Constitutional Law-Herring - Pitt by cuiliqing


									On exam state with Constitution then move to precedent
What is the strongest argument and how do I fix the problem.
Compare and contrast with other cases (like in a memo)

Interpretive Issues- Constitutional Law
    I.     The Constitution contains deliberate ambiguities
    II.    The Facts of Modern cases do not fit neatly into the textual framework of
           the Constitution.
           a. Textualism
           b. Originalism
           c. Judges who interpret in accordance with their own notions of Justice
                   i. The Warren Court
                         1. Penumbras of words in the constitution to expansively
                             protect particular philosophical values.
                                 a. Read the text expansively to encompass
                                      situations he thought analogous to those
                                      explicitly covered by the test
                                 b. Right to Privacy- Right to use birth control.
           d. Precedent
                   i. Miranda v. Dickerson
                         1. Unwilling to overturn Miranda
                         2. The principals of Stare Decisis
                  ii. Lochner v. West Coast Hotel
                         1. The depression came and the lessons of the dangers of
                             the free market were hard to forget
                         2. The freedom to contract seemed less important than
                             human welfare.
                                 a. Justified in overturning precedent.
                 iii. Plessy v. Brown
                         1. Plessy- legislatively mandated racial segregation in
                             public transportation works no denial of equal
                         2. Brown- Segregation to stigmatize those who were
                             segregated with a “badge of inferiority” it was clear by
                             1954 that legally sanctioned segregation had just such
                             an effect…racially segregated public educational
                             facilities were deemed inherently unequal.
                 iv. Roe
                         1. The court must take care to speak and act in ways that
                             allow people to accept its decisions on the terms the
                             Court claims for them, as grounded truly in principle,
                             not as compromises with social and political pressures
                             having, as such, no bearing on the principled choices
                             that the Court is obliged to make.
                        2. Frequent overruling would overtax the country’s belief
                           in the Court’s good faith.
                               a. But in Rehnquist’s dissent he asks “did we
                                   adhere to Plessy because of Stare decisis?”
                               b. No, so why must be adhere to Roe under the
                                   same principal?

Judicial Power to Enforce the Constitution

   I.     The Constitution’s Structuring of Government

   II.    Congress’s Power
          a. Commerce power
                  i. Inter-state commerce
          b. Spending
          c. 14th Amendment
                  i. Protect Citizens equally
                 ii. Protects Due Process
   III.   Limits on power through Federalism
   IV.    Judicial Protection of Interstate Commerce
   V.     Marbury, Martin
          a. Confirm the judiciary’s power to void federal statutes and state laws
             as unconstitutional.
                  i. Seperation of power between the federal and state
                 ii. Protection of Individual Rights

Marbury v. Madison(Marshall):

   I.     Judicial Review- established the authority for the judiciary to review the
          constitutionality of executive and legislative acts.
          a. Art III Section 2 clause 2- “I
                  i. Appellate Jurisdiction- review previous decision
                         1. Cases arising under the Constitution
                         2. Controversies between two or more states, between a
                            State and Citizens of another state, between citizens of
                            different states.
                 ii. Original Jurisdiction- “In all Cases affecting Ambassadors…and
                     those in which a State shall be a party.”
          b. An act of Congress that is repugnant to the Constitution cannot
             become law
          c. Granted the Federal Judiciary with the awesome power to invalidate
             federal and state legislation
                  i. But…
                         1. The PEOPLE formed a government with enumerated
                          2. The Courts are left to enforce these limits
   II.     Facts of the case-
           a. Adams and Marshall are federalist, wanted to exercise their influence
              before Adams left office (to be replaced by Jefferson)
           b. An act passed that allowed the President to nominate 42 justices of
              the peace.
                   i. These commissions were signed but some were not sent out
                      before Jefferson’s inauguration.
                  ii. President Jefferson instructed his secretary of state, James
                      Madison, to withhold the undelivered commissions.
                 iii. Marbury sued to compel Madison to deliver the commissions
           c. The Supreme Court ruled against Marbury stating that it could not
              constitutionally hear the case as a matter of original jurisdiction.
                   i. Although, the Judiciary Act of 1789 authorized The Supreme
                      Court to grant a writ of mandamus such Jurisdiction, this
                      provision of the statute was unconstitutional because Congress
                      cannot allow original jurisdiction beyond the situations
                      enumerated in the Constitution.
                  ii. Article III enumerated its original jurisdiction and Congress
                      cannot enlarge that.
   III.    The Constitution is the Supreme Law of the land
           a. Article VI

The Authority for Judicial Review of State and Local Authority
    The Court has the authority to review state court decisions

Martin v. Hunter’s Lessee(Story):
  I.       Power of Federal Courts to invalidate state laws and nullify actions of
           state and local officials as unconstitutional
           a. Article III Section 2 clause one says “all Cases . . . arising under this
                    i. “All” not “Some”
  II.      Supremacy clause
           a. Sixth Article clause 2
                    i. Supremacy clause “shall be the supreme Law of the Land; and
                       the Judges in every State shall be bound thereby.”
                   ii. Uniformity of Federal law among the States (all States are
                       interpreting Federal Law the same way)
  III.     Constitution designed to operate upon states
           a. Article I Section 10
                    i. Limits states rights
  IV.      If State Courts can hear federal cases there must be a power of
           judicial review.
           a. Opt into state court.
  V.       States are stripped of sovereignty
  VI.      Facts of the case
           a. Martin claimed title to the land based on inheritance from Lord
                  i. The US and Britian had entered into two treaties protecting the
                     rights of British citizens to own land in the US.
           b. Hunter claimed that Virginia had taken the land before the treaties
              came into effect.
                  i. Virginia Court of Appeals ruled in favor of Hunter.
           c. The United State Supreme Court issued a writ of error and reversed
              the Virginia decision.
                  i. The federal treaty is controlling.

Distribution of National Powers
   I.      Horizontal Relationship between the powers of Congress (article I) the
           powers of the President (article II).
   II.     Presidential Powers
           a. Article II of the Constitution
                    i. “The executive power shall be vested in a President of the US”
                           1. Then it enumerates specific powers of the President.
                           2. But it does not say that these shall be his only powers
           b. Article I
                    i. “All legislative Powers herein granted shall be vested…”
   III.    Youngstown Sheet & Tube Company v. Sawyer
           a. Truman seizes control of the Steel Mills in response to a nationwide
                    i. Korean War- endanger the national defense and the war effort
           b. Secretary of State Charles Sawyer issued the order
           c. The Supreme Court declared this unconstitutional.
                    i. No statutory or Constitutional authority to seize the steel mills
           d. Justice Black- wrote the majority and said the President’s power, must
               stem either from an act of Congress or from the Constitution itself.
   IV.     Clinton v. City of New York
           a. Line item veto
                    i. Empowering the President to veto particular parts of
                       appropriation bills while allowing the rest to go into effect.
                           1. Congress could then overturn such a veto by a majority
                               vote of both houses.
                   ii. Stevens- Majority…this statutory increase of the President’s
                       power is unconstitutional.
                           1. The final version of the law is different than what
                               congress passed.
                  iii. Does not jive with article I, where does President get the
                       authority to do this in the Constitution
                           1. Constitution is the Supreme Law of the land
                           2. Judicial Review- the Court can overturn an
                               unconstitutional statute.
                  iv. Presentment clause- Article I section 7
                      1. Line item veto offends the presentment clause, creating
                          a new different bill that has not been voted upon by
                          either of the houses.
              v. Precedent- Fields
                      1. Place embargo on certain items when a country is
                          unfairly taxing our agricultural products
                              a. Fields applies to one thing, line item veto applies
                                 to an infinite number of things.
      b. City of New York decision
               i. Difference between a formalistic and a functional approach.
                      1. Justice Stevens and the majority is highly formalistic
                              a. Stressing the procedures prescribed in the
                                 Constitution for enacting laws
                      2. Justice Breyer, O’Conner and Scalia dissent is functional
                              a. Emphasizing the need for a line-item veto
V.    Legislative Authority
      a. Delegating law-making authority to bureaucracy’s congress must lay
         down guidelines.
      b. How will the power of administrative agencies be checked and
      c. Legislative veto (created in the 1930’s)
               i. Is a check on the actions of administrative agencies
              ii. It authorizes Congress to overturn an agencies action by doing
                  something less than adopting a new law.
             iii. No checks on the legislative veto?
VI.   INS v. Chadha (1983)
      a. The legislative veto is unconstitutional because legislature may only
         legislate through the bicameral process
               i. A useful political convention because of its convenience but is
                  this what the Constitution is meant to be?
      b. Chadha an immigrant whose visa had expired
               i. Immigration Judge ruled in favor of Chadha and ordered that
                  his deportation be stayed.
      c. The House of Representatives adopted a resolution overturning this
      d. But Congress gave power to the Attorney General, they must respect
         that power.
               i. Options:
                      1. Overturn power to Attorney General
                      2. Go through Bicameral process
      e. The Court held that Congress can only legislate if there is
         bicameralism (both houses) and presentment (President must
      f. Burger (Majority)- formalistic- Arbitrary government acts cannot go
         unchecked, no presentment or bicameralism
           g. White (dissent)- functional approach- need this legislative check-
              needs to be a check on these legislative agencies that were not
              foreseen by the framers.
   VII.    Executive power to the legislature
   VIII.   Bowsher v. Synar
           a. Congress cannot give itself the power to remove executive officials
                   i. Unless it is through the impeachment process
           b. Attempting to eliminate the federal deficit, Congress adopted a law
              that set the maximum allowable deficit for each of the following five
                   i. If spending exceeded the deficit ceiling, the comptroller
                      general was instructed to impose across-the-board spending
                      cuts as prescribed and limited in the Act.
           c. Comptroller general is a legislative official but had executive power
                   i. Violation of seperation of powers
           d. The Court help- this was an unconstitutional delegation of the
              executive power to the legislative branch.
                   i. A legislative actor is executing the laws- this is unconstitutional
                  ii. Plus the legislative branch has the power to remove
                          1. Maintaining control, with no check on this control.
                          2. Congress cannot give itself the power to remove
                              executive officials.
           e. Comptroller General gave one branch too much power
           f. Burger- Formalistic (Majority)
           g. White- Functional (Dissent)
   IX.     Morrison v. Olson (1988)
           a. Olson argued that the independent counsel took executive powers
              away from the office of the President and created a hybrid fourth
              branch that was answerable to no one.
                   i. Only removed by a panel of judges who also appointed him
                  ii. Appointment doesn’t come from the President
           b. The Court distinguishes Bowsher and upheld the constitutionality of
              limits on the president’s ability to remove the independent counsel.

