Beruflich Dokumente
Kultur Dokumente
Professor L. Simon
Spring 2006
Introduction
THE CONSTITUTIONS THREE PRINCIPAL FUNCTIONS
1. Creates National Government and Separates Power
a. Division of powers among 3 branches (legislative, executive, and judiciary) was designed to create
a system of checks and balances and lessen the probability of tyrannical rule
i. Madison, Federalist 10: Divide power because centralization viewed as tyranny
b. Modern Era: Is This A Good Idea?
i. Want to keep government passive to protect rights, but
ii. Want it to be able to do something.
2. Divides Power between Federal and State Relationships.
a. Federalism: the idea of having two governments with jurisdiction over the same people; a vertical
division of power.
i. The framers probably thought that the states were closer to the people and more
trustworthy.
ii. State action is valid unless it is prohibited by the Constitution; federal action is valid only
if it is granted by the Constitution.
b. Federal v. State Limitations
i. Article I: [a]ll legislative Powers herein granted shall be vested in a Congress.
1. Implication: Congress can act only if there is clear authority, with all other
governance left to the states.
ii. 10th Amendment: The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.
iii. Supremacy Clause in Article VI of the Constitution: the practical effect is that state and
local laws are deemed preempted if they conflict with a validly enacted (constitutional)
federal law.
c. State v. State Limitations limiting the ability of states to impose burdens on each other
i. The Dormant Commerce Clause.
3. Protects Individual Liberties.
a. Few parts of the original Constitution deal with individual rights. Two possible explanations:
i. Framers thought it unnecessary because rights were adequately protected by limitations
on power of the national government.
ii. Framers were fearful that enumerating rights could be taken as implicitly denying the
existence of other liberties.
b. Two Characteristics of the Constitutions Protection
i. Applies only to the government; private conduct generally does not have to comply with
the Constitution.
1. Only the 13th Amendment applies to private citizens prohibiting slavery and
involuntary servitude directly regulates private behavior
2. Private citizens are protected by private law (e.g., tort law).
ii. Initially deemed to apply only to the federal government; however, this century the Court
has held that most apply to state and local governments through the due process clause of
the 14th Amendment.
c. Why protect individual rights through the Constitution?
i. Rights should be embodied in a way that is hard to change (Constitutions can be amended
only by an elaborate process) this permanency is beneficial to create a stable
government that is not threatened in times of crisis.
ii. Consequentially, long dead people are controlling the government.
FEDERALISM
OVERVIEW
A. Article 1, 8: Congress has the power to regulate Commerce with foreign nations, and among the
several States, and with the Indian Tribes ...
a. Must look at: What is Commerce? What is among the states? And does the 10th
Amendment limit Congressional power?
B. Categories of Regulation (Essentially, Commerce = any activity may be regulated, even if it is not
commerce in the traditional sense (the movement of persons or goods) as long as that activity fits in the
following categories)
a. ONE: Use of channels of IC which Congress deems are being misused. (Takes place within
interstate commerce)
b. TWO: Protections of instrumentalities of IC, or persons or things in IC
i. Facilities or instruments through which commerce is conducted
ii. Refers at the least to when Congress directs shipment of goods
c. THREE: Any commercial or economic activity that substantially affects IC
i. Refers to regulations of something going on within the state
ii. Note: new decisions are limiting this categorylawyers attempt to classify under
categories 1 and 2 so as not to be affected by these limitations.
C. Category ONE Inquiry
a. Channels rubricthere are interstate markets in goods and services which are channels of IC.
i. Some courts have held that interstate markets are interstate channels.
b. Plenary Power. Congress can set access conditions to those markets and those conditions
can be whatever Congress wants
c. PROTECTED CONDITIONS DOCTRINE.
i. Congress can recognize any workplace condition that it doesnt like if it affects the
IC market in anyway
d. Examples:
i. no one may sell interstate products produced in a factory that releases pollutants
into the air.
1. Category ONEregulation of channels of IC
ii. no factory doing business in IC may discharge pollutants into the air.
1. Category ONEcongress is protecting the interstate market by preventing
them from releasing pollutantswe dont want the channels of IC used in a
way that contributes to air pollution.
iii. No one may discharge any pollutants into the air.
1. No jurisdictional element have to argue it under THREE
D. Category TWO Inquiry
a. How does Court know that a regulated thing is one that is sold in IC?
i. Congressional findings
1. Reno v. Condon--Congress made findings that information was bought and
sold in IC. Court does not say that such findings are requiredlawyers will
cite Reno to support need for findings or no need for findings.
ii. If it is somehow obvious to people that it is a thing.
E. Category THREE Inquiry
i. Is regulated activity commercial or economic?
1. If NO unconstitutional regulation
2. If YES is there a substantial effect on commerce?
a. Cumulation Principleaggregate effect of individual conduct can be
substantial
b. Rational Basis Test (RBT)statute will be upheld so long as
Congress could rationally have found that the commercial activity
affects IC.
ii. You want to try to avoid Category THREE
1. Modern law has placed limitations on this category which are no clearly defined
and may be restricted even more.
HISTORICAL TREATMENT
A. First Erabefore 1887.
a. Gibbons v. Ogdenbroad definition of commerce: not just buying and selling Commerce
includes all phases of business, including navigation.
b. CommerceCongress
i. Can regulate matters internal to the state
1. If they are intermingled with interstate commerce
ii. Cannot regulate matters that are wholly intrastate.
B. Second Erafrom 1887 to 1937.
a. Defined commerce as the last stage of business: buying and selling
b. Types of regulations before the court:
i. Internal regulations within states
ii. Regulations of movement (shipments of goods between states)
c. Inconsistent treatment
i. On the whole, more likely than not to strike down the first kind of regulation
1. BASIS: activities solely within the state are not commerceeven if they
affected interstate commerce
ii. More likely than not to uphold the second type
1. Congress has plenary power on interstate shipment.
2. LIMITATION: regulations were vulnerable if the purpose of the regulation was
not commercial (e.g. Hammer v. Dagenhart).
d. Tenth Amendment. Role not clear.
i. A broader power would leave nothing for the states to regulate.
1. Occasionally referred to a broader conception of constitutional design.
e. Economics
i. Limiting Congresss power did not preserve States power
1. most markets were national markets and market forces could always in theory
and often did in fact erode state regulatory power.
2. as market became more national, by disabling Congresss regulatory power you
did not increase State power but merely allowed for the growth of a free market
ii. LS: Maybe the justices wanted to leave regulation to the marketif the only regulatory
power that can be effective is Congress we ought to give Congress more regulatory
power
C. Third Erafrom 1937 to 1995.
a. ISSUES:
i. Defining Commerce:
1. extended to include all stages of business
2. e.g., mining, manufacturing, and production.
ii. Rejection of direct-indirect test:
1. Congress could regulate any activity that taken cumulatively had an effect on IC
iii. Introduction of rational basis test (RBT):
1. Congress could regulate anything under the commerce clause so long as there
was a rational basis for believing that there was an effect on commerce
iv. Tenth Amendmentrejected as a limit to Congresss power.
b. NLRB v. Jones & Laughlin Steel Corp.
i. MAIN POINT: rejects idea that production is not commerce.
1. Protective Conditions Theoryregulating access to interstate market by telling
employers that they have to allow their people to organize.
c. US v. Darby.
i. MAIN POINT: motive is irrelevant so long as that which Congress regulates is interstate
commerce
1. Significance: Prohibition on employment is a means reasonably suited to
enforce interstate shipment since Congress has power to regulate shipment
they have power to prohibit employment in order to regulate shipment.
2. Overruled Hammer v. Dagenhartrejects view that Tenth Amendment limits
Congresss power
ii. Category Two: Regulation of a Thing in CommerceInterstate lumber is a thing in
commerce
iii. Category Three: Wages paid affect prices of goods in interstate commerce and therefore
can be regulated by Congress
d. Wickard v. Filburn
i. MAIN POINT: Cumulation Principlequestion is not whether individual effect is
substantialinquiry is whether aggregate effect is substantial.
1. Court rejects direct-indirect testCongress can regulate any activity having
substantial economic effect on interstate commerce.
a. You can reach something entirely within a state as long as it could have
an economic effect outside the state
2. Home usewould reduce users demand for wheat that would otherwise be used
in the market.
D. Civil Rights Act of 1964.
a. Does Congress have the power to enact the Civil Rights Act
i. 5 of the 14th Amendment gives Congress power to enforce 1of the 14th
Amendment grants broad powers to enforce anti-discrimination policies.
ii. Congress could not regulate private behavior 14th Amendment is about State control.
iii. Revisited in EPC
b. Relevance of Commerce to the Act
i. If Hammer was still law there might not be the Civil Rights Acti.e., if motive of
Congress mattered but, now, Commerce is just Commerce (just as a cigar is but a
cigar)
ii. However, purpose does not matter for Congressional Power measures
c. Rational Basis Test
i. TEST: If a rational legislature believes that theres such a relationship then statute is
constitutional.
ii. Extreme deference to Congress in these casesrelationship to interstate commerce is not
very clear.
d. Heart of Atlanta Motel, Inc. v. US
i. STATUTE: if you provide rooms for transient guests you may not engage in racial
discrimination
ii. Category Three: burdens interstate travel for those discriminated against; makes
interstate travel unpleasant and affects interstate commerce
1. Lopezwhen it cites heart of Atlanta approvinglycites it as a regulation of use
of channels of commerce case.
e. Katzenbach v. McClung
i. STATUTE: restaurants that buy food via interstate commerce cannot engage in
discrimination.
ii. Category Three: has effect on interstate food supply
E. The Latest EraPost-1995.
a. Landmark: US v. LopezStudent arrested for carrying a conceal handgun in a school guna
federal offense. Court concluded that the law was unconstitutional because it was not
substantially related to interstate commerce.
i. MAIN POINT: Simply because Congress may conclude that a particular activity
substantially affects IC does not necessarily make it so.
1. limitation on category THREE cases: justification for a regulation requires a
substantial effect on commerce, not merely any effect.
a. Allowing Congress to justify statutes with attenuated references to
commerce would obliterate the distinction between what is truly
national and what is truly local
2. Congressional Findings: though not necessarymay help court better
understand Congresss reasoning.
a. NOTE: Morrison reduced the importance of congressional findings.
ii. HOLDING: Majoritys Analysis
1. Statute fails to fall under category THREE
a. Possessing a gun near a school is not a commercial or economic
activity
b. Statute does not contain a jurisdictional elementthat would ensure on
CBC basis that its somehow related to IC
c. Current statute makes it a crime to move a gun through IC
iii. CONCURRING: Kennedy & OConnor
1. Regulation of education is a traditional state function and government should
not get involved in such functions.
iv. CONCURRING: Thomas
1. Textual: commerce clause grants power to regulate IC not things that affect IC
would abolish category THREE altogether.
v. DISSENT: Breyer
1. Attenuated Connection to Commerce:
a. Guns impose costs on society which are spread by insurance nationally
b. Guns near schools impede good education education is important for
the economy guns impede the economy
2. Reasons for dissent
a. Overruling statute is inconsistent with precedent1
b. Congress can regulate any activity of any kind so long as it
significantly affects IC
i. Cumulation principle determines significance
ii. Question of cumulation is not one of factit is one of
Congresss rational belief that such an effect exists
c. Congress is better than courts at making complex factual judgments
such as this
vi. Making Statute Work by Amendment
1. Congress can merely add a jurisdictional element: only a crime to possess gun
near school where the gun had moved interstate. Would require one to:
a. show that gun was manufactured in one state and possessed in another
b. and since guns are only manufactured in a few states this could cover a
lot of states.
2. Nearly as effective as original statuterequires proof, and sometimes
jurisdictional element wont be met so you wont get a conviction
vii. LS: Justification Under Different Categories
1. Placing statute under category TWO
a. gun becomes a thing in interstate commerce
i. Its a regulation of guns in IC which are things in IC
b. DOUBTSnew statute doesnt really regulate interstate shipment of
gunsif it made it a crime to ship guns with the intent of them being
possessed near a school then maybe.
2. Sustaining it under category ONE
a. channels of interstate = interstate gun market
1Firsttimesince1930sthatcourthasheldthatCongresshasexceededitscommercepower.
b. amended statute regulates interstate gun market in order to assure that
this channel does not endanger school kids
b. Landmark: US v. Morrison
i. KEY: If allowedCongress could regulate any crime if aggregated impact of it has
substantial effects on IC.
