Course Outline Constitutional Law

(Adam Samaha)
Introduction to Constitutional Law
Saxbe Fixes When the President appoints a current or former member
of Congress to a civil position (executive branch), this creates an oftenignored problem for the Ineligibility Clause (A1, 6, c2), because the
Congressman could have voted to increase the pay or benefits of a
position to which he is then appointed. The Saxbe Fix is a way around
this problem whereby they temporarily decrease the salary before
appointment, then increase it again after the relevant period expires.
IMPORTANT: There is always (or almost always) a workaround
for every constitutional objections
o This includes leveling down (better definition on pg. 35)
Courts refuse to reach the merits of Saxbe Fix claims because
plaintiffs lack standing (cannot show injury) (Rodearmel)
Brings up several topics: level of respect we should have for the
Const when interpreting it (and do workarounds show respect?),
why does the Const have authority/why is it law?
Methods of Interpretation - Originalism and its Critics
Types of Originalism
o Expected application discern the intent of the framers,
apply it to the new situation
o New originalism look at what average members of the
public at the time of the Const would have understood the
text to mean
Methods of interpretation
o Text: Plain meaning often is asserted (Marbury v. Madison)
o History: drafter intent, ratifies understanding, public
meaning (Heller)
o Purpose, structure: Supposed goals of governmental
roles or legislation, how parts fit together (McCulloch)
o Precedent (common-law constitutionalism): Follow judicial
precedent, checked by reason (lots of cases later)
o Tradition: Follow longstanding practice; contrast
liquidation (look to the actions/thoughts/assumptions at the
inception of government)
o Moral Reasoning: use the best meaning for us today
o Representation-Reinforce: judges should protect
democracy, vulnerable minorities
o Minimalism: judges should take small, shallow steps
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o Deference: judges should step aside unless a violation is

clear
We could easily discredit any of these methods but ultimately
you need to pick an interpretive model, Constitution is too vague
to just follow the text

Judicial Review
Federalist 10 Structures Without Judicial Review?
Factions Human nature to form interests, group together with
people who share our interests, and using the power of numbers
to increase our stuff!
Republican Government you cant have large-scale
government without the threat of tyranny. The way to prevent
this is through representation!
o Splits up interest groups (which are often formed
geographically), makes it so majority interests cant just
trample the minority interests
o Broad spread of rep. increases chance of minority interests
being in Legislature, decreases chances of corrupt
politicians sneaking through
Question of Judicial Review: Should the Court interfere here, or not?
Marbury v. Madison (1803)
Adams makes appointments during lame duck period that Jefferson
refuses to consummate. Is there a right to commission, does violation
necessitate remedy?
There is a right to the commission because Adams made
appointment while he was still President, and this appointment is
not at-will (i.e. Jefferson cannot simply remove the appointees)
If there is a right, there must be a remedy because we are a
government of laws, not of men! But should there be an
exception because this is an action of the President some of his
decisions are surely above JR.
o Appointments that merely execute the will of the executive
are only politically examinable
The Court decides that it lacks original jurisdiction (only has this
in enumerated circumstances the rest is appellate jurisdiction)
o Did the above analysis to condemn Adams illegal behavior
o Counter: could have also said that appellate and
enumerated jurisdiction is a floor, and that they were free
to expand beyond that
It is emphatically the province and duty of the judicial
department to say what the law is.
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o In order to apply the Constitution to cases, these rules

must necessarily be expounded and interpreted
Potential versions of JR
o Departmental every department gets to interpret the
Constitution in their own sphere of influence
o Supreme what the court says about the Constitution
becomes constitutional law, binds everyone else
This gets adopted in Cooper
o Exclusive ONLY the courts are able to interpret the
Constitution
Summary of case court unnecessarily considers the actions of
the President before deciding they lack Jx. Oh and they decide
that JR should be a thing.

Stuart v. Laird (1803) it was unsettled whether Congress could simply

get rid of the courts it created at will
Says that practice and acquiescence over a period of time can
fix the construction
Interesting version of a tradition (method of interpretation)
argument
Cooper v. Aaron (1958)
Arkansas failed to comply with a district court order requiring
desegregation.
HOLDING: Court uses Marbury to say that the Constitution is the
supreme law of the land, meaning that the SCOTUS
interpretation of the 14th Amendment in Brown is the supreme
law of the land as well
Cooper may well go beyond Marbury
o Marbury said that the courts have the power to say what
the law is when resolving a justiciable controversy, but
implies that other branches of government can interpret
the Const in their own spheres
o Cooper says that the SCOTUS interpretation trumps
all, is to be taken as authoritative uses the
Supreme version of JR
Need for a distinction between the Constitution and
constitutional law
o When the Court used the Const to decide a case, they are
not creating the Supreme law of the land they are only
binding the parties!
o Without distinction, we are stuck with bad judicial decisions
This court adopts the Supreme model of JR. Problems with these
models?

o Departmental less burden on Courts, but leads to

conflicting interpretations between branches, and thus
notice concerns
o Supreme still potential conflict with other branches, but
resolves conflicts with lower federal and state governments
This might indicate I dont understand the Supreme
model
o Exclusive resolves ambiguity problems, but overburdens
the Court, and the other branches ability to interpret may
atrophy
Also Court can only interpret when there is case or
controversy
Cool chart in slides about four dimensions of JR: scope,
supremacy, of what (judgment, holding, doctrine, spirit),
intensity
o The stronger the version of each dimension used by the
Court, the stronger the worries about the state of our
democracy, the presence of judicial tyranny, and the
amount of litigation

Constraints on Judicial Review

Text and Originalist History
District of Columbia v. Heller (2008)
Second Amendment challenge to a DC law that prohibited possession
of a useable handgun in the home. Scalia Opinion (of course)
invalidates the law.
Court adopts the individual right view of the provision, as
opposed to the collective right reading that applies only to
militia
Then Scalia looks at 18th century dictionaries to define keep
and bear arms (the operative clause)
o Arms = all weapons, and it only carries a militia
connotation if followed by against, which it is not
Next the Militia language (the prefatory clause), to say militia =
all males physically capable of acting in concert for the
common defense
Then look at the relationship between the clauses
o Purpose of Second Amendment was to prevent elimination
of the militia, which would allow the federal government
and its military to suppress political dissonance
o Also thought the public interpretation post-ratification was
relevant, since everyone interpreted it the same way court
did in this case
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 Not an absolute right: No concealed weapons, felons/mentally ill,

or possession in school zones/certain areas
This case shows that there are a lot of ways to interpret text:
look to historical meaning (Scalia), precedent of regulation of
guns (dissent)
o This case uses precedent to justify originalism, which is
shallow reasoning, because it implies that originalism
would not be legitimate interpretation if it hadnt been
used in the past
Structure
McCulloch v. Maryland (1819)
That one where the state of Maryland tried to tax the Bank of the
United States.
HEADLINE: BIG PLUS for federal power, BIG MINUS for state
power
Part of holding: If Congress thinks that a bank is the best way to
perform their duties, great. If Congress later changes its mind
and wants to destroy the bank, great. But no matter what, this
is not the place of the courts to tell Congress what means
it should choose, if they are constitutional.
o This means that necessary is not interpreted literally in the
Necessary and Proper Clause (NPC), or distinguished from
absolutely necessary (Noscitur a sociis)
o Deference to legislative exposition of constitutional duties
The 10th amendment omits the word expressly when
describing the powers that are not delegated to the
federal government implies:
o A conscious decision to depart from the Articles of
Confederation
o That there are powers that are implicitly delegated to
Congress
Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are
not prohibited, but consist with the letter and the spirit
of the constitution, are constitutional
o Looking into the necessity of this measure and the
considerations used would be to cross the line and tread on
legislative ground
o Implies a very strong form of judicial deference dont
even discuss or test the connection between Congresss
ends and means!
Supremacy Clause ends up deciding this case

Standing
Allen v. Wright (1984)
Parents of black school children sued because IRS did not deny taxexempt status to racially discriminatory schools, even though the
parents had not applied to these schools alleged a general harm to
their children caused by impeding desegregation
The requirement of standing has a core component, derived form
the Constitution a plaintiff must allege a personal injury
fairly traceable to the defendants allegedly unlawful
conduct and likely to be redressed by the requested
relief."
o Injury must be distinct and palpable, not abstract,
conjectural, or hypothetical
Plaintiffs werent the victims of unequal treatment because they
didnt apply
An asserted right to have the Government act in accordance with
the laws is not sufficient, standing alone, to grant Jx in federal
court
o Abstract stigmatic injury does not grant standing if the
litigants were not personally denied equal treatment
While a childs diminished ability to receive educations in racially
integrated environment IS and appropriate injury, there are other
problems:
o Tenuous causal link between Ds conduct and this harm
The idea of separation of powers underlies the standing
doctrine carried to the extreme, this would make federal courts
the arbiters of the wisdom and soundness of all Executive action
A3 requirements (jurisdictional):
o (1) Injury in fact (P suffered a judicially cognizable injury,
actual or imminent)
o (2) Causation (harm fairly traceable to Ds allegedly
unlawful conduct)
o (3) Redressibility (harm will likely redressed by relief
requested)
Purposes of the law of standing
o To make sure that the courts will decide cases that are
concrete, and not abstract or hypothetical
o Promote judicial restraint by limiting their chances for input
o To ensure that the parties involved are directly affected,
which will promote vigorous advocacy (make the result fair
to use as precedent)
o Separation of Powers

o Ensures that a source of law is giving the cause of action,

not general dissatisfaction
Prudential Requirements for standing (which is in addition to
injury in fact, causation, and redressibility, which are required by
A3)
o (1) Injury must be arguably within the zone of interests
protected by the Const or statutory provision, and
o (2) not be too generalized (be particular and not shared by
all or almost all citizens)
The Law of Standing Precedent
DaimlerChrysler Corp. v. Cuno (2006) municipal taxpayers
in Toledo, OH, lacked standing to challenge state tax credit
offered to DaimlerChrysler as an incentive for it to expand
operations in the city
o Plaintiff use CC tax breaks to others would increase their
tax burden
o Court says that allowing standing would basically make the
federal courts the arbiters of the soundness of every state
fiscal administration
Federal Election Commission v. Atkins (1998) interested
citizens do have standing to sue the FEC to classify the American
Israel Public Affairs Committee as a political committee, thus
requiring the AIPAC to disclose certain information
o Specific language of act of Congress in question extended
standing to any person, which helped make the
difference
o Sometimes, when large numbers of the public suffer, the
best source of redress is through the political process,
rather than the judicial process however, not only must
the injury be widely shared, but it must also be of an
abstract and indefinite nature
Duke Power Co. v. Carolina Environmental Study Group
(1978) plaintiffs who live near power plants challenge an Act
which puts a cap on the amount of damages the power plant has
to pay for accidents
o Court finds sufficiently concrete injury
Regents of the University of California v. Bakke (1978)
plaintiff challenges affirmative action program for med school
admission without alleging that he would have been admitted
without the program
o Court agrees that the constitutional requirements under A3
were met, even though plaintiff only had his chances of
admission reduced

o Example of when the standing claim isnt very strong

doesnt matter if the person would have gotten in, right is
based in having access to equal competition
Jacksonville (1993) 10% of money spent on city contracts is
set aside for minority businesses
o SCOTUS says that the plaintiff need not allege that he
would have received the benefit but for the discriminatory
policy look at the unequal treatment resulting from the
barrier, not the outcome.
Political Questions Doctrine Still need to read and outline!
There are just some questions that are best left to Congress and
the legislative process democratic representation, etc.
Nixon (1993) judge attacks impeachment trial (Art. 1, cl. 6),
convicted felon is impeached of his judgeship
External Controls Still need to read and outline!
Ways to limit JR outside the Courts.
McCardle (1869) this case provides a limitation on JR, but the facts
of the case are so specific that it would be really hard to say that it
applies in a broader sense
Add facts!
Other external limits on JR
Appointments very effective way for outsiders to control the
course of law
Limited terms doubtful legality (if you make this move)
Impeachments limited legally and practically, Nixon
(1993)/Ford aside
Informal influences judges are normal people, they read the
newspapers and know popular opinion - maybe they just want to
be loved?
Acceptance needs judiciarys own need for acceptance,
because judges cannot MAKE you follow what they want need
the executive branch to get shit done for them!
Main takeaway: Congress and the Executive can limit the power of JR,
but only in limited, enumerated ways!

Congressional Power, Federalism, and the

Judicial Role

The Values of Federalism (Policy Arguments)

Efficiency national government is able to respond to problems
created for one state which are caused by activities taking place
elsewhere; vice versa, unique local issues w/ local effects are
best addressed by local government
Promoting individual choice government can enforce the
values shared by the majority of the nation as a whole, and can
do so against those who constitute a majority in their state or
region (i.e. desegregation)
o And on the other hand, disabling the national government
from acting in certain areas and allowing states to adopt
varying laws allows citizens to choose the government
policies they prefer by moving!
Encouraging experimentation Justice Brandeis states as
laboratories idea from dissent in Liebmann (1932)
Promoting Democracy more opportunities to participate
in government
Preventing Tyranny easier for radicals to capture state
government than national, so federalism protects nation as extra
line of defense
Protecting Liberty denies any one government complete Jx
over all the concerns of public life
The Problems with Federalism (Policy Arguments)
Inefficiency multiplicity of jurisdictions with different rules, high
cost of learning the rules, can be messy
Lack of Information People dont know much about their state
legislatures/representatives, so who is vetting these people?
o And then the people who do know the local legislators may
wield disproportionate power
Intolerance (of non-minority views, presumably)
Incompetence (of local officials) not enough ideas influencing
judges, in competition in their laboratory experiments
Race-to-the-bottom maybe people will be trying to have the
lowest levels of environmental protections in order to encourage
business? This isnt the best outcome socially
o Although this depends on your values/frame of reference
Free-riders cant get a patent on your innovating government
ideas, which means that experimentation will likely be low
Spillovers lots of things that locals can control have an effect on
people outside of the jurisdiction, like pollution)
o Maybe we should have a centralized system so that one
entity controls everyones rights?

 No rights maybe people dont want experiments with their

rights? Maybe they should be nationally (or even internationally)
dictated?
Judicial Policing (17278)
Basic issue should the courts or the political process enforce
the delegation of powers to certain entities?
Madison, in Federalist No. 45 and 46, suggest members of
Congress are so imbued with respect for local governments that
they will rarely exercise broad grants of power improvidently.
Main point of policing: lays out ways in which politics has
gotten more national on the whole. Should JR be protecting the
political process (federalist structure)? Or should it protect
substantive areas in which the federal and state governments
can regulate, respectively?
Question about when judiciary will police certain ideas.
We have structures beyond JR that ensure that
constitutional provisions are complied with (i.e. dont
need JR to ensure that everyone gets two senators). So it
can be controversial when the court decides that this
issue requires them to insert themselves and
micromanage.

Regulating Commerce
In the beginning, there was: Broad national power, yet separate
spheres for the three branches:
McCulloch (1819) (national bank is permissible, cant be target of
state tax)
Gibbons v. Ogden (1824)
NY legislature grants exclusive rights to operate steamboats in NY
waters, but Gibbons begins operating a ferry service under a statute
enacted by Congress.
Establishing the meaning of Commerce
o Commerce is more than buying and selling: it describes
commercial intercourse between nations, and parts of
nations, in all its branches, and is regulated by prescribing
rules for carrying on that intercourse
o Among the States may very properly be restricted to
commerce which concerns more States than one
completely internal commerce of a State, then, may be
considered as reserved for the State itself.
Congress has the power to prescribe the rule by which
commerce is to be governed like all powers vested in
Congress, this power is complete in itself, may be exercised to
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the utmost extent, acknowledges no limitations (other

than constitutional ones)
o Very broad interpretation even regulation necessary to
effectuate Congresss goals for ISC can fall under the
Commerce Clause!
o However, some things have too indirect an effect on ISC to
allow CC regulation inspection laws, quarantine laws, etc.
HOLDING: Congress can regulate this under CC, and its
regulation wins under Supremacy Clause (SC).
Strategy used by the Court to limit CC power during the Progressive
Era:
(1) Formal categories under which the legislation falls Is it
commerce regulation, or just indirectly related?
(2) Actual purpose of the legislation was it to effect commerce,
or using commerce to get at social change?
(3) Actual effect of the legislation
Precedent on CC regulation (Court is all over the place!)
Champion (1903) Interstate transport of foreign lottery tickets
prohibited, Court upholds the regulation. The goods themselves
were immoral.
Hammer (1918) Interstate transport of goods from child labor
prohibited, but Court strikes this regulation down! Process of
making good was immoral.
o Element of policy judgment: Court really didnt like lottery,
but was ok with child labor.
E.C. Knight (1895) DOJ rejected a 98% sugar refining
monopoly, which involves manufacturing with an indirect effect
on ISC, Court says the CC does not reach this monopoly because
manufacturing does not constitute commerce (this argument
would definitely fail today, distinction removed).
The Shreveport Rate Cases (1914) ICC equalized inter AND
intrastate shipping rates, which involves and instrument of ISC
with a close & substantial relation thereto. Indirect effect or
intrastate doesnt matter if the effect on ISC is substantial
enough.
Early Judicial Resistance
A.L.A. Schechter Poultry Corp v. United States (1935) The
Sick Chicken Case
Rare instance of Court striking down a statute under the nondelegation doctrine.