How do you square Scalia’s opinion in Olson with his opinion Clinton?

Congress’ Powers
   I.     Article I § I
          a. “All legislative Powers herein granted shall be vested in a Congress of
             the United States, which shall consist of a Senate and House of
   II.    Article I § 8
          a. List of powers
                   i. Commerce Clause
                  ii. To declare War
              iii. Article I § 8 paragraph 18- necessary and proper clause.
III.   Article I § 10
       a. Limits States rights
IV.    The Necessary and Proper Clause
V.     McCulloch v. Maryland (1819)
       a. Gives a broad reading to the necessary and proper clause
       b. Does Congress have the authority to set up the bank?
       c. Can the State of Maryland collect a tax from the Bank of the United
       d. Marshall (Majority)- used this decision to establish a broad federal
                i. The Constitution is a compact of the people not the states
                       1. People allocated powers to the federal government
               ii. Article I § 9- list the negative powers of Congress, why would
                   they have this list if Congress was limited to act upon its
                   enumerated powers.
                       1. If we weren’t allowed to act on powers not mentioned
                           in the Constitution than why is there a list of powers
                           listed in the Constitution that says what we cannot do.
                       2. Wouldn’t it have been enough to just say what we can
                           do and let that be enough, if we can only act in a way
                           explicitly stated in the Constitution.
                       3. Congress is not limited to acts specified in the
                           Constitution; Congress may choose any means, not
                           prohibited by the Constitution, to carry out its lawful
              iii. Article I § 8 necessary and proper clause
                       1. Placed in area of Constitution that expands congress’s
                           powers not limits them.
       e. Since Marshall (the Court) decided that Congress had the power to
          enact that bank he then decided that they had the power to make it
                i. Power to tax is the power to destroy
               ii. Allowing the Maryland tax to continue would allow Maryland
                   to reach into other states (out of their sovereign territory)
                   because by affecting the National bank Maryland is effecting
                   other states involvement in the bank.
VI.    The Commerce Clause Power-Article I § 8
       a. View of Commerce clause power evolves after the Great Depression
                i. Laissez Faire is not good enough, not protecting the people
       b. Interstate- between the states
       c. Intrastate- within one state
       d. Historical interpretation
                i. Gibbons- broad reading of commerce clause power, sole check
                   of commerce power is political process.
        ii. Lochner- freedom of contract, found limits to the commerce
            clause in the tenth amendment.
                1. 1887-1937: conservative judges committed to laissez-
                    faire economics.
                2. Court invalidating much of the New Deal legislation
                3. Tenth amendment reserves a zone of activities for the
e. 2 Views/Test
         i. Commerce clause can only regulate activities which are both
            economic in nature and have a substantial effect on interstate
        ii. If activity is not commercial/economic in nature, court will be
            very strict in determining if activity substantially effects
            interstate commerce- Irregular economic goal.
f. Classical view of the Commerce clause: Gibbons v. Ogden
         i. Supremacy Clause- NY statute cannot create a scenario where
            federal laws cannot be followed.
        ii. Ogden had a license, from monopoly holders given by the State
            of New York, to operate his ferry from NY to NJ.
      iii. Gibbons operated a competing ferry and violated the exclusive
            rights given to monopoly holders.
                1. Ogden sued for an injuction
       iv. The Court held- that the NY granted monopoly was preempted
            by federal law.
        v. The Court also found that the monopoly was an
            impermissible restriction of interstate commerce.
       vi. Defined commerce- commerce, which concerns more States
            than one- the completely internal commerce of a State, then,
            may be considered as reserved for the State itself.
      vii. State sovereignty limits on the commerce clause?
     viii. Tenth Amendment limits on the commerce clause?
                1. “The powers not delegated to the United States by the
                    Constitution, nor prohibited by it to the States, are
                    reserved to the States respectively.”
g. Wickard v. Filburn (1942)
         i. A quota was set for wheat production and each farmer was
            given an allotment.
        ii. Filburn grew wheat for home use, how is this possibly
            interstate commerce?
                1. Necessary and proper + commerce power=
                         a. Substantial effect when looked at as a whole
      iii. Court upheld the application of the Act to home grown wheat
            because of its cumulative effect on the wheat in the national
               1. It is not necessary that the particular person or entity
                    being regulated have a substantial effect on commerce
               2. The requirement was only that the activity looked at
                    cumulatively across the country, have a substantial
                    effect on commerce.
      iv. Shreveport Rate Cases- skewed prices, low prices for intrastate
           commerce, high prices to Shreveport. Not fair. Commerce
           clause has power to regulate intrastate commerce of Texas
           railroad system because it is creating a monopoly of goods
           from East Texas. (more likely to be shipped to Texas because
           cheaper prices).
h. After Wickard the Court no longer distinguishes between direct and
   indirect effects on interstate commerce.
        i. Rather Congress can regulate any activity that taken
           cumulatively has an effect on interstate commerce.
i. Commerce Clause to enforce the 1964 Civil Rights act
        i. After The Civil Rights cases Congress could not regulate private
           discrimination in public accommodations
       ii. So Congress chose the commerce clause as a regulation
j. Heart of Atlanta Hotel
        i. Hotel located in downtown Atlanta.
       ii. 75% of its registered guests were from out of state
               1. Can’t refuse service to black people.
      iii. Discrimination by hotels impedes interstate travel
      iv. Under Wickard racial discrimination looked at cumulatively
           across the country surely has an effect on interstate commerce.
               1. Basis for enforcement is moral but justified by
                    commerce clause.
k. United States v. Lopez (1995)
        i. Federal Crime to have a gun within 1,000 feet of a school
       ii. Is this related to interstate commerce? Can congress enact a
           statute of this breadth?
      iii. Justice Rehnquist (Majority)- the Constitution creates a
           national government of enumerated powers.
               1. Regulate the use of the channels of interstate commerce
                        a. Heart of Atlanta Motel
               2. Regulate and protect the instrumentalities of interstate
                        a. Railroad cases
               3. Substantial relation to interstate commerce
      iv. Police Power- state
       v. Court has reached its threshold of expanding the commerce
l. United States v. Morrison (2000) (Not a substantial relation to
   interstate commerce)
                 i. Domestic violence laws
                ii. The Court reaffirmed the three-part test for Congress’s
                    commerce clause authority from Lopez.
               iii. Domestic violence substantial effect on national economy?
                        1. This is a regulation of noneconomic activity that has
                            traditionally been dealt with by state laws.
               iv. Commerce clause only upholds statutes that are Economic in
                        1. See the distinction between this and Wickard
                                a. Wickard regulates local activity but local activity
                                    which is economic in nature.
                                b. Morrison is not economic in nature.
          m. Gonzalez v. Raich (2005)
                 i. The Court held that Congress constitutionally may use its
                    power to regulate commerce among the states to prohibit the
                    cultivation and possession of small amounts of marijuana for
                    medicinal purposes.
                ii. There is no medicinal exemption in Federal law for medicinal
                    marijuana growth.
               iii. Just like Wickard Homegrown marijuana has a substantial
                    effect on interstate commerce
               iv. Intrastate production of a commodity sold in interstate
                    commerce is economic activity and thus substantial effect can
                    be based on cumulative impact.

