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Constitutional Law – Outline
I. Structure of Government A. Role of the Supreme Court and Judicial Review 1. Marbury, 1803, p. 22 a. F i. Marbury got justice of peace appointment ii. Marshall was supposed to deliver commissions (Adams’ Secretary of State) iii. Republicans repealed the act that created the judgeships iv. Jefferson refused to deliver 3 commissions – Madison didn’t deliver b. Does Marbury have right to commission? – yes i. He was appointed and confirmed – once signed and sealed, Marbury has vested right c. Is there a remedy for this violation? – yes i. If you have a vested right, we provide a remedy ii. But Court won’t get into political question cases d. Can this Court order the mandamus? – no i. It is not within Court’s power – statute is unconstitutional (a) Statute gives original jurisdiction to issue writ of mandamus (b) Congress can’t give Court extra original jurisdiction (c) (Perhaps the exceptions clause is important) ii. Court has power of judicial review (a) Const. is supreme (created in special manner, nature of Const., supremacy clause) (b) Court should be interpreter (hears all cases arising under, judges take oath, judges decide law) (c) Can’t let Congress and President interpret – SoP (d) Court isn’t exercising power, just saying what the people said in Const. e. SC doesn’t strike down another federal law until 1857 (Dred Scott) 2. Martin, 1816, p. 45 a. F i. Martin got land through mesne conveyances from British govt. ii. VA seized land from Martin and gave to Hunter – VA court gave to Hunter b. SC reviews state court interpretation of federal law i. (Textual) – judicial power extends to “all cases arising under” Const., etc ii. (Original Intent) – federal law will arise in state courts, but Founders wanted SC to be appellate court for these cases iii. (Structure) – “No state shall…” – limits state power iv. State courts might have their own agendas and biases v. Need uniform decisions throughout the country 3. Judicial Review a. Theories to constrain govt. power i. Republican virtue ii. Divided power: SoP, bicameralism, federalism b. Faction is problem – but extended republic will control it c. Const. is innovative – people are sovereign, delegate limited powers to govt. d. Conflict responses: i. There is no “counter-majoritarian” difficulty – Const. reflects will of the people ii. Legislatures aren’t that democratic and courts aren’t that undemocratic iii. This is actually a virtue of the Court B. Congressional Power and Its Limits 1. Federalism a. Three ways to enforce constraints: judicial review, political process, ideological b. Virtues:
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i. Local govt. knows the situation better ii. Experimentation and competition iii. More political participation c. Vices: i. Externalities ii. Discriminating against other states 2. “Necessary and Proper” a. McCulloch, 1819, p. 55 i. F – Maryland imposes state tax on national bank – cashier doesn’t pay it ii. Does Congress have authority to create the bank? – yes (a) Power not prohibited (b) History and practice – we’ve had it before, debated it, & decided it’s ok (1) Original intent – reflects Founder’s understand (2) Defer to status quo (c) Text (1) “necessary and proper” vs. “absolutely necessary” (2) 10th A omits the word “expressly” – AoC used it (d) Structure (1) Art I.8 enumerates the powers of Congress – it probably enlarges power (e) Nature of document (1) “It is a constitution we are expounding” – must read Congress’ powers broadly (f) Congress can act when the action is convenient to effectuate exercise of enumerated power iii. Does Maryland have authority to tax the bank? – no (a) States are prohibited from doing certain things (I.10) (b) States can’t act when they contravene something that Congress does (c) Power to tax is the power to destroy (d) Representation – people of U.S. and federal govt. aren’t represented in Maryland legislature (e) One view of court = representation reinforcement (1) But judges don’t represent the people in question either (2) Court must guess how the legislature acts when it properly represents the state (3) Who ought to have a voice? b. Jackson, Veto Message i. Each branch must interpret Const. on its own ii. SC opinion can’t be binding, but might have useful reasoning c. Cooper, p. 51 i. AK refused to desegregate schools ii. SC – officials bound by Court’s interpretation – take oath to support Const. 3. Vagaries of the Commerce Power a. 18th and 19th Centuries i. Gibbons, 1824, p. 143 (a) F – NY gives steamboat monopoly to Ogden; Gibbons gets license from federal govt. (b) Does Congress have authority to authorize Gibbons’ ferry to enter NY? – yes (1) Meaning of commerce – the means for buying and selling – navigation is commerce (2) Among the several states – things must necessarily go inside the states (but doesn’t cover things completely within a state) (3) Regulate – can do anything not prohibited by Const. ii. E.C. Knight Co., 1895, p. 161 (a) F – company tried to buy out sugar refineries; govt. tried to prosecute under Sherman Act (b) R – formalist – manufacturing is not commerce (affects interstate commerce only indirectly) (c) D (Harlan) – realist – there is an effect – don’t worry about directness iii. Houston, East & West Texas Railway, 1914, p. 162
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(a) F – RR runs two lines; shorter one (Dallas to Marshall) has higher rate (b) Can ICC regulate intrastate RR rate? – yes – close and substantial relation iv. Stafford, 1922, p. 163 (a) Stream of commerce – stockyards become commerce when they’re in the middle of commerce on both sides v. Champion, 1903, p. 164 (a) F – Congress prohibited interstate transportation of foreign lottery tickets (b) Prohibition is regulation (c) Congress can regulate the articles – it doesn’t matter if they are also morally objectionable – don’t look to intent vi. Hamer, 1918, p. 147 (a) F – Child Labor Act – prohibited interstate transportation of goods manufactured by factories employing children (b) R – intent of the statute is to quash child labor – intent is not to regulate commerce – goods shipped are harmless b. New Deal i. Commerce Power Under Scrutiny (a) A.L.A. Schechter Poultry Corp., 1935, p. 167 (1) F – FDR approved live poultry code under NIRA – S violated provisions (2) Slaughterhouse is production – production is not commerce (3) Stream of commerce ends when chickens arrive in NY (4) Could be a clear rule (sugar is before commerce, slaughtering is after commerce) (5) No direct affect – pay rate might affect cost of chickens and indirectly affect commerce (6) C (Cardozo) – realist – spectrum of effects – draw a line somewhere (b) Carter Coal, 1936, p. 169 (1) F – local coal boards set minimum prices, allow employees to bargain collectively (2) R (Sutherland) – struck down (i) This is not commerce or the stream of commerce (production) (ii) Direct = proximate, not remotely (iii) Don’t look at size of effect, but directness (local labor conflict is not direct) (iv) No aggregation of effects (3) C (Cardozo) – this effect is big enough ii. New Deal Revolution I and Commerce Power (a) Jones & Laughlin Steel Corp., 1937, p. 175 (1) F – NLRB charged J&L with firing employees who tried to unionize (2) R – upheld (i) J&L is national enterprise – part of interstate commerce (ii) Adopts Cardozo’s analysis of degree – national industries have substantial effect (3) Why different outcome? (i) Roberts switched his vote to stop court packing plan (ii) OR Roberts was a moderate – J&L was interstate, unlike prior cases (b) Darby, 1941, p. 179 (1) F – Fair Labor Standards Act of 1938 (i) Prohibited shipment in interstate commerce, when employees paid too little or worked too much (ii) Can’t employ workers in production for interstate commerce, except in these conditions (2) R (Stone) – upheld (i) Commerce = manufacturing goods for shipment in interstate commerce (ii) Uphold prohibiting shipment in interstate commerce (iii) Explicitly overrules Hammer (iv) Congressional regulation needed to prevent unfair competition