1. Congress cant usurp power of judicial review by making findings especially
not such attenuated ones
ii. STATUTE: authorizes victims of gender-motivated violence to sue for money damages.
iii. Rational Belief: enacted based on congressional findings which revealed:
1. inadequacy of state laws in protecting woman
2. gender-motivated violence costs economy billions of dollars
3. results in substantial constraint on travel by women through the country
iv. HOLDING: Statute exceeds Congresss commerce power.
1. Gender-motivated violence is not a commercial or economic activity
2. No jurisdictional element in the statute
3. Sustained only by attenuated inferences, disapproved of in Lopez
v. Dissent
1. Judicial deference to congressional findings.
a. Statute passes RBT as indicated by extensive congressional findings
and therefore the statute is constitutional.
2. Courts job is not to assess rationality of Congresss acts, merely to conclude
that jurisdictional basis exists.
c. Pierce County, Washington v. GuillenSuit for hazardous road conditions sought discovery of
states federally mandatory road study. Federal stat. exempted from discovery but state law had
no such exemption.
i. KEY: Court upholds statute as fitting under both category ONE and TWO
1. Roads and Highways are channels of commerce and instrumentalities are cars
and trucks that move in IC.
2. Highway is an instrumentality of IC and the channels whose safety is improved
is the interstate market, interstate shipment of goods
3. Highways are both channels and instrumentalities
ii. STATUTE: Highway Safety Act with purpose to encourage states to make highways
safe. In order to be eligible for money, states had to undertake study to assess road
hazard (Spending Power). Congress amended statute to exempt State from discovery of
the studys results.
PRACTICAL POINTERS
ANALYSIS CHECKLIST:
Does it fall within the Commerce Clause Power?
o Is there a way to get out of Category THREE?
Category ONEchannel of IC
Is the market an interstate market?
Category TWOthing in IC
o Would it fit under Category THREE?
regulation of commercial or economic activity?
YES, because wages are paid to employees
NO, because wages and hour policy directly affect the quality and quantity of
local governmental services zone of activity.
o E.g., overtime for police directly relates to effectiveness
Congress rationally believe that activity substantially affects IC?
Probably sustained under Lopez, because labor market is IC market, a lot of
people in the labor market so there would be a large effect on IC
What was Congresss motive in enacting the statute?
Court does not care about Congresss real motive or purpose
Whether purpose is non-economic or otherwise is irrelevant
Does statute violate Tenth Amendment Immunity?
o Does it require states to legislate?
o Does it require state officials to assist in the enforcement of federal statutes regulating private
individuals?
o Does it requires states to administer a federal regulatory program?
o Does it requires states to subsidize private citizens?
FEDERALISM
A. Purpose of Federalism
a. Efficiency
i. Economies of scaledecentralization is more efficient.
1. Extends to local arena but may not extend to states
b. Variety
i. Its good to have a variety of services to allow people to choose the level of regulation
they are subjected to when moving.
B. Protecting Federalism
a. Decreasing Federal Tyranny
i. Division of power vertically, between federal and state governments, lessens the chance
of federal tyranny.
ii. Protection of the people from government oppression
iii. FRAMERS:
1. thought the possibility of federal abuses could be limited by restricting the
authority of the federal government.
a. Expected vast majority of governance to take place at the state or local
level
iv. Criticism
1. anachronistic in the face of modern national market economy and decades of
extensive federal regulations
2. major shift over time as to how abusive government is best controlledif
federal action intrudes upon individual liberties, the federal judiciary will
invalidate it as unconstitutional
3. judicial review is seen as an important check against tyrannical government
actions.
b. Enhancing Democratic Rule
i. States are closer to the people and thus more likely to be responsive to public needs and
concerns.
1. the electorate is small and the elected representatives are more immediately
accountable to individuals
ii. Criticism
1. Greater responsiveness may increase the dangers of government tyranny
2. There is a greater danger of special interests capturing government at smaller
and more local levels
3. Moreover, it may not really apply to more populous and heterogeneous units.
c. Laboratories for experimentation
i. States try novel social and economic experiments without risk to the entire countryand
may come upon things that are beneficial for all.
ii. Any federal legislation preempting state or local laws limits experimentation.
1. application of constitutional rights to the states limits exp. With providing less
safeguards of individual liberties.
iii. Criticism
1. Congress and federal agencies can design experiments and try different
approaches in various parts of the country
C. Should Court Protect Federalism?
a. Unnecessary:
i. Interest of the states are represented in the national political process
ii. Nature of process provides sufficient protection of state sovereignty
b. Historical Critique
i. At the time Constitution was written, states would elect their senatorsnow popular
elections can hardly be said to protect states rights.
1. Indeed, rarely do voters take into account complicated state issues
c. LS: Counter.
i. The lobbying process in the US is driven by substantive political issues
ii. A major safeguard of federalism is the separation of powers.
d. Democratic-Process Argument
i. In effect, the people have the power to change the law in the States.
1. Congress represents all the people and they have the power to decide whether
States can act against Congress.
ii. If theres a problem go to Congress and have them change the law
D. FRAMERS
a. would have been surprised at extent of congressional regulatory power
b. BUTthey would have been surprised at the economy and how national the markets are.
c. How much do you make of original intent?
i. They wanted to limit congressional power but make sure that congress could deal with
national/economic problems
ii. As economy becomes more national that requires the government to increase its power to
deal with the growing scope
OVERVIEW
A. Text
a. The power not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
B. Views:
a. Dominant: not a separate constraint on Congress but rather is simple a reminder that Congress
only may legislate if it has authority under the Constitution.
i. Under this view a federal law never would be found unconstitutional as violating the
Tenth Amendment, but it could be invalidated as exceeding the scope of Congresss
powers under Art. I or for violating another provision.
ii. Single Inquiry: answering commerce power question would automatically answer 10th
amendment issue
1. If power existed under commerce clause then it would not be reserved to the
states
b. Alternative: protects state sovereignty from federal intrusion.
i. Key protection of states rights and federalism.
ii. Reserves a zone of activity to the states for their exclusive control and federal laws
intruding into this zone should be declared unconstitutional by the courts.
1. States have certain rights and immunities and those rights are protected against
violations by Congress
2. Two Inquiries: Valid exercise of Commerce Power AND accordance with Tenth
Amendment
C. The Law
a.
Congress may prohibit state governments from engaging in harmful conduct, particularly if the
law applies to private entities as well; but Congress may not impose affirmative duties on State
governments.
b. it is unconstitutional for Congress
i. to compel state legislative or regulatory activity
ii. to compel state to subsidize
iii. to compel state legislatures to adopt laws or state agencies to adopt regulations
iv. to compel state officers to act
D. Limitations
a. Congress is therefore limited to:
i. A regulation of state activities, not a regulation of how States control their citizens
ii. Regulation of any activity so long as it does not:
1. force State to change or add any statutes
2. affect how State controls individuals
iii. The fact that state has to change laws or do administrative stuff is irrelevantso long as
the statute itself does not call for such a change
iv. Congress can regulate any commercial or proprietary activity but cannot regulate any
governmental activity
b. Compliance with vs. Enforcement Against
i. Requiring state employees to comply with a federal law is not a violation of the Tenth
Amendment.
ii. FLSArequires states to administer or comply with it; but it does not require them to
enforce a federal regulatory statute against private individuals.
c. Note on Subsidies:
i. Def: an amount higher than market price
ii. Minimum wage requirements (e.g. FLSA) require a wage higher than that demanded by
the market.
1. Angers economists because it goes against the market.
E. Policy
a. The statute is unconstitutional even if there is a compelling need for the federal action. 2
i. it would invite an unelected judiciary to make decisions about which state policies it
favors and which one it dislikes.
b. Waiver of Protection.
i. Purpose of Amendment is protection of individuals
1. States cant consent to violations of the Amendment
2. Moreover, violation is unconstitutional and states cant consent to something
that is unconstitutional
ii. Promotes electoral accountability
iii. Voter confusion: voters would see the state acting and would be confused about who to
hold politically accountable
F. Case Law Examples
a. New York v. US Federal statute created duty for states to provide for the safe disposal of
radioactive wastes generated within their borders. Invalidated for violating the 10th
Amendment.
i. Take Title Provision
1. If state fails to comply by 1996, Fed would take title and possession of waste in
the state and would be liable for any damage caused.
ii. Tenth Amendment prohibits Congress from commandeering the states for federal
regulatory purposes
b. Prinz v. US Brady Bill compelled state and local officers to conduct background checks on
prospective handgun purchasers. Invalidated for violating the 10th Amendment.
i. KEY: Cannot require state officials to administer a federal program
ii. Other options
2NationalLeagueofCitiesholdsthatsuchanapplicationviolatesthe10 Amendmentimpliedpowergrantedtothestates.BUTGarcia
th
overrulesstatingthatstateshadenoughpowerinWashingtontoprotectthemselves:noneedforjudicialprotection.
1.Congress can get around this by using the Spending power
2.Could congress re-enact this law if they said that State participation is
completely voluntary
c. Reno v. Condon (2000) federal statute prohibited state and private sale of driver personal
information acquired from DMVs in the state. Court unanimously upheld statutedid not
violation the 10th Amendment.
i. Court avoids constitutional questionsince activity fits under Category TWO there is no
need to consider if it fits under Category THREE.
OVERVIEW
A. Text: Article I, 8, 1
a. Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts
and provide for the common defence and general welfare of the United States; but all duties
impost and excises shall be uniform throughout the United States.
B. Limitations
a. Constitutional Rights
i. TSP are subject to provisions in the Constitution that protect human rights
1. Especially involving the spending power
a. E.g., Congresss refusal to fund abortions
ii. Taxing and spending power are limited by constitutional rights
1. if Congress taxed one particular ethnicity that would violate EPC
2. tax newspaper that criticizes the govtviolation of 1st amendment
b. Federalism.
i. There are no federalism based limits on taxing and spending power
ii. Some decisions suggest such limits but the Court has not struck down a taxing or
spending power since the 1930s
iii. Suggested limits dont seem to amount to much by way of practical limits
C. History
a. The main historical debate is whether TSP:
i. Can only be used to implement some other enumerated power, OR
1. Madison: reference to subsequent clauses enumerated in the same .
ii. May be used for any purpose that Congress wants.
1. Hamilton: only limitation is that it act serving the general welfare
b. Court endorses Hamilton position:3
3UnitedStatev.Butlergoodlaw:Congresshasexpansivepowerstotaxandspend.badlaw:federalregulationofproductionisaviolationof
the10thAmendmentandshouldbelefttothestates.
i. Congress has broad power to tax and spend for the general welfare so long as it does not
violate other constitutional provisions.
1. Example: a tax administered in racial discriminatory way would be
unconstitutional not as a violation of Congresss Art. I power, but as violating
the EPC of the 5th Amendment.
c. The main challenges to the TSP have been when Congress was attempting to use the power for
regulatory purposes
D. Taxing Power
a. Federal tax is constitutional whatever its motive as long as it raises some revenue.
i. While Court has not clarified what principle controls the Taxing Power (TP) the above is
often regarded as the law..
b. Court has upheld taxes that were plainly being used entirely for regulatory purposes
i. mainly to give Congress avenue for federal prosecution regulation
1. e.g., taxes on illegal gambling, illegal narcotics
ii. People challenging tax could tell it wasnt a revenue taxbecause it didnt raise much
revenue, but as long as it raised some then it was constitutional.
E. Spending Power
a. Conditional Spending. 4 Federal government offers to give federal money conditioned on
compliance with federal provisions.5
i. ChoiceStates can avoid federal regulation by simply not taking the money
ii. Requirements for spending conditions6
1. Must be for general welfaresubstantial deference to Congress
2. Must be clearly identified in the statute
3. Must be related to the spending program of which it is a part
a. can be fairly attenuated
b. Court suggests that at some point temptation of federal funds may become coercive.
i. However, there are decisions that have upheld 100% fund cutoffs.
ii. States rarely refuse to comply with federal spending conditions
4
5
6
a. Exclusive Federal Power
i. Any activity regulated by Congress within scope of its power to regulate is outside
States power to regulate.
1. State regulations unconstitutional under the CC
a. Positively: range of powers given to Congress.
b. Negatively (DCC): withdraws some powers from states.
2. Supremacy Clause
b. Shared Power
i. States have the power to regulate as long as state law is not inconsistent with federal law.
ii. This is determined by the preemption doctrine.
c. Exclusive State Power
i. The 10A provides a field for this.