Overall commerce clause- Lopez was dramatic because it was the first time in
almost 60 years that a federal law has been declared unconstitutional as exceeding
the scope of Congress’s commerce power. Morrison then followed suit. Both were 5
to 4 decisions, with the five most conservative Justices in the majority. Abandoned
almost 60 years of deference to the legislature under the commerce clause.

   I.     The taxing and Spending Power
          a. South Dakota v. Dole (1987)
                  i. The court can’t win this case with the commerce clause
                     because the end goal (child protection) is non-economic.
                         1. Morrison precedent.
                 ii. Congress acted indirectly under its spending power to
                     encourage uniformity in States’ drinking ages.
                         1. Regulating drinking ages directly would offend the 21st
                iii. So use power to spend to regulate child welfare system.
          b. General Restrictions of the spending power
                  i. In pursuit of the general welfare
                 ii. Unambiguous the conditions to get the money must be clear
                iii. Conditions on federal grants are illegitimate if they are
                     unrelated to the federal interest in particular national projects
                     or programs.
                iv. The condition cannot result in violation of other constitutional
                         1. Is the 21st amendment an “independent constitutional
                             bar” to the regulation of drinking age through federal
                         2. The court answers this by saying- “were South Dakota
                             to succumb to the blandishments offered by Congress
                             and raise its drinking age to 21, they would not violate
                             the constitutional rights of anyone.”
                 v. Coercive?
                         1. Do “pressures turn into compulsion?”
                         2. This is mild encouragement not coercion
          c. The Civil Rights Cases (1883)- purely private conduct is beyond the
             scope of § 5 enforcement power.
                  i. The Supreme Court greatly limited Congress’s ability to use its
                     power under Reconstruction Amendments to regulate private
                 ii. The Civil rights act broadly prohibited private racial
                     discrimination by hotels, restaurants, transportation and other
                     public accommodations.
                         1. The Court held that the Act was unconstitutional and
                             adopted a restrictive view as to the power of congress
                             to use these provisions to regulate private behavior.
                iii. 13 th Amendment-Can not regulate private conduct

                         1. The court recognized that it applies to private conduct
                         2. But held that Congress could not use this power to
                             eliminate discrimination.
                iv. 14  th Amendment

                         1. § 5 cannot be used to regulate private activity
                         2. Only applies to government action and therefore it
                             cannot be used by Congress to regulate private
                         3. Individual invasion of individual rights is not the
                             purpose of the amendment
                                 a. i.e. the right now to serve.
                         4. “It does not authorize Congress to create a code of
                             municipal law for the regulation of private rights; but to
                             provide modes of redress against the operation of State
                             laws, and the actions of State officers.”

Federalism’s Limits on Congress and the States
I.     Ninth Amendment- “The enumeration in the Constitution, of certain
       rights, shall not be construed to deny or disparage others retained by the
       a. Think about this in terms of the penumbra of rights
       b. Are fundamental rights really those rights that are listed in the
           Constitution, do you even need to look at penumbra of the rights
           listed in the Constitution because of the 9th amendment.
       c. Griswold concurring opinion (Goldberg wrote, Chief Justice Warren
           and Brennan joined)
                 i. They emphasized the 9th amendment as authority for the Court
                    to protect nontextual rights
                ii. James Madison wrote, little debate surrounded
               iii. It was proffered to quiet expressed fears that a bill of
                    specifically enumerated rights could not be sufficiently broad
                    to cover all essential rights and that specific mention of certain
                    rights would be interpreted as a denial
                        1. This is how Majority opinion responded to Lochner in
                            West Coast Hotel (right to contract is not express in
                            constitution therefore not a right)
               iv. “To hold that a right so basic and fundamental a right in our
                    society is not as the right to privacy in marriage may be
                    infringed upon because it is not expressly stated in the first
                    eight amendments completely ignores the 9th.”
II.    The Eleventh Amendment and State Sovereign Immunity
       a. Sovereign immunity of the States from suit brought under federal law.
       b. 11th Amendment- “The Judicial power of the United States shall not be
           construed to extend to any suit in law or equity, commenced or
           prosecuted against one of the States.”
                 i. Are the states immune from suit?
                ii. Construed as more of a limit on Congress’s power than the
       c. Passed after the Chisholm decision
                 i. Allowing the state of Ga to be sued by a private individual
                    without their express permission.
                ii. Broad reading would virtually bar all modern civil rights
III.   The Tenth Amendment and Regulation of Congress
       a. Justice O’Conner- it is impermissible for Congress to impose on States
           a requirement to implement federal legislation.
       b. Justice Scalia- impermissibly commandeering state executive officials
           to implement a federal mandate.
       c. Garcia v. San Antonio Metropolitan Transit Authority
                 i. If mass transit system is a traditional government function
                    then it is exempt from the obligations imposed by a federal act?
                     1. Court held- no longer look to traditional government
                         function, the political process is enough of a check on
                         federal power.
                     2. Enforce minimum wage based
             ii. Commerce clause extends to intrastate economic activity that
                 affect interstate commerce.
            iii. Expressly overrules National League of Cities
                     1. Ruled that the Commerce Clause does not empower
                         Congress to enforce minimum wage of Federal Act in
                         areas of traditional government function
                             a. But how do we distinguish between a tradition
                                government function and a non-traditional
                                government function?
                     2. Violates the 10th Amendment
            iv. Judicial appraisal of whether a particular governmental
                 function is traditional or not is a disservice to democracy.
                     1. Must look to Constitution not traditional government
                         function as interpreted by the judiciary
             v. The check on federal power is through the political
      d. In the 1990’s the Court revived the Tenth Amendment as a limit on
         Congress’s power. Garcia has not been overruled and National League
         of Cities has not been reinstated.
              i. So the Fair Labor Standards Act does not apply to state
      e. Alden v. Maine
              i. Is the 11th Amendment applicable in State Courts?
             ii. State governments cannot be sued in state court without their
            iii. Federal question in state court
            iv. Probation officers sued, claiming they were owed overtime pay
                 under federal law.
             v. They filed the suit in federal courts, then filed in State Courts.
            vi. In a 5-4 decision ruled that the state had sovereign immunity
                 and could not be sued in state court, even on a federal claim,
                 without its consent.
      f. Seminole Tribe of Florida v. Florida (1996)
              i. Florida has not consented to the suit
             ii. Is the Act able to abrogate the State’s Sovereign Immunity?
                     1. 14th Amendment § 5
                     2. Commerce Clause
            iii. Suit was dismissed for lack of jurisdiction based on the 11th
IV.   Federalism’s limits on the States
      a. Protection of Federal Institutions
      b. U.S. Term Limits v. Thornton (1995)
             i. Framers intended fixed qualifications for elections
                    1. Qualification clauses Article I § 4
            ii. State says
                    1. 10th Amendment allows them to do this
                    2. Political choice of people- but is this even a permissible
                    3. No express prohibitions
                    4. Permissible exercise of “Time, place and Manner”
                            a. Broad interpretation of “manner”
           iii. Court says
                    1. The framers intended the Constitution to be the
                        exclusive source of qualifications to those that are fixed
                        in the Constitution.
                    2. Allowing States to set qualifications would give them
                        the power to undermine federal elections
                    3. “Manner” intended the Elections Clause to grant States
                        authority to create procedural regulations, not to
                        provide States with license to exclude classes of
                        candidates from federal office.”
                            a. i.e. candidates who have already been in office.
           iv. Two arguments about Article I § 4
                    1. Power- the “Time, place and manner” is a power. The
                        framers explicitly placed it into the Constitution
                        because they wanted to set the boundaries.
                            a. Didn’t need to place it in if didn’t want to lay the
                                limits because of the 10th amendment
                    2. Duty- this is not a power it is a duty, so not lending itself
                        to a narrow reading of reserved powers in the 10th
     c. Federal Preemption of State Law
             i. Article VI contains the supremacy clause, supreme law of the
            ii. The difficulty is in deciding whether a particular state or local
                law is preempted by a specific federal statute or regulation.
           iii. Geier v. American Honda Motor Co. (2000)
                    1. The court considered conflict preemption in the product
                        liability area
                            a. Absence of airbags caused injuries
                    2. The Court rejected Geier’s argument and found federal
                            a. Federal law required seat-belt or airbag.
                    3. Provides a basis for defendants to claim preemption to
                        tort liability when products are made in compliance
                        with a federal safety standard
V.   The Judges:
     a. Federalism is very idealogical
                    i. Tread on State Power
                   ii. Political accountability of State actors is enough
          b.   Breyer- pro-federal power
                    i. Pro-Garcia (high-mark) political check is all that State’s need
                   ii. Shrunken view of state power
                  iii. Majority opinion in Geier
          c.   Thomas- State power shouldn’t be tread upon
                    i. Anti-Garcia
                   ii. Limits on federal power
                  iii. Majority: Joined Majority in Alden, Seminole Tribe
                  iv. Dissent: Term Limits, Joined the dissent in Geier
          d.   Ginsberg, Souter, Stevens
                    i. Pro-Garcia (political accountability is enough)
                   ii. Broad read of Federal power
                  iii. Join Dissent in Geier because in this case we have an
                       administrative Agency
                           1. Doesn’t represent state’s needs
                           2. Where is the political check?
          e.   Kennedy- the outlier
          f.   Competing interpretation of the 11th amendment
                    i. Rehnquist, O’Conner, Scalia, Kennedy, Thomas
                           1. Saw the 11th amendment as a restriction on the subject
                               matter jurisdiction of the federal courts that bars all
                               suits against state governments
                                   a. No citizens can sue
                   ii. Stevens, Souter, Ginsburg, Breyer
                           1. Saw the 11th amendment as restricting the federal
                               courts’ subject matter jurisdiction only in precluding
                               cases being brought against states that are founded
                               solely on diversity jurisdiction.
                                   a. Citizens of the state can sue, but citizens of
                                       another state cannot.