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(v) Motive – set minimum wage and maximum work week – doesn’t matter (c) Wickard, 1942, p. 149 (1) F – AAA set quotas for wheat production – Filburn grew too much, fined (2) R – upheld (i) Applied aggregation principle – if everyone did it, it would affect interstate commerce (ii) Discards direct/indirect test (iii) Look for substantial economic effect (iv) Two possible ones: keeps F from buying from market, aggregation c. Civil Rights Age i. Heart of Atlanta Motel, 1964, p. 183 (a) F – Civil Rights Act, Title II – no discrimination in public accommodations (b) Ruling – upheld (1) Discrimination discourages travel – interstate commerce truly affected (2) Atlanta motel is fairly local, but aggregate effect would be substantial ii. Katzenbach, 1964, p. 184 (a) Ollie’s Barbecue – family-owned restaurant – half of food comes from out of state (b) Ruling – upheld – interstate travelers eat here, less food will move in commerce, rational basis (c) Concurring (Douglas) – should’ve upheld under 14 th A (1) Cases rejected earlier on this theory – 14th A says “no state” – these are private actors (2) But populace hadn’t reached mobility d. Rebirth of Limited Commerce Power i. Lopez, 1995, p. 186 (a) F – Gun-Free School Zones Act – no gun in school zone – Lopez convicted (b) R – unconstitutional (1) Three regulatable categories: channels, persons/things in commerce, substantial relation (2) Test – economic activities must substantially affect interstate commerce (new test) (c) C (Thomas) – original intent, discard aggregation – return to E.C. Knight (manufacturing != commerce) (d) C (Kennedy) – education is traditional state concern – external limit (e) D (1) Stephens – guns are in commerce & used to restrain commerce (2) Souter – defer to Congress – rational basis review (3) Breyer – aggregation fine – guns near schools affect commerce ii. Morrison, 2000, p. 197 (a) F – Violence Against Women Act – gives tort cause of action for victims of gender violence (b) R – unconstitutional (c) D (Breyer) – it’s ok to regulate anything, as long as rational 4. Taxing and Spending Powers a. Bailey, 1922, p. 207 i. F – Child Labor Tax Act – taxes companies that use child labor ii. R – unconstitutional – the tax intended to regulate production (external limit) b. Bulter, 1936, p. 209 i. F – AAA – taxes processors of things, gives subsidizes for restricting production ii. R – unconstitutional (a) Tax and spend not limited to enumerated powers, only by general welfare (b) But AAA regulates state affairs, will force farmers to participate iii. D (Stone) – spending limited by ballot box & national, non-coercive measures – AAA ok c. Steward Machine, 1937, p. 215 i. F – federal unemployment compensation – employers pay fed; if state creates system & employer contributes, gets back 90% from fed ii. R – this is inducement, not coercion
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d. Dole, 1987, p. 217 i. Upholding statute to withhold fed highway funds from states without 21-year-old drinking age e. Limits – must be for general welfare AND restriction must be unambiguous 5. State Sovereignty and 10 th Amendment a. National League of Cities, 1976, p. 233 i. Holding commerce clause does not empower Congress to enforce minimum wage and overtime provisions of Fair Labor Standards Act against states ii. State regulation of working conditions is a “traditional government function” (external limit) b. Garcia, 1985, p. 234 i. R (Blackmun) – National League overruled (a) Inquiries into “traditional” requires judges to see what policies they like (b) Let the political process decide these questions – structural checks protect states from Congress ii. D (Powell) – states aren’t represented in Congress – need judicial protection of states iii. D (O’Connor) – states have interests that fed is bound to respect c. But Rehnquist federalism revolution might bring back judicial review d. New York v. United States, 1992, p. 237 i. F – Low-Level Radioactive Waste Amendments Act of 1985 – allowed states with waste sites to surcharge importers, and eventually deny import ii. R (O’Connor) (a) Monetary incentives – ok – Dole – states pay surcharges for waste, get money back if disposed (b) Escalating fees, denial of access – ok – states have a choice: regulated under fed scheme OR let private producers be subject to fed regulation (c) Take title provision – BAD – requires state to buy waste – states must act – no commandeering iii. D (White) – ok to tell the states what to do e. But is it really less infringing on states to regulate producers directly? – accountability problem f. Printz, 1997, p. 248 i. F – Brady Act – gun dealers send background form to local police for “reasonable efforts” check ii. R (Scalia) – unconstitutional (a) Commandeering not allowed (b) Congress would be controlling all police forces (c) States would bear the costs of background checks, but Congress gets credit iii. D (Stevens, liberals) (a) A fed system would not work (b) Congressmen voted on the measure – provides accountability (c) State will tell people who mandated the background checks g. RULE i. Congress can’t commandeer a state legislature to regulate on its behalf ii. It can coerce states through taxing and spending iii. It can shut out states by preempting them iv. Court is not going to police Congress to see if it’s acting in an area of traditional govt. concern C. Implied Limits on State Power: “Dormant” Commerce Clause 1. Concerns with state regulation of commerce a. Political – not all people have a voice in each state’s legislature b. Economic – Const. treats the nation as the relevant unit for economic success, not individual states 2. Possibilities: a. Congress has exclusive power to regulate – no, it’s enumerated – concurrent fed and state power b. Congress’ power isn’t exclusive unless it says so – this is a high burden on Congress c. Congress’ power not exclusive, but states can’t act sometimes – court decides what is ok 3. Laws that facially discriminate against interstate commerce – per se invalid a. City of Philadelphia, 1978, p. 268 i. F – NJ prohibits importation of out-of-state waste, but still allows landfills for in-state waste
