Constitutional Law Federal State Pushaw by mzh44232


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									Meyler – Fall 2005

                                  Constitutional Law Outline!

                                            Fall 2005

Rules are in bold

Important dissent is underlined

   I.      Judicial Review

             A. Marbury v. Madison (1803)

                     1. The case: The court established that it has the power to review acts

                        of Congress and determine whether they are unconstitutional. If

                        they are unconstitutional, the court has the power to strike them down.

                        In this particular case, the court invalidated the clause of the Judiciary

                        Act of 1789 that gave the Supreme Court the power to grant writs of

                        mandamus, saying that Congress did not have the power to expand the

                        scope of judicial powers beyond those granted in Article III, Section 2.

                        The court emphasized that the Constitution must be superior to ordinary

                        law, and that requires that ordinary statutes that conflict with the

                        Constitution must yield to the Constitution.

                     2. The commentary

                          a) This decision contradicted the judgment of some of the very people

                             who drafted the Constitution, since many of them took part in

                             legislating the Judiciary Act of 1789.

                          b) Other countries do not have judicial review yet can still maintain

                             constitutional government.

Meyler – Fall 2005

                          c) Is the oath judges take to uphold the Constitution sufficient to

                              establish judicial review, especially since executive officers take

                              the same oath?

                          d) Could the framers’ intent have been for the Supreme Court only to

                              evaluate the procedural integrity of cases rather than substantive


                          e) Severability: Can the Supreme Court declare part of a law

                              unconstitutional, while leaving the rest of the law intact? This

                              requires looking to the intent of the legislature.

                     3. The presidents on judicial review

                          a) Jefferson: Jefferson pretty much thinks that all three branches

                              should be judging the constitutionality of their actions, and that it

                              is unreasonable to give the Supreme Court the “last word” over the

                              other branches in deciding what is and is not Constitutional.

                          b) Jackson: Jackson says that the Supreme Court should have no

                              more authority over the other two branches than the other two

                              branches should have over the Supreme Court.

                          c) Lincoln: Lincoln worries that the power of individuals in litigation

                              will be hampered by the Supreme Court’s fixing the law in its

                              rulings for all time.

                     4. Learned Hand: “May a Congressman vote against a bill because he

                        believes it to be unconstitutional even though the Court has held to the

                        contrary? May the President veto such a bill on this ground?”

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                     5. The Federalist Papers on judicial review

                          a) Federalist 78: 1) The judiciary’s independence from the other

                              branches, afforded by the lifetime tenure of the justices in good

                              behavior, puts it in a good position to be a check on the legislature.

                              2) For the Constitution to be superior to normal statutes, the

                              Supreme Court must have the power to override unconstitutional

                              legislation. 3) Furthermore, the Constitution represents the

                              majoritarian will of the people having power over the legislature

                              (criticism: Can’t the unelected court be anti-majoritarian?)

                          b) Federalist 81: The Supreme Court and federal courts are not going

                              to have greater latitude than the state courts in interpreting the


            B. Cooper v. Aaron (1958)

                      1) The government of Arkansas refused to enforce Brown v. Board of

                          Education because it claimed it was not a party in that case. The

                          court said that the Constitution is the supreme law of the land and

                          as such was is as binding on state government officials as it is on

                          the federal government whether they are parties in the original

                          case or not, noting that state officials take the same oath of office to

                          uphold the Constitution as federal officials.

                      2) Laurence Tribe: Tribe dismisses the views that Cooper only broadens

                          the Supreme Court’s power or that it makes the Supreme Court’s

                          judgments equivalent to the Constitution. He says instead that the

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                        judiciary is supreme in this respect not because its decisions are the

                        Constitution, but because the judiciary’s interpretations are supreme

                        under the Constitution.

                     3) Could Arkansas have said that its delay in desegregation was not

                        disobedience, but an attempt to prevent violence under its

                        constitutionally mandated responsibility to keep the peace?

            C. Bush v. Gore (2000)

                     1) Justice Breyer, in his dissent, said that while the issue of whether or

                        not the Supreme Court should terminate the Florida recount in the

                        2000 presidential election was of national importance, it was a

                        political question, not a legal one, and thus beyond the scope of the

                        court’s powers of judicial review.

                     2) This decision was not supposed to be precedent for other decisions.

                        Breyer also criticized it because it was a split decision along party

                        lines that had to potential to undermine confidence in the court.

                     3) Alexander Bickel: Does the Supreme Court exert a counter-

                        majoritarian force because the unelected court can overturn the

                        decisions of an elected body?

                     4) Jesse Choper: The court’s counter-majoritarian decisions usually has

                        the effect of negating legislation, reinforcing the tendency of the

                        American political system to require broad consensus for major


            D. Carolene Products footnote (1938)

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                     1) The appellee in this case claimed that the law that forbade him from

                        selling his product across state lines was unconstitutional under the

                        due process and commerce clauses. The court decided that the law

                        was constitutional and said that in the future it would apply a

                        standard of “rationality review” to economic legislation, in effect

                        giving such legislation the benefit of the doubt as to its

                        constitutionality unless the facts make it impossible to believe

                        there was a rational basis for the legislation.

                     2) There would be a different, tougher standard, however, for

                        congressional legislation dealing with “discrete and insular

                        minorities” or legislation within the scope of the first ten amendments

                        and the fourteenth amendment.

                     3) Jack Balkin: Balkin believes that in this footnote the court was trying

                        to bring into the political decision-making process groups which had

                        heretofore been excluded from political power but were subject to its

                        authority. Hence, the scrutiny for laws dealing with “discrete and

                        insular” minorities.

                     4) Bruce Ackerman: By showing that the political process has resulted in

                        the undemocratic situation of non-participation by “discrete and

                        insular minorities,” the court has, in the Carolene footnote, attacked

                        insinuations that it exerts a counter-majoritarian influence.

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                     5) Justice Lewis Powell: Did the Carolene footnote substitute one

                        judicial activism for another by championing the rights of “discrete

                        and insular” minorities instead of property rights as it did in the past?

                     6) Should only “discrete and insular” minorities be covered? Why not

                        groups that are not discrete, or not insular, or are not minorities (like


   II.    The Judiciary in Apartheid South Africa (also known as, “What happens if you

          don’t have judicial review?”)

               A) “Toward Racial Justice in South Africa”

                     This essay traces the evolution of the South African judiciary. Despite

                         some early experiments with judicial review, the Union of South

                         Africa adopted the British model of Legislative Supremacy, in which

                         Parliament’s acts could not be overturned by the courts.

                     Thompson: South Africa was too diverse ethnically and politically for the

                         British constitutional system to safeguard the rights of all the groups in

                         South Africa. The white minority could easily use its dominance of

                         the legislature to enforce arbitrary government.

                     The essay suggests that a lack of a Bill of Rights that could be upheld by

                         judicial review is connected with South African apartheid.

               B) State v. Tuhadeleni and Others (1969)

                     This is what a court opinion looks like in a country without judicial


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                     Some guys were arrested in Namibia (then under a South African

                        mandate) under the Terrorism Act. They tried to get the court to

                        declare that the Terrorism Act did not apply to them because the

                        Constitution Act supposedly did not give parliament the authority to

                        legislate in the mandate.

                     The court flatly said that it had no authority to invalidate parliamentary


                            The court was not supposed to make policy determinations

                            The court only wanted to interpret the plain meaning of the statutes

                                and the Constitution.

                            The court was in a position of weakness and knew that it would be

                                restrained if it challenged the legislature.

                            The court did not believe pragmatically that it could enforce its

                                decisions even if it did exercise judicial review.

   III.   Political Question Doctrine

               A) Nixon v. United States (1993)

                     Nixon, a federal judge, was convicted of making false statements to a

                        grand jury and was thrown in prison. He refused to resign, however,

                        so he was still getting paid. This pissed off Congress, so the House of

                        Representatives impeached him. The House presented the articles of

                        impeachment to the Senate, which delegated the task of sifting through

                        the evidence to a special committee. This committee then reported its

                        findings to the whole Senate, along with the House and the defense’s

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                        briefs. After three hours of oral argument, the Senate voted by more

                        than the required two-thirds majority to convict Nixon. Nixon sued

                        the government, claiming that the entire Senate was required by the

                        Constitution to “try” him, and that they didn’t do that because they

                        delegated much of the work to the small committee.

                     Textually-based reason: The majority said that this was a non-

                        justiciable (can’t be decided by the court) political question

                        because there was a textually demonstrable commitment of the

                        issue to another branch of government and a lack of a judicially

                        manageable standard for resolving it. Prudential reasons: The

                        Senate was given sole power under Article I, Section 3, clause 6 to

                        handle impeachments, which means the court is supposed to butt out.

                        Impeachment is also the only check on the judiciary, and giving the

                        judiciary review over that would violate the Separation of Powers.

                        The court is also too small. Furthermore, if the president was being

                        impeached and could appeal the decision in federal courts, there would

                        be an awkward possibility of two rival presidents.

                     The dissent held that the court should not so rashly give up its right to

                        review things like impeachment proceedings and should have reserved

                        the right to step in if the Senate did something egregious. Also, Souter

                        said the justiciability of a case should be decided on a case-by-case

                        basis. They also suggest that by the word sole, the court actually

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                        meant to distinguish the role of the Senate in impeachments from the

                        role of the House of Representatives.

            B. Commentary on Nixon

                     1) Martin Redish: Is the court’s decision in Nixon consistent with

                        Marshall’s statement from Marbury that “it is emphatically the

                        province and duty of the judicial department to say what the law is?”

                        Martin Redish says no.

                     2) Herbert Wechsler: All the political question doctrine means is that the

                        courts have to judge whether the Constitution has committed a

                        decision to another branch, a judgment that requires constitutional

                        interpretation itself! Therefore it’s more than just a discretion to

                        abstain or intervene.

                     3) Louis Henken: Henken believes the political question doctrine is just

                        a packaging of a bunch of other established doctrines. All it says is

                        that the court has to accept “decisions by the political branches within

                        their constitutional authority.”

                     4) Michael J. Gerhardt: Nonjusticiability does not just say that a

                        government behavior is constitutional, it also closes off areas of

                        litigation for official misconduct in certain areas.

                     5) Does the Senate really have exclusive power to determine the nature of

                        impeachment proceedings? For example, could a federal judge seek

                        judicial review of an impeachment and conviction alleging something

                        obviously unconstitutional?

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                     6) Raoul Berger: Impeachment was designed to be a check on the

                        executive; there was no intention of delivering the judiciary or the

                        executive to the “unbounded discretion of Congress.”

                     7) Charles L. Black: It would be scary if the Supreme Court could

                        reinstate an impeached and convicted president.

              Powell v. McCormack: Congress wanted to add qualifications to the existing

                 requirements for Congressmen. The court decided that this was

                 unconstitutional and different from Nixon because the way in which

                 impeachment trials are conducted is not specified in the Constitution, but the

                 way in which Congressmen can be qualified is specified in the Constitution.

              Coleman v. Miller

                     Justiciability: The question was whether an amendment lapsed if it was

                            not ratified or whether a state could ratify an amendment it had

                            previously rejected was declared a nonjusticiable political question

                            by the Supreme Court because Congress was given exclusive

                            authority to do this by the Constitution. Allowing the unelected

                            court authority over the amending process which is supposed to go

                            to the people seems inappropriate. But what if Congress declared

                            that no black person could be involved in the ratification process?

                     Judicially manageable standards: The appraisal of things like political,

                            economic, and social conditions that would be necessary to

                            determine a reasonable length of time for amendment creates a

                            situation where there’s no judicially manageable standard.

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                     Prudence: Maurice Finkelstein suggests that political question derives

                            more from prudential concerns, where the court simply feels it is

                            inappropriate for it to act like when:

                              the issue is “strange” or “intractable”

                              the issue is momentous and thus likely to unbalance judicial


                              there is anxiety that the judgment should be ignored but will not


                              there is self-doubt in the courts from being an unelected

                                  institution in a mature democracy

              Gilligan v. Morgan: Students at Kent State sought to restrain the National Guard

                 so another massacre would not occur. The court of appeals ordered the

                 district court to investigate whether the training and weaponry of the National

                 Guard troops made the Kent State Massacre more likely, but the Supreme

                 Court under Burger said that the National Guard was the equivalent of the

                 Militia in the Constitution and that only Congress and the states, not the

                 courts, had the power to regulate it. If the courts could, would there be a

                 judicially manageable standard for making a remedy?