Judicial Protection of Interstate Commerce- Article I § 8
   I.      Congress has not exercised legislative power pursuant to the Commerce
           a. Even if Congress has not acted state and local laws still can be
               challenged an unduly impeding interstate commerce.
           b. The Commerce clause- and not just the supremacy clause- places
               limits on state authority
   II.     Commerce clause has two functions
           a. Positive- Congress can regulate interstate commerce
           b. Negative- Congress can limit state and local regulation
                   i. The economy is better off if state and local laws impeding
                       interstate commerce are invalidated.
               ii. Protectionism is inefficient because it diverts business away
                   from presumptively low-cost producers without any colorable
                   justification in terms of a benefit that deserves approval from
                   the point of view of the nation as a whole.”
III.   Political Justification
       a. States and their citizens should not be harmed by laws in other states
          where they lack political representation.
IV.    Rather the Court considers whether to invalidate state regulations on the
       theory that the State’s action is inconsistent with the policies behind the
       constitutional allocation of power to Congress to regulate interstate
       a. Economic- does the State or local law discriminate against or have an
          adverse effect on interstate commercial transactions.
       b. Political- whether citizens of a state are seeking to impose burdens on
          those not part of the state’s polity…conferring benefits on the state’s
          citizens at the expense of outsiders.
V.     Wilson v. Black Bird Creek Marsh Co.
       a. There was a federal law present in Gibbons but there is no federal law
          present in Wilson hence the dormant commerce clause.
       b. Can a state construct a dam that obstructed an interstate waterway.
       c. Court held that it was a permissible exercise of the state’s police
                i. Enhance property values
               ii. The health of the people
VI.    Balancing test
       a. Does the law treat in-state and outstater’s the same
                i. Yes, move to balancing test
                       1. Burdens on interstate commerce outweigh its benefits
                       2. Infrequently invalidated
               ii. No, per se invalid.
                       1. Only upheld if it is necessary to achieve an important
                       2. Rarely are upheld
       b. Rehnquist, Scalia and Thomas object to the balancing test and have
          argued in favor or upholding all state laws that are deemed
          nondiscriminatory (in the interest of federalism).
                i. Rehnquist in Kassel- “seriously intrudes upon the fundamental
                   right of the States to pass laws to secure the safety of their
                   citizens.” (Truck case)
       c. Scalia- “I would therefore abandon the balancing approach to these
          negative commerce clause cases…and leave essentially legislative
          judgments to congress.”
                i. No dormant commerce clause review when a case is viewed
VII.   Philadelphia v. New Jersey
       a. Ends are legitimate but the means are unconstitutional.
        b. State attempts to keep their natural resources and thus limit their
           accessibility to out-of-staters
                 i. New Jersey law that effectively kept landfills in the state
                    exclusively for New Jersey’s use by preventing the importation
                    of any wastes from out of state.
        c. “Both on its face and in its plain effect the New Jersey law violates this
           principle of nondiscrimination.”
                 i. “On its face, it imposes on out-of-state commercial interests the
                    full burden of conserving the State’s remaining landfill space.”
                        1. Makes it out-of-state people’s problem.
        d. “What is crucial is the attempt by one State to isolate itself from a
           problem common to many by erecting a barrier against the movement
           of interstate state trade.”
        e. Court held- New Jersey cannot close it borders to trash.
VIII.   Carbone (1994)
        a. Facially neutral law
                 i. All solid waste processed or handled within town be processed
                    or handled at towns transfer station
                ii. By requiring Carbone to send nonrecyclable portion to transfer
                    station at additional cost this drives up the cost for out-of-
                    staters who deposit trash there
               iii. Furthermore, even as to waste originant in Clarkstown, the
                    ordinance prevents everyone except favored local operator
                    from performing the initial processing step.
                        1. The ordinance thus deprives out-of-state businesses
                            access to a local market.
               iv. Ordinance drove up cost for out-of state interest to disposal of
                    their solid waste at recycling facility
                v. Nonrecyclables to transfer station.
        b. Applied to in-state and out-of-staters the same
        c. Court held the law was discriminatory
                 i. “While the immediate effect of the ordinance is to direct local
                    transport of solid waste to a designated site within the local
                    jurisdiction, its economic effects are interstate in reach.”
        d. Discriminatory impact, even though facially neutral
                 i. Disparate impact against out-of-staters
IX.     United Haulers (2007) (Robert’s decision)
        a. Flow control ordinances very similar to the one in Carbone
                 i. Distinction- In Haulers it is state-created public benefit
                        1. Benefit a clearly public facility, while treating all private
                            companies the same.
                ii. Treats every in-state and out-of-state private business the
                    same so does not discriminate against interstate commerce.
        b. “We uphold these ordinances because any incidental burden they may
           have on interstate commerce does not outweigh the benefits they
           confer on the citizens of the county.”
        c. “Treating public and private entities the same under the dormant
           Commerce Clause would lead to unprecedented and unbounded
           interference by the courts with state and local Government.”
        d. Then put through Pike balancing test
                i. Is the burden imposed on interstate commerce clearly
                   excessive in relation to the putative local benefits.
               ii. More than financing tools
                        1. Increase recycling (enhanced incentive)
                        2. Significant health and environmental benefits
X.      Kassel v. Consolidated Freightways (1981)
        a. Not so blantantly discriminatory
        b. The court declared unconstitutional an Iowa law banning 65 foot
           double trailers
        c. The State failed to present any persuasive evidence and it
           substantially burdens interstate commerce
                i. Illusory safety interests
XI.     The Market Participant Exception
        a. Laws that would otherwise violate the dormant commerce clause will
           be allowed
                i. If Congress explicitly approves the State law.
               ii. The other is market participant
        b. A state may favor its own citizens in receiving benefits from
           government programs or in dealing with government-owned
                i. If the state is literally a participant in the market, such as with
                   state-owned business, and not a regulator, the dormant
                   commerce clause does not apply.
XII.    Hughes v. Alexandria Scrap Corp. (1976)
        a. The Court upheld a Maryland law designed to rid the state of
           abandoned automobiles by having the state pay for inoperable cars.
                i. Required minimal documentation from state citizens
               ii. More documentation from out of staters
        b. The Court said the state was a market participant by purchasing the
           cars and therefore its discriminatory actions against out-of-staters did
           not violate the dormant commerce clause.
XIII.   South Central Timber Development v. Wunnicke (1984)
        a. Limitation on the Market Participant Exception
        b. State law which said raw wood could not be taken from Alaska had to
           also be processed in Alaska.
                i. Market participant v. Market regulator
                        1. Buying cars v. Conditions on Alaskan wood.
                        2. The Alaskan law leaves the purchaser without options.
          c. State businesses may favor in-state purchasers, but they may not
             attach conditions to a sale that discriminate against interstate
          d. Alaska law that required that purchasers of state-owned timber have
             the timber processed in Alaska before it is shipped out of state.
          e. The state may not impose conditions
   XIV.   United Building and Construction Trades Council v. City of Camden
          a. The Court declared unconstitutional a city’s ordinance that required
             40% of the employees on city-funded construction projects be
             residents of the city.
          b. The Court found that the law violated the privileges and immunities
                  i. “The citizens of each State shall be entitled to all Privileges and
                     Immunities of Citizens in the several States.”
          c. In-state residents (not Camden residents) and out-of-state residents
             will be prejudiced the same
                  i. In-staters can remedy it at the polls
                 ii. Out-of-staters can not
                         1. Therefore we apply the privilage and immunities clause