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ii. R (Stewart) – invalid – protectionist – NJ could ban all waste dumping, but not solely out-of-state iii. D (Rehnquist, Burger) – NJ should be able to ban noxious items – dangerous (a) But maybe noxious items have no value – not commerce (b) Quarantines are more limited, impact on interstate commerce more limited b. Congress hasn’t spoken – state acts & interferes with commerce – court decides – Congress can change c. Courts decide to place burden of Congress’ inertia on states 4. Laws that don’t seem protectionist, but still affect interstate commerce – balancing test a. Kassel, 1981, p. 310 i. F – Iowa prevents certain trucks within state, except for manufacturers, mobile homes, border towns ii. R (Powell) – unconstitutional (a) Balancing test – safety value vs. burden on interstate commerce (b) Generally defer to state for safety, but this is potentially discriminatory – court balances (c) Allowed exemptions suggest that trucks are not that dangerous iii. C (Brennan, Marshall) (a) Look at legislative intent – clearly designed to decrease truck traffic (b) Goal = protectionist iv. D (Rehnquist, Burger, Stewart) (a) Court should balance, but defer safety determination to the state (b) Court is substituting its judgment for that of the legislature (c) 17 states in Northeast and D.C. have the same rule (d) Surrounding states should not be able to veto Iowa’s safety measures 5. Balancing test turns out to be higher than rational basis – might contradict Davis D. Presidential Power and Separation of Powers 1. Youngstown, 1952, p. 336 a. F – Truman ordered seizure of steel mills after threat of strike b. R (Black) – unconstitutional – textualist i. No statute to seize steel mills ii. Congress rejected amendment to a bill that would have given President this power iii. Const does not give the power – President is supposed to execute the laws c. C (Jackson) i. Three zones of presidential power: (a) Congress gives approval – maximum (b) Congress hasn’t spoken – uncertain (c) President contradicts Congress ii. 3rd category – Congress rejected amendment to give President this power d. C (Frankfurter) – historical – Congress has allowed seizures 16 times, but limited them e. If President acts, better make sure it is an emergency 2. Curtiss-Wright, 1936, p. 403 a. F – Congress authorized President to prohibit sale of arms – C-W tried to sell guns to Bolivia b. R – within foreign affairs power AND Congress authorized – action ok II. Rights of Individuals and Minority Groups in Historical Perspective A. Before the Civil War 1. Calder, 1789, p. 69 a. F – legislature ordered new trial after judge ruled in will contest b. R – this is not an ex post facto law c. Chase – natural law – govt. can’t infringe upon natural rights – judicial review expands! d. Iredell – positive law – law is what people (through reps) create 2. Barron, 1833, p. 702 a. Holding restrictions in first 10 amendments only apply to states b. Const. establishes the U.S. govt., not state govt. – people feared fed, not states c. Iredell – talks about written law of Const.
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3. Const. provisions regarding slavery: Three-Fifths Compromise, no importation ban, fugitive slave clause, can’t change importation ban, suppressing rebellions, taking of property, commerce clause 4. Post, 1845, p. 423 a. F – 1804 NJ law provided for gradual manumission of slavery – 1844 Const. said “all men are by nature free and independent” b. Court follows the law (Iredell – texts) – legislature established plan to abolish slavery gradually 5. Dred Scott, 1857, p. 427 a. F i. Missouri Compromise – divides Louisiana Territory into slave-free ii. Scott is slave from MO, spends time in Minnesota Territory in 1820s, later Illinois iii. Scott goes back to MO – suing for trespass, assault & battery, and false imprisonment iv. Sanford defends – Scott is a slave, so he can’t sue b. R (Taney) i. Dred Scott is not a citizen with a right to sue in federal court (a) Slaves aren’t meant to be citizens – even freed blacks have no citizenship under Const. (b) Scott has no jurisdiction ii. Scott is still a slave in Minnesota, Congress cannot free him in Minnesota (a) Missouri Compromise is a 5 th A taking B. Reconstruction Through Lochner Era 1. New Regime After Civil War a. 13th Amendment – abolished slavery, prohibits public & private action, Congress can enforce i. Three categories of rights: civil, political, social b. 14th Amendment i. Section 1 – similar to Civil Rights Act of 1866 – protects all people ii. Section 2 – deals with representation and appointment c. 15th Amendment – provides right to vote for blacks d. Legitimacy of 14th A? i. Eleven states seceded, leaving 25 states ii. Southern states ratified 13 th A – increased population, representation, power iii. Congress refused to seat reps from South iv. New southern governments under military control – ratified amendment v. OH and NJ tried to rescind ratifications, but overruled vi. If states didn’t really secede, amendment could not be ratified without them vii. Maybe it became legitimate over time e. Three visions of post-slavery country i. Race – equal protection ii. Citizenship – all born or naturalized, P-and-I iii. Labor – don’t deprive life, liberty, or property without DP 2. Privileges and Immunities and the Incorporation Controversy a. Slaughterhouse, 1873, p. 693 i. F – only one corp. could slaughter in New Orleans – other butchers sued ii. R (Miller) (a) 14th A is about race, even though it doesn’t say so (b) A law not directed toward blacks has little EP grounds (c) 13th A – forbids African slavery (d) DP – out – creating a monopoly doesn’t violate (e) Fed govt. only protects P-and-I of fed citizenship (navigable waters, redress of grievances, right to travel to capital, protection on high seas) (f) If rights of butchers covered under 14 th A, Congress would be all powerful iii. D (Field) – right to pursue your calling is fundamental – states can’t invade by creating monopoly iv. D (Bradley) – don’t worry about fed govt. involvement
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v. Effect – kills off P-and-I, guts meaning of citizenship for blacks, rejects power shift from state to fed 3. Exception to Reconstruction: Sex a. Bradwell, 1873, p. 593 i. F – Illinois women denied entry to the bar ii. R (Miller) – this is state protected P-and-I iii. C (Bradley) – states can regulate what they see fit – women don’t have right to pursue occupation b. Minor, 1875, p. 597 i. Voting is not a P-and-I of national citizenship ii. Women can’t vote under 14 th A – 15th A only covers color or previous servitude 4. Narrowing of Reconstruction: Race and State Action I a. Strauder, 1880, p. 499 i. F – black man convicted of murder by all-white jury – WV had statute eliminating blacks from juries ii. R – unconstitutional (a) States can regulate jury pool, but not eliminate entire race (b) This law doesn’t treat races equally (c) Discusses intent – trying to brand blacks (but he doesn’t know) (d) Strauder did not get a jury of his peers – but this assumes people favor their own race iii. This opinion is paternalistic – blacks need protection of govt. b. Civil Rights Cases, 1883, p. 1502 i. F – Civil Rights Act of 1875 – public accommodations can’t discriminate on basis of race ii. R (Strong) – invalidated (a) 14th A does not allow creation of this law (this goes after individuals, not states) (b) 13th A provides no grounds for this law (refusal of service is not a badge of slavery) (c) Suggests that blacks are being treated as favorites – reading into the intent of legislators iii. D (Harlan) (a) 13th A works – this is a badge or incident of slavery – Congress can eliminate it (b) 14th A works too – all persons are citizens c. Citizenship means little, race doesn’t reach far, labor insufficient 5. Formal Equality: Naturalization of Social Position a. Plessy, 1896, p. 