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In determining the scope of the CC power, there is a necessary

and well-established distinction between direct and indirect
effects
o Direct safety standards on interstate railroads, or
controlling of intrastate railway fares (that in turn control
interstate fares)
o Indirect if these were allowed, there would scarcely be
an area where the CC wouldnt let Congress supersede
state authority
Indirect effects have elements of timing chickens
were done with commerce by the time this regulation
hit them, and coal production comes in before
commerce
Court defines ISC very narrowly even though chickens came
from out of state, the butchering practices being addressed were
purely intrastate
o Regardless of the magnitude (i.e. how much a certain
practice affects ISC), there needs to be a closer relation
than this for CC regulation

Carter v. Carter Coal Co. (1936)

Say that the production of coal is not commerce (which is defined here
as intercourse for the purposes of trade)
Employment, fixing wages, bargaining rights these are all
elements of production, not trade
Thus it may be said that to a constitutional end many ways are
open; but to an end not within the terms if the Constitution, all
ways are closed
Direct/Indirect test: Sutherland says it is hard to determine
whether effects are direct or indirect it is a question of the
manner of the effect, not of the volume
o Thus, it does not matter if it is one man making coal, or a
union of hundreds making coal, the direct/indirect
determination is the same
o In other words, the matter of degree has no bearing
(although NLRB case overrules this)
Wages, bargaining rights, employment hours, labor relations,
etc., are all local issues over which the federal government has
no control (indirect)
The New Deal Switch
NLRB v. Jones & Laughlin Steel Corp. (1937)

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NLRB establishes comprehensive systems for regulating

labor/management relations; J&L violated system (fired employees who
sought to organize a union).
Doesnt matter that this Act regulates labor it is the effect
upon commerce, not the source of the injury, which is the
criterion
o HUGE change from the prior system!
The congressional power to protect interstate commerce from
burdens and obstructions is not limited to transactions which are
part of the essential flow of interstate or foreign commerce
o Although activities may be intrastate in character
when separately considered, if they have such a close and
substantial relation to interstate commerce that their
control is essential or appropriate to protect
that commerce from burdens and obstructions, Congress
cannot be denied the power to exercise that control.
o But the scope of this power must be limited so as to not
embrace effects which are so indirect and remote that
ignoring the distinction would create a centralized
government
IMPORTANT: consider the impact without ignoring actual
experience. In other words, rejects the earlier idea of ignoring
the magnitude of the operations, overrules the idea that you
simply look at the nature of the effect
o Called the economic, realist, or pragmatic approach
In effect, this decision overrules the test in E.C. Knight and
Carter Coal
o However, there also is no blanket rule in this case
Congress can regulate manufacturing because of the huge
effect of labor relations of a major company, but this may
not be the case for all manufacturing
United States v. Darby (1941)
Darby violates the Fair Labor Standards Act of 1938 (cant ship certain
goods in ISC if employees are paid less than minimum wage/work more
than allowed hours).
While manufacturer is not of itself ISC, the shipment of
manufacturer goods is such commerce and the prohibition of
such shipment by Congress is indubitably a regulation of
commerce
Congressional Police Power Congress can follow its own
conception of public policy by excluding from commerce goods
produced in ways that are injurious to the public health,
morals, and welfare, even the state hasnt thought to regulate
it

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 Motive and purpose of Congress in regulating commerce is not

restricted, and is not the Courts concern (presumably it has to
be constitutional)
o Democracy legislature is elected to make policy
judgments on behalf of the people
Explicitly overrules Hammer
Notably, Court doesnt say anything about the national scale of
the business (i.e. there is NO case-specific analysis!)
o We have switched to a general test not just looking at
this guys interstate effects, but the effects of all those
similarly situated
Wickard v. Filburn (1942)
AAA orders capped wheat production, including for home consumption,
to prevent surplus and increase market price. Filburn grew extra wheat
for himself, is fined.
Wheat growing for personal use still affects ISC it lowers
demand by removing a potential customer from the market, for
instance.
Rejects the direct/indirect test even if appellees activity
be local and though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce, and
this irrespective of whether such effect is what might at some
earlier time have been defined as direct or indirect
Death by a thousand cuts While the effect of Filburns wheat
production, taken alone, is not significant, the effect of all wheat
producers doing the same thing could be extremely detrimental,
and thus Filburn is within scope
Filburn wanted a case-specific inquiry like in NLRB to show that
his intrastate use doesnt affect ISC, but he doesnt get one the
Court has switched to an aggregate effects approach
Use of the Commerce Clause Power for Civil Rights
There is 14A precedent that allows a Commerce Clause workaround
applies the 14A to private businesses and contracts based on its
effects on ISC.
Heart of Atlanta Motel v. United States (1964)
Civil Rights Act of 1964 defines public accommodation as those whose
operations affect commerce, outlaws discrimination based on race,
color, religion or national origin in such places this includes hotels
and motels, which affect commerce per se
Court upholds statute as a valid exercise of the power to regular
ISC

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 Look into the effects that discrimination has on interstate

commerce, especially in lodging sector (basically
discourages minorities to travel for business or pleasure)
Of course, it was clear from the framing of this act that Congress
was also addressing a moral problem but that fact does not
detract from the overwhelming evidence of the disruptive effect
that racial discrimination has had on commercial intercourse
Allow regulation of local activities that might have a substantial
ad harmful effect on ISC, any means reasonably adapted to
a legitimate end
Katzenbach v. McClung (1964)
Companion case to Heart of Atlanta basically same facts, although
local restaurant.
As with Darby, the particular facts (the extent of defendants
interstate activity) are irrelevant to attack on regulatory scheme
where we find that the legislatorshave a rational basis for
finding a chosen regulatory scheme necessary to the protection
of commerce, out investigation is at an end.
However, do still have to look at the extent of defendants
interstate activities to see if the act applies (must be a Jx
element!)
o Fact that they have lots of interstate customers and get
meat shipments from other states is enough of an actual
effect on ISC
Ask if Congress had a rational basis for finding the regulation
necessary to protect commerce - here, Congress acted well
within its power
The Return of the Court
United States v. Lopez (1995)
Federal statute criminalizes having gun in school zone; does not
regulate commerce.
Three broad categories of activity that Congress may regulate under
the CC
1) Congress may regulate the use of the channels of interstate
commerce
2) Congress may regulate and protect the instrumentalities of
ISC, or persons or things in ISC, even though the threat may
come only from intrastate activities
3) Congress may regulate those activities having a substantial
relation to ISC (i.e. activities that substantially affect ISC)
Subcategories for #3 (ways that there can be a substantial
effect):
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o Economic activity is in question

o Aggregation of intrastate activities that taken together
substantially affect ISC
o Specific statute is part of a larger regulation/regulatory
scheme affecting ISC
o Jurisdictional element (Fat-specific reason this affects
commerce)
In this case, the court decides that the appropriate standard
should be substantially affects
Court points to Wickard as an example of the outer limits of the
CC power, but even Wickard addressed economic activity in a
way that possessing a gun in a school zone does not
o Also not part of a larger regulatory scheme
CC legislation will always incorporate a fair deal of uncertainty
(as to what affects ISC), but that is because Congress is using a
broad constitutional power that is only reigned in by
judicially enforced outer limits
Kennedy Factors (from concurrence):
o Federal balance (Supremacy?)
o History and expertise of the State power
o Beyond the realm of commerce
o Historical sovereignty of states in certain regulatory areas
o Truly local vs. truly national
Other dissents and concurrences omitted
This case reaffirms Wickard, but also seems to alter it makes it
so that it has to be an aggregation of economic activity
How does this affect other cases in this line of doctrine?
o Heart of Atlanta Motel still ok under an aggregation
principle because this deals with economic activity
o Gibbons this can be justified by #1 (use of the channels
of ISC), Congress protecting the channels (literally!)
o The Shreveport Rate Case this can be reconciled by #2
(protection of the instrumentalities of ISC, even if threat is
purely intrastate)
o Darby #2, protection of people in ISC (?)
o Wickard #3, the aggregation and economic subcategories
However, under the Lopez conceptualization,
economic refers to activity, not effect regardless,
Lopez defines production and consumption to be
economic activity (p. 204), blowing up the old
distinction from previous cases
o Katzenbach #3, jurisdictional element subcategory
They bought a fraction of their food from a butcher
who got the meat through ISC

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Best example we have of a jurisdictional element that

allows Congress to regulation
Jurisdictional hook Can be seen as a condition on ISC
activity (can only get ISC meat if you serve to
minorities), or as a compelled activity (businesses
getting meat from ISC must serve minorities)
o The majority keeps asking what the limiting principle of the
other side would be but they refuse to answer question
for their own holding!

United States v. Morrison (2000)

Court strikes down statute makes hate crimes based on gender
susceptible to damages remedy, justified by the effect that gendermotivated violence has on ISC.
Can only regulate intrastate activity under CC when the
intrastate activity is economic in nature
o This limits the aggregation principle to only
economic activities
Souter (writing for four dissenters) in the minds of the
majority there is a new animating theory that makes categorical
formalism (i.e. rigid distinctions between state/federal, limits on
CC power) seem useful again
o "The federalism of some earlier time is no more adequate
to account for those facts today than the theory of laissezfaire was able to govern the national economy 70 years
ago.
Breyer dissent More important, why should we give critical
constitutional importance to the economic, or noneconomic,
nature of an interstate-commerce-affecting cause?
What do we learn about #3 from Lopez, other than that the Court
is serious?
o Neither gun possession nor gender-motivated violence are
economic activities
o Non-economic activity probably cannot be aggregated
o Congressional findings dont control Courts judgment
(Court ignores Congress findings on the effects of violence
against women on ISC)
Gonzales v. Raich (2005)
Upheld constitutionality of a comprehensive federal ban on the private
cultivation and use of marijuana, as applied to marijuana grown at a
persons home, intended solely for personal use, that was authorized
by the state as medical treatment.
Congress can regulate purely intrastate activity that is not itself
commercial, in that it is not produced for sale, if it concludes

17

that failure to regulate that class of activity would undercut the

regulation of the interstate market in that commodity
The Court suggested two justifications, although only one is clear
in the textbook:
o Aggregation applying rational basis, Congress could find
a substantial effect after aggregating home-growers
o Larger regulatory scheme this state law would undermine
the federal regulatory scheme (CSA) on marijuana

Unites States v. Comstock (2010)

Upheld the constitutionality of a federal statute authorizing the
civil commitment of mentally ill, sexually dangerous prisoners after
their release dates, justified by NPC
Breyers five considerations for decision
o (1) NPC only useable if means are rationally related to the
implementation of a constitutionally enumerated power
o (2) This statute only a modest expansion of similar
regulation of mental-health prisoners
o (3) Fed Govt. is the custodian of federal prisoners, has
constitutional power to protect citizenry from prisoners
o (4) This statute accommodates state interests (gives notice
of commitment, opportunity to take over care)
o (5) Link between statute and enumerated A1 power is not
too attenuated
Scalia and Thomas dissented, not liking these five considerations
(What if only four are met? Or three?)
Majority opinion stresses rational basis under the NPC Clause
(lots of deference to Congress), plus tradition (new statute not
much of a departure from old similar statute), a federal
custodian of the protection of others from prisoners, and states
interests accommodated
Does the NPC justification need another enumerated power to
work?
o YES but it can be an combination of several enumerated
powers
Compelled Commerce
Natl Federation of Independent Business v. Sebelius (2012) (41-4) CC PART
SCOTUS evaluates Patient Protection and Affordable Care Act of 2010
(Obamacare).
Two things at issue
18

o The individual mandate (requiring individuals to purchase a

health insurance policy providing a minimum level of
coverage)
o The Medicaid expansion (gives funds to states on the
condition that they provide specified health care to all
citizens whose income falls below a certain level)
Weird holding: while five justices decided that the individual
mandate could not be justified as an exercise of Congress CC
power, a different majority held that the individual mandate was
a constitutionally permissible exercise of Congress power to
impose taxes
o Additionally, the Medicaid expansion is struck down
It is not our job to protect people from the consequences of
their political choices
Problem with individual mandate: Congress has the power
to regulate commerce, which implies that commerce already
exists if the power to regulate also meant the power to create
(i.e. compel people to enter commerce), a lot of the language in
the Const would be superfluous.
o Individuals refrain from doing an infinite number of things
every day, so giving Congress power over inaction would
be a frightening leap, no limiting principle, etc.
Thoughts on the NPC precedent holds that this power only
works for provisions that are incidental to an enumerated power.
o NPC gives Congress the means to execute its enumerated
powers
o Court often defers to Congresss determination of what is
necessary
o Here, Congress is trying to do something unprecedented
create the necessary predicate to the exercise of an
enumerated power (i.e. reach outside the scope of its
authority and drawing individuals into the scope)
Dissent (Ginsburg) people are always involved in the health
care market!
o Also, whether this is regulating inactivity (not getting
insurance) or activity (choosing self-insurance) is just a
matter of framing, not of Constitutional significance
o Argument that a particular regulatory strategy is
unprecedented and thus invalid hinders innovation
shortsighted outlook!
Dissent (Scalia) failure to enter commerce is not commerce!
o If all inactivity affecting commerce is commerce,
commerce is everything
Should CJ Roberts have reached the CC issue, or avoided it?

19

o Classic Avoidance address CQs head-on, but avoid

striking down the statute if there is a possible
interpretation that is constitutional
o Modern Avoidance avoid the CQ if there is some other
ground on which you can rest the decision
o Roberts does Classic Avoidance jumps at the CQs, but
upholds the statute under a competing interpretation
Is the line drawn (between activity and inactivity) legally sound?
E.g., per prior doctrine (before todays class), isnt requiring
insurance (1) regulating ISC itself, or (2) essential to a larger
regulatory scheme? What gives?
o The distinction between activity and inactivity is purely
conceptual!
o Text, history, tradition, a principle of limited federal power?
(Sorry was reading TOP GUNNER)
o Tradition argument never been done before, BUT that
depends on your frame of reference, and also WHO CARES?
One of our oldest traditions IS Congress doing something
new!
Problem is not increasing commerce (almost all CC regulation
tries to do this), but increasing commerce BY forcing individuals
to enter market.

The Taxing Power

United States v. Doremus (1919) (Harrison Act made tax on
drug manufacturers, only allowed distribution of drugs to certain
people) The act may not be declared unconstitutional because its
effect may be to accomplish another purpose as well as the raising
of revenue. If the legislation is within the racing authority of Congress
that is sufficient to sustain it
Court says it doesnt care about additional motives as long as it
raises revenues this case is a lot like Darby in that it does not
care about motives
Bailey v. Drexel Furniture Co. (1922) (court struck down the Child
Labor Tax Act, which did the same thing as Hammer, but with a tax
instead of CC power)
Court cannot blind itself when it is clear that the only purpose of
the tax is as a penalty, and the legislation cant just use the
magic word tax to address all social problems left by the 10th
Amendment to the States.
Distinguishes Doremus the provisions of the tax act must be
naturally and reasonable adapted to the collection of the

20

tax, not solely the achievement of some other purpose plainly

within the state power
Court asks if the law imposed only incidental regulation or a
penalty, finding a regulatory purpose and effect
o This is the test that is still used today

Post-New Deal shift: back towards Doremus

Sonzinsky (1937) (firearms dealer taxes upheld)
National Federation of Independent Business v. Sebelius
(2012) TAX PART
Upheld Obamacare as a valid income tax increase under a functional
approach.
This is where classic avoidance comes in while CC regulation
is invalid, this could be seen as a valid penalty under the tax
power, so uphold!
This looks a lot like a tax (paid with a taxpayers tax return,
enforced by IRS, produces revenue for Government)
Different result here under the Bailey test (i.e. not a penalty,
but a real tax):
o How big is the penalty/fee? Amount due is not an
exceedingly heavy burden (far less than price of insurance)
o Scienter Requirement: No knowledge of wrongdoing
requirement
o Who collects/enforces? Enforced by IRS, not the Dept. of
Labor (or any department responsible primarily for
punishing violations of law)
This seeks to influence behavior, but that is nothing new to the
tax power!

Spending Power and Conditions Thereon (did not

attend class!)
United States v. Butler (1936)
Congress imposes tax on agricultural commodities funds raised to be
redistributed to farmers who reduce their acreage. Goal: to stop
plummeting agricultural prices.
Holding: The Court found the Act unconstitutional because it
attempted to regulate and control agricultural production, an
arena reserved to the states.
o Even though Congress does have the power to tax and
appropriate funds, argued Justice Roberts, in this case

21

those activities were "but means to an

unconstitutional end," and violated the 10A.
Steward Machine Co. v. Davis (1937)
Deciding constitutionality of the Social Security Act. Under federal
unemployment compensation system, an employer pays a tax to the
US Treasury. If employer also contributed to a
state unemployment fund that was certified and met certain minimum
criteria, employer could receive a credit for up to 90% against federal
tax.
Difficulty with petitioners contention it confuses motive with
coercion
o Every tax is at least somewhat regulatory, as it
discourages the taxed behavior as compared to
other activities
o But to hold that motive of temptation is equivalent to
coercion is to plunge the law in endless difficulties (this
line of thinking makes real choice impossible!)
This decision doesnt pretend to establish a bright-line rule for
when Congress exceeds its authority and enters into the realm of
coercion merely says that this example is on the acceptable
side of the line
General restrictions to Spend Power South Dakota v. Dole) The
Dole framework
Must be in the pursuit of the general welfare
o Courts should defer to Congress in making this
determination
Congress must unambiguously condition that States
receipt of federal funds, if it intends to make such a condition
Federal grants must be related to the federal interest in
particular national projects or programs
Finally, constitutional provisions may provide an independent
bar to a conditional grant of federal funds
Natl Federation of Independent Business v. Sebelius (2012)
SPENDING PART
Court addresses the constitutionality of the Medicaid expansion part of
Obamacare.
Act dramatically increases state obligations under Medicaid
States say that this is coercion!
Key is whether Congress is using a power akin to undue
influence look for the point at which pressure become
coercion and thus unconstitutional
Permitting the Federal Government to force the States to
implement a federal program would threaten the political
22

accountability key to our federal system (by making the State

politically accountable for something it had no control over).
However, Spending Clause programs do not pose this danger
when a State has a legitimate choice whether to accept the
federal conditions in exchange for federal funds..
Conditions on the grant of funds that do not govern the
use of the funds, however, cannot be justified under SC.
o Fact that all Medicaid funding is being withheld from
noncompliant states is a gun to the head States have
no real choice = coercion
Again, this case does not establish a bright-line rule for coercion
merely says that wherever the line is, this is clearly beyond it!

State Sovereignty Claims

The Court has struggled to define what limits, if any, the tenth
amendment imposes on congressional regulation of state and local
governments
Starting point: National League of Cities v. Usery (1976)
Holding: CC did not empower Congress to enforce the minimum
wage and overtime provisions of the Fair Labor Standards Act
against the states in areas of traditional governmental
functions
Agreed that there is an effect on ISC, but said that the
application of the statute to the states was still unconstitutional
Court then tried to establish clear rule in the wake of National
League, ended up with a bunch of decisions going all directions
Garcia v. San Antonio Metropolitan Transit Authority (1985)
Court overrules National League, finds the traditional government
functions test unworkable.
Problem with this test: leaves to courts the power to decide what
areas are traditional, integral or necessary, which inevitably just
becomes policy decisions made by the unelected
federal judiciary (also inconsistent results)
Structure of our federalist government is what should provide the
procedural safeguards on sovereign immunity, not judicially
created limits on fed. power
Limits on Congresss power are structural, not
substantive i.e. that States must find their protection from
congressional regulation through the national political process,
not through judicially defined spheres of unregulable state
activity.

23

 OConnor dissent With the abandonment of National League,

all that stands between the remaining essentials of state
sovereignty and Congress is the latters underdeveloped capacity
for self-restraint
Does this decision indicate zero constitutional protection for
states as states?
o No! Maybe zero judicial review, but that is not the same.
Still have political safeguards, such as the federal structure
giving States a voice
o Examples of constitutional provisions in notes
Garcia is no longer constitutional law
Unenumerated rights: despite broad language in Garcia, the court
returns to the game (BRING ON THE JR!)
Subject Matter return of substantive limitations
o Lopez (1995) Congress is not allowed to use the CC
power to regulate this are of traditional state activity
o Gonzales v. Oregon statutory interpretation by Attorney
General on doctor-assisted suicide is not ok (medicine is
left to the states)
Balance of Power
o Sebelius (2012) coercion test for grant conditions, have
to make sure that Feds arent crushing the individual
choice of the States
o However, Samaha does not want to say that a vague
principle like balance of power was ever the determinative
factor in a decision just an influence! You can create a
balance of power in an infinite number of ways, so dont
think this doctrine settles the issue!
Commandeering (see cases below)
New York v. United States (1992)
Federal statute forces states to either create an in-state waste disposal
site that met federal standards (i.e. comply with the will of Congress),
or to accept title to the waste (and thus become subject to and forced
to comply with the will of Congress).
Holding: Statutes take title provision was unconstitutional
Congress exercises its enumerated powers subject to the
limitations imposed by the Constitution this includes the 10A,
which in any given instance may limit Congresss power by
reserving the power for the States
Congress cant coerce the States to adopt a federal regulatory
scheme because of political accountability (they can provide
incentives, though)

24

 Take title provision does not offer States a meaningful

alternative to doing what Congress wants crosses the line from
persuasion to coercion
Printz v. United States (1997)
Background checks for guns Congress forced the executive branch to
institute a policy, and further proscribed how the CLEO should review
the background check.
Holding: Scalia opinion found the Brady Act unconstitutional
Power of the Feds would be augmented immeasurably if they
were able to force into their service, at no cost, the police officers
of the 50 states
President makes sure laws are faithfully executed P has no
control here!
The reasons in New York for denying Congress the power
to commandeer state legislatures also applied to
commandeering state executive officials:
o Places financial burden on states
o Compromises political accountability
o Size of commandeering doesnt matter; the principle
offends the Const
o This suggests a rule, which the Court thinks is better than a
standard; however, make sure you argue both ways
Accountability concerns are a little silly local politicians could
easily point to who is pulling the strings when it is the federal
government!
o But people are stupid, and this may still have effects on
local elections
The Anticommandeering Principle
Why is preemption (a command that States not regulate in a certain
area) worse than an affirmative requirement that the State must
regulate in a certain area?
Local/State government only resist federal regulation when the
emergency the Feds are dealing with isnt very dire, and when
the actions of the Feds offend local beliefs (often idealistic beliefs
based on Const rights) thus, it is easier for the Feds to try to
inspire confidence in the States so that the States will cooperate,
which means more respect for Const rights on the whole.
Federalism does not just serve the purpose of keeping the States
in line it also limits the power of the Feds, and in so doing
protects the individual rights of citizens
Gonzales v. Oregon Oregon passes Death with Dignity Act
(allowing controlled substances under CSA to be used in assisted
suicide), AG says that this is an unlawful practice under the CSA

25

and threatens to revoke the prescribing privileges of doctors who

participate.
o Question is whether the AGs interpretation of the CSA was
valid but also had a part about the traditional role of
States in regulating the medical practice
o There is an anti-preemption part to the CSA absent a
direct conflict (which is what we have here), the CSA
should not be interpreted to take power away from the
States
o State and Feds enjoy different default rules when
the Const is silent on the exercise of a particular power, the
Feds lack that power and the States enjoy it
Sovereign Immunity
11th Amendment a State cannot be sued by the citizens of
another State or by citizens of a foreign State
o Hans v. Louisiana extended the 11th amendment
prohibition to citizens suing their own State
Does Congress have the power to displace this Sovereign
Immunity? Generally no.
o However, section 5 of the 14th Amendment does give
Congress the power to displace state immunity when it
develops remedies for violations of rights protected by
section 1 of that amendment
o This expresses a view of federal-state relation in which a
States Sovereign Immunity must yield to congressional
judgments
Board of Trustees v. Garrett (2001)
ADA requires employers to make reasonable accommodations
for employees with disabilities, and not discriminate on that basis for
hiring. Employer tried to demote a woman with cancer, and she sued.
Majority seemed to think that discrimination against the disabled
was not well enough documented to justify the Act not sure at
all what this holding has to do with SI
o Except maybe that this dealt with the 14A, which is
how Congress beats SI, and the Court is saying that
Congress did not meet its requirement under 5 of the 14A
(which requires that this be appropriate legislation)
So the 11th Amendment prevents suits against nonconsenting
states. Doesnt this preclude enforcement of federal law against
the States? No, because the 11A leaves open many
enforcement devices:
o Many States have adopted statutes that consent to many
different kinds of suit

26

o Ratifying of the Const required States to consent to suits by

other States and the Feds
o Also, state officers can be sued for injunctive or declaratory
relief (this is the most significant work-around)
o Perhaps use the Spending Power - condition a grant of
federal funds on consenting to suit?