OVERVIEW
A. Three Situations Where Preemption Claims Arise
a. Express Preemption: occurs where there is explicit preemptive language.
b. Implied Preemption
i. Field Preemption: occurs where congressional regulation of some area is so extensive
that it gives rise to inference that Congress intended to occupy the field to the exclusion
of state regulation.
ii. Conflict Preemption: occurs where state law impedes the achievement of a federal
objective.
1. Mutual Exclusivity: where state and federal law are mutually exclusive;
compliance with both is impossible.
2. Impedes Federal Objective: where state law is an obstacle to a federal objective.
B. The Ultimate Question: Did Congress Intend to Preempt State Regulation?
a. Where congressional intent is not clear, but federal regulation is extensive the court is likely to
find Congress really wanted its regulation to be exclusive.
b. Where compliance with both laws is impossible the court is likely to decide that Congress wanted
its law to control.
c. Where compliance with state law impedes federal objective the court is likely to find that
Congress wanted its law to be supreme.
C. Policy Issues
a. Ultimately concerns the allocation of authority between the federal and state governments.
i. Broad View: less room for state and local governance.
ii. Narrow View: minimizes the reach of federal law and risks undermining the federal
objectives; could be used to empower the states.
OVERVIEW
A. Def: the principle that state and local laws are unconstitutional if they place an undue burden on IC. This
power is inferred from the CC.
B. Relationship to Other Constitutional Provisions
a. The DCC is not the only way of challenging state laws the burden IC, especially if the law
discriminates against out-of-staters. Could also look to:
i. The privileges and immunities clause
ii. The equal protection clause (EPC) of the 14th Amendment
C. Basic Policy: should the courts be aggressive in striking down state and local laws that burden the national
economy, or should the courts adopt a general posture of deference?
HISTORICAL APPROACHES
A. Gibbons v. Ogden: The Dormant Commerce Clause Before 1893
a. Distinguished between regulations of IC and regulations of the police powers of local
governments. A state cannot regulate interstate commercial matters, but can regulate for health
and safety. Abandoned, but not overruled.
b. Problem: assumes that they are two distinct categories, which they are not.
B. Cooley v. Board of Wardens: National v. Local Subject Matter
a. The court drew a distinction between subject matter that is national (invalid) and subject matter
that is local (allowed). Abandoned, but not overruled.
b. Problems
i. It allows regulations that are protectionist and/or burdensome on IC, so longs as they are
deemed local.
ii. No clear distinction between what is national and what is local.
C. DiSanto v. Pennsylvania: Direct v. Indirect Effects on Commerce
a. SC drew a distinction between state laws that directly interfered with IC (invalid) and those that
only had an indirect effect (permissible).
b. Problem: assumes that there is a clear difference between the two kinds of laws, which there is
not; burdens are a matter of degree.
DIFFERENCES BETWEEN DORMANT COMMERCE CLAUSE AND PRIVILEGES AND IMMUNITIES CLAUSE
A. Justification Standard
a. State regulation that discriminates against out-of-staters (e.g., the right to earn a living) is
unconstitutional unless it is substantially related to a substantial government interest.
b. Discrimination must affect a constitutional right or an important economic activity.
i. Constitutional Rights: usually dont need the P&I; you can usually just the amendment
thats violated.
ii. Economic Rights: P&I more important.
c. Supreme Court of New Hampshire v. Piper (1985)
i. Out-of-state lawyers refused admission to the bar.
ii. Decision
1. First two reasons not substantially related.
2. Second two could be accomplished through less restrictive alternative.
iii. The most you can say from these cases is that there has to be a good deal of intuitive
credibility in the idea that the right is a fundamental right.
B. Doctrinal Difference
a. P&I limited to fundamental rights. DCC not so limited.
i. Baldwin v. Fish and Game of Montana (1978)
1. Not things like elk hunting.
ii. A lesser harm will suffice to ground a DCC challenge.
b. P&I requires discrimination (probably facial).
i. Basic rule: unconstitutional unless is it substantially related to a substantial government
interest that could not be achieved through some nondiscriminatory means.
ii. No examples of a facially neutral law being struck down.
c. DCC has two exceptions (congressional consent, market participant). P&I does not have these
exceptions.
d. Corporations and aliens can sue under DCC, but not under P&I (citizens).
7
8ChadhawasanEastIndianwhowasgrantedtherighttoremaininthecountryw/oapassportbyanimmigrationjudge.HofRadopteda
resolutionoverturningthedecision.Courtoverrulesresolution.
a. Since court has tolerated delegation (which itself is against Art I)
Why reject Congresss main tool for controlling that delegation on the
argument that the tool deviates from Art. I
2. Keeps Congress accountable
3. Not necessarily lawmaking, only reserving right to disapprove
4. Also nearly 200 federal laws included L. Veto provisions, declaring them
unconstitutional would put the current system in jeopardy
c. Alternative - Expiration Dates and Power of the Purse
i. Sunset Provisions:
1. Statute expires some time after its enactment (5 years) unless Congress approves
reinstatement (used popularly today)
2. Congress has supervisory power regardless of what President wants
ii. Power of the Purse:
D. Delegation of Executive power to Congress and its officials
a. Though Congress may delegate legislative power to administrative agencies, Courts wont allow it
to delegate executive power to itself
b. Why?
i. Reflection of judicial judgment that its okay for a branch of government to relinquish its
power to another but not when it assumes the power assigned to another
WAR ON TERROR
A. Presidents Power to Detain
A. Hamdi
I. F: Hamdi a US citizen moved to Saudi, arrested by Northern alliance, US says it can
detain him w/o charging him
II. Issues:
1. Does President have power to detain American citizens who are enemy
combatants?
2. Does Hamdi have due process rights?
iii. Congressional Resolution: Presidents power to use all necessary and appropriate force
against those who plan, authorize, committed or aided terrorist attack of 9/11
1. force includes detention
iv. H: Post-9/11 resolution gives President power to detain and determine whether a person
is an enemy combatant
v. Dissent:
1. Scalia says you need to suspend Habeas Corpus before detaining and therefore
Hamdis detention illegal
B. Power to Conduct Electronic Surveillance
a. President:
i. Inherent Art. II power as commander-in-chief to take any action to protect the nation
against the use of force by terrorist organizations
1. FISA unconstitutional usurpation of these powers
ii. Even under FISA Legislation:
1. Surveillance okay if Congress authorizes it and
2. Post-9/11 legislation authorizes it as an instance of war
b. Congress:
i. Electronic surveillance covered by 4th Amendment which requires judicial approval of
foreign intelligence that takes place in US, there must be probable cause
ii. FISA (Foreign Intelligence Surveillance Act)
1. FISA court must approve FIS in US
2. Provision for emergency surveillance w/o FISA approval
3. Specifies kind of probable cause required
4. Surveillance inconsistent with this Act a crime
iii. Citizens acting domestically are traitors not enemy combatants of war
C. Power to use Military Tribunals
a. Ex Parte Querin
i. Authorizes enactment of military tribunals for violations of law of war
b. President likely has power to authorize tribunals to try enemies captured abroad
i. Use limited to non-american citizens and so far only on people captured outside of the
US
ii. However Bush has used them w/o any formal declaration of war unlike in Querin
c. *Implication of Querin that US citizens are not protected from these tribunals (????)
9Youngstown(??):1952,USSteelworkersplannedanationwidestrike.Trumanissuedanexecutiveorderthatdirectedthesecretaryof
commercetotakepossessionofthemillsandkeepthemrunning.Trumanbelievedthatitwasanissueofnationalsecurity
i. The president is disobeying a federal law, such actions will be
allowed only if the law enacted by Congress is
unconstitutional At issue: Constitutionality of federal law
iv. 4. Broad Inherent Authority.
1. President may act in times of emergency, as long as action does not violate the
constitution even if Congress imposes limits
2. Federal laws restricting the power of the President are unconstitutional
3. United States v. Curtiss-Wright Export Corporation10
a. The broad statement that the federal government can exercise no
powers except those specifically granted in the Constitution is
categorically true only in respect of our internal affairs
F. Line-Item Veto
a. Congress cannot increase Presidential power beyond what is explicitly found in the Constitution
i. Clinton v. New York11 Allowing the president to exercise a line-item veto, would be
changing a law adopted by Congress
1. Majority Constitution says: President has veto power or accepting power, not
both (Formulaic Approach)
2. Dissent There is a practical need for the line-item veto (Functional Approach)
G. Executive Privilege
a. Generally
i. The right of the president to keep secrets from advisors is not enumerated in the
Constitution, but it has been claimed throughout American history
1. Supreme Court has upheld it as central to the need of the President to receive
candid advice
2. Also for national security purposes
b. Landmark: United States v. Nixon12
i. First case to expressly consider the scope of Executive Privilege
ii. Court concedes that there are certain executive actions that are not reviewable by the
court
1. If constitution grants a discretionary power to the president, then there is no
judicial review
iii. But scope of that privilege doesnt go as far as Nixon wants it to go
1. Particularlyit does not extend to allow interference with criminal proceedings
a. This would be usurping judicial powers granted under Art. III
iv. HOLDING:
1. The President, alone, does not have the power to determine the scope of
executive privilege the court does
a. Marbury v. MadisionIt is the duty of the judicial department to say
what the law is
i. Questionable interpretation: Marbury obviously stand for the
judicial review of executive actions, but it is questionable as to
whether it precludes a constitutional interpretation that gives
final authority to another branch (other than the judiciary)
2. Executive Privilege is an inherent presidential power
a. Contrary to Blacks opinion in YoungstownNo inherent authority
3. Executive Privilege is not absolute
a. It must yield when there are important countervailing interests
b. Absolute Privilege would interfere with the authority of other branches
(judiciary)
v. **The significance that case involved suspicion of criminal complicity on part of the
president similar to crime fraud exception to attorney client privilege
10CongressauthorizedthePresidenttorestrictarmssalestotwowarringLatinnations
11Federalstatuteempoweredtoveto/cancelparticularpartsofappropriationbillswhileallowingtheresttogointoeffect
12AtissuewasNixonsrefusaltodelivercommunicationstojudges(Watergate)
vi. Nixon v. Administrator of General Services13Court recognizes that even former
Presidents may claim Executive Privilege, but screening process protected their (and
Nixons) rights Screening would adequately preserve executive confidentiality
c. Current Trend: Only some questions have been resolved
i. Court has not specified what other circumstances if any would outweigh claims of
Executive Privilege
FOREIGN POLICY
A. Distinguish: power of the executive in both foreign policy and domestic affairs
a. United States v. Curtiss-Wright Export Corporation
i. Court upholds Congress delegation of power to the President citing the difference
between domestic and foreign policy
1. The broad statement that the federal government can exercise no powers except
those specifically enumerated in the Constitution is categorically true only in
respect to internal affairs
2. Historical foundation: Even before the ratification of the Constitution the federal
government has inherently possessed powers over foreign policy.
3. The realities of conducting foreign policy require the president possess much
greater inherent powers than in the realm of domestic affairs
a. President has access to information that congress does not have
ii. Criticism (LS):
1. This view is inconsistent with the written Constitution because the Constitution
includes provision regarding foreign policy Effectively ignores all mentions of
foreign affairs in Article I
2. Historical premise is inaccurate
B. Executive Agreements and Treaties
a. Two Major issues:
i. When may executive agreements be used instead of treaties
ii. What limits, if any, exist on the ability of the President to negotiate or rescind a treaty
b. Executive Agreements
i. Anything that can be done by treaty can be done by E. Agreements14
ii. E. Agreements No senate ratification is necessary
iii. E. Agreements Not mentioned in the Constitution
1. But it is well established that these agreements are constitutional
iv. Never has the Court ruled an E. Agreement to be unconstitutional for usurping the
Senates treaty-making powers
1. United States v. Pink and United States v. Belmont15
a. States must comply with E. Agreements
i. E. Agreements (like treaties) prevail over state law and policy
2. Dames & Moore v. Regan16
a. Recent case (1981)
i. Court emphasized a series of federal statutes that authorized
the Presidents action Since Congress has long accepted the
use of the E. Agreements it is constitutional under Article II
3. Conclusion: Although the Court has never invalidated an E. Agreement,
decisions on E. Agreements can be read narrowly as establishing only that they
prevail over state law and are permissible when there is no conflicting federal
statute
13NixonarguesthatthestatuteadoptedbyCongressdirectinghimtohandoverthetapesforreview(PresidentialRecordingsandMaterial
PreservationAct)violatesseparationofpowers.Tapeswouldbescreenedforprivatecommunicationandthenmadeaccessibletothepublic.
