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					                                                                        Con Law Outline


I. Founding Generation
      A. 1607 to 1776: direct governance from England. Colonists angry at what is
      being done
      B. General Writ of Assistance- Anyone can go into your house and search it
      top to bottom "to prevent smuggling."
      C. Articles of Confederation had no taxing power and no federal ct system
      D. 1787: Constitutional Convention
              1. Federalist Papers: mostly written by Alexander Hamilton
                        a) some by James Madison, a few by John Jay
              2. AntiFederalists: pushed for a Bill of Rights
              3. Madison was concerned that enumerating rights would eliminate the
              ones not written down... pushed for 9th Amendment
      E. Judiciary Act of 1789: creates the federal court system
              1. Supreme Court
              2. Circuit Courts
                        a) composed of on SCt justice and one Dist Ct judge
                        b) If there was a division of opinion, could get into SCt
              3. District Courts
      F. End of the 19th Century
              1. first time federal question can start in a federal court.
              2. previously, only a diversity of citizenship could get it there
      G. 1801
              1. Adams pushes through new Judiciary Act, creating independent circuit
              court judges... no more riding circuit
              2. Appoints judges to fill the new positions
              3. Jefferson is furious; wants to eliminate the circuit courts and fire the
              judges (lifetime tenure issue)
      H. John Marshall
              1. went to law school at William and Mary for 6 weeks
              2. served under Washington at Valley Forge
              3. stressed need for unanimous decisions (1 court, 1 voice) to make the ct
              seem more important
              4. he was disliked for being nationalist
              5. gave the SCt the unappealable power of judicial review
                        a) Jefferson puts J. Chase up for impeachment, which frightens
                        Marshall
                        b) judicial review power was never used again until 1850
      I. 12th Amendment: citizens can't sue other states or foreign states
      J. 13th Amendment: changed the Electoral College
      K. Article I § 10(1)
              1. Law impairing obligation of contracts
                        a) ex: Dartmouth College v. Woodward
      L. Roger Taney (CJ 1836-1864)
              1. progressive
              2. economic pragmatism
              3. states had granted monopolies to companies to build infrastructure



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        4. basically abolishes contract monopolies (contract clause)
        5. declares Compromise of 1820 unconstitutional
        6. Dred Scott was property, cannot be taken away from owner.
M.   Abraham Lincoln
        1. campaigned against the Dred Scott decision
        2. campaigned on the Declaration of Independence, rather than on the
        Const bc he disagreed w/ the Ct's interpretation of it.
        3. When Lincoln won the election, 1/2 the country seceded
N.   Ex parte Merryman
        1. Maryland doesn't secede, but is a slave state.
        2. Virginia had seceded, and if MD seceded it would put Washington DC
        in hostile territory
        3. Lincoln arrested the senators and legislators who were on their way to
        the secession convention
                  a) habeas corpus: ct requires evidence that shows why a person
                  is being incarcerated; w/out the evidence he must be released
                  b) Lincoln suspended writs of habeas corpus, which is
                  Congress's power under Art. I § 9(2).
                  c) Taney ordered Merryman be released; Lincoln argues it is a
                  time of rebellion and he doesn't have to.
O.   Emancipation Proclamation
        1. freed slaves only in rebel territory, so slavery was not abolished behind
        Union lines (MD and northern Virginia)
        2. Art. II § 2(1): pres is the commander-in-chief
        3. never challenged as a legal matter
P.   Salmon Chase (CJ 1864-1873)
        1. was Lincoln's Sec of the Treasury
Q.   Reconstruction Amendments
        1. XIII
                  a) introduced before Lincoln died
                  b) ended slavery
        2. XIV
                  a) all persons born n the US are citizens of the US and the state
                  b) gave access to federal courts
                  c) Privileges and Immunities
                  d) Due Process
                  e) Equal Protection
                  f) § 5: Congress can make laws to enforce the Amendment
        3. XV
                  a) 1870
                  b) right to vote for all races
R.   Morrison Waite (CJ 1874-1888)
        1. Civil Rights Act was declared unconstitutional bc controlled private
        conduct
        2. 14th A says "no state shall"




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       S. The Slaughter House Cases (1873)
             1. Ct said the 14th A was only meant to protect freed slaves, not white
             men
       T. Bradwell v. Illinois case (1873)
             1. 14th A was only meant to protect freed slaves, not women
       U. Plessy v. Ferguson (1896)
             1. separate RR cars
             2. Ct upheld "separate but equal" argument
II. The Labor Movement
       A. Melville Fuller (CJ 1888-1910)
             1. Lochner v. New York (1905)
                       a) abuse was occurring bc immigrants greatly increased the
                       workforce
                       b) New York passed laws providing maximum hrs and
                       minimum safety for bakers.
                       c) Lochner claimed NY was depriving him of his 14th A liberty
                       to contract.
                       d) J. Holmes dissents
                       e) narrow interpretation of the Commerce Clause bc of the
                       notion of Liberty of Contract
       B. Charles Evans Hughes (1930-1941)
             1. stock market crash
             2. FDR in 1932 pushes legislation through Congress
             3. merchants bring suits and win in the SCt, and the Depression continues
             4. FDR's Court Packing Plan:
                       a) add 6 justices
                       b) the bill died in committee
                       c) "Switch in Time": J. Roberts switched in 937 to vote in
                       support of New Deal legislation as constitutional
             5. Liberty of Contract was abolished.
             6. Cong can do what it wants according to the Commerce Clause.
       C. Carolene Products (1938)
             1. Footnote 4:
                       a) protect civil rights of "discrete and insular minorities" against
                       excessive regulations or interference by govt.
       D. Earl Warren (CJ 1953-1969)
             1. civil libertarian
             2. exercise judicial review to strike down statutes that restricted civil
             liberties
             3. recognized new rights, reviving the 9th A
             4. first big case was Brown v. Board of Ed
             5. new theories of jurisprudence (evolutive jurisprudence)
             6. Hugo Black:
                       a) architect of "selective incorporation"
                       b) one-time KKK member
             7. William Douglas: environmentalist



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       E. Warren Burger (CJ 1969-1986)
               1. administrator
               2. Roe v. Wade
               3. Bakke
               4. less of an appeal for social change/reform
               5. Race cases became less frequent and important. The easy questions
               had been answered. The most debated policy was affirmative action
               6. Women's cases
               7. Burger Ct didn't get along like the Warren Ct did
               8. Separation of Powers and Federalism p.49 hadn't been fought in ct
               until the Burger Ct
                         a) delegation cases: affects governmental accountability
                         b) bothered Rehnquist
                         c) revisited in the current ct
       F. William Rehnquist (CJ 1986-2005)
               1. westerner
               2. Stanford w/ O'Connor
III. Constitutional Decision Making
       A. Impact Litigation
               1. you may not win the case, but the idea is to realize an objective you
               have chosen as your cause
               2. not sole practitioners
       B. 14th Amendment
               1. Privileges and Immunities
                         a) it is a privilege to eat in any restaurant, sleep in any hotel
               2. Life, Liberty, Property
                         a) liberty to go to school, access to public property
                         b) Plessy: property right to his whiteness?
               3. Equal Protection
       C. 13th Amendment
               1. Slavery
                         a) badges of inferiority
                         b) from slavery to segregation
       D. 15th Amendment
               1. Right to vote
                         a) need certain educational requirement to vote?
       E. Original Intent
               1. Most historians agree that final draft of the 14th Am was meant to
               assure civil rights (engaging in civil transactions w/ others, contracting)
               but not political rights (voting, holding office) or social rights (association,
               transportation, school)
               2. Could contracting to buy a movie/bus ticket be a civil right?
       F. Slaughter House Cases (1896)
               1. rejected that privileges and immunities clause gave right to own
               property
               2. only gave right to travel



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G. Strauder v. West Virginia (1879)
       1. overturned WV statute excluding all but white males from juries
H. The Civil Rights Cases (1883)
       1. invalidated 1875 Civil Rights Act's federal remedy for private racial
       discrimination
I. Plessy v. Ferguson (1896)
       1. Harlan's dissent predicted future unpopularity for the decision
                 a) everyone knows blacks are excluded from white cars bc
                 Louisiana thought blacks were inferior
                 b) "Our Const is color blind"
       2. picked someone who doesn't really look black to show that the law is
       stupid (the fact scenario doesn't make sense on its face
       3. 13th A badges of slavery argument is rejected
       4. 14th A property right in his whiteness argument is rejected
       5. 14th A equal protection argument: equality is important, but people do
       not have to be together to be equal (separate but equal is ok)
       6. Could have argued that the private RR has the liberty of K to let
       anyone on they wanted, but lib of K cases started one year later.
J. State action
       1. The only people subject to the Const are governments. Can't use the
       Const against private actions
       2. exception: 13th A
K. W.E.B. DuBois (1868-1963)
       1. put together the Niagara Movement, which becomes the NAACP to
       work w/in governments to ensure equality
       2. Guinn case
                 a) grandfather clause/literacy test is inconsistent w/ 15th A
       3. Charles Hamilton Houston (1895-1950)
                 a) head of NAACP litigation branch for eliminating separate but
                 equal
                 b) proves that separate is inherently unequal by going after the
                 "equal" part first
                 c) starts w/ higher education, mainly law schools, bc judges
                 went to law school and can relate
                 d) Gaines p. 70
                       (1) Lloyd Gaines wanted to go to law school in Missouri,
                       but there were no black law schools
                       (2) MO would pay for him to go out of state
                       (3) Houston took case to SCt; won for Gaines.
                       (4) MO must have law schools for all, even if separate, as
                       long as they are equal
                       (5) Unsolved Mysteries: Gaines was never seen again
       4. Houston turned the NAACP Legal Defense Fund position over to
       Thurgood Marshall (1908-1993), who takes over the cause
                 a) Ada Lois Sipuel Fisher
                       (1) wanted to go to law school in OK



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                      (2) decision was virtually the same as in Gaines
               b) States universally try to get around spirit of the law set forth
               in SCt decisions by narrowly following the letter of the law
                      (1) Sweatt (1950)
                                (a) Heman Sweatt wanted to go to UT Law School.
                                While litigation was pending, they constructed
                                Prairie View Law School for Sweatt
                                (b) Marshall said separate is inherently unequal in
                                legal education. His argument won, bc of the
                                intangible qualities of legal education.
                      (2) if this is true for law school, why not grad school?
                      (3) McLaurin-->OU Grad School
L. Brown v. Board of Education (1954)
      1. companion cases: Brown, Briggs v. Elliot (SC), Davis v. Prince
      Edward County (VA), Belton v. Gebhart (DE), Bolling v. Sharpe (DC).
      2. Linda Brown had to walk long distance to get to a terrible school
      (compared to the white school).
      3. Her dad brought suit when parents held a meeting to discuss. Oliver
      Brown was the only dad, so was chosen to do it bc of sexism.
      4. argued through the state system.
      5. 1953 term of the SCt (CJ Vinson) didn't decide... ordered re-arguments
      about original intent for the 1954 term. Vinson died; replaced by Warren.
               a) original intent was inconclusive bc the school system was
               very different when A was passed.
               b) psychological effects on children; separate is inherently
               unequal
               c) read Const to fit the meaning in the present circumstances
                      (1) Warren: "We must consider public education in the
                      light... throughout the nation."
                      (2) Sweatt opinion was not as persuasive as the doll studies
                      (3) Plessy was wrong about psychological effects