Dormant Commerce Clause

SCOTUS asserts the authority to invalidate state or local laws that
the Court finds interfere improperly with interstate and foreign
commerce Court says that the Commerce Clause has been violated,
even though this clause is technically only a grant of power to
Congress, and is not a restriction of state power
This practice/idea is called the Dormant Commerce Clause
Modern Law of the Commerce Clause rests on three theories:
Purely political theory: States will not always have nations
best interests at heart, and may adopt protectionist policies that
harm ISC thus, Feds need to be supreme to go after the best
interests of the nation as a whole
Purely economic theory: Protectionist legislation also leads to
an inefficient allocation of resources
Mixed political/economic theory: Protectionist legislation
places an undue burden upon people outside of the state, and
those people do not have a proper forum to express their
political views to bring about the changes they want cant vote
in another states election!
Doctrines of preemption and consent mean that a judicial decision on
CC challenge need not be final if challenge is rejected, those who
oppose the state regulation can just enact federal legislation that
preempts it
The opposite is also true (challenge is accepted and validated,
but federal legislation can still say it is ok)
The burden of inertia should Congressional silence say that
state regulation is ok, or that Congress affirmatively decided to
keep area free of regulation?
Overview of doctrine if a statute is facially discriminatory, it is
virtually per se invalid. State has to prove that measure is virtually
certain to serve a legitimate purpose, which cannot be served with less
discriminatory means.
Facial Discrimination

27

City of Philadelphia v. New Jersey (1978)

NJ Law prohibits importation of solid or liquid waste that originated
outside of NJ.
First, it does not matter that the waste is valueless CC covers
all things that move interstate.
Competing interests: the need to prevent protectionism by
states, and the fact that some incidental burdens on ISC may be
unavoidable when the State is trying to safeguard the health and
safety of its people.
Flexible approach (for when there is no patent discrimination
and other legislative objectives are credibly advanced)
o When statute regulates evenhandedly to effectuate
legitimate public interest, and has only incidental effects
on ISC, it will be upheld unless the burden imposed
on such commerce is clearly excessive in relation to
the putative local benefitsif a legitimate local
purpose is found, then the question becomes one of
degree.
o Determination will depend on the nature of the local
interest involved, and on whether there are alternatives
means with a lesser impact
The evils of protectionism can reside in legislative means as well
as legislative ends
This statute, both on its face and in its plain effect, violates the
principles of nondiscrimination
o On its face, it imposes on out-of-state commercial interests
the full burden of conserving the states remaining landfill
space trying to isolate itself from a problem common to
all states
o This would be ok with there were a police power
justification, like prevention of disease, but NJ does not
make this argument
Burden and intent: Hunt (1977); Kassel (1981) [pp. 264 268,
273280 n.5]
Subsidy: West Lynn Creamery (1994) [pp. 258261 n.1.b]

Separation of Powers
Introduction Federalist No. 47 & 48 (Madison)
F47: Montesquieu is misinterpreted as requiring a complete
separation of powers between the three branches however, the
real problem is having the whole power of one department be
28

exercised by the same hands which possess the whole power of

another department.
o THIS LEADS TO TYRANNY, DAWG
F48: In fact, unless the departments be so far connected and
blended as to give to each constitutional control over the others,
the degree of separation which the maxim requires, as essential
to a free government, can never in practice be duly maintained.
o THIS IS CHECKS AND BALANCES, DAWG
o Not enough to just write about separation of powers in a
document to make it so connect the branches and have
them control each other!
Two main justifications for separation of powers
o Efficiency division of labor and specialization within
government
o Prevention of tyranny connection to encourage
deliberation/limits
Complications for separation of powers
o Growth of executive branch (HUGE administrative agency
structure)
o Checks and balances is a euphemism for GRIDLOCK,
friction
o Enforcement: parchment (paper alone wont do it), parties,
and presidential power
o Judicial role: self-restraint v. interested referee (because
part of the discussion has to be about how much power
judges should have, and so they will always be interested!)
This is why he wants us to sympathize with judges a
bit they are in a pickle!
Presidential Power
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure
Case) (1952)
Nationwide steel workers strike, so Truman has Sec. of Commerce seize
steel mills before receiving Congressional approval basically
presidential lawmaking.
No statute authorizes this action unless the Const does, this
was invalid.
Cannot be sustained as exercise of the Ps military power as
Comm. in Chief
o Too removed theater of war justification cannot extend to
possession of private property just because a halt in
production may jeopardize one aspect of the supply of
military products

29

 Also look to constitutional provisions giving the President

executive power
o Make sure laws be faithfully executed refutes the idea
that the President can be a lawmaker. He can recommend
laws that he wants and veto laws he doesnt, but that is all
his legislative power
Concurrence (Jackson) cant just look to vague Const provisions to
see whether P exceeded his power; powers are necessarily
intermingled
Different circumstances in which the President acts:
o 1) When P acts pursuant to an express or implied
authorization of C, his authority is at a maximum, and he is
representing the power of a united federal government, so
he is practically unstoppable
o 2) When P acts in the absence of a Congressional grant OR
denial, he has to rely on his independent powers BUT
there is a twilight zone where he and Congress may have
concurrent authority (or rather the distribution of authority
is uncertain)!
Here, Congressional inertia, indifference, or
acquiescence can enable (or even invite) independent
presidential action
Two ways of thinking of it: independent (P may act
unless Congress says no) and dependent (P waits for
C approval)
The test for whether P action is ok depends on the
imperatives of the events in question and
contemporary imponderables, rather than abstract
theories of law and governance (emergency?)
o 3) When P acts in a way that is incompatible with the
implied or expressed will of C, P power is at its weakest. He
acts with his authority minus the authority of Congress
over the matter.
For Ps acts to be ok, the Court would have to grant P
the exclusive right to act in this subject area
A presidential power so conclusive and preclusive
should be treated with caution, strict scrutiny
Trumans action falls into category 3 in this case, so his action
needs to be squarely within his domain and beyond the reach of
Congress
o Cant justify with general grant of exec power (King George
III), Comm in Chief power (this would make control over
foreign affairs = control over internal affairs), or faithfully
executed clause (5A DP limits this)

30

o Beware of the use of emergency to grab power

emergency powers consistent with free government only
when the decision to activate/grant them are lodged in a
different branch of government
Samaha loves it when judges embrace uncertainty, admit it is a
tough call!
Dissent long history of Presidents acting like this, and the shut
down of the entire steel industry would have been catastrophic!
United States v. Curtiss-Wright Corp. (1936)
C gives P statutory authorization to prohibit the sale of arms if he found
that such a prohibition would contribute to the establishment of peace
in the region (Bolivia).
Differences in foreign/external affairs and domestic/internal
affairs
o The fact that the federal government has no power other
than what is granted by the Const is generally true in the
context of internal affairs because all other powers were to
be left to the States
o But States have no power of international affairs 10A
doesnt apply
The power to wage and declare war, conclude peace, make
treaties, etc., is vested in the feds by nature of its sovereignty,
not some article in the Const
In foreign relations, the President is the sole representative of the
nation
o If we are to avoid embarrassment in our foreign relations, it
is quite apparent that congressional legislation must often
accord to the President a degree of discretion and freedom
from statutory restriction that would not be admissible
were domestic affairs alone involved
o P is also in a better position than C to know the conditions
that prevail in foreign countries (because of his informants,
his cabinet, etc.)
Foreign Affairs: federal powers of external sovereignty
dont depend on affirmative grants from the Constitution
This does not indicate exclusive presidential authority Congress
authorized
o So the above is dicta (because there is C approval), but still
influential!
o After this case, the trouble becomes determining what is
external vs. internal affairs (activity in this case was
internal with external effect)
Executive Privilege

31

US v. Nixon (1974) (3a subpoena duces mecum (subpoena for

production of evidence) to P in a criminal case for tapes/docs re:
conversations with advisors)
Absolute privilege claim rejected restrained JR, rejected a
privilege for all confidences
o This can be seen as a defeat for Nixon
Qualified privilege (also rejected, but only as applied in
this case) denied in this criminal case not involving state
secrets but only a general interest in confidentiality; charging the
district court with an in-camera examination to isolate relevant
and admissible statements
o This privilege is constitutionally based, even if there is
explicit executive privacy privilege
Immunity from Suit
Wartime and National Security
Korematsu v. United States (1944)
President institutes internment program for Japanese immigrants AND
citizens.
It should be noted, to begin with, that all legal restrictions which
curtail the civil rights of a single racial group are immediately
suspect. Strict Scrutiny!
o Pressing public necessity can justify; racial antagonism
never can
Holding: Unable to conclude that it is beyond the war power of
Congress on the Executive to exclude people of Japanese
ancestry from the West Coast war area at the time that they did.
o Exclusion from the threatened area has a definite and
close relationship to national security
o Not ignorant of hardship imposed on many American
citizens but hardships are part of war, and war is an
aggregation of hardships.
Emergency power: When threatened by modern
warfare/hostile forces, the power to protect must be
commensurate with the threatened danger
o Not exactly an emergency power, really an expansion of
powers that already exist in emergency situations
however, there is no practical difference between these
two ideas
o So emergency is the factor that allows the law to overcome
SS.

32

Dissent (Murphy) to infer that examples of individual

disloyalty prove group disloyalty and justify discriminatory action
against the entire group is to deny that under our system of
law individual guilt is the sole basis for deprivation of rights
Dissent (Jackson) the judicial contraction of due process that
deems this result acceptable is a far more subtle blow to liberty
than the order itself
Samaha: this isnt really SS they just say SS but defer to the
military!
o Compelling Government Interest surely, but no narrow
tailoring!
How can this be reconciled with Steel Seizure?
o Maybe this falls into Category 2 under Steel Seizure
Congress is truly silent, and the imperatives of the event
in question authorize action?
Why might we not want even the illusion of JR here?
o Samahas thoughts: The public may incorrectly think
that the we are actually involved in review of these
decisions when we actually are not - the courts do not have
the competence to review here, and if they claim they are
but simply defer to the military, then people will be
deluded into thinking that the military is being controlled
and reigned in when it actually is not!
Const is notoriously ambiguous on the allocation of war making
power between the President and Congress
o President is Commander in Chief (CIC) (he can institute
military actions like blockades w/o declaration of war from
Congress)
o But Congress has power to declare war

Hamdi v. Rumsfeld (2004)

Hamdi takes up arms with Taliban, is captured in Afghanistan and
brought to US. He is a US citizen. His father files habeas petition says
Hamdi went their for relief work, has no military training, and was
stuck there once the hostilities began.
Holding: Although Congress authorized the detention of
combatants in the narrow circumstances present here, due
process demands that a citizen be given a meaningful
opportunity to contest the factual basis for that detention
before a neutral decisionmaker.
Threshold question: Does the Executive have the power to detain
citizens who qualify as enemy combatants?
o 18 USC 4001(a) says that citizens can only be imprisoned
or detained pursuant to an Act of Congress but the
Authorization of Use of Military Force Resolution (AUMF) is
33

such an act, and thus Court does not decide whether plaint
A2 powers allow detention
o Court acknowledges that structure of War on Terror makes
detention indefinite but wars are often ambiguous, and
detentions necessary
Next question: What process is constitutionally due to an enemy
combatant who contests his status?
o It is during our most challenging and uncertain moments
that our Nations commitment to due process is
most severely tested; and it is those times that we must
preserve out commitment at home to the principles for
which we fight abroad
o Hold that the enemy combatant needs an opportunity to
contest his status. BUT these proceedings "may be tailored
to alleviate their uncommon potential to burden the
Executive at a time of ongoing military conflict"
For example, hearsay may need to be accepted as
the most reliable form of evidence
Also, Const not offended by a presumption in favor of
Governments evidence, as long as presumption is
rebuttable and opportunity for rebuttal is presented
Detainee must have access to counsel
o Thus, once Government presents credible evidence, the
burden falls to the detainee to rebut the evidence with
more persuasive evidence that he falls outside of the
criteria
o Note: this is about determination to continue, not initiate,
detention
Court rejects Governments contention that (SOP) requires Court
to stay out of this issue this view condenses power in one
branch, rather than separate
Several workarounds (not great for detainees): need to be on US
soil (but if these facts change the same argument could still
work)
Subsequent enactments/court creations by executive end of
class 12 notes
Legislative Authority The War Powers Resolution
o Presidents power to introduce armed forces is limited to
situations in which there is a
Declaration of war,
Specific statutory authorization, or
National emergency created by an attack on the US
o Requires President to consult with Congress in every
possible instance before introducing troops, and requires

34

that he consult regularly with Congress until troops are

removed
If no Declaration of War, President has to submit a
report within 48 hours
Within 60 days of filing of report, President must
terminate operations if Congress has not authorized
them

Equality Racial Discrimination

Slavery and the Constitution
Dred Scott v. Sandford (1857)
DS argues that his time spent in MN, a free state, made him a free
man, and denied his owners property interest in him even after they
returned to MS.
First question: Can DS be a citizen of Missouri?
o Citizens = People of the United States = people who hold
the power to conduct the Government through
their representatives not slaves!
o Were an inferior class of people at time of Const, no framer
intent
Second question: Did DS remain a slave after his sojourn to the
Louisiana Territory (freed by federal law?) and Illinois (freed by
state law?)?
o Power of Congress over the liberty and property of
individuals is not discretionary, but rather enumerated and
limited an act of Congress which deprives a citizen of his
liberty or property merely because he brought it into a
specific territory or state could hardly be dignified with the
name of due process of law
How could the claim be deprivation of property without
DP? This got all the way to SCOTUS thats a lot of
process of law!
o Also point to the Fugitive Slave Clause (A4, 2, c3)
o With regards to IL state law, his status was determined by
MS law because of the return to MS prior to sale
Important post-Civil War shift: The Constitution changes from being
viewed as a way to limit the power of federal government and protect
state sovereignty to seeing constitutional rights as a basis for
the assertion of federal power to protect individuals against
state interference

35

Congress did its part by enacting three constitutional amendments that

conferred additional substantive power on Congress:
13th: extended Emancipation Proclamation to all United States,
have Congress power to enforce this through
appropriate legislation
o But Black Codes started popping up that took away even
the most basic civil rights of blacks
o Congress responded with the Civil Rights Act of 1866
made it explicit that black people had all the same rights
as white people, were subject to the same punishments
14th: All laws that are necessary and proper (NPC) to ensure
equal protection in the rights of life, liberty and property.
o Also explicitly overrules Dred Scott
15th: Prohibited restriction of the right to vote based on race,
color, or previous condition of servitude
Slaughter-House Cases court says Reconstruction Amendments
were about freeing the slave race, and did not infer from them that the
purpose was to transfer general responsibility for protection of civil
rights from states to the federal govt.
This suggested a two-tiered approach to the 14th Amendment:
o Rights of newly freed slaves at stake (i.e. racial
discrimination) amendment is read expansively to
provide comprehensive federal protection
o No racial discrimination at issue primary recourse for
protection of rights remains with his own state government
State Action: Civil Rights Cases (1883) CRA of 1875 provided
that all persons were entitled to the full and equal enjoyment of the
accommodations, advantages, facilities, and privileges of inns, public
conveyances, on land to water, theaters, and other places of public
amusement; made this applicable to all people regardless of race.
The Court invalidated this statute as outside of the substantive
grant of power to the federal government embedded in the 14th
Amendment (because it applied to private and not just public
action)
Basic argument is that this was a humongous encroachment on
an area of traditional State legislating yeah but States legislate
racistly so
What about the argument that inaction on the part of the State
to protect racial minorities from private discrimination is
conceptually indistinguishable for State action endorsing such
discrimination?
Nowadays, CC & Heart of Atlanta would protection from
discrimination!

36

Heightened Scrutiny for Race-Specific Classifications

Strauder v. West Virginia (1880)
WV statute preventing anyone other than white males over 21 from
serving on juries; Strauder brings a 14A claim after being convicted by
all-white jury.
Purpose of 14A was to give blacks all of the rights of what had
long been considered the superior race knew whites would view
them with jealousy and contempt, and since white control state
government, needed the federal government to step in and
protect those who cant protect themselves.
While it is true that the language of 14A is prohibitory, it carried
with it a necessary implication of a positive immunity
exemption from unfriendly legislation against them distinctively
as colored, legal discriminations implying they are inferior, etc.
Clear that the WV statute is just such a law it is
practically a brand upon them, affixed by the law, an
assertion of their inferiority, and a stimulant to the racial
prejudice which impedes their equal protection
HOWEVER, this decision should not be read to prohibit all
discrimination on jurors they can prescribe the qualifications,
but not if they are just a blatant attempt at discrimination
Without explicitly saying it, this last part seems like it is
setting up the rational basis determination
What does the case suggest for equal protection doctrine? State
law must:
Be the same for blacks and whites, like a colorblind test
(form)
Not discriminate against blacks because of their color
(purpose)
Not imply black inferiority (expression) (cannot be
normative judgment on quality of races)
Not take steps toward reducing blacks to a subject race
(other effect)
Note that this is an easy case because all four factors point in the
same direction Court leaves open the question of conflicting
factors
Plessy v. Ferguson (1896)
LA statute required railway companies provide separate but equal
accommodations. Plessy (7/8 Caucasian) was prosecuted when she
refused to leave the white car.
While the object of 14A was clearly to enforce absolute equality
in the eyes of the law, it could not have been intended to abolish
distinctions based upon color, or to enforce social,

37

as distinguished from political, equality, or a commingling of the

two races upon terms unsatisfactory to either.
o Separate facilities do not imply the inferiority of one race,
and are well within state police power
Every exercise of the police power must be reasonable
and not for the annoyance or oppression of a particular class
o But reasonableness is determined by custom, tradition!
SHITS WACK!
The claim that separate facilities amount to badge of inferiority is
only true if black people choose to see it this way BABYBACK BULLSHIT
Legislation is powerless to eradicate racial instincts, or to
abolish distinctions based upon physical differences, and the
attempt to do so can only result in accentuating the difficulties of
the present situation.
Dissent (Harlan) Our constitution is colorblind, and neither
knows nor tolerates classes among citizens. In respect of civil
rights, all cities are equal before the law.
o Everyone knows that this wasnt designed to keep white
people out of black cars it was designed to keep colored
people away from whites, and therein lies the racial
discrimination
Noteworthy: While Plessy establishes the separated but equal
doctrine, it doesnt contain any language that requires the
separate facilities to be equal!
Holding: If reasonable and substantially equal, then a state may
require separate accommodations for white and black people
Can we reconcile Strauder?
o Strauder: about political (maybe civil) rights; this is about
social rights
o Then again, Plessy can be seen as crushing the civil rights
of train companies and passengers that dont want to
discriminate!
o Real problem is Plessy seems to ignore the Strauder
framework (form, purpose, expression, effect): only looks
at form, and ignores the obvious purpose and effect
(dismisses expression too!)