Reconstruction of Federal- State Relations: Citizenship, Privileges, and Immunities

   I.     How is the 14th Amendment interpreted?
          a. The restructuring of the relationship between the United States and
             the individual states…
          b. How has the Court interpreted the 14th Amendment grand but vague
             guarantees of privileges or immunities, due process and equal
                  i. Lynchpin for individual rights
          c. What is Congress’ role in implementing the principles of due process
             and equal protection set forth in § 1 of the 14th amendment.
                  i. What is § 5 power to enforce
   II.    Dred Scott v. Sandford (1856)
          a. Declared the Missouri Compromise unconstitutional and broadly held
             that slaves were property, not citizens.
          b. Court held that Dred Scott was not a citizen and therefore could not
             sue based on diversity citizenship.
          c. The Court ruled that Congress cannot grant citizenship to slaves or
             their descendants; this would be a taking of property from slave
             owners without due process or just compensation.
          d. The act of Congress which prohibited a citizen from holding and
             owning property of this kind in the territory of the United States north
             of the line is not warranted by the Constitution, and is therefore void.
                  i. Helped precipitate the Civil War
   III.   1865- 13th amendment; prohibits slavery
IV.   1868- 14th amendment;
      a. § 1 overrules Dred Scott by declaring that all persons “born or
         naturalized in the United States. . . are citizens of the United States.”
      b. § 1 also guaranteed that no state shall deprive any person of life,
         liberty, or property without due process of law, or deny any person
         “equal protection of the laws.”
V.    14th Amendment § 5
      a. Slaughter House Cases (1873)
              i. The court expressly rejected a substantive due process claim
                 in the privileges and immunities clause.
                     1. The “dead Hand” of the Slaughter-House Cases
                             a. The untimely death of the substantive rights that
                                 might have been articulated as “Privileges or
                                 Immunities” has been a driving force in 20th
                                 century for expansive interpretation of two
                                 other clauses of the 14th amendment
                                      i. Due process
                                     ii. Equal Protection
             ii. Makes a distinction between citizens of a State and citizens of
                 the United States
                     1. Privileges and immunities are only for citizens of the US
                         when found in the 14th amendment
                     2. Privileges and immunities for state citizens are found in
                         article IV section 2.
                             a. “The citizens of each State shall be entitled to all
                                 Privileges and Immunities of Citizens in the
                                 several States.”
                                      i. What you do to your citizens you must
                                         treat citizens of another state the same
                     3. If the Court didn’t make this distinction they would be
                         able to censor all of the State’s actions.
            iii. 25 year monopoly in the livestock landing and slaughterhouse
                     1. Fixed fee to slaughter animals
            iv. Due Process argument, butchers were being denied from
                 practicing their trade.
             v. Flatly rejected the idea that the due process clause could be
                 used to safeguard a right to practice a trade or profession.
                     1. Dissent interpreted the word “liberty” as meaning
                         liberty to practice any trade. (soon became the majority
                         view of the Supreme Court)
            vi. Justice Fields (Dissent): If State is in valid area of Police power
                 then it is Constitutional as long as it applies to everyone.
      b. Saenz v. Roe (1999)
                i. The Supreme Court used the privileges or immunities clause of
                   the 14th amendment as the basis for protecting the right to
                       1. P&I are not absolute (discriminate against in-state and
                           out-of-state students for tuition is permissible)
                              a. There are permissible justifications
               ii. Declared unconstitutional a Ca law that restricted a new
                   resident’s welfare benefits to the level of the state where the
                   person moved from for the first year of residence.
              iii. Court held that right to travel is protected by Privileges and
                       1. The right of new residents to be treated the same as
                           longer residents of the state is protected by P&I clause
              iv. Majority makes field like argument- in order to serve purpose
                   of the statute the State could simply reduce all pay outs by 72
                       1. Very similar to Justice Fields dissent in Slaughter House
                           Cases, if the statute applies to everyone across the
                           board evenly then it is constitutional.
               v. Rehnquist (Thomas) dissent- “Breathes new life into the
                   previously dormant Privileges and Immunities Clause of 14th
                       1. Dormant because the Slaughter House Cases wrote it
                           out of existence
VI.    Substantive Due Process
       a. Is there a fundamental right?
       b. Is the Constitutional right Infringed
                i. De facto segregation
               ii. Must look to directness and substantiality of interference.
       c. Is there sufficient justification for the Government’s Infringement of a
VII.   Substantive Due Process
       a. The 14th amendment’s Due Process Clause has been interpreted to
          make nearly all of the Bill of Rights guarantees applicable to the States
       b. The Due Process Clause of the 14th Amendment prohibits States from
          infringing fundamental liberty interests, unless the infringement is
          narrowly tailored to serve a compelling state interest.
                i. Only fundamental rights qualify for this heightened scrutiny
                       1. “Rights that are deeply rooted in tradition” Glucksberg
                              a. Apply strict scrutiny test
                                        i. The objective being pursued must be
                                       ii. The means chosen by the state must be
                                           necessary to achieve that compelling end.
                                        1. i.e. there must not be less
                                           restrictive means that would do
                                           the job
         ii. Must make this distinction early on, fundamental or non-
                 1. Non-fundamental (economic)
                         a. The state must be pursuing a legitimate state
                            objective (health, safety, general welfare comes
                            within police power and is thus legitimate)
                         b. Must be minimally rational relation between the
                            means chosen by the legislature and the state
c.   Most controversial (Constitution provides weak textual support)
          i. Basically, powerful application of judicial review b/c
             preventing government bodies from taking certain actions
             even if they follow majoritarian and constitutional processes.
d.   Laissez-faire v. Paternalism
e.   The Court first recognized a non-procedural component to the Due
     Process Clause of the 14th amendment in late 1800’s which protected
     economic interests. (right to contract)
          i. Lochner era (three themes)
                 1. Freedom of Contract is a right protected by the due
                     process clauses of 5th and 14th amendment
                 2. The government can interfere with freedom of contract
                     only to serve a valid police purpose (health, safety,
                 3. Judiciary would carefully scrutinize legislation to
                     ensure it truly served a police purpose.
f.   Where court aggressively protected economic rights under the Due
     Process clause
          i. Minimum wage laws were deemed unconstitutional because
             they violated the 14th amendment by impermissibly interfering
             with freedom of contract.
g.   Contracts clause was not used to defend economic interests in this
     era, because the protection of freedom on contract in the 14th
     amendment made it superfluous.
h.   After 1937 this changed dramatically- great depression, human
     interests over economic interests.
          i. Since 1937 the Court has not struck down an economic
             regulation for violating substantive due process
i.   Lochner v. New York (1907)- Right to Contract (liberty)
          i. The Court declared unconstitutional a NY law that mandated
             the amount of hours bakers worked
                 1. Violated the due process clause of 14th amendment
       ii. The right to contract is a fundamental right protected just as
           liberty and property are protected under the due process
               1. Right to contract = LIBERTY
      iii. Protecting the health of the bakers was not a sufficient
           justification for allowing the state to interfere with contract
      iv. Harlan’s dissent- references different facts. Must keep
           legislative deference in tact. They know more than we do.
j. West Coast Hotel Co. v. Parrish (1937) (No right to contract)
        i. The Court upheld a state law that required a minimum wage
           for women employees
               1. Abandoning the principles of Lochner
       ii. “The Constitution does not speak of freedom of contract. It
           speaks of liberty and prohibits the deprivation of liberty
           without due process of law.”
      iii. Unequal position in terms of bargaining power is highlighted
               1. The government can now legislate to equalize
                   bargaining power
      iv. So, court found power to contract was not a fundamental right
           and the government only had to provide a rational basis to
           protect it.
k. Griswold v. Connecticut (1965) (Privacy is fundamental right, found
   through Penumbra’s of the Bill of rights)
        i. The Supreme Court declared unconstitutional a state law that
           prohibited the use and distribution of contraceptives.
       ii. This right is not based on liberty in the due process clause (like
           in Lochner) but instead that PRIVACY is implicit in many
           specific provisions of the Bill or Rights.
               1. Found privacy in the “penumbra” of the Bill of Rights.
      iii. “The present cause concerns a relationship lying within the
           zone of privacy created by several fundamental constitutional
l. Roe v. Wade (1973)
        i. Recognized a constitutional right to abortion- founded in the
           Fourteenth Amendment’s concept of personal liberty and