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IV. Theories of Jurisprudence
       A. Formalism
              1. Law is fixed, should not be manipulable.
              2. Judges should defer to the law as it had been already decided
              (originalism/ original intent)
       B. Legal Realism
              1. Law is infinitely manipulable.
              2. Rules are for camouflaging social reform (evolutive)
              3. Originalism is a myth.
              4. Brown is a legal realist decision
                        a) vulnerable bc science is always changing
                        b) Realists say, if we're wrong, we'll change it later
                        c) Const is a tool to help people lead better lives
              5. Bolling v. Sharpe (1954)
                        a) DC school system directed by Cong. How do you sue Cong?
                        use 5th A DPC
                        b) reverse incorporation? (14th A contains EPC so 5th A should
                        too)
       C. After Brown:
              1. Remedy Questions
                        a) What is unconstitutional?
                        b) What should be done about it?
              2. SCt sent remedy questions back to lower cts to decide w/ "all
              deliberate speed"
              3. Prince Edward County, VA closed down all schools
              4. Refusal in other states (Arkansas) to recognize the Ct's decision
              (doctrine of nullification)
              5. Cooper v. Aaron (1958)
                        a) Is SCt the only one w/ power of judicial review?
                        b) Arkansas has no final say; only the US SCt does.
       D. Marbury v. Madison (1803)
              1. Jefferson says federalists "retreated to the judiciary"
              2. Judiciary Act of 1801 (passed by Adams at end of admin.) created
              independent circuit cts; hired judges to fill the slots
              3. Marshall signing commissions as Sec of State
              4. Jefferson and Congress want to repeal the Judiciary Act of 1801
              5. Marbury offered JP position... steady paycheck
                        a) goes to SCt bc knew Marshall, wanted to have the delivery of
                        his commission ordered
              6. Original Jurisdiction v. Appellate Jurisdiction: Art. III § 2 ¶ 2
              7. Judiciary Act of 1789: SCt can issue writs of mandamus to persons
              holding office under authority of the US.
                        a) This sentence comes after discussion of appellate jurisdiction
                        b) Marbury argues that the semicolon btw the sentences makes
                        mandamus a separate instruction
                        c) unclear as to which interpretation is right.



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8. Marshall says no jurisdiction but also includes a rule on the merits and
on relief.
           a) Jurisdiction is unconstitutional in this case: Art. III has a
           complete list of cases in which the SCt has original jurisdiction.
           The 1789 Act cannot move any appellate cases to original cases.
           b) Merits: Marbury should get the job.
           c) Relief: Madison should give Marbury the job.
9. Effects of declaring that the law was unconstitutional:
           a) political theater:
                 (1) said Ct could strike down any laws Cong passes that
                 the Ct doesn't like
                 (2) avoids the possibility that Madison will say "no" and
                 make the Ct look weak
           b) SCt has the power to review for constitutionality statutes
           affecting the SCt.
           c) Does not say that only the SCt could declare something
           unconstitutional
                 (1) nullification: states don't have to enforce
                 unconstitutional laws?
                 (2) Cooper v. Aaron: says SCt has exclusive power to
                 invalidate.
           d) Jurisprudence:
                 (1) judges know that if they say whatever they want the
                 Const to mean, no one would care/listen
                         (a) We want an explanation other than "bc I said
                         so" This is why we have opinions that persuade us
                         that justices aren't acting purely on their own whim.
                         (b) Opinions are directed by something outside the
                         Ct itself.




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E. Originalism
      1. The theory that the people who wrote/ratified the law should decide
      what it means
      2. Antonin Scalia, Clarence Thomas, Robert Bork
      3. Original intent of the framers:
               a) Constitution: 1788
               b) Bill of Rights 1791
               c) Reconstruction Amendments 1868
      4. derived from congressional debates, articles from scholars at the time
      of adoption
      5. Arguments in favor of originalism:
               a) predictability
               b) easier to determine what is required bc what they wanted
               doesn't change
      6. Textualism
               a) look only at the text
               b) problems:
                     (1) what do the words mean? ("Due Process")
                     (2) Some new questions don't have textual answers
      7. Purposivism
               a) what carries out Framer's original purposes?
               b) Robert Bork
               c) in order to define the purpose so that it fits every issue,
               purpose has to be broad
                     (1) ex: 14th A was to help all people/blacks integrate into
                     society
               d) problems:
                     (1) whose intent?
                     (2) whose purpose?
                     (3) Are you picking and choosing your evidence?




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F. Legal Process Theories
      1. John Hart Ely: almost entirely, Const creates a structure of govt and
      explains the scope of its power. Only rarely does it discuss values, and
      even then they can fail, truly explaining procedure
      2. Judiciary should only overturn if the legislation itself interferes w/
      process of the machine.
                a) ex: a poll tax of $500 interferes; should be overturned.
      3. problems:
                a) the ct may not be doing enough
                b) Does majority rule really work? Doesn't represent minority
                rights.
                c) although it's purpose is to limit the power of the ct,
                theoretically, the Ct could invalidate anything
G. Evolutive Theories
      1. Constitution was written in a way that if society changes, the Const
      can adjust to apply to new situations
      2. Const is a document that could survive the test of time
      3. Originalism is impossible, and it's not what the framers intended.
      4. Evolutionism was influenced by legal realism (law should take into
      account the realities of life). Classifications are so arbitrary that they
      should be dropped
      5. If a case is decided in a way that goes against society's expectations,
      society is less likely to accept that
      6. Bruce Ackerman: Constitutional Moments
                a) creation of Const, Reconstruction, New Deal
                b) After Civil War, descendants came together to alter the
                original social contract to fit needs of their own generation
                c) Same thing happened during New Deal. 1937 puts FDR in
                office. Expanded "Commerce," limited liberty of K
                d) All cts now should look at cases in light of the New Deal...
                increase in govt role in personal life
      7. Robin West: Critical Legal Studies
                a) We all draw boundaries around people and experiences and
                relate to them in line w/ our categorization
                       (1) ex: customer and cashier
                b) Why? It's efficient. Problem: assuming that category is
                natural and unchangeable
                       (1) Should get people to re-categorize bc the Const
                       requires it. If liberty isn't getting equality, should break
                       down artificial categorizations to ensure equality in light of
                       our current feelings.
                c) We should look at how we organized categories, and use the
                Constitution to force change where those categories are unfair
                       (1) ex: Domestic Violence. We should allow the public
                       sector to step inside a private house and tell an abusive
                       spouse to stop.



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                        d) Critical Legal Studies fails to get you anywhere in
                        determining what the "right" hierarchy is
             8. Pragmatists:
                        a) Posner: we are disingenuous if we claim to be pure in our
                        jurisprudence theories. We pick and choose from other theories if
                        they fit; if they achieve the pragmatic goal.
                        b) Bickel: we should allow things to change gradually, as they
                        do
                        c) Thayer: the more the Ct takes responsibility for invalidating
                        laws, the less Cong will focus on constitutionality of laws they
                        pass. People eventually pay less attention to who they elect (this
                        deadens their sense of moral responsibility).
V. Federalism
      A. Intro
             1. The US was unique when formed bc was a federal republic
                        a) 2 separate sovereigns
                        b) states retain powers (local police powers)
                        c) central govt has delegated powers (Art. I. § 8: general police
                        power)
             2. This model collapsed in 1860s. Reconstruction was about reframing
             structure. States were no longer more powerful than the central govt.
             3. 1867: Canadian Const reversed presumption of US Const, giving the
             provinces delegated powers.
      B. McCulloch v. Maryland (1819)
             1. Bank of US is not a federal agency; is govt owned but run by private
             sector
             2. state bank owners wanted state govt to do something about the
             competition, so the state taxed the US Bank
             3. Power to tax includes the power to destroy; unconstitutional
             4. US could tax state banks but state could not tax fed banks
      C. U.S. Term Limits, Inc. v. Thornton (1995)
             1. movement to establish term limits was successful in many states
             2. SCt: cant have term limits for Congressmen
                        a) Qualifications Clauses in US Const are exhaustive. You can't
                        add to the requirements w/out an amendment.
                        b) Originalism: states, at the time of ratification, had complete
                        power except those they denied themselves in the Const. Is
                        anything in the Const prohibiting term limits? No. States didn't
                        have the power to begin w/ bc there was no Congress.
      D. Commerce Clause
             1. Art. I § 8: "The Congress shall have the power... [t]o regulate
             commerce among the several states."
      E. Gibbons v. Ogden (1824)
             1. Fulton steamboat can go upstream, but NY had granted a monopoly to
             his ships.




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        2. Gibbons, who has coastal trading license from the federal govt, offered
        commuter service in violation of the monopoly.
        3. J. Marshall (a textualist):
                  a) "regulate" = to prescribe the rule
                  b) "commerce" = does not only apply to the buying and selling
                  of goods. Commerce includes intercourse... navigation...services
                  is included.
                  c) "among" = Ogden argued that only at the borders can
                  commerce be regulated by federal govt, but Marshall says it
                  means "intermingling." Cong can regulate navigation as far as a
                  river/waterway goes.
        4. Commerce and geographic scope of power are expanded.
        5. Can Cong build roads? Most said no bc is different than regulation.
        6. Economy was stimulated by the Civil War
                  a) "the United States are" became "the United States is"
                  b) Cong starts enacting statutes to regulate the economy. The
                  immediate reaction is to say those statutes are unconstitutional.
F.   United States v. E.C. Knight (1895)
        1. Sherman AntiTrust Act of 1890 made it illegal to form trusts to defeat
        free trade
                  a) Trust = price-fixing to keep prices high; business owners
                  joined to form "trust" (now one big corporation—not price-
                  fixing)
        2. Sugar Trust
        3. Ct refused to apply Sherman Act to manufacturing (not commerce)
        4. Manufacturing/Commerce distinction: Cong cant regulate
        manufacturing
        5. Race to the Bottom: states inactive for fear of losing business to states
        that didn't regulate
        6. [The rule established in this case is no longer good law]
G.   The Lottery Case (1903)
        1. Ct upheld laws regulating outlaws of commerce
        2. Lottery Act: prohibited carrying lotto tickets across state lines
H.   Swift & Co. v. United States (1905)
        1. can Cong regulate a meat packing facility?
        2. meat packers say no; they are manufacturers.
        3. Ct says yes. After slaughtered, the meat goes outside state lines and
        into the stream of commerce.
        4. upheld a Sherman Act injunction against price-fixing by meat-packers
I.   The Shreveport Rate Case (1914)
        1. In this case, it was easier for TX farmers than others to ride the
        railroad bc it proposed differential rates in TX and LA, affecting
        Louisianans' ability to do business
        2. Ct held that Cong has a right to regulate all matters w/ such a close and
        substantial relation to interstate commerce that the control is essential or
        appropriate to the security of that commerce



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J. The Child Labor Case (1918)
      1. Ct said Cong had no Commerce Clause power to pass Child Labor Act
      that made it illegal to ship goods made by child labor over state lines.
      2. This was regulation of manufacturing... the Ct relied on E.C. Knight
      case
      3. [This case was overruled by a later case]
      4. How to stop child labor if cant use commerce clause?
                a) Federal Tax on income generated from products
                manufactured by children under Congress' taxing and spending
                power?
K. Great Depression
      1. FDR wants to rescue economy by taking control of industry
                a) National Industry Recovery Act (NIRA)
L. Railroad Retirement Board v. Alton Railroad (1935)
      1. mandatory retirement program for RR workers
      2. Ct struck down RR Retirement Act of 1934 bc not this was not a
      regulation of commerce but of social welfare
M. A.L.A. Schechter Poultry Corp. v. United States (1935)
      1. chickens, once slaughtered, were sold locally (End of the stream of
      commerce)
      2. Ct invalidated NIRA labor rules for poultry market
N. Carter v. Carter Coal Co. (1936)
      1. Ct struck down Coal Conservation Act bc coal originates there
      (Beginning of the stream of commerce)
O. 1937: FDR's court packing plan
P. West Coast Hotel v. Parrish (1937)
      1. Ct upheld state minimum wage statute
      2. "Switch in time"
      3. buried liberty of contract
Q. National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937)
      1. Ct upheld NLRA's labor-management provisions bc of the Commerce
      Clause
      2. A disruption of manufacturing operations would disrupt the stream of
      commerce; a labor strike directly affects commerce.
      3. Affecting Commerce Theory:
                a) Acts which directly burden or obstruct interstate or foreign
                commerce are within the reach of Congressional power
      4. buries E.C. Knight
R. United States v. Darby (1941)
      1. buries the Child Labor Case
      2. Fair Labor Standards Act of 1938 made it illegal to employ people for
      interstate commerce if not paid minimum wage or work too many hours
      per week.
      3. Ct said Congress can regulate in-state activity in this manner bc of the
      Affecting Commerce Theory.