437 i. F (a) LA statute required RR companies to have “separate but equal” cars (b) Plessy prosecuted for refusing to leave white car ii. R (Brown) (a) Reasonable exercise of police power – defer to legislature (b) Ok, as long as in good faith, for public good, not annoyance or oppression (c) Statute just separates – facially neutral (d) Law can’t force social equality – powerless to end feelings of prejudice iii. D (Harlan) (a) This law perpetuates hate and inferiority, reinforces inequality (b) Trying to keep the white race superior iv. Naturalizes the idea that blacks are socially inferior (exception for nurses) 6. Formal Freedom: Naturalization of Bargaining Power a. Lochner, 1905, p. 713 i. F – NY prohibited bakers from working > 60 hours per week or 10 hours per day ii. R (Peckham) – unconstitutional (a) Interferes with right of employers and employees to contract (1) Comes from 14th A DP (“liberty”) (2) State regulation must be a reasonable one – really for health and safety (b) Mining regulation differs – that job is truly dangerous (c) Nothing shows that bakers are really unhealthy – other statutes protect the public
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(d) This is really a labor law – strike it down iii. D (Harlan, White, Day) (a) Disagrees with the majority in how to decide what the law is about (b) Majority – court should decide what type of law it is (c) Harlan – defer to legislature’s determination about the law iv. D (Holmes) (a) Right to contract isn’t in the Const. (b) All that matters is that the legislature passed the law b. Problems with labor legislation: i. Wealth redistribution frowned upon (taking from A to give to B) ii. Paternalism – legislature shouldn’t interfere with ability to contract – people are on same footing c. Most people say this is bad: too activist, activism without textual support, protecting the wrong right d. Naturalization of bargaining power – the law makes the bakers poor – court ignores this 7. Early Privacy Cases a. Meyer, 1923, p. 810 i. F – state law prohibited teaching any modern language other than English in school ii. R – struck down – liberty includes right to useful knowledge, establish home, bring up children, etc b. Pierce, 1925, p. 811 i. F – state statute required students to attend public school ii. R – struck down – parents have liberty to direct upbringing and education of children 8. Court used commerce clause AND substantive DP to strike down fed regulations C. Progressive Reform 1. 16th – 1913 – overrides SC striking down federal income tax 2. 17th – 1913 – popular election of Senators – might mean that judicial review over federalism is important 3. 18th – 1919 – prohibition 4. 19th – 1920 – women’s suffrage – individual becomes basic unit of society 5. Adkins, 1923 a. F – minimum wage and maximum hour law for women, passed by D.C. b. R – struck down – abridges freedom of contract (from 5 th A, since it’s D.C.) i. Men and women are equal now (since women have right to vote) c. D (Holmes) – legislature should be able to do what it wants D. New Deal Revolution II and Individual Rights 1. Nebbia, 1934, p. 725 a. F – NY created Milk Control Board to fix prices, purporting to be a health law b. R (Roberts) – ok i. Govt. can regulate public welfare, as long as reasonable ii. Businesses with public interest – mean they are subject to control for public good iii. Legislature decides when to regulate (like Holmes in Lochner) 2. 1936 – Court strikes down minimum wage law under substantive DP 3. West Coast Hotel, 1937, p. 727 a. F – state law established minimum wage for women b. R (Hughes) – upheld i. Repudiates Lochner and Adkins – Const. doesn’t speak of freedom of contract ii. Women lack bargaining power, and they are taken advantage of iii. Paying substandard wages makes community support women c. Substantive DP weakened 4. Williamson, 1955, p. 731 a. F – OK puts opticians at disadvantage, dependent upon optometrist and ophthalmologists b. R (Douglas) – ok i. Rational basis review ii. Doesn’t matter what the purpose of the law is – just look for some possible evil to be correcting
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E. Incorporating Bill of Rights Against the States 1. Barron, 1833, p. 702 a. Bill of Rights does not apply to the states b. Framers did not intend this 2. Slaughterhouse – 14th A P-and-I does not incorporate Bill of Rights 3. Twining, 1908, p. 704 a. Rejects idea that DP clause incorporated the Bill of Rights 4. Palko, 1937, p. 704 a. F – CT statute allowed state to appeal in criminal cases b. R – right must be a fundamental one to be incorporated – this one is not (but religion, jury, etc – are) 5. Views a. Cardozo – fundamental fairness (natural law) – would a society be unjust without this right? b. Black – total incorporation – text of Const. and intent of Framers lead here c. Frankfurter – fundamental fairness (history) – positive theory d. Brennan – selective incorporation – can we imagine justice in our society without this? 6. Adamson, 1947, p. 705 a. Holding that 14th A didn’t incorporate privilege against self-incrimination 7. Duncan, 1968, p. 707 a. 6th A right to jury trial does apply to the states via 14 th A DP b. But we can imagine a just society without this c. Maybe not our society, though 8. Not incorporated: right to bear arms, quartering soldiers, grand jury indictment, civil jury trials F. Recap 1. Recon Amendments – shift to fearing the states, possibility for change in races, economics, citizenship 2. Recon and New Deal – stall a. Contractual rights dominant – used to limit economic regulation b. Court didn’t defer to legislatures – formalistic reasoning c. Protected federalism 3. New Deal changed this a. Congress has virtually unlimited commerce clause power b. Congress and states unconstrained by substantive DP c. Court defers to legislatures III. Modern Classification-Based Equal Protection A. Rational Basis Review and Origins of “Strict Scrutiny” 1. Railway Express, 1949, p. 484 a. F – NY traffic regulation prohibited “advertising vehicles,” but allowed ads on business vehicles b. R (Douglas) – ok – state can differentiate c. C (Jackson) i. Difference between DP and EP claim (a) Easier to claim EP (representation reinforcement problem) (b) Under DP, govt. can’t act at all – under EP, govt. can modify law 2. Carolene Products, 1938, p. 507 a. F – fed statute prohibited interstate shipment of filled milk b. R (Stone) – upheld i. Commerce clause – Congress has power to do almost anything ii. EP – no equal protection clause in 5 th A iii. DP – fails – don’t care about substantive DP, as long as there’s a rational basis c. Footnote 4 – three situations for higher level of scrutiny i. Apparent encroachment of enumerated rights ii. Political processes – restrictions on participation in govt. iii. Religious, national, or racial minorities – “discrete and insular minorities”