14DestroyerBasesAgreementActExecutiveAgreementthatsubstantiallyincreasedAmericaninvolvementinWWII
15CourtupheldE.Agreement,despitechallengesbyNewYorkcourts,(LitvinovAgreement)inwhichtheUnitedStatesofficiallyrecognized
theSovietUnion
16E.AgreementreachedbetweenIranandPresidentCarterchallengedbyD&MasitaffectedtheirongoinglawsuitagainstIran.
c. Treaties: Article II says that the President shall have Power, by and with the advise of the Senate
to make Treaties, provided two-thirds of the senators present concur
i. If there is a conflict between a treaty and a federal statute, the one adopted last in time
controls
1. Co-Equal in law Treated as if it were a statute-statute conflict
ii. Treaties must be constitutional Reid v. Covert17
iii. Treaties cannot be challenged as violating the Tenth Amendment and infringing on state
sovereignty (Different from Statutes) Missouri v. Holland18
1. J. Holmes Article II expressly authorizes treaties and Article VI makes treaties
the supreme law of the land
a. Treaty power is broader than Congress power to enact statutes
iv. As the Court revives the Tenth Amendment, perhaps it will reconsider
1. If a statute is unconstitutional under the Tenth Amendment, it is questionable
why a treaty would not be
2. Laws are authorized in Article I and, like treaties, are mentioned in the
Supremacy Clause in Article VI
v. Can the president unilaterally rescind treaties Main issue that has arisen before the
Supreme Court concerning treaties
1. Goldwater v. Carter19
a. No majority opinion Non-justiciable political question
b. No decision on the merits allows the President power to unilaterally
rescind treaties without worrying about judicial intervention
d. War Powers
i. Constitution is an invitation for a struggle between the president and Congress over
control of the war power Much left unresolved
1. Article I grants Congress the power to declare war and the authority to raise and
support the army and navy
2. Article II makes the president commander-in-chief
ii. Unresolved Issues
1. Absence of case law concerning war powers
a. Prize Cases20
i. Only Supreme Court case to address the issue of whether the
president can use troops without congressional consent
2. Challenges likely to be dismissed as political questions
a. Vietnam War Dozens of cases regarding lack of official declaration of
war
i. Dismissed as non-justiciable political questions
b. El Salvador, Persian Gulf War and Bosnia = same thing
3. Uncertainty as to what constitutes a Declaration of War
a. Official declaration after Pearl Harbor (WWII) vs. Gulf of Tonkin
Resolution (Vietnam)
b. Question unresolved
17DependantsofmilitarypersonnelinaforeigncountrymustbeaccordedatrialinlinewiththeConstitution
18Decidedin1920whenthecourtactivelyusedtheTenthAmendmenttoprotectstatesrights.MigratoryBirdTreaty,uphelddespitealower
courtsrulingthatasimilarfederalstatutewasunconstitutional.
19PresidentCarterrescindedatreatywithTaiwan.SenatorGoldwatersuedcontendingthattheSenatemustapprovetherecision.
20Courtruledthatthepresidenthadthepowertoimposeablockadeonsouthernstateswithoutacongressionaldeclarationofwar.
Federalism: extent to which individual rights should be applied to state governments and how aggressively
they should be enforced.
FRAMERS
Thought that an enumeration of rights was unnecessary in that they had created a government with limited
powers and thus without the authority to violate basic liberties.
Concerned that the enumeration of some rights in the text of the Constitution inevitably would be
incomplete and would deny protection to those not listed.
o Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.
Incorporation Doctrine
PRACTICAL POINTERS
Test for Incorporation: the question is whether the right is among all three categories: 21
o fundamental principles of liberty and justice which lie at the base of all our civil and political
institutions
o basic in American system of jurisprudence
o fundamental right essential to a fair trial
NOTE: whenever a case involves a state or local violation of a BOR provision, to be precise it involves
that provision as applied to the states through the DPC of the Fourteenth Amendment.
HISTORICAL APPROACH
A. Bill of Rights was intended to apply to the federal government only and not to state or local governments.
a. Barron v. Mayor & City Council of Baltimore (1830s) sued the city for taking his property
without just compensation in violation of the 5th Amendment. Court holds that Bill of Rights does
not apply to the city.
b. Marshalls Rationale:
i. Constitution was established by the people for their own government not for that of the
states
ii. Framers would have declared plainly that Bill of Rights apply to the state governments if
they intended it to be so.
B. Counterargument:
a. Provisions in the BOR dont limit themselves to the federal govt. Compare:
i. 5th Amendment: No person shall
ii. 1st Amendment: Congress shall make no law
b. this would mean that state and local governments are free to infringe even the most precious of
liberties.
C. Hindsight Note:
a. Original understanding of BOR was that it applied only to the federal government
b. There was extensive faith in State constitutions to cover those rights accorded by the BOR
21Duncanv.Louisiana,1968.CourtheldthattrialbyjuryisessentialtoAmericanschemeofjustice.
a.
Issue: meaning of privileges and immunities and whether it was equivalent to those basic rights
protected by the BOR.
C. The Slaughter-House Casesstate legislature grants monopoly to slaughter-house company. Butchers sue
under P&I Clause arguing that monopoly violates their right to practice trade.
a. KEY: Removed Privileges & Immunities Clause as a basis for incorporating BOR to the states or
for protecting any rights from state interference.22
i. Privileges and immunities protected are those owing their existence to the federal
governmentin other words, the clause adds nothing that didnt exist before 14A was
ratified.
ii. Clause was not meant to protect individuals from state government actions and was not
meant to be a basis for federal courts to invalidate state laws
b. Criticism (LS)
i. Court ignores FRAMERS intent
1. clear that P & I of US citizenship meant some kind of fundamental rights
concept considering wake of Civil War
2. whole point of 13, 14, 15 amendments was to change fed/state relations
ii. Rights that court find protected are rights that are already protected by the
Constitution reflects nothing about FRAMERS intent unless they are a bunch of idiots
who inserted
D. Revival
a. Saenz v. Roe (1999)Court struck down California law that when someone moves into the state
they receive benefits equal to those they received in the state they moved from.
i. KEY: invalidated a law based on P&I Clause giving it meaning.
1. Right to travel and right to be treated equally in new State of residence are
privileges and immunities protected by the P&I Clause
ii. Justice Breakdown:
1. Scalia was in the majority.
2. Thomas dissentedbut expressed that he was willing to explore the P&I
Clauses application.
iii. Effect: suggests that P&I may have some future significance in arguing for and against
constitutionality of laws.
22ProfCorwin:theclauseenjoysthedistinctionofhavingbeenrenderedapracticalnullitybyasingledecisionoftheSupremeCourtrendered
withinfiveyearsafteritsratification.
b.Substantive Due Process (current theory)
i. implicitly interprets the phrase without due process of law to mean:
1. without fair procedures AND without strong justification
ii. Court requires that rights be importantrejects incorporating rights that without which
the process of the system of justice would be impeded.
D. The Incorporation Debate
a. FRAMERS and History
i. Both sides claimed that history supports their contention
ii. The historical argument can never be decisively resolved because there is not a single
discernable intent on the issue of incorporation.
b. Federalism
i. Selective:
1. Applying BOR imposes a substantial set of restrictions on state and local govts.
2. desirability of preserving state and local governing autonomy by freeing them
from the application of the BOR
3. States are capable of advancing rights on their own
ii. Total:
1. federalism is not sufficient reason for tolerating violations of fundamental
liberties.
2. safeguarding precious liberties should not rest on faith in the states.
c. Judicial Role
i. Selective:
1. total incorporation would mean more judicial oversight of state and local actions
and thus less room for democracy to operate
ii. Total:
1. selective incorporation gives judges too much discretion in deciding what rights
are fundamental
E. Incorporate Rights [current law]
a. 1A: establishment clause, free exercise clause, and protections of speech, press, assembly and
petition.
b. 4A: protection against unreasonable search and seizures and the requirement for a warrant based
on probable cause; the exclusionary rule (prevents the government from using evidence obtained
in violation of 4A.
c. 5A: prohibition on double jeopardy, protection against self-incrimination, and requirement that
the government pay just compensation when it takes private property for public use
d. 6A: requirements for a speedy and public trial, by an impartial jury, with notice of the charges,
the chance to confront adverse witnesses and to have compulsory process to obtain favorable
witnesses, and to have assistance of counsel if the sentence involves possible imprisonment.
e. 8A: prohibition against excessive bail and cruel and unusual punishment.
The Exceptions
Interpreting the Exceptions
o The more you believe in state action doctrinethe broader you want the exceptions to be
o The less you believe in itthe narrower youd want the interpretation to be.
Court is most likely to find state action based on entanglement if it can be shown that:
o The governments purpose was to undermine protection of constitutional rights, or
o The government is facilitating private conduct that otherwise would not occur.
Note: many cases involve discussion of BOTH exceptions.
Court Trends
the Court is more likely to apply the exceptions in cases involving race discrimination than in cases
involving other constitutional claims.
Civil Rights Act greatly lessened the need for constitutional litigation to end discrimination.
GENERALLY
A. Intro:
a. Congress has no power against private discrimination under 13th or 14th amendment cases
i. Civil Rights Cases reaffirmed by US v. Morrison
B. The Rule
a. Rule: Private conduct generally does not have to comply with the Constitution except for 13th
amendment
i. the C offers no protection against private wrongs no matter how discriminatory or how
much they infringe fundamental rights. 23
b. Qualifications to the Rule:
i. 13A: forbids people from being or owning slaveprivate conduct regulation.
ii. Statutes: both federal and state statutes can require that private conduct meet the same
standards that the C requires of the govt (e.g., Civil Rights Act of 1964).
iii. Public functions exception: private conduct must comply with C if it involves a task
that has been traditionally, exclusively done by the government.
iv. Entanglement exception: the principle that the C applies if the government
affirmatively authorizes, encourages, or facilitates unconstitutional conduct.
c. Costs: absent statutory restrictions, private conduct can infringe even the most basic rights
i. Private infringements can be just as harmful as government violations.
C. Justifications
a. Text
i. Seems to limit application to just the government
1. 14A: nor shall any State
2. 1A: Congress shall make no law
ii. Countertextual Argument. Is govt. inaction a constitutional violation?
1. Because the state has power to stop the private infringement of individual rights,
its failure to do so constitutes a state decision to permit the infringement.
a. A state can be said to authorize all conduct that it does not prohibit
2. It is analytically possible to conceptualize any private infringement of
constitutional values as a result of government inaction.
3. LS: if you regard all this as textually plausiblethen the text doesnt really
justify having a state action doctrine because you would be requiring states to
act against private conduct.
23CivilRightsCases(1883):Actprovidedthatallpersonwereentitledtofullandequalenjoymentofinns,theatresandotherplacesofpublic
amusement.SCheldActunconstitutionalbecause14Adoesnotapplytoprivateconduct.
b.
History
i. It was believed that the common law (coextensively Natural Law) completely
safeguarded personal liberties from private infringements. Not so these days
ii. FRAMERS: we dont know what the framers wanted b/c of changing times
c. Preserves a Zone of Private Autonomy Individual Liberties
i. By not applying C to private conduct, private actors have more freedom
ii. However, it also sacrifices individual freedom because it permits the violation of rights.
There are always competing liberties in the real worldthe violators freedom to act; the
victims rights that are infringed
1. ex. without a state action doctrine, courts could apply state action as to who you
can invite to dinneryou wont invite certain type of people, based on race or
religionif there was no state action doctrine, you could get sued for racial
discrimination.
d. Promotion of Federalism
i. keeps courts out of business of regulating conduct on theory that it violates the
constitution
ii. if 1 of 14th Amendment applied to private actorsthen 5 would give Congress broad
powers to regulate conduct
e. Avoidance of difficult issues
i. SC would face difficult issues that neither the framers intent nor the text of the
constitution gives a lot of guidance to resolve.