           restrictions on state action.
               1. Involved a challenge to a Texas law that prohibited all
                   abortions except those necessary to save the life of the
       ii. Only personal rights that can be deemed “fundamental” or
           “implicit” in the concept of ordered liberty” are included in this
           guarantee of personal privacy.
               1. Extend this right to activities surrounding marriage
                   (Loving, and Pierce)
      iii. “This right of privacy, whether it be founded in the 14th
           amendment conception of personal liberty and restrictions
           upon state action, as we feel it is, or in the 9th amendment
           reservations of rights to the people, is broad enough to
           encompass a woman’s decision.”
               1. Distinct from Griswold, Roe does not rely on the
                   penumbra of Bill of rights, but instead as a part of
                   liberty protected under due process clause.
               2. Goldberg’s concurrence in Griswold, the 9th amendment.
      iv. The right to an abortion is not absolute and must be balanced
           against other considerations
               1. State’s interest in protecting prenatal life.
                       a. Roe is distinct from Griswold (contraceptives)
                           and Loving (marriage) because of the interest of
                           the fetus.
       v. Strict scrutiny must be used in striking the balance because the
           right to abortion was a fundamental right.
      vi. Three trimesters- during the first trimester the state cannot
           prohibit abortions
     vii. Rehnquist and White dissent emphasizing the question of
           abortion should be left up to legislation.
               1. Subject to rational basis test only, not strict scrutiny.
m. Planned Parenthood v. Casey (1992)
        i. “Liberty finds no refuge in a jurisprudence of doubt”
               1. People are doubting the decisions of Roe
                       a. Roe derives the right from the Due Process
                           clause of the 14th Amendment.
                       b. It is a promise of the Constitution that there is a
                           realm of personal liberty which the government
                           may not enter.
               2. Not all of the cases decided under that formulation can
                   be reconciled with the holding in Roe itself that the
                   State has legitimate interests in the health of the woman
                   and in protecting the potential life within her.
       ii. Overruled the trimester distinction established in Roe
      iii. Moves from a strict scrutiny standard of review (Roe) to an
           Undue burden test (Casey)
               1. Government regulation of abortions prior to viability is
                   allowed but they can not place an undue burden on
                   access to an abortion:
                       a. Place a substantial obstacle in the path of a
                           woman seeking an abortion before the fetus
                           attains viability
                       b. Can take measures to ensure that the woman’s
                           choice is informed
                       c. Unnecessary health regulations that have the
                           purpose or effect of presenting a substantial
                           obstacle to a woman seeking an abortion impose
                           an undue burden on the right.
      iv. Hurdles to get an abortion can exist, but the right to an
           abortion is still there.
       v. Five provisions of PA act
               1. 24 hours
               2. Minor must have parental permission
               3. Married woman must notify husband
                       a. This is the only one that is unconstitutional
      vi. You are exempted from compliance in a medical emergency
     vii. Reaffirmed that states cannot prohibit abortion prior to
               1. Long discussion about stare decisis
    viii. Scalia- compares right to abortion to the right to be a bigamist.
               1. “The issue is whether it is a liberty protected by the
                       a. The Constitution says absolutely nothing about it
                       b. American Society has long stated its illegality
               2. Roe elevated abortion to the national level where it is
                   infinitely more difficult to resolve
               3. Foreclosing all democratic outlets to decide the issue
n. Gonzalez v. Carhart
        i. Considering the validity of the partial-birth abortion ban
               1. Does the act impose an unconstitutional burden on
                   abortion because it does not allow use of the procedure
       ii. The word privacy is never mentioned in the majority
               1. Which is the foundation to the right to abort a child.
     iii. Kennedy speaks of the severe depression and loss of esteem of
           women who have abortions
               1. This is unusual language for a judicial opinion.
o. Washington v. Glucksberg (1997)
        i. Is there a constitutional right to physician-assisted suicide?
               1. Lower courts had found a constitutional right to
                   physician-assisted suicide.
       ii. The Supreme Court did not find a fundamental right to assisted
               1. Rehnquist (majority):
                       a. A right is protected as fundamental under the
                           due process clause only when supported by
                           history or tradition.
                       b. Held that only fundamental rights which are
                           deeply rooted in this Nation’s history and
                           tradition qualify for anything other than rational
                           basis scrutiny under the doctrine of substantive
                           due process. (How does this effect Roe v. Wade,
                           which were held to a strict scrutiny basis).
                              i. The law does not burden or reject a
                                 fundamental right and therefore to be
                                 upheld only needs rational basis test.
                                     1. Preservation of life
                                     2. Protecting the integrity and ethics
                                         of the medical profession
                                     3. Protecting vulnerable groups
                                             a. Dementia sufferers
                                             b. Severely disabled
                     c. For over 700 years, the Anglo-American
                         common-law tradition has punished suicide.
                     d. To hold for the respondents, we would have to
                         reverse centuries of legal doctrine and practice,
                         and strike down the considered policy choice of
                         almost every state.
     iii. States may enact statutes protecting such a right
              1. The Court’s decision emphasized the absence of
                 constitutional limits on state laws.
              2. Issue of a right to die is left to the political process
p. Troxel v. Granville (2000)
       i. Do laws which uphold the right of grandparents impermissibly
          interfere with the right of parents to control the upbringing of
          their children.
      ii. Mother reduced the frequency with which her daughters saw
          their paternal grandparents (whose son had committed
              1. The Grandparents sued under the Washington law that
                 protects grandparents rights.
     iii. Liberty interest- the care, custody and control of parent’s
              1. The Court found that the Washington law infringed
                 upon this fundamental right.
                     a. The state was overly broad “any person” and this
                         gives the judge undue ability to overturn the
                         decisions of a fit parent.
                     b. Based solely on the judge’s determination of the
                         child’s best interest.
     iv. Scalia dissented- saying there is no fundamental right for a
          parent to raise its child in the constitution.
              1. Family law does not fall into the realm of federal law
              2. Leave to the state legislature if they feel compelled to
                 rule on it at all.
                     a. They only do harm in a circumscribed area
                     b. They are removable by the people
      v. Thomas concurrence- Let’s stop finding fundamental rights
          under the due process clause “life, liberty, or property.” These
                  cases should instead be decided under the privileges and
                  immunities clause.
        q. Lawrence v. Texas (2003)
               i. “It is a promise of the Constitution that there is a realm of
                  personal liberty which the government may not enter.”
              ii. Privacy in the exercise of their liberty under the Due Process
                  Clause of the 14th Amendment to the Constitution.
                       1. Must reconsider Bowers
                               a. Ga Statute was facially neutral making sodomy in
                                   general illegal.
                               b. The Court sustained the Ga. Law
                               c. Found no fundamental right to engage in
                                   sodomy, Bowers didn’t make it about liberty
                                   made it about the right to sodomy
                       2. Stare decisis is essential to the respect accorded the
                           stability of law.
                               a. In Casey it was noted that when a Court is asked
                                   to overrule a precedent recognizing a
                                   constitutional liberty interest societal reliance on
                                   existence of that liberty cautions with particular
                                   strength against reversing course.
             iii. Use Rhenquists opinion in Glucksberg
                       1. Carefully define the right- Liberty/privacy
                       2. Is it supported in history/legal tradition?
                               a. Kennedy (Majority) “In all events we think that
                                   our laws and traditions in the past half
                                   century…show an emerging awareness that
                                   liberty gives substantial protection to . . . private
                                   lives in matters pertaining to sex.”
             iv. O’Connor (concurrence)- Don’t rely on substantive component
                  of the 14th amendment, rather base opinion on the 14th
                  amendment equal protection clause.
                       1. The law makes homosexual unequal in the law
              v. Scalia’s Dissent-
                       1. Stare Decisis- You upheld Roe in Casey, but you refuse
                           to uphold Bowers in Lawrence
             vi. Thomas’s Dissent- “If I were a member of the Texas
                  Legislature, I would vote to repeal it…but I can find neither in
                  the Bill of Rights nor any other part of the Constitution a
                  general right to privacy.”