What is ironic about the courts initial opposition of civil

rights legislation is that, during the Civil Rights movement (and
specifically from 1938-1960) the Court became the main impetus for
change!
The Higher Education Cases (19361950) "Separate but Equal"
pressured
38

 Missouri ex rel. Gaines v. Canada (1938) could not maintain an

all-white state school while agreeing to pay black residents
tuition at institutions in neighboring states.
o Denies in-state legal education to black residents solely
based on race
Sipuel v. Board of Regents (1948) reaffirmed Gaines, but said
that the school could also just establish a black law school in the
state. Sipuels challenge to that part of the holding was later
denied.
Sweatt v. Painter (1950) court orders the admission of a
black student into a white school, despite the existence of a
parallel black law school
o Point to numbers factors that the University of Texas Law
School has that are incapable of objective measure and
cannot be matched (things like tradition and prestige)
o McLaurin v. Oklahoma State Regents (1950) basically
same holding
Brown v. Board of Education of Topeka (Brown I) (1954)
Black children are suing to gain admission to segregated public
schools.
Today, education is perhaps the most important function
of state and local governments so, does segregation of
children in public schools solely on the basis of race, even though
the physical facilities and other tangible factors may be
equal, deprive the children of the minority group of equal
educational opportunities? WE BELIEVE THAT IT DOES!!!
Point to Sweatt and McLaurin intangible factors that are
incapable of objective measurement
o Say it matters even more in grade/high school - To
separate [minority children] from others of a similar age
and qualifications solely because of their race generates a
feeling of inferiority as to their status in the community
that may affect their hearts and minds in a way unlikely
ever to be undone
o A sense of inferiority affects the motivation of a child to
learn
Conclusion: "In public education, the doctrine of "separate
but equal has no place. Separate educational facilities are
inherently unequal.
Holding is limited to necessary municipal facilities
Brown v. Board of Education of Topeka (Brown II) (1955)

39

 Brown I established the fundamental principle that racial

discrimination in public education is unconstitutional, and all
federal, state and local law must yield to this principle.
o Manner in which relief is to be accorded remains for
consideration
Implementation requires solutions of varied local school
problems school authorities have primary responsibility for
finding/solving these problems
Courts to determine if schools are making good faith efforts to
comply local courts are the closest to these issues, make the
best individualized remedies
Courts are to be guided by equitable principles (a flexible
approach based on the balancing of public and private needs),
but constitutional principles cannot yield in the face of
disagreement
Ds must make a prompt and reasonable start towards
full compliance
o If more time is necessary, the burden is on defendants to
show why delay is in the public interest
o Acceptable problems for delays: Administration; Physical
condition of school; School transportation system;
Personnel; Revision of School districts; Revision of local
laws
Holding: Lower court judgments are reversed, District Courts
required to take measures as are necessary and proper to
admit to public schools on a racially non-discriminatory
basis with all deliberate speed the parties to these
cases.
Backlash detailed in notes
De Jure/De Facto Line indicates EP violation requires state
action with a purpose to affect racial composition, not mere lack
of actual integration.
The commitment to desegregation, which was not plainly state in
the Brown cases, became very clear through jurisprudence in the
1970s and 80s
o Cases/examples of remedial measures in notes seemed
the main criterion seemed to be the legislators intent
State Action II: The Theory of Government Neutrality
Recall that the Civil Rights Cases (1883) tell us that refusals to serve
do not constitute state action this conception of state action changed
over time.
Shelley v. Kraemer (1948)

40

Black families purchased houses that were burdened with restrictive

covenants signed by previous owners that prohibited occupancy by
nonwhites.
State participation here amounts only to enforcement of the
restrictions.
The Amendment erects no shield against merely private
conduct, however discriminatory or wrongful
Restrictive covenants standing alone do not violate the 14A,
provided that the restrictions are effectuated by voluntary
adherence to their terms.
But here there was more this is because the state
(through the courts) is being called in to enforce the agreement!
There was no state action until the courts were involved, but
once they are State inaction is defeated!
Doesnt matter whether this type of covenant can also be used
to exclude whites equal protection of the laws is not
achieved through indiscriminate imposition of
inequalities.
Burton v. Wilmington Parking Authority (1961)
Coffee shop located within state-owned parking building refused to
serve appellants because of race shop is the states lessee.
Holding: Exclusion of appellant was discriminatory state action,
violates the EPC of the 14A
Most of the factors indicate that there is not state action here
(private business) however, while these factual considerations
are valid, they do not decide the case because of the context
created by other factors:
o The land and the building were publicly owned, dedicated
to public uses in fulfillment of the WPAs essential
governmental functions
o Coffee shop could only spring up because of tax breaks,
loans and revenue bonds from the City
o Part of the States plan to make the parking lot viable
o Public funds were used for the upkeep of the building
o Profits earned by the discriminatory practices are
indispensable elements of the financial success of
a governmental agency
^Taken together, all of these factors indicate a context of state
action
The relationship between coffee shop and state =
interdependence
o Refuse to allow this holding to say that every state leasing
agreement amounts to state action limit holding to these
facts
41

Moose Lodge No. 107 v. Irvis (1972)

Since the State of PA gave the Moose Lodge a liquor license, the Moose
Lodges refusal of service constituted state action.
Distinguished Burton nowhere near that amount of govt.
involvement
Pennsylvania Liquor Control Boards only involvement is the
license even though these are limited in #, granting of one
doesnt constitute monopoly
o Dissent says that since the quota for liquor licenses has
been reached, his refusal does significantly limit black
peoples ability to get liquor!
However, the PLCB does require that every licensee comply with
its constitution and bylaws, which could be read as to invoke
state action/place state sanctions behind discriminatory
membership rules
o Apparently this is enough! STATE ACTION!
Holding: Therefore, guy who was denied service is entitled to
protection to the extent that the PLCB required Moose Lodge to
adhere to its constitution and bylaws regarding racially
discriminatory provisions.
Modern Doctrine: Rational Basis Default
Rational Basis applies unless theres some other factor that triggers
greater scrutiny
New York City Transit Authority v. Beazer (1979)
TA rule prohibits employment of people who use narcotic drugs. Apply
this rule to methadone, a synthetic narcotic widely used as a treatment
for heroin addiction.
A substantial number (2/3) of the people on methadone are
capable of performing the functions of a TA employee.
May be unwise to use general rule rather than individualized
consideration, but this concerns matters for personnel policy that
do not implicate the EPC.
This rule serves the general objectives of safety and efficiency
Court ignores disparate impact since exclusionary line doesnt
circumscribe a class of persons characterized by some unpopular
trait or affiliation, it does not reflect a bias on the part of the
ruling minority
o Doesnt matter if the exclusionary line is imperfect or
unwise
Whether or not strict scrutiny is triggered is basically outcome
determinative

42

Rational basis test (applies here) challengers burden to

disprove that:
o (1) The classification is rationally related to
o (2) A legitimate government interest
Process for analyzing EPC claim:
o What is the disadvantaged class?
o What are the reasons for imposing this disadvantage?
o Are the chosen means (rationally related/narrowly tailored)
to achieving a (legitimate/compelling) government
interest?
Under rational basis, courts will:
o Tolerate a loose means-ends fit (over-/under-inclusivity)
o Worry about administrative burden (need crude proxies
because you cant intensely investigate every new hire)
o Presume facts in the governments favor

US Department of Agriculture v. Moreno (1973)

Food Stamp Act excluded from the food stamp program any household
containing an individual who was unrelated to any other member of
the household. EPC of 5A.
Use rational basis however, the challenged statutory
classification is clearly irrelevant for the purpose of
raising nutrition in low-income households.
Thus, if it is to be sustained, the provision must rationally
further some legitimate governmental interest other than
those stated in the act
o Not much LH to help here but what does exist indicates
that this was meant to prevent hippie communes from
receiving subsidy
Provision cannot be sustained according to this purpose
because a baredesire to harm a politically unpopular subgroup
cannot constitute a legitimate governmental interest.
This case is very close to Beazer - decision depends on whether
the court finds that Congress was out to get the disadvantaged
group, and whether or not other legitimate issues (like safety)
are invoked.
City of Cleburne v. Cleburne Living Center (1985)
Municipal zoning ordinance in TX excludes homes for the insane or
feeble-minded, alcoholics or drug addicts city denies space for group
home for mentally retarded.
Rational Basis applies, yall!
So what is the citys purpose? It was worried about the negative
attitudes of nearby property owners.

43

o But mere negative attitudes, or fear, unsubstantiated by

factors which are properly cognizable in a zoning
proceeding, are not permissible bases for treating this
home differently
o Unsubstantiated Fear cannot be legitimate interest!
Other (legitimate) arguments for not having home:
o School nearby but the school contains mentally retarded
students
o Flood plain but this would also cut against a home for the
elderly!
Court does not recognize mentally handicapped as a protected
class but then how do we reconcile this case with Beazer?
o Thats because the real motivation/purpose here is fear
old people being afraid of the mentally handicapped,
problems they would cause
How might policymakers lawfully react to a successful equality
claim?
o Leveling up give right to everyone to defeat EP claim
Ex: Prohibit the exclusion of any group homes, or go
farther and prohibit the exclusion of any type of
building!
o Leveling down take away the right for everyone to
defeat EP claim
Ex: Prohibit any type of group home, or prohibit
health facilities in general

Romer v. Evans (1996)

Colorado enacted a Constitutional Amendment prohibiting local
governments from enacting anti-discrimination measures protecting
homosexual, lesbian, or bisexual orientation, conduct, practices
or relationships.
Amendment 2 fails, indeed defines, [conventional rational basis]
inquiry.
o Only really explained by an animus against the people it
attacks
Bare desire to harm legitimate government interest language
resurfaces
Dissent (Scalia) Of course there is animus here, but thats ok
when it is directed at morally reprehensible conduct, SUCH AS
MURDER, POLYGAMY OR CRUELTY TO ANIMALS.
Suspect Classes: Racial Classifications
Now we are thinking strict scrutiny this means that the government
is (generally) going to lose!
44

 Strict Scrutiny Test it is the Governments burden to prove

o (1) The classification is necessary and narrowly tailored
to achieve
o (2) A compelling interest
Because the Court does not want to (or have the institutional
authority to) comment on how compelling the interest is, this
test generally turns on how narrowly tailored the means are
Loving v. Virginia (1967)
VA statute prevented interracial marriage.
IMPORTANT NOTE: This is not a ban on all black people being
married (only black-white marriages) so this is more of a
separate but equal thing because the law applies equally to all
races.
o What this tells us is that strict scrutiny is now triggered in
both cases!
EPC requires consideration of whether the classifications drawn
by the statute constitute an arbitrary and invidious
discrimination
EPC demands racial classifications, especially in criminal statues,
be subject to the most rigid scrutiny (Korematsu), and if they
are ever to be upheld, they must be necessary to the
accomplishment of some permissible state objective
independent of the racial discrimination
o No such objective exists here statute is invalid!
Should courts apply SS to all racial classifications? Options (from
Samaha):
(1) Help discrete (easy to pick out, characteristic where
everyone can tell), insular (clustered together; cohesive),
immutable (hard to get out of that class once youre in it)
minorities Cf. Carolene Products
o These factors indicate political powerlessness, trigger
suspicion
o But insular minorities will have more political power than
diffuse minorities, or even majorities on some issues!
(2) Help politically powerless groups w/ history of unjust
discrimination? Cf. Beazer (1979) (unpopular trait or
affiliation and majority bias)
(3) Attack any classification based on race, whoever is
disadvantaged this seems like the easiest one to administer,
but it also leaves open the questions of what is race? Could be
appearance, personal identity, genetics, blood, ancestry,
separate culture, behavior, etc.
o This option can be way too overinclusive!

45

 People who test positive for communicable disease this is

immutable (if no cure), insular (infection requires proximity), not
necessarily discrete (unless symptoms are super gross), there is
a history of unjust discrimination (quarantine).
o So even though this is obviously not race it qualifies for
many of the characteristics if we analogize to race, we
can argue for SS
United States v. Carolene Products (1938)
Not famous for holding (about filled milk), but for famous footnote
four!
Justice Stone calls for a more stringent standard of review
for statutes "directed at particular religious or national or
racial minorities.
o Indicates that the Court will be shifting away from the
protection of economic freedom/micromanagement of the
market, and will instead be focusing on protecting the civil
liberties of individuals!
Stricter review justified because prejudice against discrete or
insular minorities may be a special condition, which
tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities.
Race-Neutral Classifications
Classification facially neutral with respect to race are subject
to RB
o Exception (1): statute is administered as if facially racebased
Yick Wo (1886) (pattern in evaluation of laundry
petitions, regardless of ordinance intent)
Basically, if the disproportionate impact is so
extreme, they dont have to care about purpose to
invalidate the law
o Exception (2): statute has a racially disparate impact and a
racially discriminatory purpose
Davis (1976) (concluding this test was not satisfied)
Washington v. Davis (1976)
Unsuccessful black applicants to police force produce evidence that
Respondents produced evidence that (1) a higher percentage of blacks
than whites failed the test, and (2) test not empirically shown to
reliably measure subsequent job performance.
The central purpose of the EPC of the 14A is the
prevention of official conduct discriminating on the basis
of race
46

o However, statute will not be unconstitutional solely

because it has a racially disproportionate impact.
Just because group does not perfectly reflect the demographics
of community does not mean invidious discrimination exists
(Strauder).
On the other hand, it is not necessary that the discriminatory
racial purpose must be express or appear on the face of the
statute, or that disproportionate impact is irrelevant A
statute, otherwise neutral on its face, must not be
applied so as invidiously to discriminate on the basis of
race.
o Necessarily, an invidious discriminatory purpose may often
be inferred from the totality of the relevant facts,
including the fact, if it is true, that the law bears more
heavily on one race than another
Government is allowed to have standards from employee,
especially since communicative abilities are important to job
purpose is constitutional
Other factors cut against invidious discrimination (affirmative
efforts by PD to recruit black officers, changing racial
composition of the recruit classes, rational relationship between
the test and the training program)
Concurrence (Stevens) sometimes the objective evidence of
the effect is the best, for normally the actor is presumed to have
intended the natural consequences of his deeds.
The Courts approach is now two-fold:
o If the law contains a racial classification, use strict
scrutiny and probably invalidate the law
o If it does not, and only has a disproportionate impact, use
rational basis and probably uphold the law
Gerrymandering to exclude black votes not ok (Gomillion v.
Lightfoot)
Important precedent
o Palmer city council closes public swimming pools in
response to an order to integrate, and the Court says this
is ok
o Generally, discretionary choices (like appointments) are not
reviewed because of partial racial motivation
o Causation if the same classification would have been
drawn without the improper motivation, the court has
denied remedies (Mt. Healthy)
Note that on a conceptual level, the difference between
discriminatory purpose and effect disappears in practice, the

47

importance of the distinction turns on the courts

willingness to infer purpose from effect.
o Court is more willing to do this in some substantive areas
than others
How do courts test for disparate impact? For bad
purpose?
o Partly because of, not in spite of, the effect a motivating
factor PLUS but-for causation. Feeny (1979); Arlington
Heights (1977) (pg. 544-45)
What evidence may be used to prove purpose?
o LH but hard to get one purpose out of this, because
legislation only comes about as the result of compromise
But often there is evidence of influential individual
actors positions, and that can be admissible
o Evil what the law was enacted to address

Affirmative Action
Should strict scrutiny apply to all racial classifications, even if they are
meant to benefit minorities? (Different arguments in this debate in
class slides)
Regents of the University of California v. Bakke (1978)
affirmative action, set aside 16/100 seats every year for minority
students, splintered decision
o Four justices would have upheld the program under an
intermediate level of scrutiny somewhere between RB
and SS
o Four other Justices thought that this was a violation of title
VI of the 1964 CRA, plain and simple
o Powell was swing vote he decided that all racial
classifications should be subject to SS. So UC Davis
program is unconstitutional, but all such racial
classifications arent necessarily unconstitutional.
Said that he would have allowed a program
where race was used as a plus, but not one
where there were distinct categories for minority and
nonminority students
Powells is the opinion that stands the test of time
Fullilove v. Klutznick (1980) federal affirmative action (AA)
program gave 10% of funds for projects must go to minority
business enterprises (MBEs), Court held that this was ok (barely)
but still applied SS.
o Factors that lead to this decision: the limited duration
of the program; Congresss unique authority under 5 of
the 14A to devise remedial measures for racial
discrimination; no nonminority contractors severely
48

injured; waiver that allowed deviation from 10% if minority

contractors were more expensive
Richmond v. Croson (1989) city set aside 30% of contracts
value for MBEs, but this was invalid under strict scrutiny. But the
Court distinguished federal from local racial politics (more details
mentioned in next case).

Adarand Constructors, Inc. v. Pena (1995)

Government program incentivizes hiring subcontractors controlled
by socially and economically disadvantaged individuals. Fractured
opinion, judgment of Court.
Government claims that the classification is based on
disadvantage, and not on race, and is thus subject to only the
most relaxed judicial scrutiny
o Court agrees, but notes that only part of classification is
race-neutral
Court notes the difference in language between 5A and 14A (the
latter has the words equal protection, the former does not)
o Croson decided that SS applies to all race-based
classifications of state and local government under 14A
o Three general propositions of Croson:
Skepticism racial classifications necessarily receive
the most searching examination
Consistency standard of review of the EPC not
dependent on what race is in question
Congruence EP analysis is the same under
14A and 5A
o Taken together, this means any person of any race can
subject any government actors racial classification to
strictest judicial scrutiny
HOLDING: All racial classifications are to be analyzed with SS,
regardless of what level of government. In other words, such
classifications are constitutional only if they are narrowly
tailored measures that further compelling governmental
interests
Two factors to consider when evaluating narrow tailoring:
o Consideration of alternative, race-neutral means?
o Measure will not last longer than the discriminatory effects
it is designed to eliminate
Concurrence (Scalia) agrees with majority, except that he
believes government can never have a compelling interest in
racial discrimination in order to make up for past discrimination
in the opposite direction. In the eyes of Government, we are just
one race here. It is American

49

Dissent (Stevens) the majority opinion confuses the

difference between a No Trespassing sign and a welcome mat!
Dissent (Ginsburg & Breyer) agree that purpose of strict
scrutiny is to:
o Distinguish between legitimate and illegitimate uses of
race in governmental decisionmaking
o Differentiate between permissible and impermissible
governmental use of race
o Distinguish between a No Trespassing sign and a welcome
mat

Grutter v. Bollinger (2003)

Can race lawfully be a factor in student admissions at the U of
Michigan Law School?
HOLDING: Court have been following the words of Justice Powell
in Bakke for how to design their affirmative action admissions
programs - today, the Court embraces Powells view that
student body diversity is a compelling state interest that
can justify the use of race in university admissions.
Follow Adarand SS applied, so need compelling interest &
narrow tailoring
Give deference to the Universitys determination that diversity
is essential to the educational mission doesnt sound like very
strict scrutiny!
o Univ has lots of evidence of benefits; not courts place to
second-guess
Law school seeks to enroll a critical mass of minority students
this is not outright racial balancing (quota), which would be
unconstitutional
o Not racial balancing, it is the amount of students needed to
create the educational benefit seems like circular logic.
Does it stop being a number just because law school
doesnt know what the number is?
o Majority is referring to a range of racial diversity that is
needed, but it seems strange to me that a range is ok
when a target number is not
University engages in a holistic review, looking at all the ways
the applicant will contribute to a diverse educational experience,
not just race
"Narrow tailoring does not require the exhaustion of every
conceivable race-neutral alternativeNarrow tailoring does,
however, require serious good faith consideration of workable
race-neutral alternatives that will achieve the diversity the
university seeks.