1. e.g. parochial school hires only Catholic teachers no state action, and non-
Catholic says this violates Free Exercise of Religion clause
ii. Every aspect of private behavior could be challenged under the C and would have to be
balanced against competing rights (SC would face tough constitutional questions)
iii. Accord extreme judicial oversight to SC and would burden judicial resources
D. Reasons for Inconsistency
a. Reflections of Social Realities
i. Before Civil Rights Act of 1964no statute making private racial discrimination illegal;
the only legal tool for attacking private discrimination in the South was 14A (and 15A)
1. In 1940s, 50s, 60ssupreme court created BROAD exceptions to the state
action doctrine to facilitate civil rights movement cause there was no other tool
2. All state actions that reached Supreme Court were pretty much race cases.
ii. After Civil Rights Act of 1964its prohibition of private discrimination had been
expanded by amendments to the statute; and private racial discrimination was outlawed in
most important domains by federal law (in any federally funded institution)
1. minority plaintiffs had so much statutory protection that they rarely needed 14A
2. most cases at this point were not race cases
E. Application
a. Inquiry: whether the is the government. The C applies:
i. when a law is being challenged, there is clearly state action in enacting the law
ii. to all government officers in all branches and at all levels
b. When is an Entity a part of the Government?
i. Government-Created Corporations.
1. government-created and controlled corporations are (for many purposes at
least) part of the government itself24
a. E.g. Amtrak
2. privatization of government functions
a. government cannot evade its obligations imposed in the C by simply
resorting to corporate form.
ii. Individuals.
1. RULE: a govt. officer acting under color of law is a state actor if s/he is acting
in an official capacity, even if the conduct is not authorized by state law.
24Lebronv.Natl.RailroadPassengerCorp.(1995)Amtrakwascreatedbyfederalstatutetoservenationalinterest,8of9boardmembersare
appointedbyPres.,USholdsallpreferredstockandsubsidizesperenniallosses.SCheldAmtrakisagovt.entityandmustcomplywithC.
2. Examples:
a. doctors/psychiatrists giving medical care in prisons ARE state actors
b. public defenders, employed by the state, are NOT state actors
3. Criticism:
a. It is unclear why a professional employed by the government does not
act under the color of state law simply because they have other
professional obligations or oppose the state.
b. Are individuals acting in concert with govt. officials state actors.25
25
iii. Prior Case Law26 27 28
C. Election Cases
a. An election for a government office, even a primary, is a public function that must meet the
constitutional requirement for equal protection.
i. Obligation cannot be avoided by delegation to private parties.
b. White Primary Cases (1953)challenge to the exclusion of black from participating in
preprimaries whose nominees were enormously successful in primaries. SC held that election was
state action.
i. KEY: precedent if the govt. ever would choose to stop performing a traditional task so as
to avoid the C.
1. e.g., if govt relied on contracts with private prisons in order to avoid
constitutional restraints.
c. Paradigm instance of the public functions exception: traditionally, exclusively done by govt.
i. Note: very hard to generalize results as other such activities are rare.
ENTANGLEMENT EXCEPTION
A. Modern Formulation
a. RULE: If government coerces, requires or significantly encourages a private action which would
be unconstitutional if done by the government, then the C applies. Either:
i. the government must cease what it is doing, OR
ii. the private conduct must comply with the Constitution.
b. Inaction. There exists no affirmative obligation on government to prevent violation
c. Issues:
i. What degree of govt. involvement is sufficient to make the C applicable?
ii. What types of govt. encouragement are sufficient for state action?
B. Court trends
a. Entwinement Testcourt may be softening the entanglement exception:29
i. state did not require or enforce particular decision BUT state was so involved in a variety
of ways that it was pervasively entwined with the association and resulted in state action.
b. Inconsistencyin any case there is an expansive Warren decision and a narrow Burger or
Rehnquist decision. Yet the earlier cases are not overruledmaking everything seem even more
arbitrary.
C. 2-Part Test
a. the deprivation must be caused by
i. the exercise of some right or privilege created by the state
ii. a rule of conduct imposed by the state, or
iii. a person for whom the state is responsible.
b. the party charged with the deprivation must be a person who may be fairly said to be a state
actor because
i. he is a state official,
ii. he has acted together with or has obtained significant aid from state officials, or
iii. his conduct is otherwise chargeable to the state.
D. JUDICIAL AND LAW ENFORCEMENT ACTIONS
a. Judges are government actors and judicial remedies are state action. The judiciary is a branch of
the government and its enforcement of the law of the state, even common law, is state action.30
i. The test is not the form in which state power has been applied but, whatever the form,
whether such power has in fact been exercised.
26AmalgamatedFoodEmployeesUnionv.LoganValleyPlaza(1968)aprivatelyownedshoppingcentercannotexcludestrikinglaborers
frompicketingastorewithinit.Centerwasopentothepublicandfunctionallywasthesameasthecommercialcenterofatown.
27LloydCorp.v.Tanner(1972)aprivatelyownedshoppingcentercouldexcludeAntiVietnamWarprotestorsbecausethelaborprotest
relatedtothefunctioningofastorewithinthecenterwhereasthespeechinthiscasewasunrelated.
28Hudgensv.NationalLaborRelationsBoard(1976)if1Aappliesthenitcannotpermitadistinctionbasedonthecontentofthespeech.SC
heldthat1Adidnotapplytoprivatelyownedshoppingcentersregardlessofthecontentofthespeech.
29BrentwoodAcademies(2001)wasanonprofitprivatecorporationorganizedtoregulateinterscholasticsportsforallpublicandprivate
schoolsintheState.Itenforcedaruleprohibitingundueinfluenceinrecruitingstudentathletes.
ii. Criticism:
1. such language would ultimately make all private actions comply with the C.
2. anyone who believed his rights have been violated would sue in courtif court
dismisses because state law doesnt forbid violation, there is state action
sustaining the infringement of the right.
3. All private violations of rights exist because state law allows them.
iii. Note: SC has not taken it this fargenerally, if govt. itself is not discriminating and there
are just discriminatory effects then there is no EPC violation..
b. Use of the police to arrest civil rights protestors, of prosecutors to prosecute them, and of courts to
convict them is state action.
i. Criticism:
1. Mere enforcement of law should not be sufficient for state actionits only
when both parties involved seek to enforce a mutual, yet infringing, transaction.
2. Otherwise any state enforcement would be state action.
C. Prejudgment Attachment.
i. State action tends to apply when private action is aided by state officials.31
1. amount & necessity of direct involvement of a state officer is relevant to inquiry
ii. The existence of alternative methods of dispute resolution implies that a particular
method of resolving a dispute cannot be exclusive.32
d. Peremptory Challenge.
i. Def: ability of a litigant to excuse prospective jurors without showing cause.
1. state action because they are only effective when enforced by state actors
ii. Equal protection prohibits prosecutors from using peremptory challenges in a
discriminatory fashion.33
iii. Extended to: private litigants in a civil case:34
1. state/federal laws create peremptory challenges
2. govt. involvement in jury selectionfrom subpoena to supervision
E. GOVERNMENT LICENSING AND REGULATION
a. RULE: In general, government licensing or regulating is insufficient for a finding of state action,
unless there is other government encouraging or facilitating of unconstitutional conduct.
i. Symbiotic Relationship: where government and private entity benefit from each other.
1. Burton v. Wilmington Parking Authority (1961)--city owned parking structure
and leased space to private restaurant which refused to serve blacks. SC held
that private discrimination by restaurant is state action.
ii. Modern application: most likely to find state action if it can be shown that
1. the governments actions are likely to be perceived as approving the private
conduct or if there is some way in which the government has encouraged the
wrongful behavior
2. private behavior simply could not have occurred without the governments
assistance.
b. Inaction is at odds with modern test. Affirmative action by government to encourage
unconstitutional conduct is requiredmere approval or acquiescence is not state action.
i. Moose Lodge No. 107 v. Irvis (1972)state grant of a liquor license to a private club,
which restricted its membership to whites, was not sufficient government entanglement
for the C to apply.
30Shellyv.Kraemer(1948)membersofaneighborhoodcontractednottosellpropertytoblacks.SCheldthatcourtscannotenforceracially
restrictivecovenantsbecausethenthegovernment,throughitsjudicialbranch,wouldbefacilitatingdiscrimination .
31Lugarv.EdmonsoonOilCo.(1982)thereisstateactionwhenacreditorobtainedawritofprejudgmentattachmentfromacourt.SCheld
thatinvolvementofthecourtinissuingthewritandofthesheriffinenforcingitwassufficientforstateaction.
32FlaggBrothersv.Brooks(1978)aprivatecreditorselfhelprepossessedthegoodsofadebtorandthreatenedtosellthegoodsifshedidnt
paystoragefeeforthewarehouse.SCheldthiswasnotstateactionanddueprocesswasnotrequiredpriortosale.
33Batsonv.Kentucky(1986)
34Edmonsonv.LeesvilleConcreteCo.(1991)
1. under Burton, the state could have conditioned the license just as the parking
authority could have; operation wouldnt have been as successful without liquor
license (as subsidy in private schools) and had effect of aiding in discrimination
a. BUT discrimination results from the Lodges choice. The State plays
no role in deciding who the club lets in.
c. The mere availability of a remedy or existence of governmental regulation is not indicative of
State action.
i. American Manufacturing v. Sullivan (1999)insurers could withhold workers comp.
payments for disputed medical treatments pending review process. SC held that insurers
acting pursuant to state law and regulations did not constitute state action.
1. MAIN POINT: no constitutional standard unless there is sufficiently close
nexus between state action and private action.
F. GOVERNMENT SUBSIDIES
a. Rule: generally, subsidies, no matter how large, by themselves do not constitute state action.
i. Exceptions: subsidies of segregated facilities
1. Norwood v. Harrison (1973)Mississippi subsidized school textbooks to both
public and private schools. Some private schools receiving textbooks were
segregated. SC held that state is responsible for private school discrimination
a. KEY: State violates EPC when it takes action that has the effect of
aiding or assisting private discriminations
2. No evidence in case that State required or encouraged private discrimination
the choice to discriminate was that of the private school.
b. Government funding by itself is not a basis for state actiongovt. must encourage the
unconstitutional action.
i. Rendell-Baker v. Kohn (1982)Private schools received over 90% of funds from state
government sourcespublicly funded private school. SC held there was no state action
when school fired teachers for engaging in picketing and other speech activities.
c. Neither extent of state regulation nor the size of state funding is a basis for finding state action.
i. Blum v. Yaretsky (1982)argued that govt.s funding of Medicaid patients caused their
transfer to other less-equipped facilities. State policy required review of patients to
determine level of care needed. State paid over 90 percent of expenses for patients and
its decision was responsible for transfer. SC ruled that there was no state action.
HYPOTHETICALS
Reginald Denny
o FACTS: truck driver severely beaten in race riots in LA in early 90s.
Claims: city denied him equal protection and this denial caused his injuries. City made
race-based decision to withhold police protection in that city during the early stages of
the riot.
claims: he was hurt by rioters which are private parties.
o KEY: so long as what city did is violation of equal protection clauseand withholding police
protection is a violation of EPCthen city can be held responsible, even though actual damage
was caused by private parties.
Mechanics lien
o FACTS: Mechanics retain possession of automobile unless and until bill is paid. Customer has
dispute and refuses to payAcme Mechanics refuses to surrender the car.
o KEY: This is a self-help remedy which under Flagg Bros. is constitutionalkey is that state
officials were not involved. State merely created the remedybut did not help enforce or carry it
out.
Private Hospital
o FACTS: Hospital operates under license from state and regulated by it. Heavily subsidized by
Medicare but refuse to perform abortions.
Assumption: public hospital has to allow abortions
o KEY: NO STATE ACTIONall we have is extensive subsidy and extensive regulation. That is
not enough.
LA County Hospital
o FACTS: Hospital refuses to allow abortions to be performed (given assumption above).
o KEY: this is STATE ACTIONas long as facility is public facility of ANY KIND the
constitution applies.
San Jose gets MLB Franchise
o FACTS: The San Jose Hornets are privately ownedplay all home games at SJ stadium which is
publicly owned under a lease in which attendance determines rent.