              Pacific States Tel. & Co. v. Oregon: Oregon amended its Constitution to make it

                 so citizens could make legislate through an initiative process. This was

                 challenged by the petitioner on the grounds that every state in the Union was

                 to be guaranteed a “republican” form of government by Congress under

                 Article IV, Section 4 (guarantee clause) of the Constitution and that this

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                 behavior was “democratic” rather than “republican.” The court said that this

                 was a nonjusticiable political question because it was up a political decision

                 for Congress to determine what will be a form of “republican” government in

                 the states.

              Luther v. Bordman: This case was cited in Pacific States Tel. and said that

                 Congress, not the courts can guarantee a republican form of government and

                 decide what that even is. Thus guarantee clause claims are not justiciable.

              Baker v. Carr

                     Justice Brennan held that Tennessee’s legislative apportionment scheme

                               was justiciable and under the equal protection clause because it

                               involved the allocation of political power within a state.

                     The dissenting justices said that this was nonjusticiable because it fell

                               under the guarantee clause cases (see Pacific States Tel. and

                               Luther). Criticism: There might be a judicially manageable

                               standard here after all (one man, one vote?) and while the guarantee

                               clause may be nonjusticiable, there are claims which fall under the

                               guarantee clause but in addition deal with the equal protection

                               clause and are therefore justiciable.

                     Brennan says that not every case that deals with foreign relations is

                               beyond judicial scrutiny. While it’s up to the executive to

                               recognize foreign states, once sovereignty over an area is

                               determined, the courts can examine whether a statute applies in that


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              New York v. United States

                     The court decided that a federal statute requiring New York to legislate on

                            nuclear waste exceeded Congressional authority. In reply to the

                            suggestion that this might be a guarantee clause claim (and thus

                            off-limits to the court), Justice O’Connor hearkened back to pre-

                            Luther rulings in which the court treated guarantee clause claims as

                            if they were justiciable. She did not feel the need to say under what

                            circumstances guarantee clause claims would be justiciable, and in

                            this case it did not matter because the federal statute was not

                            threatening to change New York’s form of government anyway.

                     Hypo: If the court were to decide guarantee (of republican form of

                            government) clause cases were justiciable, would things like citizen

                            initiatives and referendums be attacked by the court as violations of

                            the guarantee clause (for being democratic rather than republican)?

                            Maybe the founders believed that republican government meant

                            citizen participatory government rather than a structure of

                            government and the guarantee clause is supposed to protect

                            participatory government in the states rather than a structurally

                            republican form of government.

              Goldwater v. Carter

                     The court, dealing with a dispute between the executive and the legislature

                            over termination of relations with Taiwan without Congressional

                            approval, said the question was nonjusticiable because it involved

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                             foreign relations and a dispute between “coequal” branches of


                     Justice Powell in his concurrence gave a prudential reason for not ruling

                             on this case since Congress had not yet taken any action to assert

                             its constitutional authority in confrontation with the executive

                             branch. He disagreed with the use of the political question doctrine

                             here because the Constitution did not unquestionably grant the

                             power to abrogate treaties to the president alone and there was no

                             lack of judicially discoverable and manageable standards.

                             According to this concurrence, this case does not match Nixon.

                     Justice Brennan in his dissent argued that while the courts should not deal

                             with the political decisions in cases where power is granted to a

                             coordinate political branch, the courts must first decide whether

                             that branch has the exclusive political power to make such political

                             decisions in the first place.

                     Are questions about participation in armed conflicts, deployment of the

                             military, and executive powers over the military justiciable?

                     See entry number 3 in this outline under Baker v. Carr.

              Vieth v. Jubelirer

                     This was another gerrymandering case. The plurality said that while

                             gerrymandering to the advantage of a political party could be

                             unconstitutional if it went “too far,” there was no judicially

                             manageable standard for determining when such had happened, and

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                            thus this question was presumed to be nonjusticiable. Indeed,

                            Justice Scalia, writing for the plurality said that no judicially

                            manageable standard was even discernable for gerrymandering


                     Justice Kennedy in his concurrence said that while there was no judicially

                            manageable standard for identifying unconstitutional

                            gerrymandering in this case, it would be possible that a

                            gerrymandering case in the future might present one and that the

                            court should not dismiss all gerrymandering cases out of hand as

                            nonjusticiable. This closely resembles the dissents in Nixon.

                     The dissenters said that there were indeed judicially manageable standards

                            in this case, but all identified different ones. In the lecture, Meyler

                            suggested that the plurality was right in this case because the

                            dissenters disagreed with each other.

                     The “case-by-case” approach in Souter’s dissent in Nixon and Kennedy’s

                            concurrence in Vieth indicate a more functionalist approach to

                            separation of powers, by making sure each time that a branch is not

                            intruding on the powers of another. A more formal approach

                            (likely to be used by people like Scalia) would say that the rules of

                            which branch can do what are fixed from the beginning.

   IV.    The Necessary and Proper Clause

               A) McCulloch v. Maryland

Meyler – Fall 2005

                     The state of Maryland was trying to tax a federal bank for operating within

                        its borders without state authority. The state sued the cashier of the

                        bank and the Maryland Court of Appeals upheld the tax. This case

                        forced the court to consider (among other things) whether the federal

                        government had the power to establish the bank. The court decided

                        that Congress has the power under the “necessary and proper

                        clause” (Article I, Section 8, clause 18) to pass laws intended to help

                        it carry out its enumerated powers. Therefore, even though the power

                        to establish the bank was not specifically enumerated as being among

                        Congress’s powers by the Constitution, establishment of the bank was

                        connected with Congress’s effective exercise of its enumerated power of

                        the purse. Maryland interpreted the clause as limiting Congress’s

                        powers, claiming that Congress should only be able to pass laws that are

                        absolutely necessary for carrying out its enumerated powers. Marshall

                        took a broader view, saying that “necessary” in the necessary and proper

                        clause meant that Congress should be able to pass laws calculated to

                        produce an end related to Congress’s enumerated powers. The power to

                        establish a bank could be seen as a component of Congress’s power over

                        the purse. The court also noted that the necessary and proper clause was

                        among the list of things Congress could do rather than the things it

                        couldn’t do. The court finished by saying that the court would find

                        Congressional legislation not calculated to advance the ends of the

                        enumerated powers would be unconstitutional.

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                     U.S. Term Limits Inc. v. Thornton

                               This case involved a state placing new requirements beyond

                                   those required by the Constitution for its congressional

                                   candidates. The majority struck this down, drawing an

                                   analogy to the court’s refusal to recognize the Constitution’s

                                   silence on the subject of state power to tax corporations in

                                   McCulloch to this case, where it refuses to interpret the right

                                   to set qualifications for members of Congress as an original

                                   right reserved to the states. The court said that the power to

                                   set qualifications for membership in Congress is not a

                                   reserved power of the states, but a delegated power of

                                   national sovereignty. The majority also argued that the right

                                   to choose representatives belongs to the people, not the


                               In his concurrence, Justice Kennedy said that just because the

                                   states ratified the Constitution the people can only delegate

                                   power through the states of which they are citizens.

                               The dissent argued that “the people” means the people of the

                                   states, not the people of the nation as a whole. They interpret

                                   Madison as saying that the people of the several states are the

                                   ultimate source of power.

               B) Specified Powers as the Only Sources of Federal Legislative Power

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                     Kansas v. Colorado: The court ruled that Congress could not legislate to

                        irrigate non-federal lands because such a power does not have enough to

                        do with any of the enumerated powers. The necessary and proper

                        clause does not delegate new and independent powers to Congress,

                        but only provisions the making effective of its existing powers.

                     Panama R.R. v. Johnson: The court gave Congress the power to increase

                        the rights of injured seamen even though maritime legislation was not

                        one of the enumerated powers in Article I, Section 2 because Article III,

                        Section 2 of the Constitution granted Congress the implicit power to

                        legislate in this area.

                     Erie R.R. v. Tompkins: The court ruled that in diversity cases, federal courts

                        could not ignore the applicable state laws in favor of “federal common

                        law” because Congress did not have the power under the Constitution to

                        force states to accept substantive rules of common law.

   V.     The Commerce Clause – Origins and Expansion

               A) Historical Background: The commerce clause is what authorizes most of

                     Congress’s national legislation. Initial commerce clause jurisprudence was

                     modest, limiting state power rather than expanding Congressional power.

                     Ever since the “switch in time” during the 1930s in which the court started

                     authorizing more of Congress’s economic legislation, Congress has had

                     extensive powers under the commerce clause. These powers often include

                     things that don’t seem to be related to commerce. Recently, the court has

                     been restricting these powers more.

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               B) Gibbons v. Ogden

                     1) Ogden, who was licensed by the state of New York to operate a ferry

                        between New York and New Jersey tried to get an injunction in a state

                        court to stop a competitor, Gibbons, who was licensed by the federal

                        government to operate a ferry between the same states.

                     2) First, the court decided that commerce is more than just buying and

                        selling of goods, it encompasses many forms of “intercourse,” and

                        that includes ferrying people between states. Marshall reads

                        “commerce” broadly here.

                     3) Second, the court decided that Congress has the power to regulate all

                        commerce that is not confined completely within the borders of a

                        single state. Furthermore, if Congress can regulate this, the states


                     4) Under Marshall’s ruling, Congress cannot regulate commerce that

                        occurs completely within the confines of a single state, commerce in

                        non-navigable waters, or manufacturing and trade.

                     5) States can’t burden or discriminate against interstate commerce.

                     6) Congress cannot interfere with the “police powers” of the states.

                     7) Congress began using this power in earnest with the passages of the

                        Interstate Commerce Act and the Sherman Act in 1887 and 1890,


               C) Paul v. Virginia: The court allowed Virginia to regulate interstate insurance

                     transactions on the grounds that insurance is not an article of commerce.

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               D) Kidd v. Pearson: The court upheld an Iowa ban on the manufacture of

                     liquor intended for sale out of state on the grounds that manufacturing and

                     production are not forms of interstate commerce subject to regulation by


               E) Daniel Ball v. United States: The court upheld the enforcement of federal

                     safety regulations on a ship that was only operating in Michigan waters

                     because it was involved in transporting goods that would eventually be

                     destined for other states.

               F) Hammer v. Dagenhart

                     1) Congress tried to prohibit interstate transportation of articles produced

                        by child labor.

                     2) The court says that this is beyond Congress’s authority. It gives as a

                        prudential reason that regulation of manufacturing is a local matter. It

                        also said that while use of child labor made for unfair competition,

                        legislation to prevent unfair competition was within the police powers of

                        the states.

                     3) Meyler seems to think that Congress could have gotten away with this if

                        it had done this through taxation rather than an outright ban.

                     4) Justice Holmes dissented, claiming that the fact that the articles were

                        intended for interstate commerce was paramount, and that the fact that

                        such regulation might have interfered with state policy was not enough

                        to invalidate Congress’s power to regulate.

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                     5) The court also struck down an attempt by Congress to regulate this sort

                         of thing through taxation on Tenth Amendment grounds.

               G) Schechter Poultry Corp. v. United States: The court struck down a federal

                     code that regulated a poultry producer. The producer’s birds came from

                     other states, but were processed entirely within the state and only sold to

                     local retailers. The court said that there was not “direct” enough a

                     connection with interstate commerce to make this subject to regulation by


               H) Carter v. Carter: The court struck down federal regulations on coal mining

                     labor. The provisions of the code dealt with production and not commerce.

                     The court said that an activity had to have a “direct” rather than “indirect”

                     impact on interstate commerce to be within the realm of congressional

                     regulation. Meyler used the word “immediacy.” There must not be too

                     many intervening factors if Congress, rather than the states, is to regulate an


               I) NLRB v. Jones & Laughlin Steel Corp.

                     1) After the “switch in time” the court upheld an application of the

                         National Labor Relations Act to a steel mill that wrongly discharged its

                         workers. The court said that while the manufacturing itself was the

                         subject of local regulation, the potential “seriousness” of the

                         consequences of a strike to interstate commerce justified an intervention

                         from Congress. The court paid some lip service to federalism and

Meyler – Fall 2005

                        reiterated that some things were still too remote from interstate

                        commerce to be subject to federal regulation.

                     2) The dissenting justices criticized the majority’s interpretation of the

                        “seriousness” of the possibility of the strike, since only ten workers were

                        laid off.

               J) United States v. Darby

                     1) This case involved two provisions of the Fair Labor Standards Act. The

                        first of these provisions kept goods manufactured under suboptimal

                        working conditions from even entering the channels of interstate

                        commerce. The second required employers to conform to federal wage

                        and hour conditions when making something intended for interstate


                     2) This decision consciously overturned Dagenhart. The court said

                        that so long as congressional regulations of commerce did not

                        violate a constitutional provision, they would be upheld. The court

                        said that Congress could regulate anything with a “substantial

                        effect” on interstate commerce. The court would give Congress the

                        benefit of the doubt in deciding what a “substantial effect” is. The

                        end of the opinion appears to downplay the importance of the Tenth

                        Amendment. This decision was unanimous.