50

o Law school sufficiently considered race-neutral alternatives

Palmore v. Sidoti race-conscious admissions policies must be
limited in time (core purpose of 14A was to do away with
government racial classifications)
Dissent (Rehnquist, Scalia, Kennedy, and Thomas) do not
believe that the universitys means are narrowly tailored to the
ends
o Critical mass is just a veil for racial balancing
o Number of each minority group admitted correlates with
diversity representation in society to a suspicious degree
Dissent (Scalia) doubts the educational benefits that the
University is talking about (wont get a B+ in working and
playing well with others, or tested on racial understanding on the
bar exam)
o This is a lesson of life, not of law
Dissent (Thomas) says give black people a chance to stand
on their own (give them simply justice, treat them no differently)
o The question itself (of whether black students deserved the
spot or received AA) keeps the stigma alive, and is why
there is ultimately no beneficial discrimination
Why might some justices prefer vagueness in program
standards?
o One of the arguments about AA is that it can backfire
entrench ides of racial identity, stigmatize people, change
beliefs about the merits of people who are admitted. But
these are all dependent on everyone knowing that race is
being used if it isnt, causal chain falls apart!
Gratz v. Bollinger (2003) (6-3) (invalidates the universitys point
system)
o [Did not read the notes from 592-598, so read this during
exam prep!!!] this tells you about this case! DO IT!

Parents Involved in Community Schools v. Seattle School

District No. 1 (2007)
Public School assignment system allows students to rank their
preferences. A series of tiebreakers are used to assign schools
Tiebreaker 1 is whether a sibling attends that school, and Tiebreaker 2
has to do with racial classifications. Districts ration is 41:59 white to
nonwhite if the school is more than 10% away from this (i.e. school is
not integration positive), T2 used to admit student that brings closer
to balance.
Majority finds a constitutional violation Kennedy is in the
middle with the narrowest grounds for judgment
Two compelling interests for AA are not present in this case!

51

o Remedying the effects of past discrimination (but Seattle

was never segregated and KY was ruled not integration
order in 2000)
o Interest in diversity in higher education (dealing with
primary ed)
Another justification: Use of racial classifications helps prevent
racial concentration in schools, helps ensure that racially
concentrated housing patterns do not deny nonwhite students
access to the best schools
o However, this mean does not satisfy narrow tailoring
because it is an outright racial balancing, plain and simple
o Point out that tiebreaking has minimal effect, so not
necessary but doesnt this also mean that it is narrow!
Counterintuitive!
Concurrence (Thomas) Racial imbalance is not
segregation.
o Cannot leave it to the school board to determine what
interests are compelling NO DEFERENCE!
This would abdicate the Courts constitutional
responsibilities
Concurrence in part and concurrence in judgment
(Kennedy)
o The enduring hope is that race should not matter; the
reality is that too often it does.
He emphasizes this to say that he disagrees with the
Court to some extent he says that there are
permissible instances of using race as a factor.
o School boards may pursue the goal of bringing together
students of diverse backgrounds and races but means
should be better
So the problem here was narrow tailoring, not the
interest
o Other means: School boards may pursue the goal of
brining together students of diverse backgrounds and
races through other means, including [1] strategic site
selection of new schools; [2] drawing attendance zones
with general recognition of the demographics of
neighborhoods; [3] allocating resources for special
programs; [4] recruiting students and faculty in a targeted
fashion; and [5] tracking enrollments, performance, and
other statistics by race."
Kennedy, who doesnt even like using race as a plus,
thinks these are ok because race has been removed
from the forefront
Dissent (Breyer, Stevens, Souter, and Ginsburg)
52

o Three essential elements of the interest at stake

Historical and Remedial element correction of the
effects of past discrimination
Educational element highly segregated schools
have adverse educational effects
Democracy element interest in producing an
educational environment that reflects our pluralistic
society
o Narrow Tailoring is met reasons this is not just a
quota:
The emphasis on student choice (remember race is
just a tiebreaker here)
The use of race here is more narrowly tailored than
other means that have been approved (Grutter)
only a factor in a small number of cases here
School looks to alternative means available and
discredit them
o Judicial modesty argument no one knows whether
eliminating all racial classifications will lead to a more
colorblind society, and moreover, not Courts place to be
making these sorts of judgments!
o Brown was a very important promise not of formal racial
equality on paper, but one of actual equality in the
everyday lives of citizens

Equality Sex Discrimination

Background: The ERA (equal rights amendment) perhaps shaped the
judicial interpretation of gender equality and sex discrimination in the
modern era (though it came close in the late 1970s, it was never
ratified). Ultimately, it seems that legislation has been the main
preventer of sex discrimination, rather than courts applying the EPC.
The Court really didnt start crediting constitutional attacks on gender
classifications until the 1970s.
Development of Intermediate Scrutiny
Reed v. Reed (1971) Idaho statute dealing with estates said
that between two people with an equal claim, men were to be
preferred to women.
o This was the first case where SCOTUS struck down a
gender classification under the EPC
o Look to whether a difference in the sex
of competing applicants [bears] a rational relationship
to a state objective that is sought to be advanced by the
operation of [the statute].
53

o Reason advanced by legislature was administrative

convenience immediately decide between the parties w/o
having to get into facts
BUT this is also based on an archaic idea of the roles
of men and women, so in that sense it is not arbitrary
but rather outright discriminatory! Hence statute is
unconstitutional!
Frontiero v. Richardson (1973) Federal law made it so that a
male member of the armed forces could automatically claim his
spouse as a dependent, while a women could only claim hers if
she proved that he was dependent on her for over half of his
support. Violated EP component of 5A!
o Writing for four justices (which means there was never a
majority to support SS for gender classifications), Brennan
argues that gender classifications are inherently suspect
and subject to strict scrutiny; said that there was a need
to overcome years of romantic paternalism that put
women in a cage rather than on a pedestal
o Sex is an immutable characteristic, like race, and thus sex
discrimination violates the basic concept of our system
that legal burdens should bear some relationship to
individual responsibility
o Classification in question does not survive SS
administrative convenience does not justify constitutional
defiance
A lot of these classification are along biological lines, which are
more legitimate than racial classifications
o HOWEVER, these biological differences also have an
influence on the roles that people play in society, and when
the law reinforces these social roles we start to infringe on
constitutional protections
Should courts treat women as a suspect class, akin to a racial
minority?
o Immutable sex is an accident of birth, just like race
o Political representation historically women have had
less representation in politics, even though 50-ish% of the
population
o Discreteness sex is generally easy to see. This means
that it is easier for government to discriminate against
women as a class, but also that it is easier for women to
organize into politically powerful groups
o On the other hand: Women are not a minority (actually a
majority)
o NOTE: If my ability to get a court victory depends on my
ability to prove my political powerlessness relative to
54

other minority groups, this creates competition and illwill between repressed groups and serves to benefit the
majority!
o Should court treat sex as immediately suspect
classification, like race?
E.g., how should courts handle complaints by men?
Craig v. Boren (1976)
Interaction of two Oklahoma statutes prohibits the purchase of
nonintoxicating 3.2% beer to males under the age of 21 and females
under the age of 18.
To withstand constitutional challenge, previous cases establish
that classifications by gender must serve important
governmental objectives and must be substantially related
to achievement of those objectives.
o First appearance of intermediate scrutiny!
Purpose was enhancing traffic safety: court based the disparate
treatment on statistics saying that 2% of males in that age group
were arrested for that offense, compared to only .18% of females
o While this is technically statistically significant, it can
hardly justify sex discrimination if maleness is to be used
as a proxy for drunk driving, a correlation of 2% must be
considered an unduly tenuous fit
o Also, no showing 3.2% beer is responsible (compared to
other booze)
o While legislators do not need to be trained statisticians,
this line of inquiry does point out that proving broad
sociological propositions by statistics is a dubious
business, and one that is inevitably in tension with
the EPC.
Concurrence (Powell) agrees with holding, but doesnt like
development of IS. Would prefer leaving EP analysis as two-tiered
approach (RB or SS).
Concurrence (Stevens) agrees with Powell; also, the real
problem here is with Ohios justifications, not with gender
classifications in general.
Dissent (Rehnquist) would have used RB, but at least it isnt
SS anymore!
o Most important justification for SS is history of past
discrimination but this statute discriminates against men,
so that doesnt work!
Affirmative Action for Women
o Ballard (1975) (gave female naval officers four more years
of commissioned service before discharge)

55

Law passed IS analysis because women, excluded

from combat duty, had fewer opportunities for
advancement in the military.
The Court found the statute to directly compensate
for the past statutory barriers to advancement.
o Kahn (1974) (upheld widow property tax exemption
because it was harder for widow than widower to get a job)
NOTE: Pregnancy is not a sex classification SCOTUS got
a majority on this point in 1974

The Real Differences Caveat

Some alleged sex differences are real and demonstrable (pregnancy
for example). However, others are bad stereotypes or socially
constructed roles (ex: men at work) that the Court, if they give
credence to, would enshrine these stereotypes in law and maybe keep
them around for longer than they would persist without these laws. The
real issue with this doctrine is how do courts tell which is which?
Nguyen (2001) (different proof burden for proof of citizenship
depending on whether mother or father was US citizen)
o First of all, Congress gets some deference on immigration
issues
o Administratively, more difficult to demonstrate whether the
father or mother had a personal relationship than to look at
the biological connection so going with biological
connection to mother is ok
o Holding is questionable under intermediate scrutiny close
to suggesting that men are less likely to make personal
connections to their offspring than women are
Hogan (1982) excluding men from state nursing school is
unconstitutional!
o This law was based off a bad sex stereotype while more
women are nurses than men, this is not because they are
inherently better at it because of their sex. If you by law
say that no men can be nurses, or limit their ability to be
nurses, the law is enshrining these old views about the
roles of men and women.
U.S. v. Virginia (1996)
Women are excluded from the Virginia Military Institute.
Holding: (1) Exclusion had no exceedingly persuasive reason; (2)
Proposed remedy of a womens program lacked substantial
equality in opportunity
o Sounds like Sweatt no separate but equal in higher
education!

56

Number of women willing/able to succeed at VMI is irrelevant

Court acknowledged that the number of women who wanted in
was very small.
Court repeatedly says that the program will have to be adjusted
privacy, physical training requirements, etc.
o But have to allow the program to bend to be more inclusive
cant keep it extremely hard just to get de facto
discrimination!
Hypos: Are sex-segregated bathrooms ok? What about if babychanging stations only in womens bathrooms?
o If the right of privacy is brought into archaic notions of
how men and women act, this is aggravating the problem
that desegregation of bathrooms is trying to get rid of!
o Theoretically, it is hard to justify why these are ok.
However, given the intimate nature of bathroom activity,
few are up in arms about this.
o Note that you would need state action to even bring
a claim here!
o Not everyone conforms to the statistical norm so baby
changing stations in only female bathrooms may not only
get it wrong, but will also reinforce these unfortunate
stereotypes!

Equality Sexual Orientation

Romer v. Evans (1996)
Colorado decided to suck with Amendment 2 I blame Utah (its a bad
influence!)
State argues that amendment simply puts gays and lesbians in
same position as everyone else does no more than deny
homosexuals special rights!
o However, the language of this amendment is very broad,
and could be read as to deprive gays of protection from
arbitrary discrimination in government and private settings
o Doesnt prevent special rights imposes a special disability
because they are forbidden the safeguards that others may
seek or enjoy
Even with the most deferential standards (RB), Court insists on
knowing the relation between the classification adopted and the
objective.
o The search for the link between classification and
objective gives substance to the EPC; it provides guidance
and discipline for the legislature, which is entitled to know

57

what sorts of laws it can pass; and it marks the limits of

[the Courts] authority.
A2 defies normal JR it is at once too narrow and too broad; it
identifies persons by a single trait, then denies them protection
across the board.
o It is not within our Constitutional tradition to enact laws of
this sort. Central to the EPC is the idea that the
Government remain open on impartial terms to all who
seeks assistance.
o A law declaring that in general it shall be more difficult for
one group of citizens that for all others to seek aid from the
government is itself a denial of equal protection of the laws
in the most literal sense.
o This law raises the inevitable inference that the
disadvantage imposed is born of animosity bare desire
to harm language from Moreno
Dissent (Scalia, Rehnquist and Thomas) this is not a bare
attempt to harm homosexuals, but rather "a modest attempt by
seemingly tolerant Coloradans to preserve traditional sexual
mores against the efforts of a politically powerful minority to
revise those mores though use of the laws.
o Basically says that they are equating opposition to
homosexuality to racial or religious bias not up to the
elitist court to call the rest of America evil for opposing
homosexuality
o Let democracy decide culture wars!
Is being free from discrimination an entitlement? Or is it a
discretionary thing that the government can give, but need not?
o Maybe it isnt that you are entitled to anti-discrimination
laws, but rather that you are entitled to be able to seek
protection from the government (i.e. cant ban ability to
challenge alleged discrimination)
o In that sense, it is a fundamental right to be free from
special disabilities. But Court is also not willing to make
this an entitlement!
Did the Court identify a suspect class, classification, or
fundamental right?
o NO and since these are the only ways to get SS, Court
goes with RB
Why is rationale basis not satisfied?
o Given that Colorado is making it so much more difficult for
a minority group to seek aid from Government, theres an
inevitable inference of an animus against gay people!
(Compare Moreno, targeting hippies)

58

Samaha wants us to think critically about this holding: there was

definitely some fear/religious conviction going on here, but the
Courts willingness to infer animus and work around democracy
is also troubling

Modern Equality Doctrine Summary of Suspect Classification

or Classes
Patterns: discrete, insular, immutable, minority?
Classes that courts are very worried about heightened
scrutiny!
Race - SS, Loving (1967), but note Grutter (2003)
Sex IS, VMI (1996), but note Ballard (1975); Nguyen (2001)
o NOTE: Minority does not apply here
Illegitimacy (bastard children) IS, Levy (1968) (excluding kids
who were illegitimate from being able to sue for their parents
wrongful death under state statute)
o Note: Not discrete, insular
o So, for above the line classifications, discrete, insular, and
minority are not outcome determinative does that mean
immutable is?
Classes that courts are less worried about rational basis!
Sexual orientation RB, but note Romer (1996) (animosity)
o NOTE: this is immutable (so that factor must not be
outcome determinative)
Disability RB, but note Cleburne (1985) (unfounded fear)
o NOTE: this is also immutable, but no SS!
o Maybe the Court found animosity or found the unfounded
fear because these characteristics were identified as
immutable!
o Also, maybe this indicates that this is a different form of RB
one that is far less deferential than other normal RB
Age RB, Murgia (1976) (elderly state trooper forced to retire,
this is fine)
o NOTE: this is also immutable, but no SS!
Wealth RB, Maher (1977) (poor people seeking abortion
funding, statute is not problematic)
o NOTE: there is a lot of debate over whether wealth is
immutable, so dont know what this says about
immutability

Equality Fundamental Rights and Interest

59

This section explores the intersection of EP and implied fundamental

rights jurisprudence. There are two basic models of EP analysis:
Classification uses suspect criteria apply SS, generally strike
down the law
Classification in the social or economic realm that do not involve
suspect criteria apply RB, usually uphold the law
This section asks whether there should be a third model based
on the fundamentality of the interest being affected
o Now, the court doesnt care about the line that is being
drawn care about what is being distributed: the benefit or
the burden?
o This strand of EP analysis has had far less impact on the
law than other doctrine was developed for a while; now
kind of petered out
Right to Procreate Fundamental Right!
Skinner v. Oklahoma (1942)
Challenge to the Habitual Criminal Sterilization Act. White collar crimes
were not considered under this act only felonies involving moral
turpitude.
Give OK the large amount of deference that it is due, but this still
violates the EPC because it affects one of the most basic
civil rights of man
o Calls this fundamental right marriage and
procreation
When the law lays an unequal hand on those who have
committed intrinsically the same quality of offense
and sterilizes one and not the other, it has made as invidious a
discrimination as if it had selected a particular race or nationality
for oppressive treatment. Apply SS and strike this act down!
Why not just make this a liberty argument, rather than pointing
to someone else and saying How come I have to be sterilized
and he doesnt?"
o Problem with EP claim is that it is subject to leveling
down that is why victories on liberty claims are
stronger!
o This case has been criticized as pretending to be about
equality when it is really about liberty
Right to Vote Fundamental Right!
Harper v. Virginia State Board of Elections (1966)
If a state holds an election, voting may not be conditioned on a poll
tax!
60

Whether or not a voter is qualified has no relation to wealth or to

paying or not paying certain taxes.
We have long been mindful that where fundamental rights
and liberties are asserted under the EPC, classifications which
might invade or restrain them must be closely scrutinized and
carefully confined. (SS)
o The right to vote is too precious and too fundamental to be
burdened by considerations of wealth or fees
Note this was not unconstitutional as applied to poor people
Court found it unconstitutional regardless of your ability to pay
(in other words, facially unconstitutional)
o This says that Congress can discriminate in the right to
vote but the classification chosen has to have something
to do with whether you will be a good voter!
Classifications applied to voting rights are immediately suspect
really hard to find a good way to test whether someone will be a
good voter or not
Both Skinner and Harper deal with protecting democracy from
itself if those in power get to decide who can vote/get
sterilized, this will let them self-select to make sure that they
become entrenched in their power!

Right to Welfare Not a Fundamental Right

Dandridge v. Williams (1970) the Court upheld a provision of
Marylands Aid to Families with Dependent Children (AFDC) program
that granted most eligible families their computed standard of need,
but imposed a maximum monthly grant of $250 per family regardless
of family size or computed need.
State does not violate the EPC just because the classifications it
makes are imperfect doesnt matter that this is both under- and
over-inclusive
o Use rational basis review this becomes the standard
for the evaluation of welfare classifications
Interesting points in notes and comments
o Could this be seen as a limitation on the ability to
procreate?
o Welfare is the state giving something to people
(establishing affirmative rights), but the Const is usually
seen as establishing limitations on government more than
establishing affirmative rights
o What about the argument that welfare is so important to
living that it is a fundamental right cant vote or
procreate if you cant eat!
o Limitation of this holding Moreno

61

Right to Education Not a Fundamental Right

San Antonio v. Rodriguez (1973) Public school financing scheme
resulted in wide discrepancies in money-per-pupil standards across
district. Court upholds w/ RB.
Equalizing spending would probably end up with HUGE
discrepancies in quality of education school in Manhattan would
have to pay soooooo much more in property tax, for instance!
To trigger SS under EP, the Court demands a right to education in
the Constitution, not just an important service per Brown
o But it is hard to find a right to procreation or welfare in the
Const! So why is this consistent? Hard to reconcile this
case with precedent.
Right to basic education has been found by other cases,
but this has not been equated to a right to equal funding
This doctrine seems to indicate that the FR doctrine isnt invoked until
it jeopardizes democracy Court will jump in then so people will think
they are pro-democracy!
Ultimately, fundamental right or interest claims do not have to
do with equality! These are liberty claims!
Very important that we maintain the conceptual difference
between equality and liberty claims!