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S. Wickard v. Filburn (1942)
      1. acquired massive reach for the Commerce Clause
      2. Filburn violated Agricultural Adjustment Act, which intended to limit
      supply of wheat to raise prices, by exceeding his quota of wheat.
                a) he consumed it within his own farm, but ct said this didn't
                matter bc since he was consuming his own wheat, he was not
                buying it. If everyone did this, no one would buy, and effects
                would be substantial
                b) Aggregate Theory
T. Heart of Atlanta Motel v. United States (1964)
      1. Civil Rights Act of 1964
                a) derived from 14th Amendment § 5 and Commerce Clause
      2. Ct held that you can't deny blacks the right to stay in a hotel that
      whites can stay at bc of the Aggregate Theory
      3. Douglas concurs: cautions against basing a decision only on the
      Commerce Clause
U. Katzenbach v. McClung (1964)
      1. Ollie's BBQ
      2. Aggregate Theory and volume of food from out of state
V. Federal Criminal Law
      1. 1960s-1970s
      2. Consumer Credit Protection Act of 1968 (knee-capping statute)
W. Perez v. United States (1971)
      1. generates money for organized crime from across state lines. This is a
      class of activities that is regulated w/in the reach of federal power.
      2. Aggregate Theory
X. Hodel v. Virginia Surface Mining & Reclamation Ass'n (1981)
      1. Ct: Cong can regulate activities causing air and water pollution,
      including the requirement that local strip miners restore the land to its
      earlier condition because pollution moves.
      2. Aggregate Theory
Y. United States v. Lopez (1995)
      1. Gun-Free School Zones Act
      2. Lopez arrested by state, but turned over to Fed govt
      3. Fed govt arguments in favor of the statute:
                a) possessing a gun in school may result in violent crime, which
                affects the economy because costs are substantial and widespread
                and it reduces willingness to travel to unsafe areas
                b) presence of guns in schools pose a threat to educational
                learning environment, resulting in a less productive citizenry,
                which would lower the economic well-being of the nation.
      4. Ct disagreed. Possession of a gun in school zones is not commerce
      5. Commerce Power extends to:
                a) channels of interstate commerce
                b) instrumentalities, persons, things in interstate commerce
                c) activities substantially affecting interstate commerce



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              6. This was the first time since 1937 that Ct denied something to Cong
              based on the Commerce Clause
              7. To use Aggregate Theory, the underlying action must itself affect
              commerce.
       Z. Gonzales v. Raich (2005)
              1. medical marijuana grown for own personal medical use
              2. used Lopez to argue for Raich
              3. but Ct uses Filburn aggregate theory to uphold the Congressional ban
              on marijuana
              4. dissent: this isn't Filburn because there is no legal market for Class 1
              controlled substances
VI. Congressional Authority to Enforce Civil Rights
       A. The Civil Rights Cases (1883)
              1. Congress thought the 13th Amendment would solve race problem for
              all time
              2. Civil Rights Act of 1866: Johnson vetoes; Congress overrides & drafts
              the 14th Amendment to make Civil Rights legislation undoubtedly
              constitutional
              3. Civil Rights Acts of 1870 & 1871 (42 U.S.C. § 1983)
              4. Civil Rights Act of 1875: no private sector discrimination
                        a) In 1875, former southern senators were disenfranchised;
                        many black senators drafted the Act.
              5. Justice Bradley: 14th Amendment says "no state shall" discriminate.
              Congress can't legislate against private discrimination, which is not a
              badge/incidence of slavery. (1875 Act is unconstitutional)
              6. Harlan dissent: Former slaves' "freedom necessarily involved
              immunity from, and protection against, all discrimination against them,
              because of their race, in respect of such civil rights as belong to freemen
              of other races." Therefore, Cong can enact protective laws.
       B. Jones v. Alfred H. Meyer Co. (1968)
              1. The right to buy/sell a house is a civil right. Refusing someone that
              right on the basis of race is a badge of slavery, and is unconstitutional.
       C. The Fifteenth Amendment
              1. protects voting rights; prevents discrimination based on race
              2. Voting Rights Act of 1965: intended to stop states from defining
              electorate by race
                        a) various tests
                        b) registration by appointment
                        c) taxes
                        d) grandfather clause exceptions
              3. Prohibits tests, and before changes are made in voting requirements, a
              federal ct has to sign off on them
       D. South Carolina v. Katzenbach (1966)
              1. Earl Warren relied on the McCulloch test to uphold the Voting Rights
              Act of 1965




                                           15
                                                                   Con Law Outline


         2. Necessary and Proper Clause also applies to the Reconstruction
         Amendments... § 5 of the 14th Amendment.
         3. Ct asked if the law was substantive or remedial
E.   Katzenbach v. Morgan (1966)
         1. §4(e) of the Voting Rights Act prohibited NY literacy test to prevent
         Puerto Ricans from voting because of their illiteracy in English.
         2. Brennan: §4(e) is valid under the Necessary and Proper Clause.
         3. Does § 5 give Congress the power to create new substantive rights?
         Yes
         4. Dissent: if this is true, couldn't Congress retract substantive rights?
                   a) The majority would say that Congress can expand, but not
                   contract, rights.
                   b) A minority says that if the Ct finds an action to be
                   unconstitutional, Congress can enact legislation to remedy it.
         5. Dissent: Lassiter case had upheld English language requirement to
         vote
F.   Oregon v. Mitchell (1970)
         1. upholds nationwide ban on literacy tests (not just in problem states
         anymore) (substantive)
         2. rejected lowering the voting age in state and federal elections from 21
         to 18 without a Constitutional amendment. [ratified in 1971].
G.   City of Rome v. United States (1980)
         1. changed voting practices to at-large elections; had to get pre-clearance,
         which was denied.
         2. no evidence of discriminatory intent, but it had a discriminatory effect:
         no black officials would be able to be elected
         3. Rome argued that the 15th Amendment § 2 is remedial, only against
         intent
         4. The statute only requires intent
         5. Marshall: Statute is constitutional; § 2 is substantive
H.   Employment Division, Department of Human Resources v. Smith (1990)
         1. peyote before work
         2. A generally applicable compelling governmental interest is OK even if
         it substantially burdens.
I.   City of Boerne v. Flores (1997)
         1. church wants to expand, city denies bc it is in a historic district
         2. Under RFRA, state has to prove compelling interest (hard to do!) with
         means necessary to achieve the ends, so the city wants to declare RFRA
         unconstitutional under Smith
         3. Kennedy: wiped out substantive theory for remedial theory
                   a) Congress' power under 14th Amendment § 5 extends to
                   enforcement only.
                   b) "Legislation which alters the meaning of the Free Exercise
                   Clause cannot be said to be enforcing the Clause. Congress does
                   not enforce a constitutional right by changing what the right is."




                                      16
                                                                         Con Law Outline


VII.   The Eleventh Amendment
       A. Art. III § 2 (1987)
              1. The judicial power shall extend... to Controversies between two or
              more states;-- between a state and citizens of another state;-- between
              citizens of different states;-- between a state, or citizens thereof, and
              foreign states, citizens, or subjects
       B. The Eleventh Amendment (1798)
              1. 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 United States by citizens of another State, or by citizens or subjects
              of any Foreign State
              2. States had passed statutes repudiating their wartime debt
       C. Chisolm v. Georgia (1793)
              1. prompted the drafting of the 11th Amendment, bc ct held that Art. III §
              2 granted jurisdiction over states as п or ∆.
              2. After the 11th Amendment passed, a State can be a п but not a ∆ under
              Art. III § 2
       D. Hans v. Louisiana (1890)
              1. state was sued by its own citizen
              2. Ct held that 11th Amendment also implies that citizens cant sue their
              own state either.
              3. Under common law, a state couldn't be a ∆ in its own state cts or
              federal ct
       E. Ex parte Young (1908)
              1. wanted state to stop behaving unconstitutionally
              2. can sue a state officer in charge of executing the law if you are seeking
              equitable relief (injunction) (not for $)
              3. citizen v. state secretary of cabinet
       F. Can Congress waive states' immunity under certain statutes?
              1. Fitzpatrick v. Bitzer (1976)
                         a) Yes
                         b) 14th Amendment § 5
              2. Pennsylvania v. Union Gas Co. (1989)
                         a) Yes
                         b) Commerce power
       G. Seminole Tribe of Florida v. Florida (1996)
              1. limiting what can be done about abrogating 11th Amendment state
              immunity
              2. Seminoles sued bc denied right to establish a casino
              3. Indian Gaming Regulatory Act enacted under "Indian Commerce
              Clause;" Rehnquist ct overruled Union Gas decision
                         a) federal govt can't abrogate 11th Amendment immunity under
                         any laws enacted under Art. I powers
                         b) Can abrogate under laws enacted under the 13th – 15th
                         Amendments
              4. Dissenters: should narrow or overrule Hans



                                           17
                                                                       Con Law Outline


      H. Alden v. Maine (1999)
             1. State probation officers thought not getting fair overtime pay under
             Fair Labor Standards Act
             2. States can't be sued in own courts
             3. [11th Amendment has been virtually rewritten by these cases]
      I. Florida Prepaid Postsecondary Education Expense Fund v. College Savings
      Bank (1999)
             1. (5-4 decision)
             2. invalidates part of Patent Remedy Act that subjected states to patent
             lawsuits
      J. Kimel v. Florida Board of Regents (2000)
             1. age discrimination in employment Act
             2. 14th Amendment § 5
             3. Ct said not remedial; can't abrogate
      K. Types of Challenges
             1. Facial Challenge: whole statute is unconstitutional
             2. As-Applied Challenge: facially constitutional but cant apply to "me"
      L. Board of Trustees v. Garrett (2001)
             1. ADA
             2. 5-4 majority said bc based on 14th Amendment § 5, needs to be
             remedial; must show violation of Equal Protection Clause (hard to do)
      M. Nevada Department of Human Resources v. Hibbs (2003)
             1. FMLA: give up to 12 weeks of paid leave to both men and women for
             caring for child, family member
             2. ct said law is valid bc is remedial enough
      N. Tennessee v. Lane (2004)
             1. ADA Title II
             2. charged with crime, can't get to courtroom on 2nd floor bc in
             wheelchair
             3. is remedial enough to be valid
             4. remedial is still the test, though
      O. United States v. Morrison (2000)
             1. Virginia Tech sexual assault
             2. Ct rejected the argument that Congress may regulate non-economic,
             violent criminal conduct based solely on that conduct's aggregate effect on
             interstate commerce.
             3. The Constitution requires a distinction between what is truly national
             and what is truly local.
VIII. Taxing and Spending Powers
      A. Art. I § 8
             1. Congress shall have the power to lay and collect taxes... to pay the
             Debts and provide for the common Defense and general Welfare of the
             United States.
      B. McCray v. United States (1904)
             1. oleomargarine tax was ok