               K) United States v. Sullivan: The court upheld the conviction of a druggist who

                     improperly labeled drugs in his store, even though they had already

                     completed their time in transit between states. The court said that

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                     Congress’s power to regulate commerce was effective from the moment of

                     introduction into interstate commerce to the delivery to the consumer.

               L) Scarborough v. United States: The court upheld a federal ban on possession

                     of firearms by convicted felons so long as the firearms had at some point

                     been involved in interstate commerce.

               M) Wickard v. Filburn

                     1) Federal regulations on agriculture prevented a farmer from growing

                        wheat separately for his own consumption.

                     2) The court decided that although what the farmer was doing was local

                        and confined to his own household, if enough people did what the

                        farmer was doing, the effect on interstate commerce would be

                        substantial. By growing extra wheat for himself, the farmer was

                        increasing the supply and diminishing the demand, something that

                        Congress is allowed to regulate.

                     3) This decision extended commerce clause powers to encompass the

                        activities of individuals.

               N) Maryland v. Wirtz: The court extended the reach of commerce clause

                     powers to schools and hospitals because they are major users of products of

                     interstate commerce.

               O) Perez v. United States

                     1) The court upheld a federal ban on loan sharking even on a local level

                        because it was a component of organized interstate crime. If Congress

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                        can regulate a class of activities, the courts can’t overturn an instance of

                        that regulation because that instance is individually small.

                     2) The dissent was not satisfied with the reasoning that loan sharking could

                        be subject to regulation by Congress because it was a component of

                        interstate crime. The dissent said that all crime can have interstate

                        components, but it’s still up to the states to combat it.

                     3) Because of the highly integrated nature of the modern American

                        economy, does the “aggregation” principle allow Congress to regulate

                        just about anything anyone does?

               P) Woods v. Cloyd W. Miller Co.: The court upheld federal controls on

                     housing rents instituted during wartime under Congress’s war powers after

                     the hostilities had ceased because they were motivated by a housing

                     shortage that was created by the war even though the war was over.

   VI.    The Commerce Clause – New Limitations

               A) United States v. Lopez

                     1) The court struck down the Gun-Free School Zones Act which made it a

                        crime to knowingly possess a firearm in a school zone.

                     2) The court said that Congress had the authority to regulate:

                            a) The use of the channels of interstate commerce – possession

                                of a gun in a school zone is not commerce, so the act fails here.

                            b) The instrumentalities of interstate commerce – the act did not

                                limit the reach of Congress’s power to a discrete set of firearms

Meyler – Fall 2005

                                 possessions that had a connection with or effect on interstate

                                 commerce. (Meyler seems to think this factor gets more weight)

                            c) Things which have a substantial effect on interstate

                                 commerce – Congress did not make findings sufficient to the

                                 court’s satisfaction that possession of guns in a school zone

                                 affects interstate commerce. The connection between the effects

                                 of such crimes (like making people afraid to go to school) and

                                 interstate commerce was too attenuated for the court to allow this

                                 regulation under the interstate commerce clause.

                     3) The court said that allowing the “costs of crime” to “national

                        productivity” arguments to justify Congress’s actions would give

                        Congress authority to regulate all violent crimes and activities which

                        might lead to them. The court did not wish to give Congress this much


                     4) The court affirmed the use of rationality review, but said it would be

                        stricter about applying it from now on.

               B) United States v. Morrison

                     1) The court struck down a provision of the Violence Against Women Act.

                     2) The court closely followed its reasoning in Lopez:

                            a) Gender motivated violence is not commerce.

                            b) The section of the Violence Against Women Act in question

                                 does not contain a jurisdictional element limiting the federal

                                 cause of action to cases involving interstate commerce.

Meyler – Fall 2005

                            c) While unlike in Lopez, Congress made findings as to the effect

                                of gender motivated violence on interstate commerce, the court

                                was not satisfied with them.

                            d) The suppression of crime, as the court also said in Lopez is one

                                of the states’ “police powers” and it would demolish the

                                distinction between state and federal power to give Congress the

                                power to legislate in this realm.

                     5) If something does not involve the channels or instrumentalities of

                        interstate commerce, it is the states’ to regulate, not the federal


                     6) Unlike the majority, the dissent was satisfied by the congressional

                        findings that violence against women affects interstate commerce. The

                        dissent cited Wickard to argue that instances of violence against women

                        could have an aggregate effect on interstate commerce. The dissenting

                        justices were also unhappy with the majority’s creation of a formalistic

                        set of activities which were beyond the scope of Congress’s commerce

                        clause powers. They were also perplexed as to why the fact that the

                        states requested this action from the federal government did nothing to

                        persuade the majority that this was a national problem in need of a

                        national solution. Other dissenting justices rejected a strict federal/state

                        dichotomy in power distribution.

Meyler – Fall 2005

               C) Jones v. United States: The court decided that federal arson statutes did not

                     apply to owner-occupied residences that were not being used for

                     commercial purposes.

               D) Jesse H. Choper and John C. Yoo: The influence of the law and economics

                     movement has allowed Congress to say that a lot of the crimes it is

                     attempting to regulate have economic motives.

               E) Solid Waste Agency of Northern Cook County v. United States Army Corps

                     of Engineers: The court overturned a federal statute regulating waste

                     dumping in an isolated, nonnavigable body of water. The dissent argued

                     that this is precisely what Congress should be regulating because dumping

                     waste in the water usually has an economic motive.

               F) Nelson and Pushaw: The framers of the Constitution may have wanted

                     economic uniformity, but not political, social, and cultural uniformity

                     among the states.

               G) Stephen Gardbaum: It’s not a matter of protecting the states from federal

                     intrusions, but of properly allocating responsibility for a particular problem

                     to the level of government best equipped to handle it.

               H) Gonzales v. Raich

                     1) A federal statute here conflicted with a California statute that allowed

                        people to grow their own medical marijuana.

                     2) The majority argued that allowing people to grow their own marijuana

                        would have an effect on the illicit market for the drug, making the

                        activity economic and under the purview of Congress’s powers under

Meyler – Fall 2005

                        the commerce clause. The majority was skeptical of California’s ability

                        to seal off the medical marijuana from the national market and said that

                        the small number of people growing it did not matter because of the

                        aggregate effect (Wickard) of many people doing it. The majority is

                        presuming that Congress’s actions are acceptable.

                     3) Scalia’s concurrence said that this was allowed not only under the

                        commerce clause, but possibly also under the necessary and proper

                        clause. Since the ban on growing marijuana was authorized under the

                        commerce clause and Congress’s purpose in enacting the law was

                        preventing drug use, the necessary and proper clause would support this

                        ruling since this ban was necessary and proper for enacting Congress’s

                        anti-drug policy.

                     4) The dissent argued that regulating things like the growing of drugs

                        would fall within the states’ “police powers.” O’Connor said, “To draw

                        the line wherever private activity affects the demand for market goods is

                        to draw no line at all, and to declare everything economic.” As for the

                        necessary and proper clause reason, O’Connor said that something more

                        than a bare assertion by Congress is required for it to be able to justify

                        power over a local activity to prevent the necessary and proper clause

                        from being a back door to unconstitutional federal activity. As for the

                        Wickard connection, Congress actually made a case there for the

                        connection between how much an individual farmer grew and the

                        national market. Here, Congress didn’t do that.

Meyler – Fall 2005

   VII.   Federalism and State Sovereign Immunity

               A) New York v. United States

                     1) The majority found that Congress can tax revenue earned by the state so

                         long as that revenue was not earned in some way that only a state can

                         earn revenue. The tax must be non-discriminatory.

                     2) Justice Stone thought that even non-discriminatory taxes were

                         unconstitutional if they interfered with the state’s performance of its

                         governmental functions.

                     3) Justice Douglas thought that if local governments were among the things

                         that the federal government could tax, the ability of the local

                         governments to serve their citizens would be curtailed.

               B) Massachusetts v. United States: The court said that if the states’ immunity

                     from federal taxation were extended beyond revenue from traditional state

                     functions, the burden of the immunity would fall on the federal government,

                     and no constitutionally protected value would be helped by this. Also, the

                     political process, by which the federal government decides who to tax and

                     how, is a better way of accommodating demands for national revenue and

                     state independence. A non-discriminatory tax to pay for a government

                     service that affects all its beneficiaries, including the states, is not offensive

                     to the Constitution.

               C) Federal Immunity from State Taxes: The court has never questioned that

                     the states cannot tax the federal government.

               D) Maryland v. Wirtz

Meyler – Fall 2005

                     1) Congress can not only tax, but can also regulate state-run schools and

                        hospitals because their activities affect interstate commerce in the same

                        way that the activities of privately owned hospitals and schools do.

                        When exercising its “delegated power” the federal government can

                        override state interests whether those are governmental or proprietary in


                     2) The dissenters did not like the idea of the federal government forcing the

                        states to either spend millions more dollars on hospitals and schools or

                        reduce services in them.

               E) National League of Cities v. Usery: Rehnquist overruled the above

                     principle in Wirtz. It is not within Congress’s power to regulate how

                     states carry out their governmental functions. Justice Blackmun was

                     uncomfortable with this, but liked Rehnquist’s balancing approach.

               F) Garcia v. San Antonio Metropolitan Transit Authority

                     1) This case was about application of the Fair Labor Standards Act to

                        municipally-owned and operated mass transit systems.

                     2) The court said there were four standards from Hodel that a federal

                        statute had to meet to be unconstitutional:

                            a) The federal statute must regulate the “States as States.”

                            b) The statute must address matters that are “indisputably attributes

                                of state sovereignty.”

                            c) State compliance with the statute would have to directly impair

                                the states’ ability to structure its governmental operations.

Meyler – Fall 2005

                            d) Federal intervention must not be justified by federal interests.

                     3) Only standard c) is in question here. The court did not want to expressly

                        declare what state “governmental functions” are. The court rejected a

                        “historical standard” of what state governmental functions are because it

                        would prevent the court from accommodating changes in the historical

                        functions of the states. The court also rejected a non-historical standard

                        for finding immune state governmental functions because there could

                        not be a judicially manageable standard for finding this out. The court

                        ended up rejecting the entire notion that it could design a

                        freestanding standard of what is and is not a state governmental

                        function for determining state sovereign immunity for the purposes

                        of the commerce clause.

                     4) The court placed its faith in the political process to protect state

                        sovereignty, given the states’ electoral role. The court reasoned that the

                        procedural design of American federalism is enough to protect state

                        sovereignty and that the courts should only intervene when those

                        political processes have failed to protect states’ power. The court

                        emphasized that states frequently get federal funds and are exempt from

                        a wide variety of obligations imposed under the commerce clause. The

                        majority said that those processes did not fail here, so this statute was


                     5) The dissent was not satisfied with the majority’s reasoning that the

                        political processes, by virtue of state participation in federal electoral

Meyler – Fall 2005

                         politics, would protect state interests. The majority did not explain how

                         this would work. The dissent was also unsatisfied that the success of the

                         states in acquiring federal funds was enough to show that state

                         sovereignty was adequately protected. The dissent would have preferred

                         the approach that balanced state and federal interests from National

                         League of Cities.

               G) South Carolina v. Baker: Justice Brennan, while recognizing that regulation

                     of states could still be attacked on political procedural grounds, allowed

                     Congress to ban certain types of state bonds on “anecdotal” rather than

                     “concrete” evidence that the bonds were being used to dodge taxes.

               H) Gregory v. Ashcroft: O’Connor’s majority refused to apply the Federal Age

                     Discrimination in Employment Act to the state governments saying that

                     Congress has to be clear in the language of its statutes that it intends to alter

                     the balance of state and federal power. The remaining justices from the

                     Garcia majority dissented, believing that this contradicted their decision in

                     that case.

               I) Printz v. United States

                     1) Part of the Brady Bill required state executive officials to determine

                         whether handgun sales were lawful under the statute.

                     2) Cutting against Garcia, the majority said that historical precedent did

                         not allow Congress to impose federal responsibilities on state officers

                         without the states’ consent. The majority also complained that federal

                         power would be unacceptable enhanced at the expense of state power if

Meyler – Fall 2005

                        the federal government, at no cost to itself could press state officials into

                        its service. The majority was also wary of allowing Congress to get

                        around executive power of the President by requiring state executive

                        officers to enforce its laws rather than allowing the President to do so.

                     3) The majority’s main concern however, was that Congress, through this

                        statute could force state governments to administer federal policy,

                        something incompatible with independent, autonomous state

                        authority. This provision of the Brady Bill was thus

                        unconstitutional. The fact that the states, rather than the federal

                        government would be expected to pay for this made it much worse.