VIII.   Equal Protection of the Laws
        a. Three tiers of equal protection analysis
               i. Strict Scrutiny: compelling
       ii. When dealing with a “suspect classification,” such as race, or a
           “fundamental right,” such as the right to vote.
              1. It means that, to sustain the classification, the
                 government must prove it has a “compelling
                 governmental interest” in the subject matter about
                 which it has made the classification and that it has
                 “narrowly tailored” its classification to fulfill that
              2. Right to vote
              3. Suspect classification- three criteria:
                     a. Has the group historically been subjected to
                         purposeful discrimination
                     b. Whether the trait used to define the class is
                         unrelated to the ability to perform and
                         participate in society.
                     c. Taken into account the group’s relative political
      iii. Middle Tier Scrutiny: Important
      iv. When the Court is dealing with gender classifications.
              1. Requires at lease an “important governmental interest”
                 which is closely related to the government’s
              2. Gender
              3. The means used need not be necessary, but must have a
                 substantial relationship to the end being sought.
       v. Rational Basis Scrutiny: legitimate basis
      vi. Applied to all other government classifications.
              1. Not based on a “suspect classification”
              2. Requires only that the classification be rationally
                 related to some legitimate government interest.
                     a. Protecting safety
                     b. Public Health
                     c. Public Morals
                     d. Laws will be upheld unless the government’s
                         action is “clearly wrong, a display of arbitrary
                         power, not an exercise of judgment.”
              3. The government’s objective need not be compelling or
                 important, but just something that the government
                 legitimately may do.
              4. Romer v. Evans: failed the rational basis test
                     a. Can’t legitimately exclude one group from the
                         political process
b. Facially classifications- the test of the law draws distinctions among
   people based on race or suspect class (even if law is remedial) or it
   law infringes on fundamental right.
      c. Facially neutral- law that doesn’t discriminate on its face, but has
         discriminatory impact or with discriminatory administration (not
         enough to prove racial classification)
              i. Determining racial classification (to apply strict scrutiny) both
                 usually required
                     1. Discriminatory purpose
                             a. Impact may be so clearly discriminatory there is
                                 no other explanation
                                     i. Case-by-case determination
                     2. Discriminatory effect
                             a. Prove similarly situated people of majority race
                                 would be treated differently
             ii. Discriminatory impact is insufficient to show the existence of a
                 racial classification
                     1. Discriminatory impact standing alone does not trigges
                         the rule that racial classifications are to be subjected to
                         strictest scrutiny
                             a. There must be proof of a discriminatory
      d. Look to when legislation…
              i. Restricts ordinary political processes
             ii. Target particular minorities
                     1. De jure
                     2. De Facto
                             a. Subjective- interview process
                             b. Test- discriminatory impact is not enough to
                                 prove strict scrutiny
            iii. Curtails processes that protects minorities
      e. Suspect classes
              i. Characteristics that the person did not choose and that the
                 individual cannot change
             ii. The ability of the group to protect themselves in the political
            iii. The history of discrimination
      f. Sometimes also used when the government discriminates among
         people as to the exercise of a fundamental right
              i. Voting
             ii. Access to Judicial Process
            iii. Interstate travel
      g. Marshall- rejects a rigidified approach to equal protection analysis
              i. Rejects three tiers, would rather it be varying levels of scrutiny
                 depending upon the “constitutional and societal importance of
                 the interest adversely affected.”
IX.   Race Based Discrimination- Strict Scrutiny
      a. Plessy v. Ferguson (1896)
              i. The Supreme Court upheld laws that mandated that blacks and
                 white use “separate but equal” facilities.
             ii. “We consider the underlying fallacy of the . . . in the assumption
                 that the enforced seperation of the two races stamps the
                 colored race with a badge of inferiority.”
                     1. Solely because the colored race choices to put that
                         construction upon it.
      b. Brown v. Board of Education (1954)
              i. Depriving blacks of equal protection under the 14th
             ii. “We conclude in the field of public education the doctrine of
                 “separate but equal” has no place.
X.    Invidious Race Discrimination
      a. Racial classifications will be allowed only if the government can meet
         the heavy burden of demonstrating that the discrimination is
         necessary to achieve a compelling government interest.
              i. Must show an extremely important reason for its action
             ii. And it must demonstrate that the goal cannot be achieved
                 through any less discriminatory alternative.
      b. Whether disadvantaging or helping minorities must meet strict
      c. First articulated strict scrutiny for discrimination based on race and
         national origin in Korematsu.
              i. But the Court held that the war efforts were a legitimate goal.
             ii. Upheld the evacuation of Japanese Americans
      d. Strauder v. West Virginia (1879)
              i. The Supreme Court declared unconstitutional a West Virginia
                 law that limited jury service to “white male persons who are
                 twenty-one years of age…”
             ii. The Court said the 14th amendment was designe to ensure to
                 the colored race the enjoyment of all the civil rights that under
                 the law are enjoyed by white persons.
                     1. The law is unconstitutional because it expressly singled
                         out and disadvantaged blacks.
      e. Korematsu
              i. “The Courts must subject them to the most rigid scrutiny”
             ii. “All persons” is not just a white/black distinction
      f. Yick Wo
              i. Disparate impact cases
                     1. Board of supervisors had too much discretion
                     2. The 14th amendment is not confined to the protection of
XI.   Fundamental Rights & Racial Classifications
              i. Loving v. Virginia (1967)
             1. The Court declared unconstitutional a state’s
                   miscegenation statute that made it a crime for a white
                   person to marry outside the Caucasian race.
                       a. Rejected the notion that equal application of a
                           statute concerning racial classifications is
                           enough to remove the classifications…”
      ii. Johnson v. California (2005)
             1. Racial Segregation of prisoners based on gang warfare
             2. Racial classification but across the board racial
                       a. Remanded, the department of correction will
                           have the burden of demonstrating that their
                           policy is narrowly tailored.
                       b. Apply strict scrutiny
     iii. Washington v. Davis (1976)
             1. Applicants had to pass a test to be hired as a police
                   officer in DC
             2. Test data showed that African-American applicants
                   failed the test at a much higher rate.
                       a. Test had a racial disproportionate impact
                       b. Disproportionate impact does not fall under
                           strict scrutiny
             3. “A rule that a statute designed to serve neutral ends is
                   nevertheless invalid, absent compelling justification, if
                   in practice it benefits or burdens on race more than
                   another would be far-reaching . . . may be more
                   burdensome to the poor.”
b. School Cases/Affirmative Action
       i. “We apply strict scrutiny to all racial classifications to ‘smoke
          out’ illegitimate uses of race by assuring that government is
          pursuing a goal important enough to warrant use of a highly
          suspect tool (racial classification).”
             1. Should strict scrutiny apply
                       a. Scalia, Kennedy, Thomas, O’Conner=Yes
                                i. “classifications based in race carry
                                   stigmatic harm”
                       b. Marshall= NO
                                i. Achieving social equality requires
                                   affirmative action at this point in
                                   American history.
                               ii. Strict scrutiny greatly impedes remedial
      ii. Gutter- using race as a factor among many factors.
     iii. Richmond v. J.A. Croson Company (1989)
       1. The Court expressly held that strict scrutiny should be
          used in evaluating state and local affirmative action
       2. The Court invalidated a plan to set aside 30% of public
          works monies for minority owned businesses
       3. Not narrowly tailored enough
              a. There was no consideration of a race neutral
                  approach to increase minority businesses.
       4. Scalia- concurrence: has this individual been
          discriminated against? Not has this race been
          discriminated against?
       5. Marshall dissent- the old capital of the confederate.
          Doesn’t believe that court should apply strict scrutiny
              a. “Today, for the first time, a majority of the Court
                  has adopted strict scrutiny as its standard of
                  Equal Protection Clause review or race-
                  conscious remedial measures.”
iv. San Antonio Independent School District v. Rodriguez (1973)
       1. Rational basis test because equality in education is not a
          fundamental right
              a. Must like food, clothing and housing is not a
                  fundamental right
       2. Disparities in school funding do not violate equal
              a. Even though they result in separate but unequal
       3. The Court held that poverty is not a suspect class and
          that discrimination against the poor should only receive
          rational basis review.
              a. Hard to define poverty, poor children in the
                  wealthy school district as well.
              b. Not an absolute deprivation of the benefit
              c. Is education is absolute right?