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3. Korematsu, 1944, p. 501 a. F – army required Japanese Americans to go to assembly centers – K convicted of staying home b. R (Black) i. Most rigid scrutiny – but really defers to military – looks like rational basis ii. Restrictions on single racial group immediately suspect – substantive DP iii. Looks for a close relationship between exclusion and preventing espionage c. D (Murphy) i. Under-inclusive – could be spies of other races ii. Over-inclusive – there are Japanese spies, but not all Japanese are spies iii. Reasonable relation – but a little more heightened d. D (Jackson) i. Judge military performance by success, not constitutionality ii. Court shouldn’t validate military decisions ex post iii. Afraid this case allows govt. to classify people by race – really stands for strict scrutiny e. Classifications based on race are virtually per se unconstitutional B. Race and State Action II 1. Shelley, 1948, p. 1518 a. F – private restrictive covenant prevented certain people from owning property b. R – unconstitutional i. If it was just a private agreement, there would be no constitutional issue ii. But when property owners get state courts to enforce private agreements, this is state action iii. Court is the reason that a black family can’t live in the house iv. If govt. allows contracts that violate EP, govt. isn’t being neutral – that is state action v. Realist strand – no visible case where whites were excluded by covenant c. Undermines: Civil Rights Cases, Plessey d. Leaves almost nothing that is not state action – but Court has not generally followed through C. Brown and School Desegregation 1. By time of Brown, separate but equal requires really, really equal facilities 2. Brown I, 1954, p. 446 a. R – separate but equal is gone i. Original intent – inconclusive – up a level of generality, 14 th A intended to integrate blacks ii. Education is most important local function – if states provide education, can’t discriminate iii. Stigma – segregation enforces inferiority iv. Segregation has a detrimental effect upon black children – poor education b. Justifications i. Political process – blacks were disenfranchised, legislatures malapportioned ii. Substantive justice (theory of morality) – segregation is wrong c. Doctrine: i. Separate is not ever equal ii. Any time govt. gives message of inferiority on basis of race, that violates 14 th A iii. Classification on basis of race is a problem d. Remedy? i. Stop classifying based on race ii. Take affirmative steps to integrate schools 3. Brown II, 1955, p. 453 a. Must desegregate with “all deliberate speed” (but usually remedies are proscribed immediately) b. Group right – doesn’t focus on whether Linda Brown will get desegregated education 4. Response: massive resistance, token compliance 5. Green, 1968 a. Court invalidated “freedom of choice” plan – policy must actually produce unitary education system b. County could’ve had integrated schools, if used neighborhood school plan
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c. Right to an equal education d. Segregation is due to private choice 6. Swann, 1971, p. 460 a. F – freedom of choice plan + neighborhood schools b. DC – orders busing between city and suburbs within single school district c. Plan not ok d. Effect – any school that legally segregated in the past is required to remedy de facto segregation 7. Keyes, 1973, p. 461 a. F – Denver School Board gerrymandered districts to segregate Park Hill b. DC – remedy segregation in Park Hill, but not in entire system c. R – if Ps can show that one area of district is purposefully segregated, can apply that to all of district 8. Milliken, 1974 a. DC – city of Detroit has de jure segregation – orders desegregation of 53 suburban schools & city b. R – reversed i. No inter-district remedy allowed, without inter-district violation 9. Missouri v. Jenkins, 1990 a. F – Kansas City had de jure segregation, considerable white flight to suburbs b. DC forced city to raise taxes so they will have good schools c. R – judge can’t directly raise taxes, but can order local govt. to do it 10. Jenkins v. Missouri, 1995 a. R – can’t really order districts to create magnet schools i. This coerces kids from one district to come to another ii. Two rationales: give suburban kids incentive to come to inner city, spend more on education b. Court pulls back on remedies that DC can use D. Symmetrical Classifications: Marriage 1. Loving, 1967, p. 533 a. F – VA statute criminalized marriages between whites and blacks b. R – unconstitutional i. Use strict scrutiny – racial classification ii. Just because it’s applied equally doesn’t mean we use rational basis iii. Compelling interest? – preserving racial integrity – not enough iv. Might be anti-subordination rule, might be anti-classification (not allowed under EP) E. Intent Requirement 1. Washington v. Davis, 1976, p. 514 a. F – written test for police force applicants – facially neutral b. R (White) – test ok i. Test had disparate impact ii. Under rational basis review, test is ok c. C (Stevens) – a really big disparate impact indicates disparate treatment – impact can indicate intent d. Why only subject discriminatory purpose laws to strict scrutiny? i. If no discriminatory purpose, state is treating people equally ii. Stigma might be less if govt. doesn’t intend to discriminate iii. Invalidating disparate impact alone would invalidate too many other laws e. Race-consciousness – don’t want govt. actors thinking about race f. But unconscious racist laws will still be passed g. Applying strict scrutiny to every law with disparate impact would be too hard 2. Yick Wo, 1886, p. 519 a. F – laundries couldn’t be in wooden buildings without permit – every Chinese person denied b. R – impact is so great & aligned with race that there is no other understanding than discrimination 3. Gomillion, 1960, p. 521 a. F – statute changed boundaries of Tuskegee, disenfranchising almost all blacks, but no whites
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b. R – this is a discriminatory racial purpose 4. Arlington Heights, 1977, p. 523 a. F – builder sought rezoning for low-income housing – claimed he was denied because of race b. R – denial ok – respondents didn’t carry burden of proving discriminatory intent 5. Batson, 1986, p. 519 a. F – peremptory challenges used to be allowed without justification b. R – if based on race, violates 14 th A – case proven with statistically disparate impact 6. McCleskey, 1987, p. 523 a. F – challenged use of death penalty in GA – Ds who killed white people get death penalty more often b. R – death penalty ok i. Need “existence of purposeful discrimination” in the particular case – must choose “because of” ii. Jury gets discretion in order to be more lenient iii. If you accept disparate impact, no good place to draw lines F. Race-Based Affirmative Action 1. Grutter, 2003, Sp. 109 a. F – law school judges each application individually, seeking a “critical mass” of minority students b. R (O’Connor) – upholds affirmative action i. Applies strict scrutiny (Adarand – all racial classifications created by govt.) c. Does strict scrutiny make sense? i. Thomas – hard to tell benefits from burdens ii. O’Connor – this is a benefit d. Compelling interest = educational benefits from diverse student body – defers to U of M i. Scalia – law school doesn’t need diversity – it even supports minority-only clubs and housing ii. Thomas – no compelling interest in having elite law school e. Narrow tailoring i. Must be based on individual consideration ii. Rehnquist – there is a quota – only 0.2% variation between applicant pool and admitted class f. Sunset – this will end in 25 years – Thomas & Scalia concur to make it become law 2. Gratz, 2003, Sp. 130 a. F – college used point system, giving set number of points for race b. R (Rehnquist) – unconstitutional 3. Justification a. Diversity of people – compelling state interest b. Remedying past discrimination 4. Rationale for anti-classification rule? a. Original intent – but 14th A was really about protecting freed slaves, not about de-classifying them b. Language – not strong c. Process – maybe white majority isn’t actually benefiting minorities d. Carolene Products – but more concerned with anti-subordination 5. Four questions: a. Standard of review = strict scrutiny (but not too strict) b. Justification = diversity c. Hard to tell difference between burden & benefit d. Relationship of affirmative action and other cases i. E.g., Washington v. Davis (classification rule … leads to conclusion that affirmative action gets strict scrutiny, and use classification rule) ii. Brown was unclear what the problem with segregation was, number of followers were too iii. Now relatively clear that we have 14 th A that protects against racial classifications & doesn’t require govt. to redress racial subordination G. Scrutiny of Gender-Based Classifications 1. Early cases