                     4) Justice Blackmun has a broad view of what state sovereignty is and is

                        not. Basically, he seems to think that whatever the federal government

                        doesn’t do is in the realm of state sovereignty.

                     5) O’Connor’s concurrence said that it was important to note that this

                        decision did not affect “purely ministerial” federal requirements on

                        states, like the reporting of missing children to federal authorities. It

                        would only prevent Congress from forcing state officials to administer

                        federal regulatory programs.

                     6) The dissent warned that this decision might curtail Congress’s ability to

                        deploy state officials to respond to an emergency. They said that

                        Congress has already taken care of the problem of unfunded mandates in

                        other legislation and that limiting the ability of Congress to enlist the

                        help of state officials in enacting its programs creates an incentive for

Meyler – Fall 2005

                         Congress to further aggrandize itself. The dissent also pointed out that

                         central governments in other federal systems enlist elements of local

                         governments to help carry out their programs.

                     7) Meyler believes the court might have allowed this to slide if the

                         participation of the state executive agents were a) voluntary or b) a

                         necessary condition of receiving federal funds.

               J) D. Bruce La Pierre: Private interests use the political processes to combat

                     federal intrusion into their interests. By doing so, they also protect state

                     agents who are doing the same thing!

               K) Laurence Tribe: Perhaps requiring state officials to merely gather

                     information is a tantamount to forcing them to administer a federal program,

                     but merely requiring them to report existing information is not.

               L) Reno v. Condon: The court unanimously allowed Congress’s Driver’s

                     Privacy Protection Act which barred state departments of motor vehicles

                     from selling personal information about drivers on the grounds that sale of

                     such information is interstate commerce!

               M) Garcia and Printz are broadly about Congress’s commerce power and the

                     effect it has on the states.

               N) Jinks v. Richland County: The court unanimously allowed Congress to toll

                     state statutes of limitations for state law claims which are declined by a

                     federal court and must be re-filed in state court. While Congress does not

                     have unlimited power to regulate state courts’ procedure, state statutes of

                     limitations are not immune from Congressional legislation.

Meyler – Fall 2005

               O) Meyler on formalist vs. functionalist approach:

                      2) A formalist approach (like the one used by Scalia) prefers bright-

                          line rules and imposes specific limitations on federal or state

                          actors. Formalists will prefer to look directly to the text of the

                          Constitution and will prefer to say that things have not changed

                          much since the eighteenth century.

                      3) A functionalist approach (like the one used by Blackmun) prefers

                          to employ standards and balancing tests. Functionalists will look

                          at the history of constitutional interpretation and focus on the

                          Constitution’s adaptability.

   VIII. Congress’s Enforcement Powers under the Fourteenth Amendment

               A) Meyler on the equal protection clause of the Fourteenth Amendment:

                     1) The equal protection clause of the Fourteenth Amendment applies to all

                        persons in the United States, not just citizens. The amendment also

                        specifies who is a citizen.

                     2) The court has three levels of scrutiny for examining Congress’s

                        legislation under the Fourteenth Amendment (from strictest to most


                            a) Strict scrutiny: The legislation must be the least restrictive

                                alternative for what Congress is trying to accomplish and must

                                serve a “compelling” end. Most legislation will not survive this

                                level of review without modification. Statutes that could

Meyler – Fall 2005

                                discriminate on the basis of racial and/or national origin typically

                                get this level of review.

                            b) Intermediate scrutiny: The legislation must closely fit what

                                Congress is trying to accomplish. This must serve a “substantial

                                and significant” end. Legislation dealing with gender will

                                usually get this level of review.

                            c) Rationality scrutiny: The legislation must have a conceivable

                                rational relationship with what Congress is trying to accomplish

                                and must serve a “legitimate” end. Just about everything not

                                dealing with race or gender will get this level of review.

               B) Katzenbach v. Morgan

                     1) A provision of the Voting Rights Act of 1965 prohibited enforcement of

                        a New York law requiring the ability to read and write English to vote in

                        New York.

                     2) Brennan uses rationality review here to say that the legislation can easily

                        be said to be adapted to the end of preventing discrimination against

                        non-English-speaking voters.

                     3) Brennan also said the courts did not have to declare the New York law

                        unconstitutional under the equal protection clause before Congress could

                        act because, just like in McCulloch, the necessary and proper clause

                        gave Congress the power to pass laws that would allow it to exercise its

                        anti-discrimination powers under the Fourteenth Amendment.

Meyler – Fall 2005

                     4) The practical effect of the law was to discriminate against Puerto Rican

                        voters in New York, even if the intent was to merely set voter

                        qualifications. The majority said this was enough to allow Congress to

                        act. The court would not look at Congress’s findings to see whether

                        there was actual discrimination, but would trust Congress to determine

                        whether there was any discriminatory intent in the state’s action.

                     5) Justice Brennan said that discrimination actually occurred here and that

                        the right to vote is a preservative of all other rights. Not allowing a

                        particular minority group to be included in the political processes was

                        something that the court was trying to fix in the Carolene Products


                     6) The dissenting justices agreed that while Congress has the power to take

                        remedial measures under the equal protection clause and the necessary

                        and proper clause, they disagreed that the remedial measure here was

                        actually fixing anything. There were not enough findings by Congress

                        that Puerto Rican voters were actually experiencing discrimination. If

                        Congress had found what the dissent believed to be enough legislative

                        facts, the dissent might have agreed with this ruling. The dissent also

                        believed that states should get the same benefit of the doubt as to their

                        legislation as Congress gets.

               C) Meyler says that Congress cannot create substantive new rights, it can only

                     remedy violations of existing rights.

               D) Boerne v. Flores

Meyler – Fall 2005

                     1) This case involved a city government’s attempt to deny a Catholic

                        Church a building permit that would have involved the demolition of

                        one of its old churches because the city viewed the old church as an

                        historical landmark. The church challenged this under the Religious

                        Freedom Restoration Act which prohibited government from

                        substantially burdening a person’s exercise of religion even if the burden

                        results from a generally applicable rule unless the burden furthered a

                        “compelling state interest” and was the least restrictive means of

                        advancing that interest. The Religious Freedom Restoration Act was

                        inspired by a furor ignited when a controlled substances statute

                        prevented a man from using peyote as per the requirements of his

                        religion in Employment Division v. Smith.

                     2) Writing for the majority, Justice Kennedy said that the Religious

                        Freedom Restoration Act was unconstitutional. He reiterated that

                        Congress can only remedy violations of constitutional rights, it can’t

                        create new ones. Congressional legislation intended as a remedy for

                        a violation of a right must be “congruent and proportional” to the

                        injury being remedied or prevented. If it’s not, Congress is

                        effectively creating a substantive new right. There was no

                        constitutional right being remedied, only generally applicable laws that

                        happened to inconvenience religious practices.

Meyler – Fall 2005

                     3) The majority also said that if Congress could say what the Fourteenth

                        Amendment did and did not mean, the condition of the Constitution as a

                        “superior, paramount law” would be threatened.

                     4) Congress did not offer enough evidence to convince the majority that the

                        laws being challenged under the Religious Freedom Restoration Act

                        were motivated by religious bigotry. Kennedy said there would be

                        enormous costs to states as a result of litigation under the act that would

                        be far out of proportion to the supposed injury that the act is attempting

                        to remedy.

                     5) In his concurrence, Justice Stevens said that this act violated the

                        establishment clause because it made a remedy available only to

                        religious people and not to atheists or agnostics. Meyler spoke about a

                        possible inherent tension between the establishment and free ex” would

                        be threatened.

                     6) Congress did not offer enough evidence to convince the majority that the

                        laws being challenged under the Religious Freedom Restoration Act

                        were motivated by religious bigotry. Kennedy said there would be

                        enormous costs to states as a result of litigation under the act that would

                        be far out of proportion to the supposed injury that the act is attempting

                        to remedy.

                     7) In his concurrence, Justice Stevens said that this act violated the

                        establishment clause because it made a remedy available only to

                        religious people and not to atheists or agnostics. Meyler spoke about a

Meyler – Fall 2005

                         possible inherent tension between the establishment and free exercise


                     8) The dissenting justices believed that Smith had been wrongly decided

                         and that a proper decision in this case required a reevaluation of that


                     9) Mark Tushnet: Boerne is a modern day Marbury. Congress was trying

                         to say how the Constitution is supposed to be interpreted and Justice

                         Kennedy reasserted that the court, not Congress would decide what

                         standards to apply in determining what is and is not constitutional.

                         Should the court have the last word? The court is better able to examine

                         the Constitution and its interpretations of the Constitution are more

                         stable than that of Congress, it might be the better choice. On the other

                         hand, Tushnet reminds the reader that Congress is more representative

                         of the popular will and is better able to see how Constitutional rights

                         work in practice.

               E) McConnell: McConnell asks whether there are any judicially manageable

                     standards for balancing the impact of a law on religious freedom against

                     public interest.

               F) Rome v. United States: The court upheld the Attorney General’s refusal to

                     approve changes to Rome, Georgia’s electoral system because they would

                     have created de facto discrimination against black voters. The fact that

                     there was a discriminatory effect in an area that had a history of

                     discrimination against black voters was enough to convince the majority,

Meyler – Fall 2005

                     even though there had not been any voting discrimination in the past

                     seventeen years. The dissent did not agree that Congress could be said to

                     have been acting remedially when it presumed purposeful discrimination in

                     a locality even after the locality has disproved discrimination.

               G) Kimel v. Florida Bd. of Regents

                     1) The majority held that states were immune to suit under the Age

                        Discrimination in Employment Act. The court decided that the act was

                        not a proportional remedy to the problem of age discrimination, and as

                        such was not preventing unconstitutional behavior. Employees affected

                        by age discrimination would have to look to state statutes for remedies


                     2) The dissent said this should have turned out the other way because

                        Congress needs to have the power to enforce federal remedies against

                        state agencies that violate federal statutes to make the power to impose

                        those statutes meaningful.

               H) Florida Prepaid Postsecondary Education Expense Board v. College

                     Savings Bank

                     1) The petitioner accused the state of violating one of his patents and

                        pulling sovereign immunity to prevent his claim from being enforced.

                     2) The majority said that Congress could provide remedies (in the form of

                        the Patent Remedy Act) in cases like this where the states don’t offer

                        any remedies or inadequate remedies, since only in such cases could

                        there be said to be deprivation of property without due process. Just

Meyler – Fall 2005

                        because the state-provided remedies are less convenient does not mean

                        they are not adequate.

                     3) The dissent argued that the patent system has always been nationally

                        uniform in nature and that state judges are unlikely to have the

                        experience or the impartiality to try cases like this. The Patent Remedy

                        Act was based on the “substantiated fear” that states would be unwilling

                        or unable to provide remedies for their own patent violations. The

                        dissent also argued that the act did not interfere with state law, but only

                        effectuated an existing policy which confined patent litigation to federal


               I) United States v. Morrison

                     1) This is the same case that was discussed earlier. The court held that

                        Congress has no power to grant civil remedies for gender-motivated

                        violence despite evidence that state officials perpetuated gender

                        stereotypes that affected how they investigated gender-motivated


                     2) The majority held that since the statute was directed against individuals

                        who committed the crimes and the Fourteenth Amendment’s equal

                        protection clause was only supposed to apply to the states. The statute

                        was directed at the criminal, not the investigators of crime.

                     3) The dissent said that conduct did not have to be unconstitutional for

                        Congress to enact remedial legislation, citing Boerne and that Congress

Meyler – Fall 2005

                        did not have to document the discriminatory behavior in every single

                        state. The findings made by Congress were sufficient for the dissent.

               J) Ira C. Lupu: Maybe Congress could attack domestic violence under the

                     Thirteenth Amendment by likening it to slavery.

               K) Board of Trustees of Univ. of Ala. V. Garrett

                     1) This case involved a suit against the state for not providing disabled-

                        accessible accommodations for employees in one of its buildings under

                        the Title I Americans with Disabilities Act.

                     2) The majority only applied rationality review here. Rehnquist said that

                        under the equal protection clause, states only have to refrain from

                        actively discriminating against the disabled; they do not have to go out

                        of their way to accommodate them. Any accommodations for the

                        disabled would have to be mandated by a statute, not the equal

                        protection clause. A complaining party would have to show that there

                        was no rational basis for the employer’s decision.

                     3) The majority added that unlike the Voting Rights Act, the Americans

                        with Disabilities Act is not congruent or proportional to actual injuries it

                        is said to remedy.