                                          18
                                                                      Con Law Outline


       C. United States v. Doremus (1919)
              1. opium tax was ok
       D. Bailey v. Drexel Furniture Co. (The Child Labor Tax Case) (1922)
              1. Congress couldn't pass Child Labor laws, so placed high tax on goods
              manufactured by children
              2. Ct invalidated it; said was a penalty, not a tax
              3. Can no longer use taxes to penalize
       E. United States v. Kahriger (1953)
              1. Congress placed tax on money made by bookies to discourage
              gambling
              2. Ct said was tax bc placed revenue in United States Treasury
       F. United States v. Butler (1936)
              1. invalidated the Agricultural Adjustment Act of 1933, which was
              designed to encourage farmers to reduce their production so as to raise
              market prices
       G. Steward Machine Co. v. Davis (1937)
              1. upheld unemployment compensation provisions of the Social Security
              Act of 1935... incentives to put money into unemployment funds
       H. Spending Power has remained the same in scope, unlike the Commerce
       Power, to this day.
              1. 1980s & 1990s, Congress switched from using Commerce power to
              using Spending Power to pass federal legislation
       I. South Dakota v. Dole (1987)
              1. first modern challenge to spending power
              2. South Dakota argued that raising drinking age is against 21st
              Amendment § 2: Congress is prohibited from regulating consumption of
              alcohol
              3. 23 U.S.C. § 158: withhold 5% of federal highway funds if didn't raise
              drinking age
              4. South Dakota sued Libby Dole (Secretary of Transportation)
              5. Rules:
                        a) must be in pursuit of the general welfare
                        b) states must have a choice
                        c) must be a meaningful connection between the regulation and
                        the money withheld
IX. Treaty Power
       A. Art. II § 2
              1. The President shall have the power, by and with the advice and
              consent of the Senate, to make Treaties, provided 2/3 of the Senators
              present concur
       B. Missouri v. Holland (1920)
              1. Migratory Bird Treaty Act- No one can hunt migratory birds
              2. Missouri issues hunting licenses
              3. If treaty is valid, trumps conflicting state law under Art. VI.
              4. Bird Treaty is constitutional bc no direct Constitutional provision
              prohibiting it.



                                          19
                                                                         Con Law Outline


                      a) only other prohibition is procedural (consent of Senate)
            5. Art. VI § 2: All treaties made, or which shall be made, under the
            Authority of the United States (not "in pursuance" of the Constitution
X. Rights Materials
      A. Tenth Amendment (1791)
            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, or to
            the people.
      B. Maryland v. Wirtz (1968)
            1. Fair Labor Standards Act: applies to state employees instead of only
            private employers
            2. Court upheld the provision
      C. National League of Cities v. Usery (1976)
            1. FLSA amended to apply even greater to the States
            2. Court rules for State using 10th Amendment
      D. Hodel v. Virginia Surface Mining & Reclamation Association (1981)
            1. In order to be unconstitutional, the statute must:
                      a) regulate states as states
                      b) address matters that are indisputably "attribute[s] of state
                      sovereignty."
                      c) if state complied with the law, would directly impair their
                      ability to structure integral operations in areas of traditional
                      governmental functions
      E. Garcia v. San Antonio Metropolitan Transit Authority (1985)
            1. FLSA apply to bus drivers
            2. traditional? hard to prove when living in an era of rapid change
            3. Lists have been made that are and are not protected under National
            League of Cities (case-by-case basis)
                      a) ct said different/ impossible to draw the distinction between
                      the two groups
            4. gets rid of Hodel Test
            5. still are limits on the federal government's power, but to find them we
            must look beyond the unsound principle that states are immune from
            federal regulation that turns on a judicial appraisal of whether a particular
            governmental function is traditional.
                      a) This is a political question that is injusticiable. Court will no
                      longer interpret the 10th Amendment... it is up to Congress.
                      Congress wouldn't pass law if most states weren't ok w/ the
                      exercise of federal authority over states
                      b) relied on original intent
                      c) authors said since senators are now elected by people under
                      the 17th Amendment, states no longer are represented... original
                      intent couldn't apply
            6. Political Question Doctrine allows the majority of people to decide
            what's right




                                            20
                                                                        Con Law Outline


       F. Intergovernmental Tax Immunities
              1. McCulloch's rule against state taxation of federal entities has never
              been questioned.
              2. It has been expanded to immunize indirect as well as direct state
              burdens on the federal government
              3. Exempt from taxation:
                        a) interest from federal bonds
                        b) wages paid to federal employees
                        c) income derived from a federal lease
       G. South Carolina v. Baker (1988)
              1. removes federal income tax exemption for interest on state and local
              bonds unless they are issued in registered form
              2. No process defect... constitutional
XI. National Commandeering
       A. New York v. United States (1992)
              1. low-level radioactive waste sites only in Washington, Nevada, and
              South Carolina. NIMBY
              2. New York didn't meet deadline to create its own site.
                        a) "take title" provision: people who are harmed by waste can
                        sue the state rather than private parties
              3. Majority opinion didn't mention Garcia (legal process theory fading
              away)
              4. Holdings
                        a) provision authorizing sited states to impose a surcharge on
                        waste received from other states was ok
                        b) provision authorizing states w/ disposal sites to increase the
                        costs of access to those sites, and deny access altogether, to
                        waste generated in states that do not meet federal guidelines was
                        ok
                        c) But the take title provision is not ok. Congress has crossed
                        the line distinguishing encouragement from coercion
              5. Congress can legislate Dormant Commerce Clause
       B. Printz v. United States (1997)
              1. Brady Gun Control
              2. immediate background checks and 5-day waiting period
              3. CLEO doesn't get paid for running the checks
              4. Under Garcia would have been upheld bc process works, but this is
              not Garcia according to Scalia
              5. Holding: Congress can't make local officials do federal stuff (can't
              commandeer.)
       C. Reno v. Condon (2000)
              1. exception to the rule that Congress can't commandeer states
              2. Driver's Privacy Protection Act: DMV can't sell your info
              3. info sold is used by people engaged in interstate commerce and used in
              the stream of commerce
              4. Cong can prevent harmful commercial activities



                                           21
                                                                          Con Law Outline



XII.   The Dormant Commerce Clause (DCC)
       A. Gibbons v. Ogden (1824)
             1. steamboat ferry
             2. Is NY's monopoly constitutional?
                        a) if Congress has the power, isn't that power exclusive? NY
                        shouldn't be able to pass legislation regarding commerce
                        b) Ct disagrees: Powers can be concurrent
             3. Marshall declines to decide whether NY can have the monopoly
       B. Wilson v. Black Bird Creek Marsh Co. (1829)
             1. state law authorized a dam to be built in a creek, excluding water from
             a marsh, thereby enhancing the value of the marshland and probably
             improving the health of nearby residence
             2. but the dam obstructed navigation of the creek by federally licensed
             ships
             3. Ct upheld the law bc it was a public health measure
       C. Cooley v. Board of Wardens of the Port of Philadelphia (1851)
             1. Congress can authorize violations of DCC
             2. regulation of ship pilots is done by state law, even though Congress
             could regulate bc of Commerce Clause, but doesn't have to
             3. Ct agreed w/ concurrent regulation
                        a) regulation is local in nature
                        b) DCC turns on whether the subject matter of the regulation
                        was so local in character as to justify differing treatment around
                        the country, or so national in character as to suggest that a
                        uniform rule is necessary
             4. suggests that states can enact local legislation if Congress is silent, but
             if a state law is inconsistent w/ a federal law, the federal law is controlling
             5. Has since been abandoned
       D. Overt Discrimination:
             1. discrimination against outside competition
             2. discrimination hoarding local resources or opportunities
             3. discrimination preventing outside burdens from flowing in-state
             4. All subject to strict scrutiny
                        a) there must be a governmental interest that is compelling and
                        the means are necessary to achieve that compelling end.

       E. Dean Milk Co. v. City of Madison (1951)
             1. cant sell unpasteurized milk w/in 5 miles of the city
             2. to protect local farmers
             3. Ct held that the DCC applies to cities as well as states
       F. Hughes v. Oklahoma (1979)
             1. unconstitutional to conserve natural minnows by preventing their
             removal from the state




                                            22
                                                                  Con Law Outline


G. City of Philadelphia v. New Jersey (1978)
       1. statute prohibiting collection of out-of-state trash does not pass strict
       scrutiny test
                 a) compelling end? Yes... health reasons
                 b) necessary? No... wont solve the health problem
       2. trash heap folk want to make $
       3. NJ citizens would have lower tax (trash charge) because the dumps
       need "supply"
                 a) interfering with the national market
H. C & A Carbone, Inc. v. Town of Clarkstown (1994)
       1. finance new waste disposal plant and give them 100% of the waste to
       go through new plant
       2. overt... unconstitutional
I. Jinks v. Richland County (2003)
       1. want jurisdiction in federal ct?
                 a) not all questions have to be fed, as long as one of them is
       2. what if the federal question is dismissed? go to state ct
       3. what if statute of limitations has run in the meantime?
                 a) limitations period is tolled (clock stops running during time
                 in Fed Ct)
                 b) Does the Federal govt have this power? Scalia: yes.
                 Functioning of judiciary is more important; in interest of fairness
                 to the п
       4. Congress can take some control over state courts
J. Granholm v. Heald (2005)
       1. in-state liquors could be sold directly to the public but out-of-state
       liquors could not
       2. unconstitutional; doesn't pass strict scrutiny
K. United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste
Management Authority (2007)
       1. same as Carbone, but owned by state
       2. DCC is to protect from trade war
       3. not overt bc doesn't involve private businesses
L. Covert Discrimination:
       1. valid under DCC unless the burdens on interstate commerce outweigh
       local benefits
       2. in practice, incidentally places burden on commerce
M. Pike Test
       1. balances burdens on interstate commerce with benefits
       2. benefit: protection of local industry is illegitimate
N. Kassel v. Consolidated Freightways Corp. (1981)
       1. Iowa doesn't allow double-trailer trucks
       2. places burden on interstate commerce even though the statute is not
       overtly discriminatory
       3. Pike test: the burden outweighs the benefit




                                     23
                                                                         Con Law Outline


             4. Rehnquist dissent: Iowa shouldn't have to follow what other states are
             doing
      O. Limitations on State power of regulating interstate commerce
             1. Congress passes legislation that trumps
             2. If Congress is silent, Courts can rule on a lawsuit: DCC
             3. Without DCC, could use:
                       a) Art. I § 10(2) Import-Export Clause: only applies to foreign
                       states (Woodruff v. Parham)
                       b) Thomas would overrule Woodruff
                       c) Scalia wouldn't overturn precedent; likes overt rules, but
                       would get rid of Pike balancing test bc assessing local benefits is
                       a job for the state legislatures
             4. Market Participation Exception is the only exception
      P. Hughes v. Alexandria Scrap Corp. (1976)
             1. Maryland gave bounty for abandoned cars; bounties favored in-state
             processing of the cars rather than out-of-state
             2. overt discrimination
             3. Virginia scrap yard
             4. DCC only targets state regulation of a preexisting market, not state
             creation of a market on terms the state desires
                       a) states can discriminate in the market they created
                       b) bc of this case, out-of-state tuition is okay
      Q. West Lynn Creamery, Inc. v. Healy (1994)
             1. Massachusetts had nondiscriminatory tax on all milk sellers. Also gave
             money from the tax to in-state producers
             2. Same economic effect as a tariff
             3. unconstitutional
      R. Camps Newfound/Owatonna Inc., v. Town of Harrison (1997)
             1. charitable organization in state exempt form estate taxes
             2. unconstitutional bc fails strict scrutiny
XIII. Privileges and Immunities Clause (PIC)
      A. Art. IV § 2(1)
             1. The citizens of each state shall be entitled to all Privileges and
             Immunities of Citizens in the Several States
      B. Corfield v. Coryell (1823)
             1. New Jersey outlawed nonresident gathering of clams, oysters or shells
             2. J. Washington: there is no privilege or immunity to gather clams. The
             PIC only applies to fundamental rights
                       a) right to interstate travel
                       b) right to reside, take, hold, and sell property (real or personal)
                       c) exemption from higher taxes or impositions than are paid by
                       the other citizens of the state
      C. United Building & Construction Trades Council of Camden County v.
      Mayor and Council of Camden (1984)
             1. 40% of city Ks have to go to residents of the County
             2. overt discrimination (similar to Dean Milk)... strict scrutiny