Liberty
State Action
The state action inquiry must be whether there is a sufficiently close
nexus between the State and the challenged action of the [private]
entity so that the action of the latter may be fairly treated as that of
the State itself. The true nature of the States involvement may not be
immediately obvious, and detailed inquiry may be required to
determine whether the test is met. Jackson v. Metropolitan Edison Co.
(1974)
Two possibilities for finding state action under this doctrine:
o (1) Sometime (RARELY!) private actor must be subject
to constitutional requirements because the state has
delegated a traditional state (or public) function to
a private entity
o (2) Sometime (RARELY!) private actor must be subject
to constitutional requirements because
o (a) State has become entangled with the private entity,
or
62

o (b) State has approved, encouraged, or facilitated

private conduct
Deshaney v. Winnebago County Department of Social
Services (1989) WY Court grants Ps father custody, then they
move to Winnebago County. County documents fathers physical
abuse of child but took no action to remove father. Child is
beaten until profoundly retarded, Mother sues WC claiming
states activities deprived son of liberty in violation of EPC of
14A.
o But the EPC does not guarantee State action to protect life,
liberty, and property it limits the States power to act, but
does not guarantee certain minimal levels of safety and
security
o Can have a special relationship with (and thus require
protection from) the State sometimes, like when youre in
its custody, but not when it is just aware of your
predicament
1 Custody matters because if state deprives people of ability
to protect themselves, they need to become responsible
for that protection
o Here we have government inaction, but everyone says
the G should act here! But should Due Process force them
to? Court says no
Enumerated Rights
Procedural Due Process Language of the DPC (without due
process of law) seems to be mostly concerned with procedure is it
just a procedural safeguard? Or are some substantive rights immune to
tampering, despite due process (these would be so-called implied
fundamental rights)
Used to be a right/privilege distinction
advantageous relations with the government were mere
privileges or gratuities, not legally protected rights
Goldberg v. Kelly (1970) expanded the conception of
property under the DPC to include continued receipt of welfare
(previously just a privilege)
Board of Regents of State Colleges v. Roth (1972) Roth
hired as prof. for one year term at Wisconsin State University (did
not have tenure), was not hired back after this and was provided
no reason why not/no opportunity to challenge decision, so he
sued under DPC. Court rejected his claim.
o Interests deprived need to fall within the 14As protection
of liberty and property [The] range of interests protected
by procedural due process is not infinite.

63

o But to determine whether due process

requirements apply in the first place, we must look
not to the weight, but to the nature of the interest
at stake.
Liberty and property are broad and majestic terms, left
intentionally vague so as to gather meaning through experience.
They have expanded over time:
o Property is no longer a rigid distinction between rights
and privileges, and property need not be actual ownership
of real estate, chattels or money.
o Liberty is not merely freedom from physical restraint, but
also the right to contract, marry, engage in any of the
common occupations of lifebasically anything essential
to the orderly pursuit of happiness.
Distinguish process and substantive claims: a process claims is a
complaint about how a decision is made versus other complaints.
Simple process claim: I dont like the way the state made the
judgment against me, how about giving me a judge and a jury
before you imprison me!
o Take the substantive law as given
Substance claim: I dont like your rule for quarantine/that the
government is using against me!
o Can make this argument regardless of how much process is
given
Two things that happen with process claims:
Triggering a right to process Deprivation of life, liberty, or
property under 5A or 14A
o Why might process claims be relatively attractive to
judges? (1) Their lives are process! (2) Feels more like
judicial modesty
o Due is very vague means that due process is often
heavily influenced by the facts of a given situation
Determining what process is due
o Balance interests to evaluate process demands Matthews
(1976) (disability benefits terminated without a prior
agency hearing, but with a lot of paper process beforehand
and a hearing later)
o See also Hamdi (2004) (enemy combatants detained)
court does balancing of interests and costs test to decide
what level of process to give detainees
o Process claims are like equality claims subject to
leveling down and workarounds

64

Matthews v. Eldridge (1976)

Eldridge had his disability benefits cut off after state agency consulted
his questionnaire responses, reports from his physician and psychiatric
consultant, and his files. Had opportunity for write-in protests, but
claim still denied.
Eldridge says that there needed to be a hearing evidentiary
hearing needs to happen prior to deprivation of a property
interest, to be precise
Precedent says that due process, unlike some legal rules,
is not a technical conception with a fixed content
unrelated to time, place and circumstances. Due
process is flexible and calls for such procedural
protections as the particular situation demands.
Thus, analysis of whether DP was sufficient requires analysis
of the governmental and private interests that are
affected.
This analysis uses three factors:
o (1) The private interest that will be affected by the official
action
o (2) The risk of an erroneous deprivation of such interest
through the procedures used, and the probative value, if
any, or additional or substitute procedural safeguards
o (3) The Governments interest, including the function
involves and the fiscal and administrative burdens that the
additional or substitute procedural requirements would
entail (the public interest factor)
Rights Against the States
What are the "privileges or immunities of citizens of the United States
mentioned in the 14th Amendment?
The Slaughter-House Cases (1873)
Louisiana Legislature grants one company the exclusive right to
engage in the slaughterhouse business in an certain area which
included New Orleans. Other slaughterhouse owners sued to invalidate
the monopoly.
Deep statements by majority on 13A/14A purpose regarding the
slave race
o Dont say this is the only purpose of the amendments
however, that was the primary purpose, and thus if they
are being used to vindicate a different type of claim, those
claims will necessarily be weaker
Look to the language of 1 of the 14A: Sets up difference
between citizen of USA and citizen of State, depend on different
characteristics/circumstances

65

o This is especially important because the next paragraph

talks about privileges and immunities of citizens of
the United States, not citizens of the several States
o Language is No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens
of the United States thinks the word choice is too
specific to extend protection to State citizens from their
own State under this clause
So where else can we find this language that would apply to
State citizens? Article IV, section 2: The citizens of each State
shall be entitled to all the privileges and immunities of citizens of
the several States.
o Was it the purpose of the 14A to transfer all protection of
all the civil rights from the State to the Federal
Government? Probably not goes into great flowery
language about how plaintiffs argument requires this
conclusion, and it would radically change the interaction
between Congress and State Governments
But that doesnt make the phrase "privileges or immunities of
citizens of the United States meaningless there are still some
which the Court hasnt taken away with this holding!
o Protection from foreign governments when abroad/on the
high-seas
o Ability to come to government with grievances, for aid,
with business
o Peaceably assemble, habeas corpus, etc.
Dissent (Field) Question is whether the recent amendments
to the Const protect citizens of the US against the deprivation of
their common rights by State legislation dissent says the 14A
does afford such protection
o Under the majoritys interpretation, the 14A does nothing!
It just reiterates the idea of the Supremacy Clause!
Dissent (Bradley) The ability of States to regulate their
citizens is important, not to be infringed lightly. But some
rights are too fundamental for this right of regulation to
reach!
o Among these privileges and immunities of citizens, none is
more essential and fundamental than the right to follow
such profession or employment as each one may choose!
Slaughterhouse cases are scorned today because of
interpretation of the PIC!
o Says 14A only protects those rights which owe their
existence to the Federal Government, its National
Character, its Constitution or its laws otherwise referred

66

to as U.S. citizen relationship to federal government. This

doesnt include CRA or fundamental rights!
Saenz v. Roe (1999) Court invalidated a California law
imposing durational residence requirements by limiting
welfare benefits during the recipients first year of residence.
o Holding: violated the privileges OR immunities clause (PIC)
of the 14A
o Court finds a right to travel and part of this is a right to
be treated as a citizen if you move to another state. Once
you become a citizen, classes within citizens
triggers heightened scrutiny under the PIC
o Purpose of deterring welfare applicants from migrating to
California was an impermissible purpose
o CA can just level down (give welfare to no one) because
this welfare is not a fundamental right! Also could have
solved problem by decreasing everyones welfare by like
72.
PICs primary purpose: "to help fuse into one Nation a collection of
independent, sovereign States. PIC was designed to insure to a citizen
of State A who ventures into State B the same privileges which the
citizens of State B enjoy. United Building and Construction Trades
Council v. Mayor of Camden
The Clause applies when a privilege or immunity is
burdened
The clause does not preclude discrimination against citizens of
other States where there is a substantial reason for the
difference in treatment. The inquiry in each case must be
concerned with whether such reasons do exist and whether the
degree of discrimination bears a close relation to them.
The PIC protects interests "which are fundamental; which belong,
of right, to the citizens of all free governments. There may all be
comprehended under the following general heads:
o Protection by the Government
o The enjoyment of life and liberty
o The right to acquire and possess property of every kind
o Pursue and obtain happiness and safety
subject nevertheless to such restraints as the government may
prescribe for the general good of the whole."
The Fundamental Fairness Approach
In a series of cases during the early 20th century (most notably
Twining), the Court held that the DPC did not incorporate the specific
protections contained in the bill of rights however, the Court
nonetheless held that the DPC protected some fundamental rights that
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on occasion overlapped with the rights protected by the bill of rights.

Specifically, the rights that were protected were those that, if denied,
would constitute a denial of due process
Ex: Freedom of speech, press, assembly, religion, and counsel
What was the test the Court used? A lot of lofty language
defining fundamental rights nothing to be objectively applied
THEN, starting with Adamson, the Court began to believe in total
incorporation (that the DPC of the 14A extended the bill of
rights to the states) however, this idea never fully caught on.
Now, the Bill of Rights is used like a menu SCOTUS pick
and choose which fundamental rights are incorporated to the
stated (by now, most but not all are incorporated) called
Selective Incorporation
o Note: once a right is incorporated, its scope is fully
determined by the scope of the BoR protection
Early doctrine
o Twining (self-incrimination) (is this right a fundamental
principle of liberty and justice? Is it essential to DP?)
o Palko (1937) (acquittal appeal) (Is this right the essence of
ordered liberty? Is it so rooted in out tradition and
conscience to count as fundamental? Will liberty and
justice still exist without this?)
Take-away: These are really tall orders! Almost
impossible to pass/satisfy this standard (becomes far easier
later on)
What are some objections to using the 14A DP in this way?
o States may not be able to offer less protection, but they
also cant offer more protection gets rid of some of the
value of federalism
o Isnt a right inherently fundamental if it managed to get
through the ratification process and get added to the BoR
in the first place!
o Every time the Court steps in, that has a restraining effect
on democracy and ordinary politics
o Subjectivity problem what is a fundamental right? This
depends on whom you ask!
Ultimately, while this doctrine is kind of a subjective nightmare, it
is the Courts attempt to fix the poor decision in Slaughterhouse
District of Columbia v. Heller (2008)
DC law that prohibited handguns is found unconstitutional (5-4).
Core of the 2A covers handguns for home self-defense,
unconnected to militia

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Note that this case does not involved the incorporation doctrine
because DC is a federal jurisdiction next cases addresses
whether 2A is incorporated
More notes on this case in class 2

Incorporation and Guns

For a while, the Incorporation Doctrine was settled (mainly
because Justices did not want to revisit it). But Heller left open
the question of whether the 2A protection was incorporated under the
14A (because DC is not a State). The Court has to revive the doctrine
to answer this question in the following case.
McDonald v. City of Chicago (2010)
Chicago has law similar to DC statute invalidated in Heller city argued
that law was ok because the 2A had not been incorporated against the
States. Fractured opinion.
HOLDING: Second Amendment Right is fully applicable to the
States
To find out whether the 2A should be incorporated, the Court
must decide whether the right to keep and bear arms is
fundamental to our scheme of ordered liberty, or in other
words, whether the right is deeply rooted in this Nations history
and tradition.
o Heller points unmistakably to the answer self-defense is a
basic right, and individual self-defense is central
component of 2A right
Concurrence (Scalia) despite his distaste for SDP, he has
acquiesced to incorporation because it is both long established
and narrowly limited
o The question to be decided is not whether the historically
focused method is a perfect means of restraining
aristocratic judicial Constitution writing; but whether it is
the best means available in an imperfect world.
o At the very least, Scalias method is much less subjective
than the one Stevens is proposing the former depends on
a body of evidence susceptible to reasoned analysis, rather
than vague ethicopolitical beliefs that can point whatever
direction the Judge wants
Dissent (Stevens) Heller shed no light on how to interpret the
14A!
o Test: "When confronted with an SDP claim, we must ask
whether the allegedly unlawful practice violates values
implicit in the concept of ordered liberty. If the practice in
question lacks any oppressive and arbitrary character, if
judicial enforcement of the asserted right would not
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materially contribute to a fair and enlightened system of

justice, then the claim is unsuitable for SDP protection.
o Just because judges use their reasoned judgment does not
meant that it is an exercise of abstract philosophy the
analysis is guided and grounded by:
Historical and empirical data
Text of the Const
Precedent
English Common Law
Legislative and Social facts
Scientific and professional developments
Practices of other civilized societies
Traditions and conscience of our people
o Cant just rely on history we did a lot of fucked up things
in the past!
o The most basic guidepost is that we have eschewed
attempts to provide any all-purpose, top-down,
totalizing theory of liberty
o So the inquiry of whether the right has been incorporated
by the 14A is stupid it hasnt been! The real question is
whether the 14A, by itself, extends this right to the States.
o Reasons that right to bear arms is not fundamental:
Ambivalent relationship to liberty (used to protect
and rob)
Nothing to do with life, autonomy, political equality,
etc.
Samaha: Be careful using tradition! We have conflicting
traditions! We have horrendously racist traditions! Whats so
great about tradition, anyway?
What are the advantages and disadvantages of using PIC as
opposed to DPC?
o PIC is going to get more of the BoR to be incorporated
o PIC is limited to citizens of the US doesnt apply for noncitizens, or for corporations
o Even under the PIC, the language is so vague that it will
end up being a discussion of what rights are fundamental,
which requires a full inquiry so once you go away from it
just being the BoR, there will be judicial determinations
under both the PIC and the DPC
This suggests that nothing much would change if we
shift to the PIC instead of DPC this seems to be
what Samaha wants to be our takeaway

Liberty Free Speech

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The first amendment provides that "Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
Court has never accepted this as an absolute right
both abridging and the freedom of speech" have
required interpretation
Restraints on free expression may be "permitted for
appropriate reasons
Basic takeaway there really wasnt much protection of the
freedom of speech until the second half of the 20th Century
Communicative Conduct and Content-Neutral Regulation
This section looks at symbolic conduct when does conduct constitute
speech for the purposes of 1A protection? Does it make sense to
conceptually differentiate between speech and conduct (some scholars
say no)? All behavior is capable of being interpreted as communication,
but often it is not intended to be - how should courts tell the
difference?
Need to be able to separate out these two inquiries:
o Defining Speech this is important, but never dispositive.
What else is going on?
o Deciding Cases other doctrinal things are going on,
besides just defining speech
Samaha says the basic test for speech is conduct that
communicates ideas
o Look for intent to communicate a message + a high
likelihood that the intended audience would
understand message given the situation
o A particularized message is not required
The level of scrutiny depends on whether the regulation
addresses content:
o Content-neutral regulation = intermediate scrutiny (a
weak form of it) (OBrien)
o Content-based regulation = strict scrutiny
What does content-based mean?
o Samaha shorthand: Because of the message
whether the conduct is being prohibited because of its
content
o Rule of thumb: ask yourself whether you need to know
what the message means
United States v. OBrien (1968)

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OBrien and his friends burned their Selective Service papers on the
steps of the South Boston Courthouse. Did this as a form of political
speech.
Amended 12(b)(3) on its face deals with conduct having no
connection with speech. Nothing inherently expressive about
the knowing destruction of certificates.
TEST: Even if speech falls under 1A, it might still be
unconstitutional Court has held that when speech and
nonspeech elements are combined in the same course of
conduct, a sufficiently important governmental interest in
regulating the nonspeech can justify incidental limitations on 1A
freedoms
o Other ways to express sufficiently important =
compelling, substantial, subordinating, paramount, cogent,
strong
Things that must be satisfied under this test:
o Regulation is within the Const power of the Government
o Furthers an important or substantial governmental interest
o G interest is unrelated to the suppression of
free expression
o Restriction is no greater than what is essential (narrowly
tailored)
Here, the statute is not unconstitutional making people keep
their registration forms is a valid, content-neutral government
interest!
o Plenty of other ways OBrien could have expressed his
message
Other cases:
o Stromberg v. California displaying a red flag in public
is protected, need to preserve the opportunity for free
political discussion
o Tinker (1969) arm bands worn by students to protest
Vietnam is a symbolic act closely akin to pure speech,
protected under 1A
o Schnact (1970) actor wore a military uniform in a play
that was critical of Vietnam. Statute prohibited wearing
uniform by non-military person, but other statute allowed
this for theatrical purposes unless the portrayal discredited
the army. Court said that saying that political opposition
defamed the military would be an unconstitutional
abridgment of freedom of speech
o Wisconsin v. Mitchell criminal statute gave increased
penalties to assaults that were also hate crimes
A physical assault is not by any stretch of the
imagination expressive conduct protected by the 1A
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Texas v. Johnson (1989)

During the 1984 RNC, Johnson burned a flag as part of a political
demonstration.
Court held (5-4) that flag burning was protected under the 1A
o This conduct was symbolic enough to qualify for 1A
protection
o Government can generally be more restrictive of actions
than of pure speech it may not, however, proscribe
particular conduct because it has expressive
elements.
This does not satisfy the "Governmental interest is
unrelated to the suppression of free expression
prong of the OBrien test
o Because the Texas restriction is content-based, they must
subject the States asserted interest to the most
exacting scrutiny
If there is a bedrock principle of the 1A, it is that the
Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable.
o To allow the burning of a dirty flag (which preserves its
symbolic value), but disallow protest burning (which
attacks its symbolic value), flag would only be able to be
used as a symbol in one direction
Immediately after this decision, Congress passed the Flag
Protection Act of 1989, which overruled this case Court then
turns around and invalidates this act (United States v. Eichman)
Barnes v. Glen Theatre, Inc. (1991)
Respondents present nude dancing as entertainment, which was
prohibited by Indianas public indecency statute.
HOLDING: Court rejects the claim (5-4) that this statute violates
the 1A
Content-neutral: Ban on public nudity across the board, not
just this dancing as such, even though nude dancing fits within
the outer limits of 1A protection, this incidental effect on some
expressive activity is permissible
o Government interest in public morals is valid (police power)
Scalia concurrent classifies this as a threshold test (whether or
not the purpose is to suppress free expression If it is not, very
high level of deference to government)
Brown v. Entertainment Merchants Association (2011)

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Court invalidates a California law imposing restrictions on violent video

games accessibility to minors content-based regulation!
Video games qualify for 1A protection!
As a general matter,government has no power to restrict
expression because of its message, its ideas, its subject matter,
or its content.
o Violent video games constitute speech about or depicting
violence, and thus is different than regulation of violent
conduct
No doubt a State possess legitimate power to protect children
from harm, but that does not include a free-floating power to
restrict the ideas to which children may be exposed.
Does not pass SS because wildly underinclusive other forms of
media are not banned, and children can still have access to these
games if an adult buys
Samaha: have sympathy for the judges they just wont take on
massive projects that have huge implications, they try to make
modest decisions!
o Draw crude lines to try to restrain their intervention that
will end up favoring some forms of free speech over others,
but that doesnt mean that it still isnt the best decision!

Liberty Religion
Religious beliefs and expression are forms of speech protected under
the 1A.
Also relevant are alternative legislative means for achieving the
same end must be a state interest of sufficient magnitude to
override the [free exercise] interest. (Wisconsin v. Yoder)
Defining Religion no simple test but covers God belief &
Santeria sacrifice
Substantial burden test = need a compelling G interest to
impose a substantial burden on the free exercise of religion
o Very vague standard next standard is a clear rule, but
that carries its own problems!
o Sounds like SS, although this test seems to be weaker in
practice
o In this area, the Courts arent going to be the heroes,
vindicating the rights of the oppressed masses (like it does
more with race) that role will be played by Congress and
state legislatures
Early Cases

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Sherbert (1963) (Sabbatarian sought unemployment

compensation while refusing Saturday work, which state law did
not count as good cause)
o Holding: denying Sherberts claim was an unconstitutional
burden on the free exercise of her religion
o Wasnt really government that mandated choice between
job and religion, it was market forces (because market will
conform to majority religion practices and she was minority
religion)
o Establishes substantial burden test
Yoder (1972) (Amish parent refused to send his kids to school
after 8th grade, while state law required school attendance until
age 16)
o Holding: The parents' fundamental right to freedom of
religion outweighed the state's interest in educating its
children.
o Risks with such a doctrine (the substantial burden test,
which is kind of a balancing test)?
Evaluations by the Court seem very subjective
Fraud people pretending to adopt religions in order
to get exemptions, or make new religions in order to
get advantage (which can be seen as state
incentives for adopting a religion!)
Note: While these cases do not get repudiated, the doctrine more
or less does

Religious Conduct and Neutral Laws of General Applicability

Employment Division, Department of Human Resources v.
Smith (1990) (5-1-3)
Native American church uses peyote for religious purposes.
New doctrine: Neutral law of general applicability does not
receive scrutiny!
o Note: what we are focused on is what the law looks like,
NOT the individual plaintiffs that are being harmed
o This is much more like a rule: constrains judge ability to
intervene
Distinguishing Sherbert in this case, the conduct in question is
illegal!
o While it would surely be unconstitutional to make acts
illegal solely in a religious context, a neutral law of general
applicability that happens to impose a burden on religious
practices is not invalid
o Religion cannot get you an exemption from criminal law!