                     4) The dissent thought that there was indeed enough evidence to show a

                        pattern of discrimination to make the remedy of the Americans with

                        Disabilities Act Congruent and proportional. The majority was accused

                        of requiring far too much proof from Congress, and the dissent reiterated

                        that Congress is in a better position than the courts to make and judge

Meyler – Fall 2005

                        findings of discrimination. Congress should not be held to the same

                        standard as the courts in its examination of evidence. The dissent

                        marveled at how the majority applied a harsher standard of review to the

                        Americans with Disabilities Act which helps disabled people than the

                        actions of the state which hurt them.

               L) Nevada Dep’t of Human Resources v. Hibbs

                     1) Nevada was giving female employees longer parental leave than male

                        employees and was sued for doing so under the Family and Medical

                        Leave Act. This was challenged on the grounds that it by giving women

                        longer medical leave, the stereotype that women belonged at home with

                        the children was advanced.

                     2) This is an example of the stronger standard of intermediate review being

                        applied instead of rationality review. In a strange decision for

                        Rehnquist, the majority was in this case satisfied by the evidence that

                        the states were participating in and fostering gender-based

                        discrimination in granting longer parental leave to women.

                     3) The act was a “congruent and proportional” remedy to the targeted

                        violation by which female employees were stigmatized and hired less

                        because they were required to get longer parental leave. The fact that

                        this was narrowly targeted to family leave rather than “every aspect of

                        the state employers’ operations” as in Garrett helped convince the


Meyler – Fall 2005

                     4) The dissent was not satisfied with the quality of Congress’s findings

                        regarding gender discrimination in the passage of the act. The dissenters

                        also felt that the discriminatory conduct was limited to a few states and

                        that state sovereign immunity should not be abridged across the board

               M) Tennessee v. Lane

                     1) This case involved private individuals suing the state under the

                        Americans with Disabilities Act for not providing disabled access to the


                     2) The majority ruled that Title II of the act’s requirement of program

                        accessibility was enough to enforce disabled persons’ access to the

                        courts. To the majority, this case was not about whether Congress could

                        subject the states to private suits for failing to provide program access,

                        but the power of Congress to enforce the constitutional right of access to

                        the courts.

                     3) The dissent was not convinced that there was any evidence that disabled

                        persons were not getting their constitutional right to access to the courts

                        (no congruence and proportionality).     The justices said that the

                        constitution is only violated when someone is denied access to a judicial

                        proceeding, not when they simply cannot make it into the courtroom

                        without assistance. The dissent also disliked the case-by-case as-applied

                        analysis the majority said it planned to use, since the states would be

                        fending off constant litigation from individuals testing the law. Scalia in

                        his extra dissent said he doesn’t like prophylactic measures like this.

Meyler – Fall 2005

                     4) Meyler thinks the dissents reasoning would allow states to discriminate

                        against the disabled so long as they made it sound like the law was

                        intended to do something else. She adds that state legislatures are not

                        apt to say that their states discriminate against the disabled and need

                        federal help.

               N) Meyler on state sovereign immunity and the Fourteenth Amendment:

                     1) State sovereign immunity is usually only invoked against enforcement

                        of federal laws against the states. States usually don’t invoke it against

                        their own laws.

                     2) States can implicitly give up their sovereign immunity by doing things

                        like not invoking it quickly enough.

                     3) Acts that were upheld in spite of state sovereign immunity: Family

                        Medical Leave Act (Hibbs), Title II of the Americans with Disabilities

                        Act (Lane), Voting Rights Act (Morgan).

                     4) Acts that were struck down because of state sovereign immunity:

                        Religious Freedom Restoration Act (Boerne), Title I of the Americans

                        with Disabilities Act (Garrett), Age Discrimination in Employment Act


                     5) For Congress to override state sovereign immunity in its attempts to

                        enforce the equal protection clause of the Fourteenth Amendment, it


                            a) show an established pattern of infringement of a right

                                (speculative possible infringements do not count)

Meyler – Fall 2005

                            b) show that the remedy is congruent and proportional to the injury

                     6) Most of the statutes which were upheld involved gender or race/national

                        origin and thus survived because of the higher level of scrutiny the court

                        gave to the state action. The ones that were struck down did not deal

                        with race or gender. One can see the different levels of review in this.

   IX.    The Spending Clause

               A) United States v. Butler

                     1) The Agricultural Adjustment Act of 1933 allowed the federal

                        government to contract with farmers to reduce their acreage for certain

                        commodities in exchange for benefit payments paid out of a fund

                        generated by taxation on the very commodity being limited.

                     2) The majority struck the act down because it invaded state jurisdiction to

                        regulate individual farmers. By exercising the power to grant or

                        withhold unlimited benefits, Congress had the power to coerce.

                     3) The court discussed two competing views of federal authority. Madison

                        believed that the federal government could only use its powers of

                        taxation and spending for the general welfare if it did so within the

                        scope of its enumerated powers. Hamilton believed that the spending

                        power was distinct from the other enumerated powers and would require

                        only that Congressional legislation be intended for the general welfare.

                     4) The dissent disagreed that there was any coercion involved here, since

                        farmers could choose not to take the money.

               B) Steward Machine Co. v. Davis

Meyler – Fall 2005

                      1) Title IX of the Social Security Act gave the states a 90% tax credit for

                          payments to state unemployment funds.

                      2) The majority upheld this provision of the act. Congress can use its

                          spending power to promote the “general welfare” so long as the

                          states are not coerced or their quasi-sovereign powers are not


               C) Helvering v. Davis: Congress can use its spending power to deal with

                     problems that are national in scope and beyond the powers of the states.

               D) South Dakota v. Dole

                      1) The federal government withheld highway funding from states which

                          had a drinking age below twenty-one.

                      2) The majority held that Congress can encourage states to adopt

                          policies with its spending powers if it does so 1) in pursuit of the

                          general welfare 2) in a way enables states to choose to participate

                          and know the consequences of participating or not participating

                          (must be unambiguous to abrogate state sovereign immunity) 3) in

                          pursuit of an end related to federal interest in particular national

                          projects or programs, and 4) when there is no independent

                          constitutional bar to what Congress is doing. The court decided that

                          there was no independent constitutional bar to Congress’s action here

                          because the Tenth Amendment did not limit conditions on federal

                          grants and no constitutional rights of anyone were violated by the

                          federal program.

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                      3) O’Connor in her dissent argued that this fell outside of Congress’s

                          regulatory powers and within the regulatory powers of the states.

               E) Sabri v. United States

                      1) Congress made it a federal offense to bribe state or local officials

                          whose agency received more than $10,000 in federal funds.

                      2) The majority decided that Congress has the combined power under the

                          necessary and proper clause and the spending clause to ensure that

                          agencies receiving federal funds were using them to promote the

                          general welfare.

                      3) In his concurrence, Justice Thomas voiced discomfort with combining

                          the spending and necessary and proper clauses.

                      4) Meyler said that there are two types of challenges to statutes in

                          constitutional law. A facial challenge claims that the law is

                          unconstitutional in and of itself. An as-applied challenge claims

                          that a law is only unconstitutional in the circumstances in which it

                          is being challenged or as applied to a particular group or


   X.     The Dormant Commerce Clause

               A) Crosby v. National Foreign Trade Council: Congress has the power to

                     preempt state law.

               B) Wyoming v. Oklahoma: In addition to the positive powers it grants

                     Congress, the commerce clause has a negative aspect in terms of what it

Meyler – Fall 2005

                     takes away from the states. States cannot create protectionist statutes that

                     discriminate against interstate commerce.

               C) Pike v. Bruce Church: An evenhanded state statute that furthers a

                     legitimate local interest and only incidentally burdens interstate

                     commerce is not unconstitutional unless the burden on interstate

                     commerce outweighs the local interest being promoted.

               D) Gibbons v. Ogden: Chief Justice Marshall mused about whether states

                     could exercise powers expressly granted to the federal government which

                     were neither granted nor forbidden to the states. He didn’t make up his


               E) Willson v. Black-Bird Creek Marsh: In this case Marshall allowed a state

                     regulation involving a navigable waterway that did not interfere with any

                     federal statute.

               F) Baldwin v. G.A.F. Seelig, Inc.

                      1) New York attempted to prohibit the sale of milk from outside the state

                          at lower prices than its regulated price within the state.

                      2) The majority struck down the statute as unconstitutional. The court

                          reasoned that economic unity among the states was important and that

                          by projecting its legislation into Vermont, New York was going above

                          and beyond its police powers. States cannot create protectionist

                          statutes that discriminate against interstate commerce.

               G) Dean Milk Co. v. Madison

Meyler – Fall 2005

                      1) A Madison ordinance prohibited the sale of milk not processed within

                          five miles of Madison even though nearby Chicago had similar safety

                          standards for processing.

                      2) The majority struck this down. State action which discriminates

                          against interstate commerce is unconstitutional under the dormant

                          commerce clause even if it’s tied to a state objective if reasonable

                          nondiscriminatory alternatives exist. If there is no reasonable

                          nondiscriminatory alternative, the court might let it slide.

                      3) The dissent felt that just because a health regulation imposes burdens

                          on trade does not mean that it discriminates against interstate

                          commerce and that the ruling in this case elevated commercial rights

                          above the right to protect health.

               H) Breard v. Alexandria

                      1) The majority upheld a Louisiana statute which prohibited out-of-state

                          merchants from selling to its residents door to door because the statute

                          protected privacy rather than an economic interest.

                      2) The dissent pointed out that the statute exempted local farm producers

                          from its enforcement.

               I) Hunt v. Washington State Apple Advertising Comm’n: The court struck

                     down a North Carolina law requiring apples form out of state to either carry

                     USDA grades or to be marked “not graded.” The statute discriminated

                     against Washington apples in favor of local growers. The inspection

                     standards used in Washington were actually better than the USDA ones, so

Meyler – Fall 2005

                     there was no fit between the state interest and the burden being placed on

                     interstate commerce.

               J) Bendix Autolite Corp v Midwesco Enterprises, Inc.

                      The court struck down an Ohio statute requiring out-of-state corporations

                          to appoint agents for service of process and to defend themselves in all

                          suits even when there was no personal jurisdiction. The state could

                          have served process on out-of-state corporations through a long-arm


                      Scalia’s concurrence agrees with the outcome here but criticizes the Pike

                          balancing test as being too mysterious about how state and federal

                          interests are compelling.

               K) New Energy Co. of Ind. v. Limbach: The court struck down another Ohio

                     statute that deprived products made out-of-state because they were made out

                     of state. The court said that states could subsidize their own industries but

                     not put tax penalties on goods from other states.

               L) West Lynn Creamery, Inc v. Healy

                      1) Massachusetts placed a tax on all milk wholesalers, in state and out of

                          state, but the tax was offset for the state’s own producers by a parallel


                      2) The court found this unconstitutional. The tax and the subsidy were

                          not unconstitutional by themselves, but combined they created a

                          protectionist, unconstitutional burden on interstate commerce.

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                      3) The concurring justices would have come to the same conclusion but

                          believed that the majority’s reasoning could be extrapolated to state

                          regulations that supposedly are constitutional. Scalia said that

                          Massachusetts could have accomplished this with discriminatory taxes

                          on out of state industry, a tax that is nondiscriminatory, but which

                          contains credits for in-state producers, a tax that is nondiscriminatory,

                          but whose funds are then used to subsidize local industry (what

                          Massachusetts did), and a nondiscriminatory tax combined with a

                          subsidy for local industries taken from the state’s general revenues.

                          Scalia believes that all of these methods are unconstitutional except for

                          the last one. Massachusetts did the third one, which was

                          unconstitutional, but Scalia would have allowed it to get away with the

                          fourth one.

               M) Granholm v. Heald: The majority struck down a law allowing in-state

                     wineries to sell wine to consumers in that state but prohibiting out of state

                     wineries from doing so. To prevent minors from getting alcohol, the state

                     had to use less discriminatory means. The dissenting justices believed the

                     state’s action was authorized by the 21st Amendment and was thus exempt

                     from the dormant commerce clause.

               N) The commerce clause allows the federal government to make economic

                     laws rather than the states. The dormant commerce clause prohibits

                     the states from making economic laws.

               O) H.P. Hood & Sons, Inc. v. Du Mond

Meyler – Fall 2005

                      1) New York prohibited an operator of three licensed milk-receiving

                          depots for milk which would be distributed in Boston from opening up

                          any more, citing a regulation which required the commissioner to find

                          that opening up more would not promote destructive competition or

                          harm the public interest.

                      2) The court struck this down as-applied. States cannot use legitimate

                          regulations intended to protect the health and safety of their

                          citizens to suppress out-of-state competition. Furthermore, the

                          nation is a single economic unit. The states are not authorized to

                          decide when a part of the market is already adequately served.

                      3) The dissent did not believe there were enough facts to support the

                          contention that there was suppression of competition here.