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a. Bradwell, 1873 – state can deny women right to practice law b. Minor – women can be denied right to vote c. Muller, 1908 – women, but not men, can have maximum hour limitations 2. Reed, 1971, p. 598 a. F – Idaho statute gives male preference over female in estate administration hierarchy b. R – struck down – ok to have a tie-breaker, but this one is not rational 3. Frontiero, 1973, p. 598 a. F – military requires women to prove that their husbands are actually dependents b. R (Brennan) – invalidated as violating 5th A DP i. Close scrutiny – inherently suspect ii. Justifications: history of discrimination, paternalism, stereotypes, Congress has ruled (Title VII) iii. Administrative convenience not enough c. C (Powell) i. Unnecessary to decide if classifications on sex are suspect – Congress hasn’t passed ERA yet 4. Why want heightened scrutiny for gender? a. Analogy to race – historical discrimination, immutable characteristics, poverty b. Substantive commitment to gender equality i. But Court doesn’t always protect women (Geduldig – upholding exclusion of pregnancy coverage from disability insurance) 5. Craig, 1976, p. 602 a. F – OK statute prohibits 3.2% beer sold to males under 21 and females under 18 b. R (Brennan) – struck down i. Intermediate scrutiny – important interest + substantially related ii. Govt. objective = traffic safety – important iii. But means aren’t substantially related – statistics not enough c. D (Rehnquist) i. Court made up this “intermediate” standard ii. Men are not suspect class, get rational basis review – law would be upheld d. Real difference – uphold (usually) e. Stereotype – strike it down 6. United States v. Virginia, 1996, p. 611 a. F – challenge to VMI on EP grounds b. R (Ginsburg) – violates EP i. Scrutiny = “exceedingly persuasive justification” ii. Two justifications: (a) Diversity – but this was not a clear legislative goal (b) Adversative model will accommodate women as well as men c. C (Rehnquist) i. If women had equal education somewhere else, everything is fine 7. Nguyen, 2001, Sp. 136) a. F – children born outside U.S. – favors mothers by making father prove citizenship or a bond b. R (Kennedy) – uphold different treatment i. Justifications: biological relationship easier proven with mother, need opp to build real relationship ii. Opinion based on real differences c. D (O’Connor) – this is just letting servicemen off the hook for illegitimate children H. Gender-Based Affirmative Action 1. Goldfarb, 1977, p. 627 a. F – statute – widows automatically get benefits from husband – but widowers must prove support b. R (Brennan) – unconstitutional – concerned with harm of deceased woman – she can’t protect family c. This statute helps a category of women – widows (88.5% of women) 2. Webster, 1977, 632
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a. F – women get to exclude more low wage years than men (for monthly retirement benefit) b. R – upheld – based on real differences – women earn less due to job discrimination 3. Consistent? – look to real differences in earnings due to discrimination 4. Different? – no – benefits/harms --- yes – one is backward looking, the other is forward-looking 5. Difference with race – allow affirmative action for women based on past discrimination and private disc. I. Rational Basis Review? 1. New York City Transit Authority, 1979, p. 4575 a. F – doesn’t employ methadone users – but earlier courts found only 1/3 of users unemployable b. R (Stevens) – policy ok – Davis, impact is irrelevant c. D (White) i. Not rational based on efficiency ii. Intent – heroin users tend to be poor and minorities iii. Two points: disparate impact on minorities & irrational bias toward heroin users iv. Uses rational basis review language, but doesn’t defer 2. City of Cleburne, 1985, p. 488 a. F – zoning ordinance does not allow homes for mentally retarded b. R (White) – strikes down i. Not legitimate to act on basis of mere negative attitudes and fear ii. State claims: keep children from ridiculing, flood plain iii. Under-inclusiveness is not ok (unlike Railway Express) c. C (Stevens) – discard levels – just balance – here, we have history and prejudice against handicapped d. D&C (Marshall) – should be struck down, but with heightened review 3. Moreno, 1973, p. 492 a. F – if household has any unrelated members, no one gets food stamps b. R (Brennan) – legislative history points to bad intent – no legitimate interest here c. D (Rehnquist) – govt. can make moral judgments – this is not rational basis review! 4. Romer, 1996, p. 493 a. F – Colorado Amendment – state can’t specifically protect gays b. R (Kennedy) – struck down – rational basis – no legitimate state interest – means too broad c. D (Scalia) – govt. can express moral disapproval 5. NOT rational basis review – either goals illegitimate or means too broad – no deference IV. Fundamental Rights & Wealth Classifications A. Wealth as suspect classification 1. Edwards, 1941, p. 669 a. F – statute prohibits bringing indigents into CA b. R – struck down – largely commerce clause – no stereotypes allowed – being poor != immorality 2. Wealth might have disparate impact claim a. Griffin – state can’t discriminate regarding trial transcripts b. Harper – poll tax struck down – lines drawn on basis of wealth are disfavored c. Shapiro – strict scrutiny used when state fails to provide poor with necessities B. Fundamental rights EP 1. Skinner, 1942, p. 736 a. F – OK statute allows for sterilization of habitual criminals (but not white collar crimes) b. R – struck down i. Applied unequally – can’t treat chicken thieves and embezzlers differently ii. Chicken thieves can receive harsher prison terms, but can’t sterilize only certain groups iii. But OK could sterilize all criminals! 2. Griffin – if Illinois is going to give criminal appeals, everyone must have access to them 3. Voting rights a. Harper – voting is fundamental – no poll taxes b. Reynolds – Court scrutinizes voting processes closely – states need to reapportion