                                            24
                                                                Con Law Outline


       3. market participant? City created it
       4. PIC: right to work (professional pursuit) is a fundamental privilege, so
       the ordinance is unconstitutional
D. Difference between PIC and DCC
       1. PIC:
                a) deals with fundamental rights and privileges
                b) only protects the rights of citizens (not corporations)
                c) discrimination must be overt
                d) no market participant exception
                e) standard of review: must be a substantial reason for the
                legislation (less than strict scrutiny)
                f) Congressional validation: Congress cant authorize what
                would normally be a violation of PIC
       2. DCC:
                a) Covert discrimination: use balancing test
                b) Overt discrimination: strict scrutiny test
                c) Congressional validation: Congress can validate
E. Supremacy Clause and Preemption
       1. State regulation can be preempted in 3 circumstances
                a) Congress may expressly preempt state law by so stipulating
                in a statute
                b) Even w/out an explicit preemption, a federal statute will
                preempt state laws whose operation is inconsistent with that of
                the federal statute
                c) Federal statutes "occupying the field" comprehensively will
                preempt state law. (when Congress has left no room for the states
                to supplement it or when the federal interest is preclusively
                dominant)
F. Indian Tribal Sovereignty
       1. Indians are mentioned in the Indian Commerce Clause and
       apportioned for in the House of Representatives
       2. Tribes are legal entities that are extra-constitutional
                a) domestic nations
                b) not subject to DPC or PIC
       3. Indian Civil Rights Act: allows Indians most rights in the Bill of
       Rights
       4. 500 recognized tribes in the US – 38/39 in Oklahoma




                                    25
                                                                         Con Law Outline


XIV. Separation of Powers
     A. Government is inefficient
           1. doesn't work well in modern world bc wasn't designed to respond
           quickly to international crisis
           2. Constitutional limitations put in place to prevent tyranny
           3. Constitution hasn't been amended to accommodate modern notions of
           efficient govt
     B. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952)
           1. Truman seized steel mills on night before the workers were going to
           strike, bc was threat to the ability of the US to fight in Korean War
           2. nationalized steel industry by executive order; owners of steel
           company were angered
           3. Truman could have used the Taft-Hartley Act or Defense Production
           Act but didn't
           4. If Congress had done it, would not have been a problem, but the
           President was reaching into Art. I
           5. Black (majority): formalist – president's power can only come from an
           act of Congress or the Constitution. Congress hasn't authorized this, so is
           unconstitutional.
                     a) "Commander in Chief" argument is not persuasive bc the
                     steel industry is not military
           6. Frankfurter concurs: looks past the text of the Constitution to tradition
           of practical application (how it has functioned over time)
                     a) no indication that presidents can reach into Art. I
                     b) constrained functionalism: clear evidence of a tradition
           7. Jackson concurs:
                     a) [1]When the President acts pursuant to an express or implied
                     authorization of Congress, the act is constitutional
                     b) [2][Twilight Zone] When the President acts in absence of
                     either a congressional grant or denial of authority (Congress is
                     silent), the act is constitutional if the President has Art. II power
                     to do it or history has shown Congressional acquiescence to it.
                     c) [3]When the President does something that Congress has
                     prohibited, the act is only constitutional if Congress has no
                     power over the matter in Art. I or the President has an
                     independent power in Art. II to act.
                            (1) Truman's seizure falls in this 3rd category, and does
                            not pass the test.
                            (2) Jackson's opinion is the "lasting" opinion of this case
                            bc Rehnquist (who clerked for Jackson) agreed, then
                            Roberts (clerked for Rehnquist) agreed.




                                            26
                                                                 Con Law Outline


        8. Dissent: agree w/ Frankfurter, but history has shown that the president
        can do this
C.   Foreign Relations
        1. The Ct will usually allow the President to do whatever he wants in
        foreign relations
        2. until 9/11/01 and the rise of terrorism prevention actions
D.   United States v. Curtiss-Wright Export Corp. (1936)
        1. neutral stance in Chaco conflict between Paraguay and Bolivia
        2. Congress authorized the President to place an embargo on arms sales
        to Paraguay and Bolivia
        3. Court says national power over external affairs is inherent and plenary,
        but also that the President plays a uniquely important role in foreign
        affairs
E.   United States v. Belmont (1937)
        1. upheld the Litvinov Agreement between FDR and the USSR.
        2. assets of foreign companies invested in US banks were frozen; Russia
        transferred ownership to the US
        3. enforceable?
        4. Though it's not a treaty, it's an executive agreement. The President has
        the power to make an executive agreement, and it preempts state law like a
        treaty would
                  a) Executive Agreement = Supreme Law of the Land
F.   War Powers Resolution Act (1973)
        1. Pg. 1081 – 1084
        2. joint resolution was a consequence of the undeclared Vietnam War
        3. largely waged by President as Commander-in-Chief. Congress
        supplied appropriations
        4. Resolution enacted to define the separation of powers rules for
        commitment of US troops in foreign conflicts
        5. § 1541 (c) President can act if there is:
                  a) (1) declaration of war
                  b) (2) Congressional authorization
                  c) (3) national emergency (attack on US soil, people, assets)
                  d) No preemptive strikes
        6. § 1542: consultation w/ Congress
                  a) problematic for President to consult bc hard to keep secret
        7. § 1543: absence of declaration of war, within 48 hours submit to
        Congress in writing:
                  a) (A) circumstances,
                  b) (B) constitutional and legislative authority, and
                  c) (C) estimated scope and duration
                  d) problematic for President bc safety of the troops
        8. § 1544: use of troops must be terminated w/in 60 days unless
        Congress:
                  a) (1) declares war,
                  b) (2) extends time, or



                                     27
                                                                       Con Law Outline


                      c) (3) unable to meet bc of an attack
                      d) (c) Continuing Resolution to remove troops requires
                      Presidential compliance
            9. Can Congress tell President what he can do under his Art. II powers?
                      a) what if President doesn't comply? impeach? Not clear
                      b) Could consult the court
                      c) In practice: Pg. 1084
      G. Dames & Moore v. Regan (1981)
            1. after hostages taken in Iran, President froze all Iranian assets in US
            pursuant to Congressional authorization
            2. existing lawsuits wanted to use that $ to pay for judgments, but the
            President transferred claims to Iran-US Claims Tribunal in Hague
            3. Rehnquist: Congress authorized, so President can do this
      H. Hamdi v. Rumsfeld (2004)
            1. Hamdi, a US citizen, had been in Afghanistan before 9/11.
            2. Does he have DPC rights of habeas corpus?
            3. Ct: granted habeas corpus bc no external check on the tribunal actions.
            Must be a balancing act.
            4. Govt: Congress had authorized through AUMF. President has
            information from CIA.
      I. Medellín v. Texas (2008)
            1. Mexican nationals weren't informed of the right to contact the
            consulate when accused of murder
            2. International Court of Justice said the people were entitled to that right
            3. Filed habeas corpus petitions
                      a) Texas Court of Criminal Appeals said had run out of time for
                      filing habeas corpus petitions
            4. Can President direct a state court to do something in compliance w/ an
            executive treaty?
                      a) The Steel Seizure Case: Jackson Category 2: Congress is
                      silent.
                      b) President can't show longstanding practice of reaching into
                      Art. I in this case.
            5. Self-executing treaty: President negotiates, Senate ratified, President
            proclaims. Immediately enforceable.
                      a) If treaty requires Congressional implementation by statute,
                      it's not self-executing. (includes the House of Representatives)
XV.   Executive Privileges and Immunities
      A. United States v. Nixon (1974)
            1. privilege claimed by presidents to keep conversations between him
            and advisors confidential to prevent advisors from guarding what they say
            – public interest
            2. Watergate break-in to Democratic National Committee HQ. High-level
            people in Nixon's administration are implicated; Nixon is listed as an un-
            indicted co-conspirator, subpoenaed for tapes
                      a) submits edited transcripts



                                          28
                                                                     Con Law Outline


                      b) special prosecutors demand the tapes
            3. Argument for privilege: protect national secrets
            4. Argument against privilege: People have been indicted; tapes might
            exonerate them
            5. Nixon claimed absolute privilege
                      a) Ct said there is only an absolute privilege to information
                      regarding national security
                      b) Nixon must turn over the tapes to judge who will listen in
                      camera to decide what is privileged and what is immaterial and
                      what is relevant
                      c) Nixon resigns rather than face impeachment
            6. Impeachment Clause: for High Crimes and Misdemeanors
                      a) cant pardon someone who has been impeached
                      b) Ford could pardon Nixon bc he had resigned
     B. Nixon v. Administrator of General Services (1977)
            1. Presidential Recordings & Materials Preservation Act: to make
            Nixon's papers public
            2. same argument for Nixon
            3. Ct said wouldn't unduly disrupt anything. The public has an interest in
            knowing what happened at Watergate
     C. Nixon v. Fitzgerald (1982)
            1. "whistleblower" filed suit against Nixon for wrongful termination of
            his job
            2. Ct: President cant be sued for acts committed while holding office
                      a) Fitzgerald Immunity: absolute immunity from civil suit
            3. Dissent: this is more immunity than the Constitution gives to
            Congressmen
     D. Clinton v. Jones (1997)
            1. reasons for suit occurred before he took office
            2. Clinton loses bc Fitzgerald Immunity is not extended
XVI. Legislative Overreaching
     A. Delegation
            1. Congress gives authority to executive branch to enforce laws.
            2. Can Congress delegate authority to executive agencies
            constitutionally?
            3. Non-delegation doctrine is still on the books
                      a) Schecter Poultry (1935): Congress cant delegate regulatory
                      power to executive agency
                      b) New Deal Court: hardly ever stops Congress from delegating
     B. Mistretta v. United States (1989)
            1. must include some direction to the agency its being delegated to
            2. "Only if we could say that there is an absence of standards for
            guidance of the Administrator's action . . . would we be justified in
            overriding its choice of means for effecting its declared purpose."
            3. Only one statute that was determined subject to non-delegation since
            the Mistretta test