               P) Parker v. Brown: The court upheld a California requirement that required

                     raisin producers to submit to state regulation because of a strong and

                     recognized state interest in stabilizing the raisin market.

               Q) Pike v. Bruce Church, Inc.: The court struck down an Arizona statute

                     requiring a cantaloupe packer to pack Arizona cantaloupes in Arizona. The

                     statute burdened the producer with high costs so as to enhance Arizona’s

                     commercial reputation. The dormant commerce clause does not allow states

                     to require work to be done within their borders for the sake of promoting

                     local employment or to do so to enhance the state’s commercial reputation.

               R) Philadelphia v. New Jersey

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                      1) A New Jersey statute prohibited New Jersey landfill operators from

                          accepting money from out-of-state garbage collectors to allow them to

                          use the New Jersey landfills.

                      2) The court struck this down as unconstitutional. The dormant

                          commerce clause prohibits states from keeping “bad” things from

                          other states out with legislation that discriminates based solely on

                          the out-of-state origins of such bad things. States cannot isolate

                          themselves from each other’s problems with protectionist legislation.

                      3) The dissent argued that “bads” should be distinguished from “goods”

                          for the purposes of the dormant commerce clause and that what New

                          Jersey was doing was a legitimate attempt to protect the health and

                          safety of its citizens.

               S) Maine v. Taylor: The court allowed Maine to restrict importation of baitfish

                     because it could show that 1) there was a legitimate and substantial

                     purpose in prohibiting the importation and 2) less discriminatory

                     means were unavailable to accomplish that purpose. The possibility of

                     less discriminatory means in the abstract did not affect the analysis.

               T) Reeves Inc. v. Stake

                      South Dakota owned and operated a cement plant and favored South

                          Dakota buyers when selling the cement.

                      The court upheld this. States actions are not suspect under the

                          dormant commerce clause when the state is acting as a market

                          participant rather than a market regulator. This is because 1) all

Meyler – Fall 2005

                          traders and manufacturers, including states when they act as such,

                          are free to exercise their discretion as to with whom they will deal

                          2) states are burdened with the same market restrictions as private

                          entities so they should have the same freedoms from federal

                          constraints that private entities have and 3) it’s too hard for the

                          courts to analyze state actions as market participants under

                          dormant commerce clause analysis.

                      The dissent argued that the dormant commerce clause applies to states

                          regardless of whether they are acting as market regulators or market


               U) South-Central Timber Development, Inc. v. Wunnicke

                      1) Alaska contractually required purchasers of its state-owned timber to

                          saw the timber into certain sizes before shipping it out of state.

                      2) The court struck this down. The state’s power as a market

                          participant is limited to a “discrete, identifiable class of economic

                          activity in which it is a major participant.” States cannot regulate

                          the market as participants when they affect the market too far

                          upstream or downstream from their own direct involvement.

                      3) The dissent thought this was too formalistic and that the court would

                          have allowed the state to do this in another way.

               V) Some state actions are described as being constitutional because they are

                     part of the states’ “police powers.” This seems to be a catch-all for things

                     states are normally allowed to do.

Meyler – Fall 2005

   XI.    Privileges and Immunities Clause

               A) United Building & Construction Trades Council v. Mayor of Camden

                      1) A Camden, New Jersey city ordinance required that at least 40% of

                          employees of contractors and subcontractors working on city projects

                          be Camden residents.

                      2) The court almost struck this down as unconstitutional. Neither states

                          nor municipal governments can treat citizens of other states or

                          municipalities unequally with regard to their privileges and

                          immunities under Article IV of the Constitution.

                      3) Only individuals, not corporations can sue under the privileges

                          and immunities clause. This differentiates it from the dormant

                          commerce clause, as corporations can take advantage of that.

                      4) This ruling treated the right to pursue a “common calling” as one of

                          the rights covered under the privileges and immunities clause. The

                          right to travel is also treated similarly. Still the scope of the privileges

                          and immunities is not as broad as the rights citizens have as citizens of


               B) Lunding v. New York State Tax Appeals Tribunal: The court struck down a

                     New York state income tax deduction for alimony payments that was only

                     available to New York residents because there was no reason for the

                     difference in treatment and the discrimination against nonresidents bore no

                     relation to any state objective.

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               C) Hillside Dairy, Inc. v. Lyons: The court upheld a tax that did not facially

                     discriminate against out-of-state residents.

   XII.   Separate of Powers

               A) Montesquieu

                      1) Montesquieu suggests a government with (in his hierarchical order) 1)

                          an executive branch made up of the monarch 2) a legislature 3) a

                          judiciary (he doesn’t say much about this).

                      2) Montesquieu calls for a system of checks and balances between the

                          branches to prevent tyranny. Montesquieu reasons that arbitrary

                          government would result from allowing the monarch to both create

                          and enforce laws.

                      3) Montesquieu’s executive is different from the American executive

                          because 1) it’s a monarch 2) it has an absolute veto 3) it has absolute

                          and exclusive power over the military and foreign affairs 4) there’s no

                          impeachment 5) the monarch reigned for life and 6) it could tell the

                          legislature when it could and could not convene.

                      4) Montesquieu’s judiciary is weak. It also requires that peers be tried by

                          juries of other peers and that commoners be tried by juries of


               B) Madison in the Federalist Papers

                      1) Madison emphasizes separation of powers more heavily than


Meyler – Fall 2005

                     2) Madison counts on the ambitions of individuals in the different

                        branches to counter each other.

                     3) Madison would give the judges in the judiciary (but not the executive)

                        lifetime tenure. This would give them independence from the people

                        who appointed them.

                     4) Madison also notes that different states have different conceptions of

                        what separation of powers means.

               C) Gerhard Casper

                     1) Casper says that Montesquieu and Madison conflated the concepts of

                        mixed government and separation of powers. Mixed government is

                        government whose power stems from the monarch and the people.

                        This was difficult to fit in to the American context because the people

                        were the only source of power.

                     2) Casper notes that the framers found the lack of separation of powers a

                        major weakness in the Articles of Confederation and many state

                        governments (which had the executive chosen by the legislature).

                     3) Should the Constitution contain an overt provision for the separation

                        of powers?

   XIII. Emergencies and the Executive

               A) Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case)

                     President Truman ordered the Secretary of Commerce to seize and operate

                            most of the steel mills in the United States during the Korean War

                            to avert the possible threat to American steel supplies if workers

Meyler – Fall 2005

                            went on strike. The president tried to justify this as part of his

                            powers as “commander-in-chief” during wartime.

                     In several concurring opinions the court found the president’s action

                            unconstitutional. The majority said that the president was

                            legislating, which was not his job. The president’s authority to

                            act must stem from either the Constitution or from

                            congressional authorization. The currently accepted doctrine

                            comes from the Jackson concurrence which has three standards for

                            executive action:

                              When the president acts under the express or implied

                                  authorization of Congress, his or her authority is at its


                              When the president acts in the “zone of twilight” in which

                                  either s/he or Congress can theoretically have authority

                                  or his or her action has received neither congressional

                                  approval nor disapproval, the constitutionality of the

                                  action depends on the circumstances.

                              When the president acts contrary to the will of Congress, his

                                  or her action is only if it stems from his or her own

                                  constitutional powers.

                     Douglas said that the president’s action fell into the third category here.

                            The president’s commander-in-chief powers are not unlimited. The

                            president’s power to seize or to do any “takings” is qualified by the

Meyler – Fall 2005

                              due process clause. For such a taking to be constitutional,

                              Congress would have had to authorize it.

                      The dissent believed that the president can do stuff like this if Congress

                              were to approve after the fact. The president has better access to

                              information in wartime and can act faster.

               B) Dames & Moore v. Regan: The court upheld a presidential executive order

                     to implement an agreement between the United States and Iran on securing

                     the release of the Iranian hostages. The agreement prohibited parties from

                     either country from suing each other, requiring Americans with claims

                     against the Iranian government to use a specially-created claims tribunal

                     instead. Congress had indirectly authorized this under the International

                     Emergency Economic Powers Act. The fact that the executive action also

                     created an alternative forum in which to pursue a remedy helped.

               C) Bruce Ackerman has proposed an alternative model for executive power in

                     emergencies. He would allow the executive to have sweeping and extensive

                     emergency powers (including detention), but would require increasing

                     supermajorities in Congress for such powers to be extended over a

                     significant length of time. He believes such a set of powers would allow the

                     public to be reassured while safeguarding civil liberties.

               D) Ackerman’s proposal has been criticized because it leaves little role for the

                     judiciary to review the executive’s action, reassuring the public should not

                     be the goal of emergency powers, and the political temptation for

                     authorizing repressive responses to even small emergencies might be too

Meyler – Fall 2005

                     strong to resist. Furthermore, a cycle of terrorist attacks could create

                     escalating cycles of repression.

               E) The congressional resolution on emergencies adopted in 1976 also gives the

                     president sweeping emergency powers for a limited time and requires

                     accountability to Congress.

               F) Different Eastern European constitutions have different provisions for

                     emergency powers in terms of how emergencies are defined, who declares

                     them, whether the executive is accountable to the judiciary or the

                     legislature, the permissible duration of the powers, and the rights affected by

                     such powers.

   XIV. Foreign Affairs and War Powers

               A) United States v. Curtiss-Wright Export Corp.

                      Congress authorized the president to prohibit arms sales to Bolivia and

                          Paraguay. Curtiss-Wright was indicted for violating the prohibition.

                      The court upheld the president’s action. The president has implied

                          powers over foreign affairs because the Constitution gives the

                          president some of these powers directly and because for prudential

                          reasons the president is better equipped to deal with external


                      The fact that Congress authorized the president to do this did not seem to

                          matter much; the court probably would have allowed the president to

                          do this anyway.

               B) Campbell v. Clinton

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                     Some members of Congress accused the president of violating the War

                        Powers Resolution by starting a war without congressional approval.

                     The D.C. Circuit Court dismissed this for lack of standing. The question

                        of whether a war is going on is a non-justiciable political question.

                        The court said that no judicially manageable standards exist for

                        determining who started a war. The president also has independent

                        authority to react to military aggression.

                     The dissent believed that not only is whether or not a war is happening

                        something that the judiciary can determine, but also that the question

                        here was not whether the war was going on or whether the president’s

                        action was wise, but whether the president acted within the scope of

                        his war powers.

                     Meyler thinks Congress gave the president tacit approval by not stopping


   XV.    Habeas Corpus and Executive Branch Detentions

               A) Hamdi v. Rumsfeld

                     Yasser Hamdi was an American citizen captured as he was fighting with

                        the Taliban in Afghanistan. His habeas corpus rights (which would

                        have required that he either his detention be explained to the court so

                        that he could be charged with something or released) were suspended.

                        The government used the term “enemy combatant” rather than the

                        established term “illegal combatant” to make the fact that Hamdi was

                        an American citizen irrelevant.

Meyler – Fall 2005

                      The plurality said that this was unconstitutional. The executive branch

                          does have the power to indefinitely detain “enemy combatants”

                          but cannot suspend their right of habeas corpus without

                          congressional approval. O’Connor used a balancing test to determine

                          that the government had a stronger interest in preventing enemy

                          combatants from returning to battle than Hamdi had in not being

                          detained, but that he at least had a right to challenge his detention.

                      Souter and Ginsburg’s concurrence argued that the indefinite detention

                          was not valid in the first place because of the Non-Detention Act.

                       In their concurrence, Stevens and Scalia said that the Authorization for

                          the Use of Military Force Act was not a suspension of habeas corpus

                          by Congress and that Hamdi thus still had the right.

                      Thomas dissented and argued that detention powers like this inherently

                          belonged to the president.

   XVI. Substantive Due Process in the Economic Sphere.

               A) Allgeyer v. Louisiana: The court struck down a Louisiana statute that

                     prohibited making contracts for marine insurance with companies not

                     licensed to operate in the state. The court held that the police power of the

                     state did not in this case override the “liberty” to make private contracts

                     under the substantive due process clause of the Fourteenth Amendment.

               B) Lochner v. New York

                      A New York statute prohibited bakers from making their workers work

                          more than sixty hours a week or ten hours a day.

Meyler – Fall 2005

                     The court struck this down as unconstitutional. The majority claimed that

                        there was a substantive right protected by the due process clause of the

                        Fourteenth Amendment to make private contracts in spite of the states’

                        police powers. The court articulated something like rationality review

                        for things like this and said that the state was not furthering a

                        reasonable objective here because all jobs are supposedly dangerous

                        and working at a bakery is too.

                     The dissent said that the majority was endorsing a specific laissez-faire

                        economic theory rather than interpreting the Constitution.

                     The majority initiated an era here in which almost all economic regulation

                        was struck down as a violation of freedom of contract. The exception

                        was Muller because it dealt with women and gender differences were a

                        big deal then.