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4. Welfare – some level of minimal rights that everyone should have C. Court rejected both approaches by 1970s 1. Dandridge, 1970, p. 792 a. F – MD capped welfare benefits per family, regardless of size b. R (Stewart) – upholds law – rational basis review – this is about economics and social welfare c. D (Marshall) – three factors: character of class; importance of benefits; state interests 2. Rule – economic regulations get rational basis review 3. Rodriguez, 1973, p. 671 a. No fundamental right to education – absolute equality in education not required b. Nail in coffin of fundamental rights EP – but Court never backs off rights already found D. Seins 1. New residents of CA get welfare benefits of previous state 2. Court strikes down, using P-and-I – penalizes the right to travel E. Recap 1. Court flirted with protection of poor a. Suspect class – too broad – not clear why poor is suspect b. Fundamental rights EP – some categories still exist: judicial access, voting, welfare 2. Obstacles to protection: affects so many laws, Const. ensures negative rights V. Modern Substantive Due Process A. Privacy and Contraception 1. Griswold, 1965, p. 811 a. F – contraceptive use prohibited, including by married people b. R (Douglas) – struck down – penumbras and emanations give Bill of Rights substance c. C (Goldberg) – 9th A –first 8 amendments aren’t exclusive – doesn’t really cut down affairs d. C (Harlan) – DP clause of 14th A – natural law argument from Lochner – don’t worry about text e. D (Black) – not in text f. C (White) – even under minimal scrutiny, this law fails g. Alternative rationales: selective enforcement, gender discrimination 2. Compare/contrast: a. Under DP, cut off a sphere of regulation – with EP, can still regulate b. Like Lochner – both courts infer from Const. c. Lochner seems positive, Griswold negative right d. Court looks to reality of selective enforcement 3. Right to privacy? a. Eisenstadt, 1972, p. 821 i. F – non-married individuals and distribution of contraception ii. R – struck down – EP grounds – statute distinguishes married from non-married iii. Not really rational basis review b. Skinner, Griswold, Eisenstadt – might protect right to reproductive autonomy c. Carey, 1977, p. 822 i. F – NY law prohibited anyone other than licensed pharmacist form distributing contraceptives ii. R – struck down – but this doesn’t seem like ordinary conception of privacy d. Difficulty: reproduction more important than economics?, constraints?, text?, what is sphere? B. Abortion 1. Roe, 1973, p. 823 a. R (Blackmun) – struck down abortion laws i. Substantive DP found in “liberty” in 14 th A (Douglas signs on) ii. Tradition and history – Court goes up level of generality iii. Strict scrutiny iv. Two interests: life of baby & health of mother v. Brackets: 1 – no regulation, 2 – health of mother, 3 – life of baby
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vi. Textualist in determining if fetus is a person b. Critiques: i. Activist opinion – makes up a new write, Court wrote a statute, Court made up history ii. Court is taking a stand about when life begins iii. Exercise of raw judicial power iv. Political process: women aren’t well represented, but babies aren’t represented at all c. Justifications i. EP – criminalizing abortion places special burden on women that wouldn’t be placed on men ii. Look to active/passive distinction because of stereotype that women should be child bearers d. Doctrinal ways to think: i. Substantive DP – when does fetus become human? ii. EP – do women voluntarily become pregnant? Would we give men this burden? 2. Political and social consequences a. Court thought it was being like Brown b. Abortions allegedly didn’t go up – but they DID c. Massive opposition mobilized 3. Casey, 1992, SMp. 46 a. F – waiting period, informed consent, spousal consent, parental consent, reporting requirements b. R (O’Connor, Kennedy, Souter) – struck down spousal notification i. Just plurality ii. Affirm essential holding of Roe – right located in substantive DP iii. But state can regulate abortions in first trimester iv. Spousal notification = undue burden – domestic violence concerns – worried that husband controls v. Stare decisis – workability, evolution of law, reliance c. Undermines Roe a bit – states can regulate in 1st trimester, but no undue burdens d. Might be implicitly not treating abortion as fundamental right OR state’s interest in baby is compelling 4. Funding a. Maher, 1977, p. 835 i. F – state gave Medicaid for childbirth, but not for abortions ii. R (Powell) – upheld (a) No EP violation – no suspect class – disparate impact, but no problem under Davis (b) No fundamental rights EP problem – poor aren’t entitled to medical benefits (c) Rational basis (d) Difference between state interference & favoring another activity iii. D (Brennan) (a) This might infringe right to privacy – use strict scrutiny (b) But this is coercion iv. D (Marshall) (a) State is doing indirectly what it can’t do directly – preventing abortions b. Harris, 1980, p. 838 i. F – federal Medicaid funds prohibited for abortions ii. R (Stewart) – upheld – rational basis – govt. didn’t create poverty obstacles iii. D (Brennan) – govt. is influencing woman’s choice – govt. can’t unequally subsidize c. Meaning of Roe – govt. cannot criminalize abortion, but it can prefer birth with funding C. Sexual Autonomy and Sexual Orientation 1. Bowers, 1986, p. 896 a. F – GA statute prohibits all sodomy b. R (White) – upheld i. Only looks at homosexual sodomy ii. Prior cases are about family, marriage, procreation – not non-procreative sex outside marriage iii. Tradition – none for protecting gay sodomy (but could go up a level to privacy)
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iv. Rational basis – no fundamental interest here v. Two justifications – health and welfare, moral condemnation c. C (Burger) – looks to Blackstone’s view of “the crime against nature” d. C (Powell) – swing vote in upholding law e. D (Blackmun) – fundamental right to be left alone – earlier cases about individual, private choices f. Problems with tradition: manipulability, counter-majoritarian body looking to majority statutes 2. Romer, 1996, p. 638 a. F – CO amended const. by referendum to prohibit special protections for homosexuals b. R (Kennedy) – struck down i. Violates EP ii. Begins with Plessey (Const. tolerates no classes) – points to strict scrutiny – sort-of rational basis iii. State interests: freedom of association, saving anti-discrimination resources for suspect classes iv. This is really animus – EP doesn’t allow bare desire to harm unpopular group c. D (Scalia) i. Many laws express moral disapproval – Court upheld Bowers ii. Court is taking sides in the culture war – defer! iii. If moral disapproval can criminalize the conduct, then can’t that be enough to allow amendment? d. If Court gave heightened scrutiny here, it would have to overrule Bowers 3. Suspect class for homosexuals? a. History of discrimination? – depends upon what you think about homosexuals b. Political powerlessness? – would require decision of what the outcome should ideally be c. Discrete and insular? – easy to identify, concentrated together? – not clear d. Immutability? – religion can be changed, but gets heightened scrutiny 4. Lawrence, 2003, Sp. 156 a. F – TX law criminalizes homosexual sodomy b. R (Kennedy) – overrules Bowers i. Unjust restriction of liberty (DP clause) ii. Moral interest isn’t enough iii. History from Bowers was not correct iv. Doesn’t establish homosexual sodomy as a fundamental right c. C (O’Connor) i. Should not overrule Bowers – based on 14th A EP ii. Can morally disapprove of all sodomy, but not just homosexual sodomy iii. Not really rational basis review iv. but EP is a more heightened scrutiny than DP, even under rational basis review d. D (Scalia) – stare decisis! – justified Casey that way, why not Lawrence? 5. Is suspect class necessary? – three ways to argue: a. Discrimination against homosexuals is all about male domination b. This is discriminating against homosexuals, because of gender of their partner c. Society proscribes gender roles 6. Rational basis review with bite (like Cleburne and Moreno) D. Right to Die 1. Cruzan, 1990, p. 904 a. F – Cruzan’s parents wanted feeding tube removed – hospital employees refused, without court order b. R (Rehnquist) – upholds “clear and convincing” evidence standard i. Court hints that Cruzan could remove her feeding tube ii. CL – person has right not be battered, includes right to refuse treatment iii. MO’s interests – protect & preserve human life, safeguard personal choice of dying c. C (Scalia) i. No protection from DP here, only EP – EP protects against crazy laws, since they apply to everyone d. D (Brennan)