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It is a permissible reading of the text to say that if prohibiting

the exercise of religion is not the objectbut merely the
incidental effect of a generally applicable and otherwise valid
provision, the 1A has not been offended.
Our cases do not at their farthest reach support the proposition
that a stance of conscientious opposition relieves an objector
from any colliding duty fixed by a democratic government.
(Gillette v. United States)
Compelling interest is necessary for race classifications, or
restriction of free speech, but not needed for striking down
private exception to crim law
o Because this is a cosmopolitan nation is made up of every
religion out there, we cannot afford the luxury of deeming
presumptively invalid, as applied to the religious objector,
every regulation of conduct that does not protect a
religious interest.
Concurrence (OConnor) no laws are going to directly target
religion because legislatures arent that stupid! 1A is implicated
when any law restricts the free exercise of religion!
o Still, 1A jurisprudence acknowledged that freedom of belief
does not imply perfect freedom to act SS balancing test
used to test for compelling interest and narrow tailoring!
o Law should still be upheld because regulating harmful
drugs counts as a compelling state interest
Dissent (Blackmun) says that the other two opinions
incorrectly defined the compelling state interest - it is not the
broad police power interest in fighting the war on drugs, but
rather the States narrow interest in refusing to make an
exception for the religious, ceremonial use of peyote.
Case is analogous to OBrien as applied to the plaintiff, there
may be some 1A issues invoked, but that does not make the
governments compelling interest in the law any less compelling
What is beyond the Smith rule? (i.e. ways to get out from under
this rule)
o If regulation is non-neutral or non-general, SS will strike
it down!
o System of individual exemptions: if they decide there
can be individual exceptions, but deny it for religion, then
we have 1A FEC problems! This becomes facial
discrimination and must have SS!
o Hybrid rights claims: Court does explicitly mention that
this would make a difference this is how Yoder survives
(freedom of religion + freedom to guide your childrens
education)

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o Ministerial exemptions: Hosanna-Tabor (2012) (teacher

ADA claim is rejected because opposite holding would
restrict churchs freedom of religion (or at least to choose
ministers))
Lukumi (1993) Law that targets ritual animal slaughter for the
express purposes of suppressing a religious practice fails SS by
definition because it is not precisely tailored to accomplish a
compelling governmental interest.
o Illegitimate government interest can never be compelling
o While the law doesnt mention religion per se, the banning
of animal slaughter was pretext (real purpose was burden
unpopular religion)

Congressional enforcement revisited

In this section, we consider issues that have arisen with respect to
Congresss enforcement power under 5 of the 14A. CON LAW +
REMEDIES!
Katzenbach v. Morgan (1966)
In earlier case, Court held that English-language literacy tests for
voting did not violate 14A or 15A. Then the Voting Rights Act overruled
this, primarily over a concern that hundreds of thousands of Puerto
Rican immigrants who were fluent in Spanish would be denied the right
to vote.
HOLDING: Court rejects the notion that the only way to uphold
this statute is to find that the English-language test requirement
violated the EPC itself This would confine the legislative
power in this context to the insignificant role of
abrogating only those state laws that the judicial branch
was prepared to adjudge unconstitutional.
o Well within congressional authority to say that the need to
secure the Puerto Rican communitys right to vote
warranted federal intrusion upon any state interests served
by the English literacy requirement
Congress is the one that must perform balancing tests of
following interests:
o Risk of discrimination in governmental services
o The effectiveness of getting rid of the English literacy
requirement as the chosen means
o The availability or adequacy of other remedies
o Nature and significance of the state interests being
affected
As long as the Court can see the basis for Congresss
decision, Congress is free to conduct the balancing test
and then legislate as it sees fit
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City of Boerne v. Flores (1997)

Decision by a local zoning board to deny a church a building permit is
challenged under the Religious Freedom Restoration Act of 1993
(RFRA). This calls into question whether Congress has the authority to
enact the RFRA.
HOLDING: Congress exceeded its authority by enacting the RFRA
o Congress enacted the RFRA as a direct response to the
Courts decision in Smith (peyote case)
RFRA is basically a codified form of SS prevents government
from substantially burdening a persons free exercise, even if
burden is from a rule of general applicability, unless
the government can demonstrate the burden (1) is in furtherance
of a compelling governmental interest (CGI); and (2) is the
least restrictive means of furthering that CGI
o However, Legislation which alters the meaning of
the FEC cannot be said to be enforcing the FEC.
o 5 gives Congress the power to enforce, not the power to
determine what constitutes a constitutional violation
While the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive
change in the governing law is not easy to discern, and Congress
must have wide latitude in determining where it lies, the
distinction exists and must be observed.
o There must be a congruence and proportionality
between the injury to be prevented/remedied and the
means adopted to that end.
o Problem with RFRA is that it is wildly out of proportion
If Congress could define its own powers by altering the 14As
meaning, then no longer would the Const be superior,
paramount law, unchangeable by ordinary means it would just
be normal legislation!
o NOTE: There is a very strong implied message of judicial
supremacy implicit in this phrase Congress was trying to
correct what it saw as a constitutional misinterpretation by
the Court, and the Court said Congress does not have the
ability to do this in the realm of Con Law!
Congruence and Proportionality Test: Samahas Thoughts
o Proportionality must be between the injury to be prevented
and the remedy that is used
o Under this test, Court gets to interpret what the
rights are, and Congress has some room to assign
the remedy

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o So how different is RFRA from Smith? (note: the answer to

this will help us determine just how much room Congress
has for its remedies)
Doesnt depend on religious targeting, goes back to
old doctrine (compelling interest)
Apparently going back to old doctrines is going too
far!

Liberty Contract
This section explores the Contracts Clause and the Eminent Domain
Clause. They are not implied fundamental rights, but they do have
close association with due process. The two clauses have been united
by a simple and general idea: Government ought not to be
permitted to redistribute resources by taking resources from
one person for the benefit of another.
Eminent Domain Clause (EDC) bars the feds (+states, after
incorporation) from taking property from one person and giving it
to someone else.
Contracts Clause (KC) (No State shall pass any law impairing the
Obligation of Contracts) bars government from disrupting
voluntary agreements just because the government wants to
help one side
o Prospective: Ogden v. Saunders (1827) (laws that affect
contracts that are passed before a contract is made are
part of contract law, and thus part of the contract
prospective is ok!)
o Retrospective ok if within Police Power: Manigault v.
Springs (1905) (police power is paramount, trumps the KC,
but note the danger that this may swallow the
KC because of how broad a term like general welfare can
be)
Enumerated Rights and Unenumerated Rights even when a
right is enumerated (freedom of speech, for example), courts still
have to interpret this, and they will often do this in a modest
way
o For unenumerated rights, it is actually pretty easy to link
them to some text (PIC, for instances), so then the Court
still has text to look to, but it is a bit more vague
ultimately, Court still interprets unenumerated rights in a
moderate way
Home Building & Loan Association v. Blaisdell (1934)

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During Great Depression, Minnesota passed law to extend the period of

redemption that preceded foreclosure.
State of emergency does not create power, increase granted
power or remove restrictions the Const was enacted in a time
of emergency, and its words are not limited by emergency.
Question: Doesnt matter whether the effect on contracts is
direct/indirect, but whether the legislation is addressed to a
legitimate end and the measures take are reasonable and
appropriate to that end.
Holdings:
o (1) An emergency existed in Minnesota that furnished the
opportunity for MN to use the police power
o (2) Legislation was addressed to a legitimate end (not just
interests of some people, but protection of society)
o (3) The relief justified by the emergency needed to be
proportional to the harm that is threatened
o (4) The conditions of this extension do not seem
unreasonable
o (5) The legislation is only temporary
o (6) In light of all this, the Contracts Clause was not
violated
Dissent (Sutherland) Contracts Clause cant mean two things
at two different times, regardless of emergency. KC means that
terms of payment cannot be altered, and that needs to
be respected.
This case greatly expanded definition of what fell under
police power!
Also, there is language in this case about the Constitutions
meaning not being controlled by what the founders thought it
meant this is one of the strongest refutations of originalist
principles to date!
o But actually, the idea of living constitutionalism can limit
judicial intervention this is contrary to the general
conception of this area of thought, but this case is an
example of how it can be used to constrain judges (by
expanding the conceptualization of Congresss power)
This statute passes rational basis but that is a really low bar!
Substantive Due Process: The Protection of Economic Interests
5A, 14A, and KC protections of property also imply a general protection
from government interference in market ordering/private economic
interests however, in practice, this protection is only extended to
certain narrowly defined forms of government interference.
Lochner v. New York (1905)
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NY law prohibited bakery employees from working more than 60 hours

in a week or 10 hours in a day.
Statute necessarily interferes with the right of contract between
employer and employee to set the number of hours to be worked
o This right is protected by the DPC of the 14A right to
purchase or sell labor is part of the liberty mentioned
there
o However, police power has traditionally been able to affect
these liberties, and courts tend not to limit the scope of PP
Test: Is this a fair, reasonable, and appropriate exercise of the
PP, or is it an unnecessary, unreasonable, and arbitrary
interference with the rights of the individuals and their personal
liberty to enter into contracts that help feed his family?
o This is about as vague and standard-like as you can get!
o Test seems to be based off RB, but much less deferential
o Samaha: Reasonableness test in which judges check
for (1) legitimate end, (2) relationship to means,
and (3) maybe smoke out motive
The reasonableness can be dismissed with a few words
there is no reasonable ground for interfering with the freedom of
contract in the number of hours that may be worked by a baker
o Bakers arent less capable than other professions, or more
in need of protection why only limit Bakers hours? Seems
arbitrary
o No allegations of this affecting health, safety, welfare or
morals but there definitely is, the majority just chooses
not to credit it!
o The mere allegation that the statute affects public
health in a remote way is not enough to make the
statute valid the act must have a more direct
relation to PP justifications, and the act itself must
be appropriate and legitimate
o No limiting principle because NY did not explain why this
is particularly necessary for bakers, it could be extended to
all professions, and the rights of intelligent men to enter
into agreements will be severely compromised
Court is worried about laws passed under the broad PP whose
purpose is actually something different and sinister the
purpose of a statute must be determined from the natural
and legal effect of the language employed; and whether it
is or is not repugnant to the Const must be determined
from the natural effect of such statutes when put into
operation, and not from their proclaimed purpose
o Court points to Yick Wo as an example of this

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o So if the effect is restriction of contract, that must have

been purpose!
Dissent (Harlan) not courts place to second-guess wisdom of
legislation
o Health claims were presented, and a reasonable person
could conclude that there is a substantial relation to
health!
Dissent (Holmes) agreement or disagreement over the
soundness of this policy choice by Congress does not allow the
majority of the Court to embody its opinions into law
o "The Constitution is not intended to embody a
particular economic theory, whether of paternalism
and the organic relation of the citizens of the State
or of laissez faire.
This case involves a Substantive DP claim, which is a doctrine
that Samaha doesnt think should exist

Demise of the Lochner Doctrine (1930s)

The Required fit between means and ends starts to loosen (a
merely rational basis), and the meaning of legitimate interest
expands (harmful competition is a legitimate interest now, as is
adjusting bargaining power).
Nebbia v. New York (1934) prices of milk were falling drastically,
so legislature decided that milk was an essential item of the diet that
deserved protection (also falling prices threatened to cause producers
of milk to lower their safety standards to stay afloat), so they created
the Milk Control Board that set maximum and minimum prices. Nebbia
sold below the minimum (offered bread with the milk).
This case is an example of the expansion of legitimate
interests
Basically says that the police power is justified here because milk
prices are not expected to recover if left to supply and demand,
and because the PP
Guarantee of due process demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the means have a
substantial relation to the ends
o Const does not guarantee an
unrestricted privilege to engage in a business or to
conduct it as one pleases
Importantly, the Court decides that competition can be a bad
force, counterproductive for other important interests (like
stability, or the viability of being a farmer professionally)

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West Coast Hotel Co. v. Parrish (1937) Court upholds a state law
establishing a minimum wage for women
This case is an example of the expansion of legitimate
interests
The Constitution does not speak of freedom of contract. It
speaks of liberty and prohibits the deprivation of liberty without
due process of law. Regulation which is reasonable in relation to
its subject and is adopted in the interests of the community is
due process.
Explicitly says that law may respond to low pay and disparity of
bargaining power these become legitimate interests
Baseline choice: The opposite holding would be a subsidy for
unconscionable employers (p768)
o Now, instead of a baseline of free market and freedom of
contract, the baseline assumption is a welfare state
assume that there is a safety net beneath citizens
Important Point: This kind of logic could have lead to judicially
enforced welfare rights broad safety net that Government
cannot turn away from
o But the Court does not go that far they turn away from
the idea that the Court will enforce substantive claims to
welfare (they will only protect process claims) Noteworthy
in that the Court did not go to the other extreme after
Lochner (welfare state) instead, they go straight to a
middle ground of deference and judicial modesty.
United States v. Carolene Products (1938) court used rational
basis review to uphold a statute prohibiting interstate shipment of
filled milk (milk product to which any fat or oil other than milk fat had
been added)
This case is an example of the loosening of the required
connection between ends and means.
If the facts do not support the law, or have ceased to support the
law, then judicial inquiry into the facts is appropriate. However, if
reasonable people can disagree about the facts (i.e. whether a
prohibition of filled milk is appropriate or necessary), then it is
not the judiciarys place to intervene. Thats Congresss job.
Holding: Judges must use known facts, or facts that are
reasonably assumed, in order to support the rationality of
legislation they cant go on their own fact finding crusades, or
else they should not (should defer to the legislature)
Williamson v. Lee Optical of Oklahoma (1955) OK law made it
illegal for an optician to fill or duplicate lenses without a prescription
from an optometrist or ophthalmologist.

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Even if this is a needless, wasteful requirement, it is for the

legislature to make that determination, to balance the
advantages and disadvantages of imposing a new requirement,
and not the courts!
Important that the Supreme Court relies on hypothetical
facts imagines a state of facts that could exist whereby this
statute does some good, and because of these they reject the
actual findings of fact by lower court!

Ferguson v. Skrupa (1963) statute makes it unlawful for any

person to engage in the business of debt adjusting except as incident
to the lawful practice of law (debt adjusters must be lawyers).
Exact same reasoning as the last two cases these
determinations are to be left to legislature, not courts!
Note that over the course of the last three cases, the Court went
from testing the means-end relation for reasonableness, to
complete deference to the Legislature to make that
determination
o So now, no claim of substantive economic rights
would now be sustained by SCOTUS
Samaha: What might explain shift away from the Lochner
Doctrine?
o New judicial appointments during the New-Deal era lead
to intellectual shifts, maybe also ideological/political
o But internal changes too (in ways justices approach Con
Law)
Default under this doctrine is always going to be rational basis

Liberty Contraception and Abortion

The Right of Privacy
Griswold v. Connecticut (1965)
CT statute prevents anyone from using contraception very significant
that it was prohibiting USE, not sale.
Association of people is not a constitutional right but neither is
the right to choose your childs school, or the right to study
a particular subject, but the Court has seen fit to include those
under the 1A
NAACP v. Alabama Court protects the freedom to associate and
privacy in ones association, saying these are peripheral rights
under the 1A
Emanation and Penumbras Theory: the Bill of Rights have
penumbras, formed by emanations from those guarantees that

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help give them life and substance. Various guarantees create

zones of privacy:
o 1A right of association implies privacy
o 3A - freedom from quartering soldiers implies privacy
o 4A freedom from unlawful search and seizure implies
privacy
o 5A self-incrimination protection creates zone of privacy
that individual cannot be forced to exit
o 9A enumerated rights cannot be used to deny the
existence of others belonging to the people
Even if police power justified this law, the means would still have
to be narrowly tailored this is not achieved by an outright ban!
Concurrence (Goldberg) 9A means some constitutional
rights will not be enumerated, but are nonetheless valid. The
right of privacy is one of these.
o The argument that because the Const doesnt mention
this right, the Government is free to intrude upon it is
stupid and also terrifying what if the law in question
required sterilization after two kids?
o How in the world is this law going to be enforced? Perv
cameras?
Concurrence (Harlan) Disagrees with the penumbra of the
Bill of Rights argument says instead that this statute is an
affront to the concept of liberty contained within the 14A.
Dissent (Black) WTF, there is no such thing as a right of
privacy!
Majority trying to distinguish their analysis from Lochner analysis
doesnt want to go back to SDP, but still wants to find a textual
hook for protecting unenumerated rights.
o Textual basis in 9A (Goldberg) or several enumerated
rights
o Privacy is the right being protected, not economic rights
(as was the case in Lochner)
o Tradition shows a fundamental liberty (Harlan)
o Consensus against this outlier (Harlan)
o Irrational law, at least as applied (White, Goldberg)
The fact that some rights are enumerated should not be
used to make other unenumerated rights narrower or less
important
Tenuous connection between wanting to restrict extramarital
affairs (end) and denying everyone contraception (means),
especially cuz contraceptives are still allowed for disease
prevention (enforcement problems)

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If you define Lochner broadly (its about individual choice!), you

cant distinguish it from Griswold so have to conceptualize
Griswold as having a narrow holding, perhaps about intimate
decisionmaking/family planning?