                     People criticized this in class because people in a position of little power

                        do not really have freedom of contract in these circumstances.

               C) Nebbia v. New York

                     Nebbia was convicted of underselling milk in violation of a New York

                        statute fixing the retail price of milk.

                     The court rejected Lochner by not striking this down. The court will use

                        rationality review for state economic statutes since neither

                        freedom to contract nor freedom to set prices are protected by the

                        due process clause of the Fourteenth Amendment. Such statutes

                        only need to be “affected with a public interest” (fall under the

Meyler – Fall 2005

                          state’s police powers) and need only have a reasonable relation to

                          the legislative purpose.

                      The dissent thought that this statute arbitrarily interfered with the right to

                          set prices.

               D) West Coast Hotel Co. v. Parrish: This case rejected freedom of contract

                     outright, this time overtly overturning Lochner.

   XVII. Substantive Due Process and Privacy

               A) Griswold v. Connecticut

                      Griswold was arrested for violating a Connecticut statute that forbade

                          giving information on contraception, even to married couples, by

                          giving a married couple such information.

                      The court struck the Connecticut statute down here. The different justices

                          had different reasons. Writing for the plurality, Justice Douglas said

                          the rights enumerated by the Third, Fourth, Fifth, and Ninth

                          Amendments create a “penumbra” of rights around themselves, which

                          includes the right to privacy. Such a right would have to be balanced

                          against a compelling state interest.

                      Justice Goldberg thought that the Ninth Amendment was enough to cover


                      Justice Harlan thought that a statute that infringes on the due process

                          clause of the Fourteenth Amendment if it violates a right “implicit

                          in the concept of ordered liberty” even if such a right is not

                          specifically enumerated in the Constitution.

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                      The dissent did not believe there was a right to privacy in the Constitution

                          and that the government could infringe upon it unless there was a

                          constitutional bar on doing so under the circumstances.

               B) Eisenstadt v. Baird: The court extended the ruling in Griswold to unmarried

                     couples. The equal protection clause was combined with the due process

                     clause to make it so no exceptions to the law could be made.

               C) Planned Parenthood of Southeastern Pennsylvania v. Casey

                      The court was being asked to overturn Roe v. Wade again.

                      A woman has a right to be free from undue burden from the state in

                          getting an abortion before viability of the fetus. The state has a

                          substantial interest in the potential life of the fetus and can take

                          any measures that do not unduly burden the right to have an


                      After viability the state has a substantial interest in protecting the life

                          of the fetus and may regulate abortion to do so unless an abortion

                          is necessary in appropriate medical judgment to protect the life or

                          health of the mother.

                      The court will overturn precedent contrary to stare decisis if:

                            d) There has been a change in facts

                            e) There has been a serious change in people’s understanding of

                                the facts.

                            f) The old rule was socially unworkable

                            g) There has not been long term reliance on the old rule.

Meyler – Fall 2005

                     What is and is not a substantial burden:

                            A brief waiting period is not a substantial burden and it is

                                consistent with the state interest in the health of the mother

                                and in her making a well-informed choice.

                            Spousal notification is an unconstitutional undue burden

                                because of the possibility of an abusive spouse.

                            Parental notification is not an unconstitutional undue burden

                                on the right so long as there is a judicial bypass procedure.

                            Requiring facilities that perform abortions to keep and report

                                certain records is not an unconstitutional undue burden so

                                long as such procedures respect patients’ confidentiality.

                                This is related to the state’s interest in safeguarding

                                women’s health by having medical data.

                     When there is no clear majority, take the narrowest ruling.

               D) Belle Terre v. Boraas

                     The petitioners challenged a local ordinance prohibiting a certain number

                        of unrelated persons from living under the same roof.

                     The court upheld this. Municipalities, neighborhoods, and states can

                        regulate housing and neighborhood organization so long as the

                        regulation bears a rational relationship to a permissible state

                        objective (rationality review).

                     Justice Marshall dissented, believing that the right to set up a home is

                        protected under the Fourteenth Amendment.

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               E) Moore v. East Cleveland

                     A housing ordinance in East Cleveland prevented two grandsons who

                        were cousins from living with their grandmother.

                     The majority struck this down because the state interests were only

                        marginally preserved here. Intrusive state regulations of family

                        housing arrangements that do not relate to a strong state interest

                        will not be upheld (failure to meet rationality review).

                     The dissent thought that the majority was extending substantive due

                        process rights too far here.

                     The degree of blood relationship between the two cousins and the fact that

                        it would have been okay if they were brothers annoyed Justice


               F) Quilloin v. Walcott

                     A biological father of an eleven year old child being raised by his mother

                        and stepfather who had not “legitimated” the child as required by

                        Georgia law to establish his parental rights and who had shown no

                        interest in raising or contributing to the child’s upbringing sought to

                        block the stepfather from adopting the child. The state allowed the

                        adoption on the grounds that it was in the child’s best interest.

                     The court unanimously upheld the state’s action. A state cannot break

                        up a natural family over the objection of the parents without

                        violating the due process clause solely because it thinks doing so is

                        in the best interest of the child unless some showing of unfitness is

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                        made. The court will allow the state to recognize a family unit

                        already in existence over the objections of a biological parent if

                        doing so is in the child’s best interest.

               G) Troxel v. Granville

                     Grandparents petitioned the state to compel their granddaughters’ mother

                        to allow them visitation rights to the girls over the mother’s objection.

                        The state statute allowed “any person” to petition for visitation rights

                        at “any time” if the state court found that it was in the best interest of

                        the child.

                     The court struck this down as-applied. The due process clause of the

                        Fourteenth Amendment prohibits states from infringing on the

                        rights of parents to raise their children.

                     This statute was way too broad; it allowed anyone to petition for visitation

                        rights to a child with the court’s approval.

                     Justice Thomas called for strict scrutiny here, arguing that parental rights

                        are fundamental.

                     Souter would have overturned the whole thing, not just as-applied here.

               H) Zablocki v. Redhail

                     A Wisconsin statute forbade divorced individuals with child-support

                        obligations from remarrying.

                     The court struck this down as unconstitutional. The right to marry is a

                        fundamental right protected by strict scrutiny. The exceptions are

                        regulations prohibiting incest and bigamy and laws that make it so

Meyler – Fall 2005

                        you lose social security, child support, and alimony payments if

                        you remarry.

               I) Michael H. v. Gerald D.

                     Michael H. biologically fathered a child in an adulterous affair with the

                        wife of Gerald D. The child was raised by Gerald D. and his wife.

                        Michael H. sought to establish his parental rights through his

                        biological relationship with the child.

                     The court denied that Michael H. had any paternity rights because there

                        was no tradition of states allowing fathers from adulterous

                        relationships to have paternity rights. The court might not

                        acknowledge a right not enumerated in the Constitution if it has

                        no basis in tradition or history.

                     Scalia seems to think that tradition can be shown by the presence of a state


                     Brennan’s dissent criticized the reference to “tradition” because the

                        concept is too “malleable and elusive.”

               J) Lawrence v. Texas

                     The petitioners were arrested under a Texas statute banning sodomy.

                     The court overruled Bowers v. Hardwick and found the Texas statute

                        unconstitutional. The due process clause of the Fourteenth

                        Amendment prohibits the state from regulating the private sexual

                        behavior of consenting adults. Simply forbidding homosexual

                        sodomy is not a legitimate state interest. (THIS CAN BE

Meyler – Fall 2005


                      The court used European law to establish a dignity interest for the

                          petitioners here. Scalia did not like this.

                      The standards for upholding something on stare decisis established in

                          Casey were not met here.

                      The dissent disagreed with that this case met the standard for overturning

                          stare decisis under the Casey standard and thought that the majority

                          wrongfully claimed that homosexual sodomy is a “fundamental right”

                          protected by the Fourteenth Amendment.

               K) Fundamental rights are usually (but not always) protected by strict

                     scrutiny. First, look to see what the right is. Then, to determine

                     whether it is a fundamental right, it must be based on tradition or be

                     implicit in the concept of ordered liberty.

               L) Foreign Sources of Law

                      Scalia’s opinion – generally not a good idea

                              It’s worth looking at, but not citing

                              The Constitution does not provide for it.

                              Use of foreign law makes the court less democratically


                              It’s too easy to pick and choose which foreign sources one does

                                 and does not want to use in order to get the result one wants.

                              He is okay with old English common law since that is the

                                 foundation of American law.

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                     Breyer’s opinion – sure, why not?

                            Use of foreign law aids in transparency and creates collegiality

                                among the world’s courts.

                            It’s useful to see how another perspective reasoned through a

                                similar problem.

                            The world is becoming more interconnected, making use of foreign

                                law more appropriate.

                            Foreign law should be a resource, but not binding authority.

                     Ginsburg’s opinion – bring it on!

                            Use of foreign law aids in the international recognition of human


                            International sources influenced the framers of the Constitution

                                and as such can be appropriate for interpreting it.

                            Courts around the world should hold each other in high regard.

                            Use of foreign law is consistent with the Constitution being a

                                “living document.”

                            Procedure in courts can change and referencing foreign law can

                                help guide the process.

                            Ginsburg lists foreign law journals, the UN Convention,

                                international customary trade law, foreign judicial decisions,

                                and the products of “team teaching” and international legal

                                education as appropriate sources of foreign law.

   XVIII. The Equal Protection Clause

Meyler – Fall 2005

               A) Dred Scott v. Sandford

                     In the antebellum period, Dred Scott, a slave, tried to argue that he was

                        free after having been transported to a free state.

                     Chief Justice Taney held:

                          a) Because he was not white, Dred Scott was not a citizen of the

                                 United States and not entitled to sue in federal court. Free blacks

                                 were thus only citizens of the states in which they resided, not

                                 the United States.

                          b) Congress could not make laws telling people where they could

                                 and could not take their property geographically. Thus the

                                 Missouri Compromise was ruled unconstitutional.

                     This decision was overturned by constitutional amendment after the Civil


               B) Plessy v. Ferguson

                     1) Plessy, being one-eighth black, was arrested for refusing to leave a

                        section of a railway car reserved for whites as required by Louisiana

                        statute rather than sitting in the non-white (colored) section of the


                     2) The court upheld this as constitutional. The court believed that the

                        Fourteenth Amendment only required that the states treat people of

                        different races equally before the law, not that they be required to

                        allow the races to mix in public facilities.

                     3) In his dissent, the elder Justice Harlan said that this law obviously had

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                        a discriminatory purpose and that the Constitution did not recognize

                        and allow for the use of race as a basis for treating someone a certain

                        way under the law.

               C) Korematsu v. United States

                     1) Korematsu, a Japanese American living in California during World

                        War II challenged his internment in a camp under the equal protection

                        clause of the Fourteenth Amendment.

                     2) The court upheld this as constitutional, but established that strict

                        scrutiny will be applied to any government action facially based on

                        racial classification. The government must have a compelling

                        interest and the means must be narrowly tailored.

                     3) This case was probably wrongly decided because the means weren’t

                        narrowly tailored, but it did introduce firmly for the first time the

                        doctrine of applying strict scrutiny when racial classifications are


               D) Brown v. Board of Education

                     1) The petitioners challenged racial segregation of public schools.

                     2) The court overturned Plessy to strike down school segregation. Racial

                        segregation of public facilities by the states violates the equal

                        protection clause of the Fourteenth Amendment. Racial

                        segregation of public facilities by the federal government violates

                        the due process clause of the Fifth Amendment (Bowling v.


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                      3) The court explained its willingness to overturn Plessy partly based on

                          social science data showing the detrimental effects of segregation and

                          the importance of public education, which had increased greatly since

                          the time of the Plessy decision.

                      4) This was similar to, but different from Sweatt v. Painter which struck

                          down law school segregation on the grounds that black law students

                          needed to attend law school with white students to be prepared to deal

                          with them in the professional environment.

               E) Brown v. Board of Education II: This ruling required the states to comply

                     with the previous one.

               F) Loving v. Virginia

                      1) The petitioners challenged a law that prohibited interracial marriage.

                      2) The court predictably struck down these shenanigans. Any state

                          statutes that classify or treat people differently based on race must

                          be justified by a compelling state interest. Preserving racial purity

                          is not one of those.

                      3) Stewart’s concurrence scoffed at the notion that a state could make

                          something criminal based on the race of the person doing it.

               G) Yick Wo v. Hopkins

                      1) A law forbade owners of laundries whose buildings were not made of

                          brick or stone from operating without city approval. Although the law

                          was facially neutral, it only was enforced against Chinese laundry


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                     2) The court struck this down as unconstitutional. Facially neutral laws

                        of general applicability violate the equal protection clause when

                        they are only enforced on one racial group.