                       i. Penumbra right to vote, freedom of
                      ii. “not values to be implemented by judicial
                          intrusion into otherwise legitimate state
 v. Parents Involved in Community Schools v. Seattle School Dist.
       1. Roberts wrote majority: does not meet the narrowly
          tailored and compelling interest requirements for a
          race-based assignment
              a. Simply to achieve “racial balance”
       2. Seattle school district student could choose any school
          in the district, but when there is over-enrollment, the
                   school used a tiebreaker based on race in order to
                   balance the race of the schools with the race of the city.
               3. Johnson v. California, Grutter:
                       a. When the government distributes burdens or
                           benefits on the basis of individual racial
                           classifications—reviewed under strict scrutiny
                       b. In order to satisfy this searching standard of
                           review—narrowly tailored to achieve a
                           compelling government interest.
                                i. Remedying past discrimination
                               ii. Diversity in higher education upheld in
                                       1. In Gutter diversity was many
                                          factors not just race—this is the
                       c. O’Conner in Gutter- colleges and universities
                           have a compelling interest in creating a diverse
                           student body, and they may use race as one
                           factor among many.
               4. These cases are black v. non-black and black v. other
               5. Racial balance has repeatedly condemned by the Courts
                   as illegitimate.
                       a. “Simply because the school districts may seek a
                           worthy goal does not mean they are free to
                           discriminate on the basis of of race to achieve
                           it…or that their racial classification should be
                           subject to less exacting scrutiny.”
c. Alienage Classification (discrimination against noncitizens)
        i. “No person shall be denied equal protection of the laws”
               1. Does not say “no citizens”
               2. Established in Yick Wo
       ii. Strict Scrutiny is appropriate for discrimination against aliens.
               1. “Discrete and insular community”
               2. Long history of discrimination
               3. Inability of aliens to protect themselves at the ballot box
      iii. Plyler v. Doe (1982)
               1. The Court declared unconstitutional a Texas law that
                   provided free public education for children of citizens
                   but required undocumented aliens to pay for schooling
                       a. Articulates an important social interest
                       b. Class innocent individuals
               2. State interest to discourage illegal immigration and
                   reserve benefits for its own citizens (appears rational
                   so must have used more than a rational basis test)
               3. Dissent- The Court has gone too far, the Constitution
                   does not vest the Court with the authority to strike
                  down laws because they do not meet the Courts
                  standards of desirable social policy.
d. Discrimination based on Sexual Orientation
        i. Intermediate or strict scrutiny?
       ii. Romer v. Evans
               1. “Prohibits all legislative, executive or judicial action at
                  any level of state or local government designed to
                  protect homosexuals.”
               2. Not a suspect class so no strict scrutiny
               3. Fundamental Right no, so again no strict scrutiny
               4. Political burden- Kennedy (Majority) “The
                  Amendment withdraws from homosexuals, but no
                  others, specific legal protection from the injuries caused
                  by discrimination.”
               5. Failed even rational basis review
                      a. No legitimate purposed for denying homosexuals
                          the same use of the political process available to
                          everyone else.
               6. Political process They can obtain specific protection
                  against discrimination only by enlisting the citizenry of
                  Colorado to amend the State Constitution.
                      a. This is a burden
               7. Scalia- (dissent) “When the Court takes sides in the
                  cultural wars, it tends to be with the views and values of
                  the lawyer class from which the Court members are
e. Affecting the political process
        i. The Coalition for Economic Equity v. Wilson (1997)
               1. Plaintiffs contend proposition 209 imposes unequal
                  “political structure” that denies women and minorities a
                  right to seek preferential treatment from the lowest
                  level of government.
               2. Majority- “Plaintiffs challenge Proposition 209 not as an
                  impediment to protection against unequal treatment
                  but as an impediment to receiving preferential
                      a. Distinguish from Romer protection against
                          discrimination can’t be sought in Romer
                      b. Preferential treatment can’t be sought in Wilson
               3. Just because affirmative action programs are admissible
                  does not mean that they are required.
       ii. Hunter v. Erickson (1969)
               1. The Court declared unconstitutional an ordinance that
                  prevented city council from enacting ordinances
                  addressing racial discrimination without majority
                  approval from Akron voters.
                a. City Counsel Local Voters
                b. The Court held absent a compelling state
                   interest, the state may no more disadvantage any
                   particular group by making it more difficult to
                   enact legislation in its behalf”
       2. Blacks, much more than whites, were obviously harmed
           by creating obstacles to enactment of open housing
           laws, and thus the Court found the ordinance violated
           equal protection.
       3. The State may no more disadvantage any particular
           group by making it more difficult to enact legislation in
           its behalf than it may burden their right to vote.
iii. Washington v. Seattle School Dist. (1982)
       1. The Court declared unconstitutional a statewide
           initiative that barred school boards from assigning
           students beyond their neighborhood schools.
                a. Effectively operated to preclude only
                   desegregative busing
       2. Although the law nowhere mentioned race and applied
           in the same way to all races, the Court found that it was
           a racial classification because, like in Hunter the law
           “removes the authority to address a racial problem—
           and only a racial problem—from existing decision
           making body, in such a way as to burden minority
                a. Decisionmaking authority was now at a new and
                   remote level of government.
                b. School Board State-wide citizenry legislation
iv. Crawford (1982)
       1. Upheld an initiative that prohibited state courts from
           ordering mandatory pupil assignment or transportation
           unless a federal court would do so to remedy a violation
           of the federal equal protection clause.
                a. Minority students alleged that the amendment
                   employed a racial classification that burdened
                   minorities who sought to vindicate state-created
       2. This law was not a racial classification and states could
           say that they would do no more than the 14th
           amendment requires
       3. Crawford merely repealed a benefit that the state itself
           had afforded, not the authority of local subdivisions to
           afford the same benefit.
 v. Distinguish Crawford from Washington
       1. Washington limited the powers of the school board in
           all instances from using race unless court ordered
                      2. Crawford only limited the school board when the
                          actions were greater than those required to comply
                          with the 14th amendment.
                              a. But both involved initiatives limiting
                                 desegregation making the Court’s distinction
XII.   Gender Discrimination- Intermediate Scrutiny
       a. Requires at lease an “important governmental interest” which is
          closely related to the government’s classification.
               i. Ends must justify the means
       b. Craig v. Boren (1976)
               i. Statute prohibits sale of beer to males under 21 and women
                  under 18
              ii. Unconstitutional violation of Equal Protection
             iii. Gender classifications analyzed under intermediate scrutiny
                      1. Important Interest- traffic safety
                      2. Substantially related- gender discrimination law not
                          related to interest because it controls sales, not
             iv. “Must serve important governmental objectives and must be
                  substantially related to achievement of those objectives.”
                      1. This law is not substantially related to achieve this
                          government interest.
              v. Rehnquist- thinks law only needs to pass a rational basis test.
       c. Michael M. v. Superior Court of Sonoma County (1981)
               i. The Court did not articulate a level of scrutiny
              ii. Statutory rape law which punishes men who engage in sexual
                  activities w/ women under 18 years old
             iii. The Court held it was constitutional- no violation of equal
                  protection clause
                      1. State interest- preventing illegitimate pregnancy
                      2. Women aren’t similarly situated- most consequences
                          for women (pregnancy-physical & psyschological)
                          gender neutral law would be less effective
             iv. Dissent- a gender neutral law would work just as well
       d. United States v. Virginia (1996)
               i. The Court declared unconstitutional the exclusion of women
                  by VMI
                      1. Women were being denied an opportunity only
                          available to men.
              ii. Scalia- (dissent) intermediate scrutiny invites judicial bias
             iii. Rehnquist- (concurrence) the Court introduces an element of
                  uncertainty by requiring “exceedingly persuasive justification”
                      1. When really the test is only “substantially related to
                          government objectives”
       e. De Facto- concerning the fact “in practice”
i. Prima facie case- The plaintiff must prove, generally through
   statistical comparison, that the challenged selection device has
   a substantial adverse impact on a protected group.
       1. Written tests
       2. Height and weight requirements
       3. Educational requirements
       4. Subjective procedures- such as interviews

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