissent would give States 'broad power'.

Underlying Rights
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Can't really understand state action without understanding underlying rights. As we examine underlying rights, there will still be federalism issues. o If person has a right to free speech, then Massachusetts doesn't have right to tell person not to speak. o Also means that when court establishes individual rights it is limiting the legislature (vs. the state legislature vs. congress). After Roosevelt's court packing plan and switch in nine, Court adopts deferential standard. Rational basis test, applied in Carolene Products, includes presumption of constitutionality. Footnote 4 in Carolene Products points out possible exception to deferential attitude when issue is one of specific prohibition of Constitution and Bill of Rights. Unusual reading in that Bill of Rights was adopted in order to protect States from federal government, not to protect Individuals from States. First Bill of Rights amendment applied to States under 14th amendment was 5th amendment takings clause. Incorporation of property was part of substantive due process rights found by court in late 19th century. Next amendment incorporated is first amendment. Not a big leap for majority in 1920's, because of broad notion of substantive due process. Problem arises with New Deal, in 1937, with Pope. New Deal brings in presumption of constitutionality, gets rid of prior notion of Substantive Due Process (West Coast Hotel). Then why should States be subject to Bill of Rights? Cardozo splits Bill of Rights into those that are 'of the very essence of a scheme of ordered liberty' and those that are not. Black is concerned that Cardozo's formulation in Pope leaves question open-ended, subject to judicial determination. Doesn't trust judiciary. Black thus wants total incorporation, where first eight amendments will all be incorporated against the states. Black argued this was historically intended in 14th amendment. Frankfurter is concerned that if Bill of Rights is incorporated against the States, it will be diluted because federalism issues will enter; there will be less recourse against the federal government under the Bill of Rights. Theory of selective incorporation (happened particularly frequently in the 1960's): asks, in issue by issue, whether a particular right should be incorporated against the States. Application of first amendment is an example of 14th amendment substantive due process; nearly all rights are now applied jot-for-jot.

Spring Break (February 23-March 2)
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