                                          29
                                                                        Con Law Outline


       C. Whitman v. American Trucking Associations (2001)
              1. Clean Air Act: EPA can promulgate the standards requisite to protect
              public health
              2. If the ct can interpret the statute to be constitutional, they will
XVII. Vetoes
       A. Immigration & Naturalization Service v. Chadha (1983)
              1. Legislative veto provision provides that an agency or department must
              inform a congressional committee of specified actions, that those actions
              cannot have operative legal effect for a specified period of time, and that
              they can be nullified by vote of a committee, or of one chamber, or of both
              chambers of Congress.
              2. Ct said legislative vetoes are unconstitutional bc of the bicameralism
              requirement of the Constitution. Only 4 instances that one house of
              Congress can act on its own.
              3. Formalist opinion
       B. There were more than 200 statutes w/ the legislative veto.
              1. Are the total statutes invalid? No. The legislative veto provisions are
              severable.
              2. Problem w/ severability: Would Congress have passed the statute
              without it?
       C. Line-Item Vetoes
              1. bipartisan support bc of the accountability issue: anything can be
              passed by Congress and the people can get mad at President
              2. Clinton v. City of New York (1998)
                        a) line-item veto unconstitutional bc there is nothing in
                        Constitution that allows the president to enact, amend, or repeal
                        statutes
                        b) Solution: pass separate bills for each
                        c) Trying to make Congress accountable is a theme of the
                        modern Ct (making an incentive for Congress to be more careful
                        about passing budget bills)
XVIII. Equal Protection Clause (EPC)
       A. The Fourteenth Amendment (1868)
              1. No State shall... deny to any person within its jurisdiction the equal
              protection of the laws
       B. Strauder v. West Virginia (1879)
              1. excluding black men from juries is unconstitutional
       C. The Slaughter House Cases (1872)
              1. cant use EPC to protect kinds of discrimination other than racial
              discrimination
       D. Hirabayashi v. United States (1944)
              1. upheld criminal conviction of Japanese American who violated
              curfew, bc at war
       E. Korematsu v. United States (1944)
              1. upheld removal to internment camp
              2. must pass strict scrutiny



                                           30
                                                                 Con Law Outline


F. EPC
       1. protects classifications (based on race/national origin) of people, not
       individuals
G. Overt Discrimination: strict scrutiny: necessary to a compelling end
H. After Brown v. Board of Education:
       1. Anderson v. Martin (1964)
                 a) struck down a Louisiana statute requiring election ballots to
                 indicate the race of the candidates
       2. McLaughlin v. Florida (1964)
                 a) struck down statute prohibiting unmarried interracial couple
                 from sharing a room in the night
I. Loving v. Virginia (1967)
       1. statute prohibits interracial marriage (unless Pocahontas descendent)
       2. Ct: there is no legitimate overriding purpose independent of invidious
       racial discrimination which justifies this classification. Also deprives the
       Lovings of liberty w/out Due Process of the 14th Amendment. (freedom to
       marry is fundamental)
       3. Virginia argued that it met rational basis test (rationally related to a
       legitimate end) but ct said strict scrutiny test had to be passed, and it
       wasn't.
                 a) The state's only purpose was to further White Supremacy...
                 not a compelling end, or even a legitimate end.
J. Covert Discrimination: disparate adverse impact + intent = strict scrutiny
K. Yick Wo v. Hopkins (1886)
       1. cant operate a laundry unless the building was made out of brick or
       stone.
       2. some couldn't afford brick buildings; applied for a permit
                 a) 200 Chinese applied; 1 permit was granted
                 b) 80 non-Chinese applied; all were granted
       3. Ct: actual discrimination/disparate impact -> strict scrutiny bc there
       was no other explanation for the unequal granting of the permits.
L. Washington v. Davis (1976)
       1. test for DC police department excluded disproportionate number of
       African Americans
       2. The test was not facially discriminatory, so both disparate impact and
       intent must be proved
       3. The test was not proved to have been instated with intent to
       discriminate
       4. Title VII of the Civil Rights Act of 1964:
                 a) prohibits employment discrimination on the basis of race
                 b) doesn't require proof of intent
                 c) But DC is governed by the US Congress and Title VII didn't
                 apply to the federal government




                                    31
                                                                       Con Law Outline


     M. Village of Arlington Heights v. Metropolitan Housing Development
     Corporation (1977)
            1. It is because legislators and administrators are properly concerned w/
            balancing numerous competing considerations that courts refrain from
            reviewing the merits of their decisions, absent a showing of arbitrariness
            or irrationality.
            2. But when there is proof that a discriminatory purpose has been a
            motivating factor in the decision, this judicial deference is no longer
            justified.
     N. Charles R. Lawrence, III
            1. social psychology says most racism is unconscious
XIX. Affirmative Action and Benign Discrimination
     A. Regents of the University of California v. Bakke (1978)
            1. 16 of its 100 places in medical school were reserved for minority
            applicants
            2. Bakke, the white student who was denied admission, won the case:
            3. 4 justices: it violates Title VI of the Civil Rights Act of 1964
            4. 5 justices: Title VI only applies to a violation of the EPC
                       a) 4 justices upheld
                       b) Powell: the program violated the EPC
            5. Test of Intermediate Scrutiny: substantially related to an important end
     B. Fullilove v. Klutznick (1980)
            1. 10% of federal funds go to procure goods or services from minority
            business enterprises (MBE's).
            2. statute passed intermediate scrutiny according to 3 justices, but 3
            justices ignored the levels of scrutiny and called for a "close examination"
     C. Wygant v. Jackson Board of Education (1986)
            1. struck down a collective bargaining agreement between school board
            and a teacher's union providing layoffs on a seniority basis (last hired =
            first laid off) but never can a greater percentage of minority personnel be
            laid off than the percentage currently employed
            2. overt discrimination
            3. end? having role models for students that are the same race
                       a) Powell: this is not a compelling end
            4. other end? remedy discriminatory hiring practices
                       a) Powell & O'Connor: remedial Affirmative Action is ok if it's
                       remedying past discrimination by you.
                       b) is a legitimate end, if not compelling
     D. Richmond v. J.A. Croson Co. (1989)
            1. standard of review for overt but benign classifying legislation
            2. 30% of subcontractors must go to MBE's if the contractor is a non-
            minority contractor receiving a city construction K.
            3. Classification? yes (non-minority v. minority)
            4. Level of review? Benign?
            5. City cannot require this; Croson Co. wins
            6. Plurality opinion



                                          32
                                                                 Con Law Outline


                a) Majority agrees with Part I (facts), Part IIIB (ends aren't
                compelling bc overbroad; no evidence of discrimination in
                Richmond), and Part IV: means (administrative convenience is
                not a sufficient means). Courts examine the alternative solutions.
                b) No majority view of the level of review that should be
                applied.
                      (1) O'Connor: strict scrutiny bc no way to determine what
                      classifications are motivated by illegitimate notions of
                      racial inferiority or simple racial politics...furthering
                      stereotypes... racial classifications should be immediately
                      subject to strict scrutiny
                      (2) Scalia: the only instance states can use race is to
                      eliminate their own maintenance of a system of unlawful
                      racial classification.
E. Metro Broadcasting, Inc. v. Federal Communications Commission (1990)
      1. granting broadcast licenses to minority businesses to increase diversity
      2. adopts intermediate scrutiny
F. Adarand Constructors, Inc. v. Pena (1995)
      1. additional compensation from federal govt for hiring subcontractors
      controlled by socially and economically disadvantaged persons
      2. overrules Metro, adopts strict scrutiny
      3. Part IIIA: history of EPC
      4. Part IIIB: new standard of review:
                a) skepticism: that benign legislation is actually benign
                (Thomas dissent)
                b) congruence: bringing a suit against Federal govt under 5th
                Amendment would b the same as against a state under the 14th
                Amendment
                c) consistency: benign level of review should be the same as
                adverse level of review
G. Grutter v. Bollinger (2003)
      1. Michigan Law School considered race as a "plus" factor among other
      factors bc goal is to create a diverse student body
      2. Ct upheld this as a compelling end
                a) defer to university's call that this is important in the context
                of higher education
                b) the means must still be necessary:
                      (1) points system in undergrad = quota = unconstitutional
                      under Gratz
                      (2) but in law school it's ok




                                    33
                                                                         Con Law Outline


      H. Parents Involved in Community Schools v. Seattle School District No. 1
      (2007)
             1. 2 compelling ends
                        a) remedying effects of past intentional discrimination
                        b) interest in diversity in higher education
             2. racial balance is not a compelling end
      I. Facially Neutral Classifications that have a Disparate Impact
             1. Washington v. Davis: intent + impact
             2. Yick Wo: strict scrutiny when impact is so egregious
      J. Shaw v. Reno (1993)
             1. voter redistricting
             2. Justice Department didn't clear North Carolina's apportionment
             (required by preclearance under the Voting Rights Act) so North Carolina
             redid it.
             3. crazy district 12 followed I-85 to include clusters of black populations
             4. EPC analysis
                        a) classification? yes (Dist 12 v. not Dist 12)
                        b) racial? not facially
                        c) disparate impact? disenfranchisement of voters
                        d) intent? so bizarrely shaped that no other reason exists, and
                        instructions from the AG
             5. O'Connor: no other conceivable motive for drawing the lines as they
             did. Racial discrimination -> strict scrutiny
             6. Is it a compelling end to follow orders of the federal govt?
             7. Remanded to District Ct to subject it to strict scrutiny
             8. Stevens dissent: if it is constitutional to create a union-member's
             district, a rural district, a Polish district, or a Republican district only
             subject to rational basis, a district based on race should only be subject to
             rational basis as well.
XX.   Rational Basis Scrutiny
      A. Under-inclusive?
             1. legislature isn't required to resolve the whole problem all at once; it
             can work in steps
      B. Over-inclusive?


                   Dangerous Drivers

                                          Men
                                          (over)

                       Blind
                       (under)




                                           34
                                                                  Con Law Outline


C. Railway Express Agency, Inc. v. New York (1949)
       1. prohibited advertisement unless it was your own stuff
       2. under-inclusive
       3. legitimate end? yes: preventing distracted drivers and pedestrians
       4. exception based on newspapers (didn't want newspapers to burn the
       legislators)
       5. passed rational basis test
D. Lindsley v. Natural Carbonic Gas Co. (1911)
       1. weak view
       2. only voids purely arbitrary laws that have no reasonable basis
       3. if any basis can be reasonably conceived to sustain it, it is assumed
       those facts were the purpose of the legislation
E. Royster Guano Co. v. Virginia (1920)
       1. strong view
       2. reasonable classification is not arbitrary. All persons similarly situated
       shall be treated alike
       3. "rational basis with teeth"
F. Federal Communications Commission v. Beach Communications, Inc.
(1993)
       1. a statutory classification that neither proceeds along suspect lines nor
       infringes fundamental constitutional rights must be upheld against Equal
       Protection challenge if there is any reasonably conceivable state of facts
       that could provide a rational basis for the classification
G. Categories of Heightened Scrutiny
       1. Alienage:
                 a) strict scrutiny for state govt
                 b) rational basis for federal govt: Constitution says the federal
                 govt controls foreign relations
                 c) denying admission to state bar is unconstitutional (also
                 notary public)
                 d) denying voting in state elections is constitutional (also police
                 officer, teacher)
       2. Illegitimacy:
                 a) most involve intestate inheritance
                 b) intermediate scrutiny: substantial to an important end
       3. Age:
                 a) rational basis scrutiny
                 b) old people can take care of themselves
                 c) young people cant, but still rational basis
H. United States Department of Agriculture v. Moreno (1973)
       1. cant get food stamps if living w/ someone you're not related to
       2. rational basis:
                 a) end? to alleviate hunger, assure minimal nutrition, distribute
                 agricultural surplus
                 b) real end? break up hippie communes (unconstitutional bc
                 targeting a politically unpopular group is not a legitimate end)