               H) Washington v. Davis

                     1) The petitioners challenged an exam given to applicants for jobs as

                        police officers that tested certain reading skills. Blacks failed the test

                        in disproportionate numbers.

                     2) The court upheld the test. For a facially neutral law to receive strict

                        scrutiny under the equal protection clause, the law must have

                        BOTH a discriminatory intent AND a discriminatory effect.

                        Having only one or the other is not sufficient.

                     3) In Palmer v. Thompson, a public swimming pool closure had

                        discriminatory intent (it was done to avoid integration) but no

                        discriminatory effect since no one, black or white, could use public

                        swimming pools anymore and so the action was not unconstitutional.

               I) Personnel Administrator v. Feeney

                     1) A statute giving veterans an advantage in hiring for civil service

                        positions was challenged as disproportionately benefiting men.

                     2) The test for facially neutral laws to receive higher scrutiny also

                        applies to laws that affect gender.

                     3) The dissent seems to believe there was a discriminatory intent here

                        because there were exemptions for traditionally female jobs in the civil


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               J) Arlington Heights v. Metropolitan Housing Dev. Corp.

                     1) A municipality refused to allow land to be rezoned in a manner that

                        would permit racially integrated housing.

                     2) The court upheld this but articulated a standard for determining

                        whether discriminatory intent exists. Racially discriminatory intent

                        does not need to be the sole purpose of a law for higher scrutiny to

                        kick in. To determine discriminatory intent the court will examine

                        1) the historical background for the law 2) whether the sequence

                        of events leading up to the law’s passage is irrational unless

                        intended for racial discrimination and 3) the legislative history.

               K) Castaneda v. Partida

                     1) In a county with a 79% Latino population, only 39% of grand jurors

                        from 1962-72.

                     2) The court was not happy with this. A disparity so large as to be

                        unlikely to be accidental will likely cause the court to infer

                        discriminatory intent. The burden would fall on the defendant to

                        rebut such a presumption.

               L) United States v. Armstrong

                     1) All the defendants being prosecuted in a crack bust were black.

                     2) The court upheld this. To show racially discriminatory intent in

                        enforcement of a facially neutral law, a petitioner must show that

                        similarly situated individuals of a different race are not being


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               M) Mayor of Philadelphia v. Educational Equality League: The court did not

                     find discriminatory intent when all the petitioner had was statistics which

                     said that the racial makeup of the local school board did not match that of

                     the neighborhood. Simplistic comparisons are not enough because all

                     citizens are not necessarily fungible.

               N) Batson v. Kentucky

                      1) The court said the state had a burden of showing that striking black

                          jurors in a case with a black defendent with peremptory challenges

                          was not discriminatory. Race cannot be used as a proxy for other

                          demographic considerations when using peremptory challenges.

                      2) Rehnquist’s dissent said that this would be okay if peremptory

                          challenges were used to exclude white jurors when the defendant was

                          white. Also, this ruling does not stop other demographic traits from

                          being proxy for race!

               O) McCleskey v. Kemp

                      1) The majority upheld the capital conviction of a black defendant in

                          spite of a study that proposed that race motivated death sentences for

                          blacks. The court cited policy considerations that warranted not

                          calling on jurors to testify about how they reached their verdicts and

                          prosecutors to explain and defend decisions to pursue capital

                          punishment they had made years before.

                      2) The dissent agreed that jurors should not have had to testify as to their

                          motivations, but thought it was entirely appropriate that prosecutors’

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                        reasoning at the step at which racial considerations may have been

                        strongest in pushing them to seek the death penalty be examined.

               P) Richmond v. J.A. Croson Co.

                     1) The petitioners challenged a law that required the city of Richmond to

                        give at least 30% of its construction contracts to firms that were at

                        least 51% minority owned.

                     2) The court struck this down. Strict scrutiny is to be applied to all

                        cases involving racial classification even if the discrimination is

                        presented as “benign” or “remedial” so inappropriate use of racial

                        classification can be “smoked out.”

                     3) The court was not convinced that the city was remedying actual past

                        discrimination specifically within the construction industry in

                        Richmond. The fact that there had been discrimination in the

                        construction industry historically on a national level was not enough to

                        justify this local remedy.

                     4) The quota here wasn’t tailored to remedying any specific

                        discrimination. The city could have tried to use a less-discriminatory

                        means to fix this problem and didn’t even try.

                     5) Justice Stevens in his concurrence agreed with the outcome here but

                        did not want racial remedies to be ruled out entirely.

                     6) The dissenting justices believed that there was not only a compelling

                        interest in remedying discrimination here, but that these means were

                        not as badly tailored to the end as the majority thought because

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                        minority contractors still got fewer contracts proportionally in spite of

                        existing prohibitions on discrimination.

               Q) Adarand Constructors, Inc. v. Pena

                     1) The Department of Transportation was preferentially awarding

                        contracts to businesses owned by individuals from “socially and

                        economically disadvantaged groups.” This meant minorities. This

                        arose under the Fifth rather than the Fourteenth Amendment, but the

                        standard is the same.

                     2) The court struck this down, in the process overturning Metro

                        Broadcasting, Inc. v. FCC in which the court held that federal benign

                        discrimination only required intermediate review. Stare decisis does

                        not apply when the court is reapplying a sounder doctrine from

                        earlier cases. Also, racial classifications can pass strict scrutiny so

                        long as the interest is compelling and the means narrowly tailored.

                     3) Scalia’s concurrence, unlike the majority, said that there can never be

                        a compelling interest in using racial classification.

                     4) The dissenting justices noted a difference between racial classification

                        for the purposes of invidious discrimination and for the purposes of

                        remedying discrimination. Also there was concern about stare decisis.

               R) Grutter v. Bollinger

                     1) Barbara Grutter was not admitted to the University of Michigan Law

                        School. She blamed the admissions policy which, while taking things

                        other than just test scores and grades into account, sought to enroll a

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                        “critical mass” of students from underrepresented minority groups.

                     2) The court upheld this. A racially diverse class in the higher

                        education context is a compelling state interest that survives strict

                        scrutiny. A system that takes race into account in individualized

                        consideration of an applicant but does not use quotas is enough to

                        meet the court’s requirement of narrow tailoring for strict


                     3) The majority noted that such a program might no longer be appropriate

                        after a certain period of time when more racial equality had been


                     4) The dissent questioned whether the majority was really using strict

                        scrutiny here. They did not agree that there was either a compelling

                        state interest or that this was the most narrowly tailored alternative to

                        reaching that even if there was such an interest.

                     5) Meyler seems to think that in contexts of benign discrimination the

                        court eases up a little on the narrow tailoring requirement. She thinks

                        they did that here.

                     6) The state was very deferent here to the university’s assertion of its

                        compelling interest.

               S) Gratz v. Bollinger

                     1) Two white students were not admitted to one of the University of

                        Michigan’s undergraduate programs. They blamed an admissions

                        policy which gave individuals from underrepresented minority groups

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                          and automatic twenty points on the admissions selection index.

                      2) The court struck this down. Affirmative action programs which

                          give automatic, quantifiable admissions boosts to minorities

                          without being combined with any individual consideration are not

                          narrowly tailored enough for strict scrutiny.

               T) Reed v. Reed: This case shows prior to 1973 laws that discriminated on the

                     basis of gender were held to rationality review.

               U) Frontiero v. Richardson

                      1) A federal statute required military women to prove that their husbands

                          were dependents but not men to prove that their wives were


                      2) The court struck this down mightily, establishing that intermediate

                          scrutiny is to be used for statutes that discriminate on the basis of

                          gender. The government interest must be important (although not

                          necessarily compelling) and there must be a close fit between the

                          government objective and the statute (although the statute need

                          not necessarily be narrowly tailored). Aesthetics and convenience

                          are NOT important enough interests for the purposes of this level

                          of scrutiny.

               V) Craig v. Boren

                      1) An Oklahoma statute allowed the sale of nonintoxicating beer to

                          females at least eighteen years old but males at least twenty-one years


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                      2) The court struck this down. While there was an important

                          governmental interest in promoting traffic safety, this statute was not a

                          close enough fit to that objective.

                      3) The dissent argued that “real differences” between men and women

                          justified the Oklahoma statute.

               W) United States v. Virginia

                      1) The state run Virginia Military Institute, citing its physically harsh and

                          rigorous training regime, refused to admit women. The state offered to

                          start a separate school for women, but it would not have the funding or

                          prestige of the men’s school.

                      2) The majority struck this down. A single-sex school is only

                          permissible if a substantially equal alternative is available to the

                          other sex or if it can be proven that admitting both sexes would

                          substantially diminish the prestige of the school. Virginia could

                          prove neither of these here.

                      3) The dissent argued that the single-sex nature of VMI was essential to

                          its educational method and that diversity of educational choice was

                          hampered by the majority decision.

               X) For there to be an important government interest to justify gender

                     discrimination, the statute must be based on “real differences” rather

                     than stereotypes.

                      1) Pregnancy-related differences are considered “real differences”

                          (Gedulig and Michael M., holding statutory rape laws that treated

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                           the sexes differently were justified by the possibility of women

                           getting pregnant).

                      2) Physical strength, the provocative effect of women, and combat

                           worthiness are considered “real differences” (Dothard where a

                           statute prohibiting women from having certain jobs as prison

                           guards was upheld and Rostker where a ban on requiring women

                           to register for the draft was upheld).

                      3) Jury-service and career-related differences are typically treated as

                           stereotypes (J.E.B. where using peremptory challenges to exclude

                           jurors just because of sex was struck down).

               Y) Califano v. Webster: The court unanimously upheld the Social Security

                     Act’s granting of a higher chance of old-age benefits to women to

                     compensate for real discrimination in employment practices. This passed

                     the Craig test for close fit.

               Z) Orr v. Orr: The court struck down an Alabama statute that only required

                     men to pay alimony. Use of sex as a proxy for need was unnecessary, since

                     individualized hearings to determine need already occurred. This failed the

                     Craig test for close fit.

               AA) Mississippi Univ. for Women v. Hogan

                      1) Mississippi University for Women excluded men from its nursing

                           school and was sued.

                      2) The court struck down the university’s policy. While the state had an

                           important interest in alleviating discrimination against women,

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                          creating an all-female nursing school was nowhere near a close fit for

                          that objective. Remedial measures that reinforce gender

                          stereotypes are never a close fit for an important government

                          objective of ending discrimination.

                      3) The dissent argued that women never had a problem with this as

                          stereotyping them.

               BB) Romer v. Evans

                      1) An amendment to the Colorado state constitution prohibited giving

                          any protected status based on sexual orientation.

                      2) The court struck this down. State action discriminating on the basis

                          of sexual orientation gets something slightly higher than

                          rationality review. There must be a rational relation to a

                          legitimate end. Animosity toward homosexuals is not a legitimate

                          end and sweeping denials of protections are overbroad and thus

                          not a rational relation to a legitimate end.

                      3) The dissent countered that this was simply a refusal by the state to give

                          special rights to homosexuals. Scalia said that the statute was

                          motivated by animosity toward a behavior, not a classification of


               CC) Lawrence v. Texas: O’Connor suggested that homosexuals could be

                     protected under the equal protection clause. Scalia did not like this idea,

                     saying that the sodomy law in the case applied regardless of one’s sexual


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   XIX. Free Exercise of Religion

               A) Cantwell v. Connecticut: Freedom of belief is absolute, but freedom to

                     act on those beliefs is not.

               B) Employment Division v. Smith

                      1) Native Americans were fired from their job after they failed a drug test

                          because they smoked peyote in a religious ritual.

                      2) The court upheld this. A facially neutral law of general

                          applicability that incidentally burdens religious practices will be

                          upheld as constitutional. It will only get rationality review.

                      3) The concurring justices argued that a fundamental right was at stake

                          here, but that there was a compelling state interest in preventing drug


               C) Church of the Lukumi Babalu Aye, Inc. v. Hialeah

                      1) The city of Hialeah passed an ordinance banning ritual animal sacrifice

                          (while allowing it for food purposes) as soon as practitioners of

                          Santeria came to town.

                      2) The court struck this down. If a law burdening free exercise is

                          passed with both discriminatory intent and effect, it will receive

                          strict scrutiny. Legislative history can be used to check on this.

               D) Locke v. Davey: Washington state did not allow recipients of state

                     scholarships to use them for devotional religious studies, citing

                     establishment clause worries. The court upheld this. States can be stricter

                     in observance of the establishment clause than the federal government

Meyler – Fall 2005

                     and they can be broader in the rights they give under free exercise.

                     Scalia dissented, but would have been okay with it if the state had positively

                     allowed every other area of study and happened to leave religious studies



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