Team Policy: forbids hiring of any female baseball players
Note: Such a rule made by the govt. would be unconstitutional
o KEY:
By modern test: city hasnt done anything to encourage discrimination
By Burton, very close analogy
private organization is playing in a public facility
symbiotic financial relationshiplease rent is a function of profits earned by the
team
EQUAL PROTECTION
APPROACH TO EQUAL PROTECTION ISSUES
The govern
LEVELS OF SCRUTINY
A. Generally
a. Def: The test that is applied to determine if a law is constitutional.
b. Purpose: Level of scrutiny is instructions for balancing - It informs courts about how to arrange
the weights on the constitutional scale in evaluating particular laws.
c. Authority: Carolene Products footnote
i. Courts generally should presume that laws are constitutional
ii. More searching judicial inquiry is appropriate when law
1. Interferes with individual rights
2. Restricts ability of the political process to repeal undesirable litigation
3. Discriminates against a discrete and insular minority
B. Rational Basis Test (RBT) SC rarely invalidates laws as failing RBT
a. RULE: Law will be upheld if it is rationally related to a legitimate govt. purpose/interest
i. Objective: A goal that is legitimate for government to pursue
1. Does not need to be the actual purpose of the litigation but any conceivable
legitimate purpose is sufficient.
ii. Means: Reasonable way to accomplish the objective
b. BURDEN: Challenger
c. All laws have to at least meet rational basis review
C. Intermediate Scrutiny
a. RULE: Law will be upheld if it is substantially related to an important government interest
i. Objective: Court must regard the purpose as important, more than just legit
ii. Means: Court must believe that the law is substantially related to achieving the goal, not
just a reasonably way of attaining the goal.
b. BURDEN: Government.
c. Ex. Gender Classifications, Non-Marital Children, Undocumented Children with regard to
Education, Commercial Speech, Speech in Public Forums
D. Strict Scrutiny Laws are generally declared unconst. under SS
a. RULE: Law will be upheld if it is necessary, or narrowly tailored, to achieve a compelling govt.
purpose
i. Objective: Court must regard purpose as vital
ii. Means: Necessary as a means to accomplishing the end
1. Least Restrictive Analysis - Law must be least restrictive or least
discriminatory alternative to be necessary to the end.
b. BURDEN: Government.
c. Ex. Racial Classifications, National Origin Classifications
INTRODUCTION
A. Text in the 14th Amendment: No state shall ... deny to any person within its jurisdiction the equal
protection of the laws.
B. History of EPC:
a. It was added when the 14th was adopted in 1867, but it was rarely used for 100 years
i. Reluctance of the Court
1. Slaughterhouse Cases limited its application to racial discrimination cases.
2. Court understood that all laws draw distinctions so all laws might violate Eq.
Prot.
b. Began using it more after 1950 but recently it is being used less because of statutory regs.
C. Application:
a. It was created in the 14th Amendment, so applies only to state and local govts there is no
provision that says that the fed. govt. cannot deny Eq. Prot. of the laws.
b. However, Bolling v. Sharpe made it applicable to the fed govt under the Due Process of the 5th
ANALYSIS
A. What is the Classification?
a. Equal protection analysis always must begin by identifying how the government is distinguishing
among people.
b. Methods of establishing a classification:
i. Facially discriminatorylaw in its very terms draws a distinction between people based
on a particular characteristic.
ii. Facially neutralbut there is a discriminatory impact to the law or discriminatory effects
from its administration.
B. What is the appropriate Level of Scrutiny?
a. Factors in determination:
i. Immutable characteristics warrant heightened scrutiny.
1. It is unfair to penalize a person for characteristics that the person did not choose
and that the individual cannot change.
ii. Ability of group to protect itself through the political process.
1. Women traditionally have been underrepresented in political offices, though
composing half the nations population
2. Aliens do not have right to vote and political process cannot be trusted to protect
their interests.
iii. History of discrimination against the group
iv. Likelihood that the classification reflects prejudice not permissible purpose
1. Race is virtually never an acceptable justification for govt. action
2. Biological diffs between men and women may justify gender disc.
b. Factors that should be considered
i. Constitutional and Social importance of interests adversely affected
ii. Invidiousness of the basis on which the classification was drawn
c. Justices Marshall and Stevens, among others, argued for a sliding scale review rather than three
levels of scrutiny. Some argue that court already applies such a sliding scale review.
C. Does the government action meet the Level of Scrutiny?
a. Distinction
i. Under - If it does not apply to individuals who are similar to those to whom the law
applies. Ex. a law that excludes those under age 16 from having drivers licenses
ii. Over - If it applies to those who need not be included in order for the government to
achieve its purpose. Ex. govt.s decision to evacuate and intern all Japanese-Americans
on the West Cost during WWII
iii. Note: A law can be both underinclusive and overinclusive. Ex. Decision to intern
Japanese-Americans in WWII. Over few actually posed a risk. Under - non-Japanese
posed risks as well
b. SC often focuses on degree to which law is under- and/or over- inclusive
i. Underinclusive laws raise the concern that the government has enacted a law that targets
a particular politically powerless group or that exempts those with more political clout.
ii. Overinclusive laws are unfair to those who are unnecessarily regulated and they risk
burdening a politically powerless group which would have been spared if it had enough
clout to compel normal attention to the relevant costs and benefits.
c. Virtually all laws are one or the other
i. Under- or over- inclusiveness is not determinative of invalidation
d. They are used by courts in evaluating the fit between the govt.s means and its ends
i. Strict scrutiny requires relatively close fit; least restrictive alternative.
ii. Intermediate scrutiny requires less that SS but more than RBT
1. the more you allow govt. to single out small groups when purpose should be
applied to wider segment, the more it becomes politically feasible for
government to pick on particular groups of people.
35USDeptofAgriculturev.Moreno(1973)lawexcludedhouseholdscontaininganindividualunrelatedtoanyothermemberfromfood
stampprogramwasheldunconstitutional.Expresspurposeofdiscriminatingagainsthippiesisillegitimate.
36MetropolitanLifeInsuranceCo.v.Ward(1985)SCheldunconst.alawwhichimposedahighertaxonoutofstateinsurancecompanies
thanoninstatecompanies.
37Williamsv.Vermont(1985)SCheldunconstitutionalVTautomobiletaxexemptingcarspurchasedoutofstatebystateresidentsandnot
thosepurchasedoutofstatebypeoplemovingintoVT.
38Zobelv.Williams(1982)SCinvalidatedalawthatdistributedstatemoneytoresidentsbasedontheirlengthofresidency.
39U.S.RailroadRetirementBoardv.Fritz(1980)lawdesignedtopreventretiredrailroadworkersfromreceivingbenefitsunderbothSocial
Securitysystemandtherailroadretirementsystem.Congressmayhavethoughtthatthiswasanequitablewaytodeterminebenefits.Brennan
Dissent:shouldberationallyrelatedtoactualpurpose.
1.
Railway Express Agency, Inc. V. NY: challenged law prohibited ads on sides of
trucks, but allowed ads for truck-owners own products. Govt said it was
rationally related to interest in traffic safety.
ii. Overinclusiveness, even significant, will be allowed by the RBT40
iii. Both: there is no requirement for perfection
1. A law can be both under- and over- inclusive and still pass the RBT41
c. There are a few rare cases that demonstrate the teeth of the RBT.
i. US Dept of Agriculture v. Moreno (in previous FN 1) & City of Cleburne v. Cleburne
1. City of Cleburne, Texas v. Cleburne Living Center, Inc.(1985)city ordinance required a special
permit for the operation of a group home for the mentally disabled. SC held that RBT was
appropriate but nevertheless declared ordinance unconstitutional holding that all the possible
justifications were inappropriate and there were under-inclusiveness problems.
ii. Standard
1. Many circuit courts rely on Cleburne as a classification of a heightened rational
basis review
Plaintiffs Burden:
Disc. purpose
failed
Plaintiffs Burden:
Disc. effect
ANALYSIS
Given a facially race-neutral lawchallenger must show
o Discriminatory purpose AND
o Discriminatory effect
If such proof is provided, burden shifts to government to show that:
o It would have taken the same action even without discriminatory purpose
Then the court can either:
o Believe the governmentand apply the RBT
o Reject the evidenceand reject the law:
*formal application of SS is not required because persuading the Court that the purpose
behind the law is discriminatory forecloses the governments ability to show a compelling
purpose for it.
Legend:
RACE DISCRIMINATION AND SLAVERY BEFORE THE 13TH AND 14TH AMENDMENTS C[the] Constitution
A. Constitutional Provisions Protecting Slavery GGovernment
SSStrict Scrutiny
EPEqual Protection
40NewYorkTransitAuthorityv.Beazer(1979)SCupheldcityregulationpreventingthoseinmethadonemaintenanceprogramsfromholding
positionswithTransitAuthority.Eventhoughvastmajorityofthoseinprogramdidntposeariskanyalternativeruleislikelytobeless
preciseandassuredlymorecostly.
41BeazerOver:excludesmethadoneuserswhoposenorisks.Under:excludesotherdruguserswhoposegreatrisk.
a. Prior to 13A, slavery was constitutional.
b. Prior to 14A, there was no constitutional assurance of EP, thus no
limit on race discrimination.
B. Court Decisions Protecting Slavery
a. The judiciary consistently enforced the institution of slavery by ruling in favor of slave owners
and against slaves.
b. Fugitive Slave Act of 1793: Required that escaped slaves be returned.
c. At no point prior to the civil war did the SC significantly limit slavery or even raise serious
questions about its constitutionality.
D. Landmark: Dred Scott v. Sandford (1856)
i. Missouri Compromise
1. 1819: major national controversy surrounded admission of Missouri as a state
and whether it, and other areas covered by the Louisiana Purchase would be free
or slave states.
2. Congress admitted MO as a slave state, but prohibited slavery north of MO.
II. FACTS: Dred Scott, a slave, was taken to Illinois (a free state) by
his owner. After the owner died, Scott sued in federal court claiming EXAMTIP
his residence in IL made him a free person.
III. HOLDING Rememberthatonlyintentional
discriminationisprohibitedby
1. Slaves were property, not citizens, and thus could not
theEPCformoststatutory
invoke federal court diversity jurisdiction. classifications.Threewaysin
2. SC went further and declared the MO Compromise whichintentionaldiscrimination
unconstitutional. canbeshown:
a. SC concluded that the right to property in a slave
is expressly affirmed in the C. Therefore the 1. Onthefaceofthegovern
actioninquestion(e.g.,
Compromise is unconstitutional because it prohibited
Korematsuv.UnitedStates).
a citizen from owning property of this kind. 2. Byapplication(e.g.,
iv. The ruling became the focal point of the debate over slavery and prosecutoruseshis
helped precipitate the Civil War. peremptorychallengesonly
C. Post-Civil War Amendments againstAfricanAmericans).
a. In 1865, Congress enacted the 13A, but it was obvious that this alone would not 3. Byitsdiscriminatory
secure the rights of the former slaves. motive(e.g.,changingcity
b. Southern states systematically discriminated in every imaginable way. voterstoexcludenearlyall
c. This lead to the passage of the 14A in 1868. AfricanAmericanvoters).
i. Overrules Dred Scott by declaring that all persons born or naturalized
in the United Statesare citizens of the United States and of the State wherein they reside.
STRICT SCRUTINY
A. A Racial Classification is unconstitutional unless it meets SS it must be
a. A necessary or narrowly tailored means to accomplish goals that are
b. Const. permissible, and
c. Of compelling interest
B. Recognition of SS
a. G must show an extremely compelling interest for its action and must demonstrate that the goal
cannot be achieved through any less discriminatory alternative.
b. Landmark: Korematsu v. United States (1944) upheld law as passing SS
i. FACTS: Plaintiff was a Japanese US citizen convicted of remaining in his home contrary
to the order of the US military. In defense, he claimed that the order violated EPC.
ii. HOLDING: Upheld the constitutionality of the relocation of Japanese-Americans during
WWII.
1. SC accepted the Gs claim that there was serious risk to national security (ends
analysis) from Japanese-Americans who were disloyal and that there was no
way to screen these individuals (no alternative means).
2. The Court emphasized that it was upholding the order because it was wartime
and hardships are part of war.
iii. Criticism:
1. Government used race alone as a basis for predicting who was a threat to
national security.
a. Enormously overinclusive.
i. All Japanese-Americans were evacuated.
b. Enormously underinclusive.
i. Other races who posed a threat were not interned an
evacuated.
2. No factual evidence to support military assessment.
a. If this is held to sufficient it makes a mockery of SS.
b. However, should the courts second-guess the military during wartime?
FACIAL CLASSIFICATIONS
B. Classifications on the Face of the Law
a. Race Specific Classifications that impose a burden or disadvantage on Racial Minorities
i. Laws that expressly impose a burden or disadvantage people because of their race or
national origin.
ii. Illustrative: Strauder v. West Virginia (1879)
1. HOLDING: SC declared unconstitutional a law that limited jury service to
white males over the age of 21.
iii. Most important in this category is Korematsu v. US only situation where the Court
expressly upheld racial classifications burdening minorities
b. Racial Classifications Burdening Both Whites and Minorities
i. Were initially upheld because treat blacks and whites equally, but were later found
impermissible because they are based on assumptions of the inferiority of blacks to
whites.
ii. Illustrative: Loving v. Virginia (1967)
1. HOLDING: SC declared unconstitutional a states miscegenation statute.
a. Court expressly repudiated the law because it rested solely on
distinctions drawn according to race.
iii. Other Laws Held Unconstitutional
1. Statute requiring the race of candidates be listed on election ballots (Anderson v.
Martin (1964)
2. Law adopted by initiative that prevented school boards from requiring students
to attend schools not nearest or next nearest to the students place of residence.