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i. No state interest in protecting life ii. There is a fundamental right to refuse medical treatment iii. State only has interest in accuracy – clear & convincing standard skews the inquiry e. Two characterizations of the right: i. Right to refuse medical treatment – strong tradition here ii. Right to commit suicide – no tradition here 2. Glucksberg, 1997, p. 911 a. F – Washington state criminalizes physician-assisted suicide b. R (Rehnquist) – upholds law i. No constitutional right to this ii. Legitimate state interests: preserve human life, protect vulnerable groups, stay from euthanasia, protect ethics of medical profession iii. Means are rationally related iv. States are debating it – defers to political process c. C (O’Connor) i. This is a facial challenge to the law – in some instances, it might be unconstitutional d. C (Souter) i. Need to balance interests, not talk about tradition ii. Tiers are bunk in DP context 3. State can impose higher standard of proof & sometimes can prohibit physician-assisted suicide E. Substantive DP 1. Fundamental rights get located in substantive DP 2. Court doesn’t want to be like Lochner 3. Constrained by tradition, but can go up a level of generality and find a tradition 4. Is there a more robust tradition for the “new” rights than the “old” ones? VI. Putting It All Together A. Congressional Power and Individual Rights 1. Section 5 of 14th A – “Congress shall have power to enforce” 2. Narrowest possible answer – Congress can create federal civil causes of action to bring lawsuits 3. Katzenbach, 1966, p. 222 a. F – NY, English literacy for voting – Voting Rights Act, can’t require English if through 6 th grade b. R (Brennan) – upheld i. Defer to Congress – rationality review – Congress decides what is a violation ii. Justifications: preventive, judicial under-enforcement, complex remedies, police federalism c. D (Harlan) – rationality question is wrong – this is judicial question – judges decide what violates Con. 4. South Carolina – similar deal 5. Rehnquist Court – second period a. City of Boerne, 1997, p. 226 i. F – Congress passed RFRA in response to Smith, allowing disparate impact for religion ii. R (Kennedy) – no authority to enact RFRA (a) Congress can’t define substance of constitutional violation (b) Congress can only remedy violations and prevent them (c) Test – congruence and proportionality between injury and means adopted (d) RFRA not remedial – no proof of substantial risk of violations without it (e) RFRA harms the states – can’t touch religion, increases state litigation (f) Court says what Const. means – political majority can’t change meaning iii. Take-away: (a) Court alone decides substance of Const. (b) Reasserts federalism concerns (c) Narrows religious freedom of individuals b. Morrison, 2000, SMp. 59
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i. F – Congress created federal cause of action for victims of gender-motivated violence ii. R (Rehnquist) – struck down (a) Commerce clause – struck down – not economic activity (b) 14.5 – statute not directed toward state or state actor c. Hibbs, 2003, Sp. 141 i. F – Family and Medical Leave Act – employees get unpaid leave to care for relatives ii. R (Rehnquist) – congruent & proportional (a) Remedies gender stereotypes that women are caretakers (b) Suggests that some civil rights legislation will be seen as ok by this Court iii. Consistent with Morrison? (a) Less evidence in Hibbs (b) But Morrison more concerned with economy, state action 6. Three structures: a. Between federal branches (who interprets Const.?) b. Between federal and state govt. (how robust should Court’s policing be?) c. Between govt. and individuals – Court limits federal political power to enforce individual rights B. Interpretive Power of the Constitution 1. Doctrine a. If fed govt. action, ask where authority comes from in Const. b. If has power, does it violate Const. prohibition? (EP, subs DP, 10 th A, commandeering states, 14.5)? i. State sovereignty – ask about nature of intrusion (NY) (a) When is it ok (Dole)? ii. EP (a) Someone is being treated differently (b) What level of scrutiny? – suspect class? (c) Three tiers: race, gender, regular (d) Does govt. meet the standard? (e) Remedy: take away entire right OR let everyone have some iii. Substantive DP (a) Fundamental right? – tradition? (b) If fundamental right, heightened scrutiny; else, rational basis (c) State can NOT burden fundamental rights iv. Fundamental rights EP (a) Is there a fundamental right? – mostly about importance of thing to the person (b) If state provides good/service, it must provide to everyone c. If state action, is there a prohibition in Const.? i. Implied limits: dormant commerce clause, 10 th A ii. Explicit limits: Bill of Rights, 13-15th, levels of scrutiny, govt. interest, means & ends 2. Theory a. Relationships: branches of federal, state / federal, govt. / individual b. Powers: i. Fed govt. can only do what is authorized ii. Congress has I.8, expanded by “necessary and proper” (McCulloch) iii. Congress can’t infringe on states iv. Congress can act under enforcement of Recon Amendments v. Executive has few powers – domestic = limited (Youngstown), foreign = plenary (Curtiss-Wright) c. Separation of Powers – counter-majoritarian difficulty – why have judicial review? i. Who interprets? – Marbury = courts, McCulloch = defer to politics, Youngstown = executive ii. Justification? – does Court speak for the people? iii. Constraints: (a) Court defers to political branches
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(b) Following rules for interpretation, might help us trust judges (c) Institutional – judiciary is least dangerous d. Federalism i. Some issues – Court doesn’t get involved (Garcia) ii. Court does get involved sometimes: (a) Commerce clause – more power fed govt. has, less power states have (b) State sovereignty & 10 th A (c) Individual rights cases e. Individual rights i. Should there be judicial protection at all? ii. What is nature of these rights? – equality rights OR absolute rights? iii. What obligations does govt. have to redress violations? (state action vs. private action) 3. History a. Const. is part of history b. History can be a justification – original intent c. History can repudiate – EP doctrine – history gives basis for suspect classes d. History is a ghost – Dred Scott, Plessy, Lochner, Roe