                                     35
                                                                      Con Law Outline


XXI. Gender
     A. Brief History of the Women's Movement
           1. Women's rights and abolitionist groups worked together until after the
           Civil War
           2. 1960s: Civil Rights Movement
           3. 1970s: Women's Rights Movement
     B. Late 19th Century
           1. Women didn't get anywhere w/ legislatures so moved to the court
           system
           2. First used the PIC of Art. IV
           3. Later tried using the DPC and the EPC
     C. Bradwell v. Illinois (1873)
           1. Ct said was not a privilege or immunity to practice law
           2. J. Bradley: men and women are distinct and should remain in their
           separate spheres of activity
     D. Muller v. Oregon (1908)
           1. women's physical structure doesn't allow them to work long hours
           2. unions pushed for the maximum hours legislation
     E. Adkins v. Children's Hospital (1923)
           1. minimum wage is unconstitutional
     F. Reed v. Reed (1971)
           1. When there are men and women who are equally related to a deceased
           person, the man will get the appointment to administrator of the estate
           2. this fails rational basis: administrative convenience is not a legitimate
           end.
     G. Frontiero v. Richardson (1973)
           1. closest court has come (4 justices) to declaring strict scrutiny for sex
           discrimination
           2. Man can claim wife as dependent w/out proof; women cant claim
           husband unless they prove he was dependent
           3. 3 justices concur: violates rational basis; don't need to make new law...
           defer to the legislature (which was passing the Equal Rights Amendment)
                      a) Powell assumed the ERA would pass
     H. Equal Rights Amendment (submitted to states in 1972)
           1. "Equality of rights under the law shall not be denied or abridged by the
           United States or by any State on account of sex."
           2. only object was to put language in the Constitution requiring the court
           to use strict scrutiny in sex discrimination cases
     I. Craig v. Boren (1976)
           1. 3.2% beer in OK; women 18-20 yrs old can buy but men 18-20 cant
           buy even though they can drink
           2. EPC challenge: age/sex classification
           3. probably would pass rational basis
           4. court adopts intermediate scrutiny as a compromise between rational
           basis and strict scrutiny
                      a) rationally related to an important goal



                                          36
                                                                      Con Law Outline


                  b) goals: administrative convenience (not important); traffic
                  safety (important)
                  c) means: can still consume it; under-inclusive and over-
                  inclusive (Unconstitutional)
                  d) Rehnquist: no evidence of past discrimination; "substantially
                  related" is too subjective; "important end": it's legislature's job to
                  determine what's important
J.   J.E.B. v. Alabama ex rel. T.B. (1994)
        1. Batson case: unlimited strikes of people for cause (reason) in jury
        selections; fixed number of peremptory challenges
                  a) Peremptory challenges based on race: fails strict scrutiny
        2. same thing here; based on sex: fails intermediate scrutiny
K.   Mississippi University for Women v. Hogan (1982)
        1. O'Connor: exclusion of men violates EPC
                  a) compensation for workplace discrimination?
                  b) stereotyping women as nurses is not an important end.
        2. perpetuating a stereotype is not an important
L.   United States v. Virginia (1996)
        1. Virginia Military Institute, funded by taxpayers, and all-male
        2. EPC claim-sex
        3. intermediate scrutiny
        4. parallel school for women -> based on cooperative, self-esteem
        building environment
        5. Ct says women are missing out on the experience of the education and
        alumni network
        6. important end? diversity of higher educational opportunities within
        range of schools in state
        7. substantial means? women wouldn't want to be hazed; men wouldn't
        do it; adversarial system will fail
        8. Ginsburg: if there is even one woman who would do this, the program
        fails. The ends argued weren't really the actual ends... The school was
        created in the 1830s; intent wasn't diversity.
M.   Michael M. v. Superior Court of Sonoma County (1981)
        1. statutory rape – males prosecuted but not females
        2. sex- intermediate scrutiny – substantial to an important end
        3. end: preventing illegitimate pregnancies?
N.   Parham v. Hughes (1979)
        1. mother can bring wrongful death suit for child but not the dad if out of
        wedlock unless dad has legitimized their children
        2. passes rational basis
O.   Geduldig v. Aiello (1974)
        1. exclude coverage for pregnancy-related illness
        2. rational basis
P.   Rostker v. Goldberg (1981)
        1. Selective Service Act: only for men
        2. sex: intermediate scrutiny: substantially related to an important end



                                       37
                                                                        Con Law Outline


            3. raising armies efficiently = important end (preparing for war)
            4. Ct says classification is substantially related bc women not allowed in
            combat
            5. The relevant inquiry under the Craig v. Boren test is not whether a
            gender-neutral classification would substantially advance important
            governmental interests. Rather, the question is whether the gender based
            classification is itself substantially related to the achievement of the
            asserted governmental interest.
      Q. Nguyen v. INS (2001)
            1. American citizenship
            2. legitimizing children
      R. Personnel Administrator of Massachusetts v. Feeeney (1979)
            1. preference for veterans (98% of whom were men)
            2. facially neutral, but had disparate impact
            3. have to show intent to make it unconstitutional (Washington v. Davis)
XXII. Other Classifications
      A. Wealth
            1. San Antonio ISD v. Rodriguez (1973)
                      a) property tax used to fund the school in that area
                      b) discriminatory effects on the poor
                      c) Ct: wealth is not suspect or quasi-suspect
                             (1) wealth has none of the indicia of suspectness: the class
                             is not saddled with such disabilities, or subjected to a
                             history of purposeful unequal treatment, or relegated to
                             such a position of political powerlessness as to command
                             extraordinary protection from the majoritarian political
                             process
            2. United States v. Kras (1973)
                      a) filing fee for bankruptcy
                      b) rational basis: pay it over time
            3. M.L.B. v. S.L.J. (1996)
                      a) too expensive to appeal termination of her parental rights
                      b) wealth = rational basis
                      c) but parental rights are fundamental rights that outweigh the
                      state's interest
      B. Physical or Mental Disability
            1. City of Cleburne v. Cleburne Living Center (1985)
                      a) special use permit for mental illness living facility denied
                      b) history of purposeful unequal treatment, immutable
                      disability, politically powerless?
                      c) level of review: mental disability is a fair/relevant
                      consideration in legislation -> not suspect -> rational basis
                      d) end: peaceful living
                      e) real end: NIMBY
                             (1) Moreno case: cant pick on politically unpopular
                             group... not a legitimate end



                                           38
                                                                         Con Law Outline


                        f) Marshall concurs: No single talisman can define the groups
                        likely to be the target of classifications offensive to the 14th A.
                        Political powerlessness of a group may be a factor, and
                        immutability of the trait at issue may be relevant.
       C. Sexual Orientation
              1. Watkins v. United States Army (1989)
                        a) vacated en banc
                        b) army excludes homosexuals
                        c) panel -> strict scrutiny bc there is a history of purposeful
                        discrimination, gross unfairness, and the group lacks effective
                        political representation needed to protect itself from social and
                        state prejudice
                        d) ordered Watkins reinstated
              2. Status/Conduct Distinction and Sodomy Laws
       D. New York City Transit Authority v. Beazer (1979)
              1. prohibited people in methadone programs from driving subway cars bc
              they're probably using drugs
              2. rationally related to the legitimate end of safety
       E. Romer v. Evans (1996)
              1. Colorado Amendment 2: The state can't enact, adopt or enforce any
              law whereby homosexual, lesbian or bisexual orientation, conduct,
              practices or relationships shall constitute or otherwise be the basis of or
              entitle any person or class of persons to have or claim any minority status,
              quota preferences, protected status or claim of discrimination.
       F. Baehr v. Lewin (1993)
              1. Hawaii: gay marriage banned
              2. sex discrimination with intermediate scrutiny?
       G. Baker v. State (1999)
              1. Vermont: same sex couples should have the same benefits (civil
              unions)
       H. Goodridge v. Department of Public Health (2003)
              1. Massachusetts
       I. In Re Marriage Cases (2008)
              1. California
              2. strict scrutiny requires gays to be able to marry
              3. What about the Full Faith & Credit Clause?
              4. [this opinion overruled by Proposition 8 in the 2008 election; adopted
              Hawaii "definition" of marriage]
XXIII. Protecting Fundamental Rights
       A. If what is being deprived is a fundamental right: heightened scrutiny
       B. Slaughter House Cases (1873)
              1. Louisiana ban on slaughter houses except for Crescent City Co.
              (monopoly)
              2. Court held that PIC of the 14th Amendment protected only a limited
              set of national privileges, such as the right of access to federal agencies
              and the right to use navigable waters



                                            39
                                                                 Con Law Outline


C. Procedural Due Process
      1. focuses on "process" – cant have life, liberty, or property taken away
      without due process (trial, hearing, etc)
D. Substantive Due Process
      1. focuses on "law"
      2. must be a substantive deprivation process
      3. if deprived of a fundamental right, even if process is proper, cant be
      deprived unless strict scrutiny is satisfied
                a) What are fundamental rights?
                b) "fundamental" is not in the constitution
E. The Ninth Amendment
      1. there are rights not enumerated in the Constitution
      2. justices are reluctant to recognize new rights bc of negative public
      opinion
F. Incorporation
      1. new rights with clear textual support
G. Palko v. Connecticut (1937)
      1. indicted for 1st-degree murder; convicted of 2nd degree murder. State
      appealed. At new trial, was convicted of 1st degree murder and received
      the death penalty
      2. 5th Amendment protection against double jeopardy only applies to the
      federal govt; double jeopardy is not incorporated into the 14th
      Amendment against the states
      3. Court says not all of the first eight amendments were fundamental
      rights
                a) Immunities that are valid as against the federal govt by force
                of the specific pledges of particular amendments have been
                found to be implicit in the concept of ordered liberty, and thus,
                through the 14th Amendment, become valid as against the states.
                b) Principle of justice so rooted in the traditions and conscience
                of our people to be ranked as fundamental
      4. [later overruled]
H. Adamson v. California (1947)
      1. right not to self-incriminate is not implicit in the concept of ordered
      liberty
      2. Frankfurter concurs: test should be whether the criminal proceedings
      offend those canons of decency and fairness which express the notions of
      justice of English-speaking peoples [selective incorporationist]
      3. Black dissents: originalist? History of the 14th Amendment shows all
      of the Bill of Rights are incorporated, and nothing else [total
      incorporationist]
      4. Murphy dissents (w/ Rutledge): agree w/ Black, but 14th Amendment
      is not limited by the Bill of Rights
                a) Occasions may arise where a proceeding falls so far short of
                conforming to fundamental standards of procedure as to warrant




                                    40
                                                                        Con Law Outline


                         constitutional condemnation in terms of a lack of due process
                         despite the absence of a specific provision in the Bill of Rights
                         b) [total incorporationist plus]
              5. [later overruled]
      I. All of the Bill of Rights have been incorporated except the 2nd, 5th (grand
      jury), and 7th (jury trial in civil cases)
      J. Reverse Incorporation
              1. EPC of the 14th Amendment applies to the 5th Amendment bc of the
              Bolling case (desegregation)
      K. Buck v. Bell (1927)
              1. Buck sterilized forcibly bc she was allegedly mentally
              inferior/disabled
      L. Skinner v. Oklahoma (1942)
              1. EP case bc some (habitual, 3 time felons) get sterilized, some don't
              2. Rational Basis
              3. Is the right to procreate fundamental?
                         a) Court says yes. Marriage and procreation are fundamental to
                         the very existence and survival of the race.
                         b) Disapproves of the exceptions to the law... white collar crime
                         -> the legislators probably committed them
                         c) World War II -> Nazis
XXIV. Economic Liberty
      A. Art. I § 10: Contracts Clause
              1. "No state shall pass any Law impairing the Obligation of Contracts."
              2. John Marshall: used Contracts Clause to invalidate State statutes
              3. Taney: Charles River Bridge v. Warren Bridge (1837)
                         a) retreated from use of the Contracts Clause
              4. PIC argument is rejected
              5. DPC: No person denied life, liberty, property w/out due process of law
                         a) liberty of contract
                         b) to be taken away, must pass strict scrutiny
      B. Allgeyer v. Louisiana (1897)
              1. struck down a law requiring all insurance on Louisiana property to be
              issued by insurers registered to do business in the state
      C. Holden v. Hardy (1898)
              1. placing employee and employer on more equal footing was a sufficient
              state interest to justify a labor regulation
      D. Lochner v. New York (1905)
              1. maximum hours for bakery workers (60 hours per week)
              2. Lochner owns bakery; doesn't want to redo all his contracts
              3. liberty of contract is fundamental: the law is under- and over-inclusive
              4. Harlan Dissent: legislation was passed for safety of the health of the
              workers -> this determination by the legislature should not be questioned
              5. Holmes Dissent: whether laissez faire economics should be used or not
              is a legislative decision. Constitution was not intended to embody a