(WA v. Seattle School Dist. No. 1 (1982)
c. Laws Requiring Separation of the Races
Benign Discrimination Reverse Discrimination (those who oppose it)/Affirmative Action (those who support)
Q: To what extent can government act to benefit racial minorities?
ANALYSIS
Would program satisfy compelling state interest test?
o Remedying Past Discrimination
Allowed if
Directed at entities that are proven to have engaged in illegal discrimination, and
Is limited to providing a remedy to those who are proven victims of that
discrimination
Not allowed if
Based on a desire to remedy long history of racism through society
Uncertain when
Directed at particular entities or sectors of the economy where discrimination
has been proved to occur, but
Where the beneficiaries are not themselves proved victims of the discrimination.
o Racial Diversity: Only compelling state interest identified in Grutter
Would it satisfy the narrowly tailored means requirement?
COURT TRENDS
General Rule: When there is no majority opinion but 5 justices agree on the judgment, the narrowest
concurring opinion among the 5 that agree is the law
GENERALLY
A. Main Questions for Benign Discrimination
a. What standard of review should apply?
b. What purpose/goals are important enough to justify the classification?
c. What means should be constitutional?
B. Critique of Affirmative Action
a. Creates stigmatic harm (see Thomas, J., dissenting in Adarand)
b. Engender a notion of superiority in the race, or at least creates race-based resentment.
GRUTTER V. BOLLINGER
B. FACTS:
Majority Dissent
OConnor Kennedy
Ginsburg Rehnquist
Souter Thomas
Stevens Scalia
Breyer
GRATZ V. BOLLINGER
A. MAIN POINT: Race cannot be used in a mechanical manner in the admissions process.
B. FACTS: Michigans Undergraduate Admissions program awarded a fixed number of preference points for
minority applicants was unconstitutional quota
a. Same number was awarded regardless of what race was
b. Award of preferential points had the effect of admitting virtually all qualified minority students.
Gender Classifications
EMERGENCE OF INTERMEDIATE SCRUTINY
A. Until 1971, SC rejected all claims that laws against women violated the Eq Prot. clause
B. Landmark: Reed v. Reed (1971) Idaho law specified the hierarchy of persons to be appointed as
administrators of an estate when a person died intestate. Similarly situated men placed before women.
a. SC invalidates a gender classification for the first time
b. Uses RBT
i. SC rules that gender did not have a rational relationship to the ability to administer the
estate gender is irrelevant and the law is unconst. under Eq Prot.
C. From RBT to ? majority could not agree on a standard
a. Frontiero v. Richardson: Federal law allows a man to automatically claim his wife as a dependant
to receive increased benefits, women must show evidence of support to receive similar benefits
i. Plurality4 Justices say that gender is an inherently suspect classification and must be
subjected to strict scrutiny
D. Adoption of Intermediate Scrutiny
a. Craig v. Boren: Court struck down a law selling beer to men, but not to women law based on a
stereotype that views women as innately virtuous
i. HOLDING: though traffic safety was an important govt. interest gender
discrimination was not substantially related to that interest
ii. A 2% difference between the genders in the rates for drunk driving, cannot justify using a
gender line as a classifying device
E. United States v. Virginia (VMI) Pinnacle of Intermediate Scrutiny
a. Exclusion of women ruled unconstitutional b/c justification rested solely on gender stereotypes
i. Justification for gender discrimination must be based on persuasive justification rather
than overbroad generalizations about women
ii. Still, court has subsequently upheld gender classifications w/o mentioning a level of
scrutiny sometimes
1. Rostker v. Goldberg and Michael M. v. Superior Court
b. Remedial issues although they provided another facility for women, it was not adequate and
comparable to the mens facility (not as rigorous) but, statutes based on bio diffs may be ok
Alienage Classifications (one of only two other than race and gender that the Court holds requires more than
RB)
OVERVIEW
A. Discrimination against non-citizens lawfully in the United States.
a. NOTE: this is distinguished from national origin classifications, which discriminate against an
individual because of the country that a person, or his or her ancestors, came from.
B. Protection Under Equal Protection
a. EPC explicitly says no person shall be denied equal protection, not citizen.
b. Equal protection is applied to the federal government through the due process clause of the 5th
Amendment, which also speaks of persons.
C. Relationship to Preemption Analysis (Preemption by federal statute, or unconst. invasion of const.
exclusive federal power)
a. In recent years, analysis has shifted more towards federalism principles, rather than equal
protection.
b. Often state and local laws that discriminate against aliens can be challenged on preemption
grounds as well.
c. E.g., federal immigration laws: Occupy field and preempts state and local laws.
i. Toll v. Moreno: Court used preemption analysis to invalidate a state law denying resident
aliens in-state tuition at the University of Maryland.
Other Classifications (Race, ethnicity, gender, alienage, and birth/legitimacy are the only types of
discrimination that get heightened review all others get RB)
AGE CLASSIFICATIONS
A. Rational Basis Test
a. SC uses RBT with age classification controversy
i. No such history of discrimination,
ii. Stereotypes may be a little indicative of true abilities
iii. All of us will be old
b. Argument for SS:
i. History of discrimination against elderly
ii. A persons age is immutable
iii. Characteristic is visible
DISABILITY CLASSIFICATION
A. Rational Basis Test
a. City of Cleburne, Texas v. Cleburne Living Center, Inc.
i. SC used the RBT to declare unconstitutional a city ordinance that required a special
permit for the operation of a group home for the mentally disabled More rigorous
review than usually using RBT
1. No legitimate purpose
b. Heller v. Doe
i. Retarded individuals treated more severely than those mentally ill
1. RBT test used to uphold distinction
ii. Americans with Disabilities Act [federal statute] prohibits this distinction
WEALTH DISCRIMINATION
A. Rational Basis Test
a. Arguments against heightened scrutiny
i. Being poor is not an immutable characteristic (could be argued)
ii. Discrimination against the poor is usually not intentionalrather it is an effect of the law
b. Arguments for heightened scrutiny for laws that discriminate against the poor
i. Poor lack political power (important)
ii. Long history of discrimination against the poor
iii. There should be a right for minimum entitlements included in the constitution food,
shelter medical care
c. NOTE: SC has subsequently held that only RATIONAL BASIS REVIEW SHOULD BE USED
with regard to classifications based on wealth42--Ct. differentiates between the poor and racial
minorities
42Dandridgev.Williams(1970)FirstcasewherethecourtusesRBTtowealthclassification.RBTusedbecausethelawrelatedto
economicsandsocialwelfare
i. San Antonio School District v. Rodriguez (1973)Texas Law makes poor people pay
higher taxes for schools
1. SC expressly states that poverty is not a suspect classification
2. 5 to 4 decision rejects heightened scrutiny and the argument that the law should
be considered discriminating against the poor as a group
CONGRESSSPOWERSUNDERTHEPOSTCIVILWARAMENDMENTS
A. AftertheCivilWar,3amendmentswereaddedtotheConst.givingCongresspowertoenactcivilrights
legislation
a. 13thAmendment:Prohibitsslaveryandinvoluntaryservitudeexceptaspunishmentforcrimeand
givesCongresspowertoenforceAbyappropriatelegislation
b. 14thAmendment:AllpersonsbornornaturalizedinUSarecitizens,nostatecanabridgePorIs
ofsuchcitizensordepriveanypersonsoflifelibertyorpropertywithoutDPoflawordenyany
personofEqProtofthelaws
i. Section5givesCongresspowertoenforceprovisionsofarticle
c. 15thAmendment:Statescantinfringe/denyrighttovoteonaccountofrace,color,orprevious
conditionofservitude
i. Section2givesCongresspowertoenforce
WHOMMAYCONGRESSREGULATEUNDERPOSTCIVILWARAMENDMENTSFederalandStategovernment
action,notPrivateConduct
A. CivilRightsCases(1883)
a. HeldthatCongress,pursuantto2of13Aand5of14Amayregulateonlystateandlocalgovt
actions,notprivateconduct
b. CivilRightsActof1875prohibitedprivatedisc.byhotels,restaurants,trans.,andotherpublic
accommodations
i. HeldActunconst.:
1. Congresscanusepowerunder13Atoensureendofslaverybutnottoeliminate
disc.
2. Slaveryisathingofthepastandwedontneedcivilrightslitigation
3. Congresslackedauthoritytoenactlawunder14Anoprivatebehavior
a. USv.Guest:Cmayoutlawprivatediscriminationpursuantto5of
14A(involvedfederallawthatmadeitacrimefor2+peopletogoin
disguiseonthehighway,oranotherspremisesw/intentto
prevent/hinderfreeexercise/enjoymentofanyrightorprivilege)
i. RecentlyoverruledbyMorrison,andheldCcannotregulate
privatebehaviorunder5
b. LandmarkCase:USv.Morrison
i. IssueofwhethercivildamagesprovisionofViolenceAgainst
WomenActwasconst.?
ii. Holding:Under5,Congressmayregulateonlystateand
localgovts,notprivateconductbythetermsof14th
iii. Criticism:undulynarrowinterp.Ofconst.provisionintended
tohavebroaderscope
4. Cmayprohibitprivateracialdisc.under2of13A
a. Jonesv.AlfredH.MayerCo:Ccouldprohibitprivatedisc.in
selling/leasingproperty.Chasbroadlegislativepowerunder13Ato
determinethebadgesandincidentsofslavery
b. Runyonv.McCray:Courtheldthat1981prohibitingdisc.inprivate
contractingwaswithinscopeofCspowerunder2of13A
WHATISTHESCOPEOFCSPOWER
A. NationalistPerspectivebroadChasauthoritytointerpret5under14Atoexpandscopeofrights
a. LandmarkCase:Katzenbachv.MorganandMorgan:VotingRightsActsectionprovidesthatno
personwhocompleted6thgradeinPuertoRicoshallbedeniedtherighttovotebecauseoffailing
anEnglishliteracyreq.
i. IssuewaswhethertheActwasconst.exerciseofCspowerunder14A
ii. HOLDING:wasproperexercise
1. Remedyfordiscriminationagainstthem
2. LiteracytestdeniedEqProt
iii. EstablishedthatCcoulduse5powertoindependentlydeterminemeaningof14A
B. FederalistPerspectivenarrowConlyhasauthoritytoprevent/provideremediesforviolationsofSC
rightscannotcreateorexpandscopeofrights
a. LandmarkCase:CityofBoernev.Flores:CenactedReligiousFreedomRestorationAct
prohibitinggovtfromsubstantiallyburdeningpersonsexerciseofreligionevenifburdenresults
fromruleofgeneralapplicabilityunlessgovtcansatisfySS
b. HOLDING:Cspowermustbelimitedtolawsthatpreventorremedyviolationsofrights
recognizedbySC,andthesemustbenarrowlytailoredproportionateandcongruenttothe
const.violation
i. RFRAwasunconst.sinceitimpermissiblyexpandedscopeofrightsandnot
proportionateorcongruentasapreventativeorremedialmeasure
C. CasessinceCityofBoerne(3cases)reaffirmedFederalistPerspective
a. InfavorofBoerne:
i. ProtectingSCsroleasauthoritativeinterpreterofConst
ii. Consistentwiththebasicconst.premiseofafedgovtwithlimitedlegislativeauthority
andmostgovernancelefttothestates.
b. AgainstBoerne:
i. DeniesCongressthepowertoexpandthescopeofrights
FUNDAMENTAL RIGHTS
INTRODUCTION
A. ARTICLE I, SECTION 10: No state shallpass anylaw impairing the Obligation of Contracts.
a. Firmly established that the provision only applies if a state or local law interferes with existing Ks.
b. Does not apply to the federal government.
i. These challenges must be brought under the DPC where they will receive the RBT.
c. Does not apply to the regulation of future K terms
B. HISTORICAL BACKGROUND
A. Seems to have been motivated by a desire to prevent states from adopting laws to help debtors at
the expense of creditors.
i. FRAMERS: were concerned that in times of recession or depression, state legislatures
might adopt laws to protect debtors who were unable to pay what was owed.