Roe v. Wade (1973)

Texas statute made getting an abortion a crime unless part of a
necessary medical procedure to save the life of the mother.
No constitutional right of privacy, although the Court has inferred
the presence of this right (Griswold) the right of privacy is
broad enough to encompass a womans decision whether or not
to terminate her pregnancy
Go into what looks like SS test (compelling state interest;
narrowly drawn)
o First, must figure out whether Const would say that a fetus
is a person
Decide that person as used in 14A does not include
the unborn
Huge divergence between medical and philosophical
beliefs on when life begins not the Courts place to
decide, nor is it TXs
o Texas cannot adopt one idea of when life begins
(conception) and deprive the mother of rights. On the other
hand, the State has two legitimate interests that get
stronger as the pregnancy progresses (1) protecting
the health of the pregnant woman, and (2)
protecting the potentiality of human life. At some
point, each of these interests becomes compelling:
For the protection of the mother, that point is the end
of the 1st trimester (before this point, abortion is
safer than childbirth)
So, after this point, the state may regulate to
the extent that the regulation reasonably
related to the preservation and protection of
maternal health
For the protection of the fetus, interest becomes
compelling at viability (when the fetus can live
outside the womb)
The Famous Roe v. Wade Trimester System!
o (a) For the stage prior to approximately the end of the first
trimester, the abortion decision and its effectuation must
be left to the medical judgment of the pregnant womans
attending physician
o (b) For the state subsequent to approximately the end of
the first trimester, the State, in promoting its interest in the
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health of the mother, may, if it chooses, regulate the

abortion procedure in ways that are reasonably related to
maternal health
o (c) For the stage subsequent to viability, the State in
promoting its interest in the potentiality of human life may,
if it chooses, regulate, and even proscribe, abortion except
where it is necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother
How do we distinguish this from Lochner?
o Privacy, liberty, or equality correctly understood: this
is where we can distinguish, because we see the abortion
decision here as the Court really getting it right in a moral
sense need freedom of abortion rights to allow women to
ascend in society
More likely to agree with SDP when we like the
decision!
The Courts subsequent abortion decisions retreat back to judicial
modesty

Subsequent Limits on Access to Abortion

Maher v. Roe (1977) (6-3) Court upholds state regulation
granting Medicaid benefits for childbirth but denying such
benefits for non-medically necessary abortions
o When Government denies funding for abortions, this falls
into the non-subsidy category: since it is not an
entitlement, this is a lack of subsidy, and that is not a
constitutional violations
o Case also clarifies that Roe did not create a fundamental
right to abortion just cant have unduly burdensome
interference with her freedom to decide whether to
terminate the pregnancy.
Harris v. McRae (1980) (5-4) Court upholds amendment that
prohibits the use of federal Medicaid funds on abortions, except
those necessary to save the mother, or for the victims of rape or
incest.
o Goes even farther than Maher can fund childbirth, thus
incentivizing it, and not do this for abortion, and still fall
under non-subsidy!
o Government has to stay away from placing obstacles, but it
does not have to remove ones that it did not place
Rust v. Sullivan (1991) Court upholds interpretation that a
statute forbidding the use of federal funds on family services that
include abortion as a method of family planning also prohibited
the use of federal funds on all activities that encourage, promote
or advocate abortion as a method of family planning.
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o Government can choose to fund one activity it believes to

be in the public interest, and deny funding to an alternative
activity, without discriminating on the basis of viewpoint.
Distinction between condition and nonsubsidy
o Nonsubsidy: Government decides to pay for one thing, but
not something else. Earmarked subsidies are generally
valid, regardless of what the recipient demands
You dont get to complain what the money is for
you either take it or you dont!
G gives money and says use it for health care but
doesnt give money for abortion
o Condition: Im going to give money for X and not Y, and as
a result I want you to do something for the rest of your life.
Condition is not an earmark it is saying in some other
part of your life, no financed by this money, we want you
to do something/not do something
Ex: Heres money for health care, now do 100
jumping jacks. This is a condition cuz doing the
jumping jacks is not related to what the money is for
or how the money will be spent

From Roe to Casey

Court firmly defended right from state interference post-Roe, with a
scattered exceptions (like abortion funding in the previous three cases)
Webster stare decisis is a cornerstone of our legal system, but
it has less power in constitutional cases, where, save for
constitutional amendments, this Court is the only body able to
make needed changes."
Planned Parenthood of Southeastern Pennsylvania v. Casey
(1992)
PA statute required woman seeking abortion give informed consent, be
given certain info 24 hours before abortion, minors need parental
consent, spousal consent, but with medical exceptions.
Liberty finds no refuge in a jurisprudence of doubt"
HOLDING: The essential holding of Roe v. Wade should be
retained and once again reaffirmed. Clarify the three essential
parts of Roes holding:
o Recognition of the right of women to have an abortion
before viability
o State has power to restrict abortions after viability if
medical exceptions are included
o State has legitimate interests from the beginning in
protecting the health of the woman and the life of the
fetus.
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o Note: The trimester framework is not part of the essential

holding!
Constitutional protection of womans abortion right comes from
SDP of 14A
Reliance argument people have conducted
themselves economically and socially for almost two decades
with a right to abortion, and taking this away now would impose
significant transition costs, or unfairly disadvantage people
relying on this right
However, still need to compare Roe to other outdated doctrines
to make sure there is a distinction.
o Lochner Doctrine: this was defeated in West Coast
Hotel.
What warranted abandonment of this doctrine was a
change in the economic facts of life, not some
inherent flaw in reasoning
o Separate-but-Equal Doctrine (Plessy): changing
circumstances indicated that while there may have been
no social stigma inherent to segregation in Plessys time
(1896 which is bullshit), there certainly was by the time
of Brown (1954)
Finally, there would be a serious compromise of the legitimacy of
the Court if, without any change to the factual circumstances,
the Court were to overrule the holding of Roe it would be an
extremely obvious example of the Court changing constitutional
law based on shifting policy preferences of the Court.
Problems with the trimester framework are two-fold:
o Misconceives the nature of the pregnant womans interest
o In practice it undervalues the States interest in potential
life
Not all State burdens on the abortion decision are undue the
undue burden standard is the appropriate means of
reconciling the States interest with the womans constitutionally
protected liberty...
o This standard is shorthand for the conclusion that a state
regulation cant have the purpose or effect of placing
a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus
o Means must be chosen to inform womans free choice, not
hinder it
o Woman has the right to make the ultimate decision, but
not to be insulated from others in doing so
Four regulations reviewed:

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o (1) Spousal notification or alternate statement:

except if medical emergency (which actually applies to the
first three of these regulations)
This gets invalidated majority says this, but is
fractured as to rationale (The law cannot give man
the same kind of dominion over his wife that parents
have over their children)
o (2) Informed consent 24 hours before, except if
medical emergency (This is found constitutional)
Difference between (1) and (2): (1) cares about the
mans info, while (2) cares about the womans info.
o (3) Informed parental consent, but with judicial bypass
and except if medical emergency (This is found
constitutional)
o (4) Recordkeeping and reporting for all abortion
facilities (This is found constitutional)
Ultimately, there isnt much difference between these four
requirements, so they are all close calls but that will always
be the case with vague standards like undue burden!
Do results seem too politically mainstream? Is there a political
mainstream?
o Mainstream position implies a bell-curve however, it
seems more likely that we have a parabola, with people
being polarized at one of two extremes (political
polarization!)
o Maybe with Griswold we actually do have mainstream bellcurve opinion, which is why that case hasnt been debated
for years.
o Maybe we will never have a lack of abortion litigation
because it happens to be ideologically polarizing and there
is no way to make everyone happy?
What trade-offs can you see in this revision of the doctrine?
o Certainty this new standard is not going to involve as
much certainty because the undue burden standard is very
vague. Old system had more rigid categories.
o Undue burden more of a subjective standard. Also
makes it so that there exceptions to what was once a
bright-line rule (no restrictions in first semester).
Stare Decisis Factors that the Court points to that could justify
undermining the doctrine:
o (1) Workability of the doctrine
o (2) Reliance on the doctrine
o (3) Change of the related law
o (4) Change of fact or understanding

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Change of Fact: Great Depression effect on Lochner

Change of Understanding: Separate-but-equals
demise from Plessy to Brown
o (5) Legitimacy of the Court
High profile, controversial nature of this decision
makes it even more important that the Court stick to
its guns
Samaha wants us to be skeptical of old judgments why are they
inherently wiser than us? They could have stuck around only
because a series of people deferred to outdated or incorrect
decisions!

Gonzales v. Carhart (2007) (5-4)

After publicity for Intact Dilation and Evacuation (abortion procedure
described in case), 30 new state laws try to invalidate this type of
abortion, but one state had its law invalidated in Stenberg (2000)).
HOLDING: Act is not facially invalid and furthers legitimate
purposes, despite claims of (1) vagueness, (2) reaching D&E, and
(3) no health exception.
If there is still disagreement in the medical profession as to the
viability of an abortion procedure, Congress has the power to
make a value judgment on it
From a numerical perspective, only about 0.4% of abortions
would have used this type of procedure, so this is a minor
change.
o However, since this case found no undue burden, it could
be seen as a major change to the doctrine in principle!
In general, this decision indicates a shift in the Court now
limiting abortions
o However, Court did strengthen its conceptualization of a
womans interest in her abortion decision
o But they also drastically expanded the governments
interest! So maybe these cancel each other out?

Liberty Family and Death

This doctrine seems to rely on SDP guided by tradition (because
nothing is more traditional than family!) There are several different
sub-rights under the blanket family right (listed below), all of which
have been incorporated into SDP by the Court at one point or another:
Household form (people ability to choose shape of household):
Moore

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Marriage Access (ability to marry freely, whoever you want):

Loving (interracial marriage ban struck down on EP grounds, but
also an additional paragraph about SDP right to marry is part of
liberty!); Zablocki
Parent-Child Relationships: Meyer; Pierce; Troxxel (2000)
(fit mothers preference got no weight on grandparent visits
Court sought to protect the best interests of the child, but didnt
think mothers opinions were in pursuit of this); Stanley (1972)
(EP + Procedural DP) (unwed biological fathers presumed unfit,
but need to be given the opportunity to prove that they are fit
and deserve visitation rights)

Meyer v. Nebraska (1923) Court invalidates State law prohibiting

the teaching of any modern language other than English in any public
or private grammar school.
Use SDP, indicate broad definition of liberty" that includes many
substantive rights, including the right to acquire useful
knowledge, and the right to establish a home and bring up
children.
Pierce v. Society of Sisters (1925) similar decision, Court
invalidates state statute requiring students to attend public
rather than private schools. This interfered with the liberty of
parents to direct the upbringing and education of their children.
Moore v. City of East Cleveland (1977) City ordinance limited
occupancy of any dwelling unit to members of the same family, and
defined family narrowly (Grandma + Her Son + Her Sons Kid + Her
Sons Nephew = not a family!).
Compare to Belle Terre (another property case the one that
restricted unrelated individuals from living together in too great
of quantities as in student housing), but the difference is that
that statute only addressed non-related people, and didnt try to
micromanage what qualifies as family.
This Court has long recognized the freedom of personal
choice in matters of marriage and family life is one of the
liberties protected by the DPC of the 14A. (cites Meyer;
Pierce; Roe; Griswold; Skinner)
Some type of scrutiny used (Samaha says its basically SS) the
Court must examine carefully the importance of the
governmental interests, and the extent to which they are served
by the challenged regulation
o Ends (prevent overcrowding, traffic congestion, avoid
undue financial burden on school system) are only
marginally served by the means

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Says that history (specifically, Lochner doctrine) counsels caution

and restraint when it comes to SDP, but it does not counsel
abandonment
o Look to the basic values that underlie our society family
surely qualifies as one of the basic underpinnings of society
Dissent no reason to say that family members have greater
constitutional rights of association than non-related people!

Zablocki v. Redhail (1978) Court invalidates a WI statue providing

that any resident paying child support cannot marry without a prior
judicial determination that his support obligations have been met, and
that the children are not likely to become public charges.
The decisions of this Court confirm that the right to marry is of
fundamental importance for all individuals."
o Puts it in the same SDP camp as procreation, childbirth,
child rearing, and family relationships
If the interest is protecting the welfare of out-of-custody children,
this statute doesnt fix that, it just prevents people from getting
married! And the state already has a bunch of other enforcement
mechanisms to solve this problem!
Someone who cannot make these payments will be severely
penalized for not doing something he is unable to do
The Right to Die
Cruzan v. Director, Missouri Department of Health (1990)
Cruzan is in a persistent vegetative state, parents want to pull the
plug. Hospital needed court approval first.
"The logical corollary of the doctrine of informed consent is that
the patient generally possess the right to not consent, that is, to
refuse treatment."
Competent people can refuse treatment but vegetables are
incompetent!
Holding: it is ok to implement procedural requirements that allow
surrogates to show that the incompetent person wanted to be
taken off life support
Obviously there are state interests in preserving life but there
are other important interests at stake
o Choice between life and death is a deeply personal
decision of ultimate finality
o State can protect its interested through
heightened procedural and evidentiary requirements, but
not by banning the choice altogether

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HOWEVER, the Missouri Supreme Court found that the parents

had not met the high evidentiary requirement (they basically just
recounted statements she made about not wanting to remain in
a vegetative state) thus, the statute is upheld, and the plug will
not be pulled on Cruzan
o Point to serious DP concerns raised by substituted
decisionmaking
OConnor concurrence says that she agrees, but writes
separately to note that giving substitute decisionmaking
authority may actually be necessary to protect the patients
liberty interest in situations like this, since very few people
actually produce written evidence of their preferred
treatment before they become incompetent
But this is actually a substantive claim (Samaha rejects that
it is process claim) core of the parents objection is that because
of this procedure and the high burden it place, the State is
skewing the outcomes in cases of uncertainty towards lifesustaining treatment
o State is interfering with our ability to defend what we think
is our daughters liberty!

Washington v. Glucksberg (1997)

Does Washingtons prohibition against causing or aiding a suicide
offend the 14A?
Holding: No it does not statute survives facial challenge, and
Court implies that it would lose some as-applied challenges as
well
Historical tradition it has always been a crime to assist suicide
in this country, and in most other cultures it has too
SDP precedent has two features: (1) DPC protects
fundamental rights and liberties which are deeply rooted in this
Nations history and tradition, implicit in the concept of ordered
liberty; and (2) SDP cases must contain a careful description of
the asserted fundamental liberty interest
o (1) Asserted right in this case certainly does not qualify
o (2) Dont need to go into this because (1) is rejected
(although a definition would have been helpful)
Still needs to be legitimate governmental interest this is
obviously met
o Unqualified interest in preservation of human life
o Public-health problems many people who want suicide
are depressed and could be treated
o Interest in protecting the integrity and ethics of medical
profession
o Interest in protecting vulnerable groups from mistakes
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Stevens Concurrence this should not be read as a blanket

prohibition, only as applied to this case. In some instances, the
legitimate interests of the person to avoid pain and suffering that
make life intolerable should trump the state interests
Based on concurrences (there are 5 more you didnt read), it
looks like if there is a lot of pain involved, a liberty claim might
actually work!

Liberty Sex and Gay Marriage

Bowers v. Hardwick (1986) Man prosecuted under Georgia AntiSodomy law for having gay sex in his bedroom.
None of the rights announced in Roe, Skinner, Griswold, or Roe
bears any resemblance to the claimed constitutional right of
homosexuals to engage in acts of sodomy.
o No connection between family, marriage, or procreation
Tradition is to criminalize sodomy, so SDP
tradition argument doesnt work
Lawrence v. Texas (2003)
Cops arrest two men for violating a Texas sodomy law that only applied
to homosexual sodomy.
Directly challenge Bowers say that conceptualizing the right at
stake to be the right to engage in certain sexual acts demeans
the claim would be like saying marriage is simply about a right
to have sexual intercourse!
o Goes much farther touches upon most private human
conduct (sex) in the most private of places (the home)
History and tradition are the starting point but not in all cases
the ending point of the substantive due process inquiry"
o Plus history is bans on sodomy in general, not specifically
gay sodomy
Two principle cases after Bowers cast its holding into even more
doubt
o Casey constitutional protection for personal decisions
relating to marriage, procreation, contraception, family
relationships, child rearing, and educations...
This indicates a scope of protection that surely
includes homosexuals relationships
o Romer used EPC to strike down class-based law aimed at
gays

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Court addresses and rejects an EPC line of reasoning that would

make the holding weaker (subject to leveling down); Court
instead wants to make a broader statement about individuals
right to consensual relations and privacy in their homes.
Stare Decisis doesnt matter as much here because there is no
detrimental reliance here (because a right was being denied, not
granted)
Their right to liberty under the DPC gives them the full
right to engage in their conduct without intervention of
the government."
o Also, TX statute furthers no legitimate state interest
OConnor Concurrence Agrees with holding, but wont
overrule Bowers (instead uses the EPC to decide)
Scalia Dissent (BRACE YOURSELF) Inability to distinguish
moral rationale against homosexuals with moral rationale against
many other things that are still ok to prohibit (bigamy, bestiality,
etc.)
o Says this case is basically going to put an end to all
legislation based on moral judgments (not at all what
happened see Samaha notes)
Samaha goes through many hypos of other private sexual
conduct to attempt to show how narrow the holding is see class
notes!
So did the Court find a fundamental liberty right, under
Glucksberg?
o No, majority does not say that, just talks about a general
liberty right Glucksberg test not met! This is one of the
dissents main criticisms
o Sounds more like Cruzan didnt call it a fundamental
right, but did say that there was a liberty right here!
NOTE: This case is hard to fit with the rest of our liberty cases
(dont use the SS buzzwords, dont call it a fundamental right)
How broad is the right recognized is all morals legislation now
invalid?
o Not really they say that this is explicitly not about minors,
cant have sex in public, things like that that indicate that
morals legislation is still appropriate
Holding deals with: Home, adult, consensual,
noncommercial, sexual conduct, or relationship. Also,
holding is against criminal law addressing private sexual conduct

Marriage Equality

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Liberty. Is there a fundamental constitutional right to marriage as a

legal institution, as opposed to a religious or cultural practice?
Zablocki v. Redhail (1978) reported that decisions of this
Court confirm that the right to marry is of fundamental
importance for all individuals.
Skinner v. Oklahoma (1942), declared, Marriage and
procreation are fundamental to the very existence and survival of
the race.
Meyer v. Nebraska (1923) acknowledged, While this court
has not attempted to define with exactness the liberty thus
guaranteed, the term has received much consideration and some
of the included things have been definitely stated. Without
doubt, it denotes not merely freedom from bodily restraint but
also the right of the individual * * * to marry.
Furthermore, Loving v. Virginia (1967) relied on not only the
Equal Protection Clause but also the Due Process Clause of the
Fourteenth Amendment: The freedom to marry has long been
recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men. Marriage is one of the
basic civil rights of man, fundamental to our very existence and
survival.
Equality. Is same-sex marriage required if cross-sex marriage is
offered?
(1) Rational Basis. If religious and moral rationales are
unconstitutional under Lawrence, might these other
governmental interests work to deny same-sex inclusion under
rational basis (default for EP):
o Careful change. One claim is that sticking with a
traditional definition of marriage follows a valid interest in
slow experimentation, at least for important and ancient
institutions.
o Optimal parenting. A second claim relies on a theory
that cross-sex married couples are (arguably) the best
family model for childrearing.
o Careful procreation. A third claim is that most cross-sex
couples can procreate spontaneously and so they need
special incentives to get into a secure relationship before
creating children.
(2) Sex discrimination. Sex-based classifications have
triggered IS for almost forty years. Consider whether a law
defining marriage as a union of one man and one woman
includes a presumptively invalid sex classification.
o Compare Loving

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(3) Suspect class or classification. Instead, do state marriage

laws implicate a suspect class or suspect classification? In
Windsor v. United States, the Second Circuit held that
homosexuals are a semi-suspect class and therefore
government classifications based on homosexuality are subject
to intermediate scrutiny. Majority contended that four factors
were relevant:
o History of Discrimination
o Relation to Ability
o Distinguishing Characteristic (We conclude that
homosexuality is a sufficiently discernible characteristic to
be a discrete minority class)
o Political Power

United States v. Windsor (2013)

Same-sex partner denied estate tax benefit for spouse when
her partner dies. Couple was married in Canada.
Here the States decision to give this class of persons the right to
marry conferred upon them a dignity and status of immense
import. DOMA, because of its reach and extent, departs
from this history and tradition of reliance on state law to
define marriage.
DOMA seeks to injure the very class New York seeks to protect.
By doing so it violates basic due process and equal protection
principles applicable to the Federal Government.
o Bare desire to harm language from Moreno
The federal statute is invalid, for no legitimate purpose
overcomes the purpose and effect to disparage and to injure
those whom the State, by its marriage laws, sought to protect in
personhood and dignity. By seeking to displace this protection
and treating those persons as living in marriages less respected
than others, the federal statute is in violation of the 5A.
From Samaha discussion of history: Public opinion began to
change to be more pro-gay - but very interestingly law began to
shift in the opposite direction. As people became more and more
accepting, laws were actually becoming more clear and firm
against gays, and specifically gay marriage
o This is very important makes gay marriage movement
very novel because it is rare that law and public opinion do
not move together
What is the rationale of the Court in Windsor?
o Marriage regulations are an issue of state law
o Equal dignity same-sex marriages should be given
equal respect as cross-sex marriages

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Confusing treatment of liberty and equality: Maybe it is

that some states have decided that gay marriage is a liberty
right, and the unequal treatment brought about by DOMA tells
gays that their marriages are worse, and thus has equality
concerns?
o So an inequality that is grounded in part by the states
decision with respect to liberty
Feature of DOMA law there are over 1000 federal laws that this
definition of marriage effects!
o This makes the case like Romer (covers massive grounds of
law), but less like Lawrence (looking at one particular
law/interest)
o Applies not just to tax benefits also applied to conflict of
interests between spouses, and other restrictions, duties,
and obligations that apply to married people
Issue how should we structure our analysis for
unresolved issues like this? (Cant just site a case to say
this debate is over!)
o Look at Rights and Structure Issues see class notes
o Lots of good strategies in class notes!

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