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                                                                     Con Law Outline


        particular economic theory, whether of paternalism and the organic
        relation of the citizen to the state or of laissez faire
        6. Lochnerism: judicial activism across the board; enforcing their own
        value judgment
E.   West Coast Hotel v. Parrish (1937)
        1. upheld a state law establishing a minimum wage for women using the
        rational basis test
        2. overruled the Lochner-like Adkins v. Children's Hospital
        3. regulation which is reasonable in relation to its subject and is adopted
        in the interest of the community is due process
        4. Legislative response to the evils of the 'sweating system' and the
        exploitation of workers cannot be regarded as arbitrary or capricious.
        5. legislature is entitled to its judgment
        6. The exploited class of workers with unequal bargaining power are thus
        relatively defenseless against the denial of a living wage is not only
        detrimental to their health and well being but casts a direct burden for their
        support upon the community.
F.   Williamson v. Lee Optical (1955)
        1. law prevents opticians from duplicating lenses without a prescription
        2. rational basis
        3. Court: It is enough that there is an evil at hand for correction, and that
        it might be thought that the particular legislative measure was a rational
        way to correct it.
G.   Voting Rights
        1. Art. IV § 4: Guarantee Clause: "The United States shall guarantee to
        every state in this Union a Republican Form of Government."
H.   Luther v. Borden (1849)
        1. Rhode Island had 2 governments, took to SCt
        2. Ct: political question doctrine established. Issues under the Guarantee
        Clause are nonjusticiable "political questions."
I.   Reynolds v. Sims (1964)
        1. last reapportionment in Alabama was based on 1900 census
        2. Because of urbanization, rural voters were grossly over-represented
        3. Fundamental Right: an "equal" vote (electoral districts should be the
        same size) (one person, one vote)
                   a) not explicit right to vote in the Constitution, but if state gives
                   you the right to vote, it must be equal -> fundamental
        4. up to a 10% deviation will be allowed for practicality reasons
J.   Bush v. Gore (2000)
        1. voting precincts told to count the ballots in a way that determined the
        intent of the voters. (no uniform system of counting the chads)
        2. equal vote: uniform standards of recounting – fundamental right
        3. fails strict scrutiny. stops recount... controversial
                   a) dissent: should have remanded to let the Florida SCt decide if
                   the Dec. 12th deadline should be extended




                                       42
                                                                        Con Law Outline


     K. San Antonio Independent School District v. Rodriguez (1973)
            1. Texas finances schools based on property taxes
            2. expensive houses... rich people... better schools
            3. EPC: rich v. poor
                      a) wealth is not suspect classification
            4. fundamental right to an equal education?
                      a) Ct says no. There is no indication that the present levels of
                      educational expenditures in Texas provide an education that falls
                      short, even if there was some constitutionally protected right to
                      an education. (are getting an opportunity to acquire basic
                      minimal skills necessary for full participation in the political
                      process.)
                      b) legitimate end: local control
     L. Plyler v. Doe (1982)
            1. no state funds for illegal alien kids in Texas
            2. violated EPC bc children cant be punished for the acts of their parents
            3. level of review: hybrid of rational basis and intermediate scrutiny
            4. opinion by Brennan, similar to Moreno case
            5. stigma of illiteracy; creation of an underclass
     M. Edgewood v. Kirby (1989)
            1. state Constitution of Texas says "general diffusion of knowledge [is]
            essential."
            2. means "equal"??
            3. Texas SCt finds the funding system unconstitutional bc denies access
            to equal education
     N. Right to Travel
            1. Shapiro v. Thompson (1969)
                      a) struck down rules in several states and DC that denied
                      welfare assistance to residents who had not lived there for at least
                      a year
                      b) end? prevent people from coming to state, taking the benefits,
                      and leaving
                      c) PIC? Commerce Clause?
                      d) fundamental right: strict scrutiny
            2. Saenz v. Roe (1999)
                      a) limited welfare benefits to new people; could only get
                      amount they got in their old state
                      b) EPC
                      c) PIC of 14th Amendment: right to travel = right of a citizen of
                      the United States
XXV. Privacy
     A. Meyer v. Nebraska (1923)
            1. McReynolds: prohibited teaching modern languages in public or
            private schools.
            2. DPC liberty of parents to control the interests of their children: strict
            scrutiny



                                           43
                                                                    Con Law Outline


         3. argued end- bad for health to think too much and to foster
         homogeneous American ideal. -> not compelling
         4. real end- WWI
B.   Pierce v. Society of Sisters (1925)
         1. state cant require all children to attend public schools
         2. parents can choose where to send their kids
C.   Contraception and Abortion
         1. statutes criminalizing the sale, instruction, and use of birth control
         2. argument against these statutes: privacy
D.   Tileston v. Ullman (1943)
         1. dismissed for lack of standing
         2. doctor had brought the suit, not the ones harmed
E.   Poe v. Ullman (1961)
         1. Harlan's dissent: lays basis for Roe v. Wade
                  a) there are many rights the ct must enforce
                  b) Those concepts which are considered to embrace those rights
                  which are fundamental; which belong to the citizens of all free
                  governments. Due Process is a discrete concept which subsists as
                  an independent guaranty of liberty and procedural fairness.
                  c) 523 A & B           cell phone popcorn
                  d) privacy of the most intimate details of the marital relation
                  e) privacy is not a right explicit in the Constitution but there are
                  parts in the Constitution which imply privacy is fundamental (no
                  illegal searches, no quartering of troops)
F.   Griswold v. Connecticut (1965)
         1. Griswold gave birth control info to married couples
         2. state has prohibited the use; Griswold charged as accessory
         3. privacy right? Yes
                  a) comes from penumbras (fringes of the text) of series of rights
                  in the first 8 amendments and incorporated by the 14th
                  Amendment
         4. Douglas: moderate (compromise theory) opinion
         5. Robert Bork criticized this opinion
G.   Carey v. Population Services International (1977)
         1. minors also have a right to privacy
H.   Fundamental Right to Marry
         1. what does "marry" mean?
         2. marry anyone v. marry anyone of the opposite sex
I.   Troxel v. Granville (2000)
         1. grandparent visitation rights
         2. parents have right, but not grandparents
J.   Roe v. Wade (1973)
         1. fundamental right to privacy (Griswold)
         2. penumbras of the constitution
         3. Skinner: right to procreate
                  a) right not to procreate?



                                      44
                                                                           Con Law Outline


               4. Is the fetus a person?
                        a) doesn't matter for Con Law purposes
                        b) nothing in the Constitution has been applied to unborn people
                        (originalist)
                        c) ideas have changed (evolutive)
               5. Could the State grant the right to a more expansive group?
                        a) not expanding bc don't have the right to begin with
               6. Privacy issue? Yes
                        a) Rehnquist says no, rational basis scrutiny
               7. Does Privacy include the right to an abortion? Yes
               8. The fundamental right exists throughout the entire pregnancy
                        a) strict scrutiny
                        b) ends: woman's health; protection of potential life
       1st Trimester                  2nd Trimester                    3rd Trimester
           Health               Mom's Health is compelling Viability: life is compelling
Safer to have abortion than               Regulate               Prohibit unless necessary to
carry to term; no regulation                                     protect the mother's health.
       K. Planned Parenthood v. Danforth (1976)
               1. invalidated parental and spousal consent laws
       L. Planned Parenthood v. Ashcroft (1983)
               1. upheld law requiring parental consent or judicial bypass
       M. Akron v. Akron Center for Reproductive Health (1983)
               1. struck down requirement that dilation-and-evacuation abortions be
               performed in hospitals
       N. Harris v. McRae (1980)
               1. government doesn't have to pay for abortions
       O. Webster v. Reproductive Health Services (1989)
               1. trimester system should be abandoned
       P. Hodgson v. Minnesota (1990)
               1. parental consent is ok if there is a judicial bypass option available
       Q. Planned Parenthood v. Casey (1992)
               1. 24-hour waiting period is ok
               2. parental notification is ok
               3. spousal notification is unconstitutional
                        a) Part III: stare decisis
                        b) A decision to overrule Roe's essential holding under the
                        existing circumstances would address error, if error there was, at
                        the cost of both profound and unnecessary damage to the Court's
                        legitimacy, and to the Nation's commitment to the rule of law.
               4. Problem w/ the trimester system: viability can begin before the
               beginning of the 3rd trimester
                        a) state's interest in protecting the fetus becomes compelling at
                        viability, whenever that is
               5. undue burden: pre-viability, the state is empowered to regulate the
               exercise of the abortion right as long as doesn't place an undue burden on
               the woman


                                             45
                                                                  Con Law Outline


R. Bowers v. Hardwick (1986)
      1. consensual homosexual intimate activities
      2. Georgia statute prohibited all sodomy
      3. fundamental right: to adult consensual homosexual activity?
                a) ct focuses on whether there is a fundamental right to
                homosexual sodomy... there isn't. Not deeply rooted in the
                nation's tradition/history
                b) passes rational basis test
                c) end: enforcement of morality is legitimate.
                d) If all laws representing essentially moral choices are to be
                invalidated under the DPC, the courts will be very busy indeed.
      4. J. Powell concurs: cruel and unusual punishment to spend 20 years in
      prison for this
      5. Blackmun dissent: there is a right to be let alone
S. Lawrence v. Texas (2003)
      1. overruled Bowers- history was wrong; things have changed
      2. statute prohibited homosexual "deviate sexual intercourse"
      3. Kennedy (majority):
                a) What is the right?
                      (1) State: to engage in deviate sexual intercourse
                      (2) Court: to make an intimate personal decision (privacy)
                      -> Casey
                      (3) O'Connor had said in Casey: Matters involving the
                      most intimate and personal choices central to personal
                      dignity and autonomy define one's own concept of
                      existence; these attributes of personhood are central to the
                      liberty protected by the 14th Amendment.
      4. Under Bowers, statute satisfies DP challenge (overruled)
      5. Romer v. Evans
      6. but majority didn't agree what the level of scrutiny should be
                a) The пs are entitled to respect for their private lives. The state
                cannot demean their existence by making their private sexual
                conduct a crime; the DPC gives them the full right to engage in
                thier conduct w/out governmental intervention.
                b) EP Claim: end- morality (not legitimate interest)
                c) would not even pass rational basis
      7. O'Connor concurs: doesn't want to overrule Bowers, but would
      invalidate the statute bc of EPC (Moreno).
                a) majority: if decided on EPC, states would just enact laws that
                were facially neutral but would be applied the same way




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