Right to Procreate
OVERVIEW
A. The right to procreate is a fundamental right:
a. Government imposed involuntary sterilization must meet SS.
B. Illustrative Case:Skinner v. Oklahoma (1942)
a. FACTS: OK Act allowed courts to order the sterilization of those convicted two or more times for
crimes involving moral turpitude.
b. HOLDING:
i. Right to procreate is a fundamental right: marriage and procreation are fundamental to
the very existence and survival of the race.
ii. Act violated equal protection
43therighttoprivacymeansanythingitistherightoftheindividual,marriedorsingle,tobefreefromunwarrantedgovernmentalintrusion
intomatterssofundamentallyaffectingapersonasthedecisionwhethertobearorbegetachild.Brennan,J.
blanket prohibition of the distribution of contraceptives to a minor is a fortiori
foreclosed.
2. Prohibition would not deter teenage sexual activityand it is irrational to
punish fornication with an unwanted pregnancy.
Right to Abortion
OVERVIEW
A. SC considers four issues when looking at individual liberty cases:
a. Is there a fundamental right?
b. Is the right infringed?
c. Is the infringement justified by a sufficient purpose?
d. Are the means sufficiently related to the end sought?
B. Quick Preview
a. In 1973, in Roe v. Wade, SC held that the Constitution protects a right for a woman to choose to
terminate her pregnancy prior to viability (the time at which the fetus can survive on its own
outside the womb)
i. G may not prohibit abortions prior to viability
ii. G regulations of abortions had to meet SS.
b. In 1992, in Planned Parenthood v. Casey, the SC reaffirmed Roe and again held that the
government may not ban abortions prior to viability
i. But also held G may regulate abortions before viability so long as it does not place an
undue burden on access to abortions.
C. Controversies
a. Should court protect such a right that is not mentioned in the text and was not clearly intended by
the FRAMERS?
b. No middle ground between those who support and those who oppose abortions.
ROE V. WADE
A. FACTS: challenge to a TX law that prohibited all abortions except those necessary to save the life of the
mother.
B. HOLDING:
a. Right to privacy encompasses womans right to abortion.
i. Rationale: forcing a woman to continue a pregnancy against her will imposes enormous
physical and psychological burdens.
ii. Source: either DPC of 14A, or 9A
b. But right is not absolute and must be balanced against other factors:
i. States interest in protecting prenatal life
c. Right to abortion is a fundamental right and any attempts to infringe on the right are subject to SS
i. Limitations are only justified by a compelling stat interest, and
ii. Must be narrowly tailored to the means
C. TRIMESTERS
a. First
i. G could not prohibit abortion
ii. G could regulate only as it regulated other medical procedures, such as by requiring that
they be performed by license physician.
b. Second
i. G could not prohibit abortions
ii. G may regulate the abortion procedure in ways that are reasonably related to maternal
health
c. Third
i. G may prohibit abortions except if necessary to preserve the life or health of the mother.
D. Compelling Interests:
a. Valid Interests
i. Protecting Maternal Health: valid after first trimester
1. Rationale: abortions became more dangerous to mom
ii. Protection of Potential Life: valid at point of viability
1. Rationale: fetus now has capability of meaningful life outside of womb.
b. CLAIM: fetuses are persons prior to viability REJECTED:
i. Word person in C did not intend to include fetuses.
ii. No consensus as to when human personhood beginsrather enormous disagreement
among religions and philosophers
E. DISSENT: [Rehnquist, J. & White, J.]
a. Argue that abortion question should be left to the legislature
b. Criticized majority for excessive use of judicial review
F. Companion: Doe v. Boltonchallenge to GA law that outlawed abortions except if a doctor determined
that continuing the pregnancy would endanger a womans life or health, if the fetus likely would be born
with a serious defect, or if the pregnancy resulted from rape.
a. Based on Roe, this statute was found unconstitutional.
44AfterWebsterandbeforeCasey,JusticesBrennanandMarshallhadresignedandwerereplacedbyJusticesSouterandThomas.Itwas
thoughtthatbothofthem,andparticularlyThomas,mightcastthefifthvotetooverruleRoe.TheUnitedStates,throughthesolicitorgeneral,
urgedSCtooverruleRoeinCasey
1.
SS offers most secure protection of the womans right to make her own
reproductive decisions.
2. would have invalidated all provisions in PA Law
e. DISSENT [Scalia, J., Rehnquist, J., Thomas, J., & White, J.]:
i. Right to abortion is not constitutionally protected because:
1. C says nothing about it
2. traditions of American society have permitted it to be legally proscribed
ii. Would have upheld all aspects of the PA law.
UNDUE BURDEN
A. Rule: a law is an undue burden if its purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability.45
a. From Casey: to promote the States profound interest in potential life, throughout pregnancy the State may take measures
to ensure that the womans choice is informed, and measures designed to advance this interest will not be invalidated as
long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue
burden on the right.
B. ISSUE:
a. Internal Tension: opinion suggests that state cannot act with the purpose of creating obstacle but
it can act with purpose of discouraging abortion and encouraging childbirth.
i. Every law adopted to limit abortion is for the purpose of discouraging abortions and
encouraging childbirthwhen does it become an undue burden?
C. What is clear
a. States may not prohibit abortions prior to viability
b. States may prohibit abortions after viability except where necessary to protect the womans life or
health
45Stenbergv.Carhart(2000)Statelawthatprohibitedpartialbirthabortionswasfoundunconstitutionalbymajoritywhichadoptedand
appliedtheundueburdentest.
c.
Under Strict Scrutiny: Unconstitutional. Thornbourgh v. American College of Obstetricican and
Gynecologists (1986)SC invalidated PA law that required women be given 7 different kinds of
info. 24 hours before they give consent for abortions.46
i. Information provided is intended to dissuade women form getting abortions
d. Under Undue Burden: Constitutional. Planned Parenthood v. Casey (1992)SC upheld a
provision identical to that invalidated in Thornborugh.
i. Giving of truthful, non-misleading information about the nature of the abortion, the
attendant health risks are consistent with Roes acknowledgment of an important interest
in potential life.
ii. In accord, with SCs abandonment of position that state may not regulate abortions in a
way to encourage childbirth.
e. Conclusion: unresolved as to how far G can take informed consent statutesi.e., how much
dissuasion can occur.
C. Fetal Viability Tests
a. Under Strict Scrutiny: Unconstitutional. Colautti v. Franklin (1979)SC held unconstitutional a
state law that required doctors to make a determination that the fetus is not viable prior to abortion .
b. Under Undue Burden: Constitutional. Webster v. Reproductive Health Services (1989)SC
upheld state law that required testing and evaluation of fetal viability for all abortions performed
after 20th week of pregnancy.
i. Though this will raise costs of abortionsit permissibly furthers the States interest in
protecting potential human life.
ii. Not an undue burden on access to abortions.
D. Reporting and Recording Requirements
a. Under Strict Scrutiny: SC has generally upheld laws that require the recording and reporting of
information concerning abortions so long as the information is protected as confidential.
i. Recordkeeping and reporting requirements that are reasonably directed to the
preservation of maternal health and that properly respect a patients confidentiality and
privacy are permissible.
1. Planned Parenthood of Central Missouri v. Danforth (1976) - SC upheld
provision that required physicians performing abortions to complete, maintain
records for 7 years and allow inspection by health officials.
ii. SC declared statute unconstitutional that went beyond Danforth and more specifically did
not provide sufficient assurances of confidentiality.
b. Under Undue Burden: Constitutional. Colautti v. Franklin (1979)SC held unconstitutional a
state law that required doctors to make a determination that the fetus is not viable prior to abortion .
i. Such requirements serve an important purpose without imposing an undue burden
1. Does not help inform women, but relates to States interest in healthmedical
research.
2. Does not substantially increase costs of abortions
c. Conclusion: G may require record keeping and reporting, but it must ensure that the patients
identity remains confidential and that it cannot be easily ascertained from other information in the
report.
E. Medical Procedures
a. Premise: many states regulate how doctors actually perform abortions.
b. Under Strict Scrutiny: Unconstitutional.
i. Danforth: invalidated law prohibiting saline amniocentesiseliminating technique would
force women to get abortions by unsafe methods.
ii. Akron: invalidated part of ordinance that required all abortions to be performed in
hospitalscould be performed in outpatient clinics.
iii. NOTE: court upheld a statute requiring a second physician to be present during an
abortion performed after viabilityassuming statute provided an exception for
emergencies. Without exception, express or implied, statute would be invalid.
c. Under Undue Burden: Unknown.
46CityofAkronv.AkronCenterforReproductiveHealth,Inc.(1983)heldunconstitutionalpartofacityordinancethatrequiredphysiciansto
informwomenseekingabortions.Muchoftheinformationwasmeanttopersuadewomennottogetanabortion.
i. SC has not yet had a case about medical procedures after Casey.
F. Laws Prohibiting Partial-Birth Abortions
a. Landmark: Stenberg v. Carhart (2000)NE law prohibited partial-birth abortions (also known as
dilation and extraction abortions).
i. HOLDING [Breyer, J., Stevens, J., OConnor, J., Souter, J., & Ginsburg, J.]:
1. Statute place an undue burden on womens right to abortion
a. No exception permitting prohibited procedures to protect the womans
health.
i. FACTFINDER: partial-birth abortion was safer than
alternatives.
b. Imposes an undue burden on womens ability to choose a dilation and
evacuation abortion (common form of abortion).
i. Doctor cant tell if the fetus is still alive when the removal is
done and this would be invalid under law
ii. This statute would prevent this type of abortion from being
legal.
ii. CONCURRING [OConnor, J.]:
1. Would be willing to uphold a narrower partial birth abortion prohibition if it
contained an exception for womans health and if it did not prevent the D&E
methodsending a message to legislatures as to how to draft future laws.
2. Some lower courts have drafted statutes in accordance with this.
iii. DISSENT [Thomas, J.]:
1. Abortion should not be a right
2. Court inexplicably holds that the States cannot constitutionally prohibit a
method of abortion that millions find hard to distinguish from infanticide.
47abortionsnotperformedtoprotectthelifeofthemother.
48Websterv.ReproductiveHealthServices(1989
i. Leaves woman in same position as if Congress or the State chose not to subsidize health
care costs at all.
c. Government constitutionally could make the choice to encourage childbirth over abortion.
i. Roe implies no limitation on authority of a State to make a value judgment favoring
childbirth over abortion and to implement that judgment by the allocation of public
funds.
d. A woman does not have a fundamental right to abortion, but merely has a fundamental right to
be free from unduly burdensome interference with her freedom to decide whether to terminate
her pregnancy [Maher v. Roe].
i. Under EPCsince a fundamental right is not involved, nor a suspect or quasi-suspect
classificationRBT applies. Saving money is a legitimate state interest.
C. Criticism of Abortion Funding Decisions
a. Denial of public funding has purpose and effect of preventing abortions and should be regarded as
violation of the right.
i. G should not be able to use its resources to encourage childbirth over abortion
b. Each woman should decide between childbirth and abortion
i. Denying funding for abortions is a penalty for the exercise of a constitutional right.
c. Abortion is less costly to the government than childbirth so it must be a moral justification
49PlannedParenthoodofCentralMissouriv.Danforth
50PlannedParenthoodv.Casey
1. Upheld one-parent notification with bypass procedure51
2. Upheld two-parent notification with bypass procedure52
3. Rationale:
a. Mere requirement of parental notice does not violate the constitutional
rights of an immature, dependent minor.
b. State has an important interest in making sure that parents are notified
prior to an abortion on a teenage girl.
c. Fact that notice requirement may inhibit some minors from seeking
abortions is not a valid basis to void the statute.
c. Discussion
i. Courts approach attempts to preserve parental involvement while not giving parents veto
power, but
ii. Judicial Bypass: Unrealistic.
1. Teens are likely to lack resources and knowledge to petition courts.
2. standard gives the judge little guidance in making the decision whether abortion
is in best interestseems like it will come down to judges personal beliefs
51Ohiov.AkronCenterforReproductiveHealth(1990)SCupheldlawthatrequirednoticetooneparentpriortoabortionandallowed
bypassprocedurethroughajudge.
52Hodgsonv.Minnesota(1990)SCupheldlawrequiringnoticetotwoparentspriortoabortionbutalsohadajudicialbypassoption.
53Estellev.GamblePrisonersrighttomedicaltreatment
54Youngbergv.RomeoInstitutionalized(mental)personsrighttomedicaltreatment
55Jacobsonv.MassachusettsSCupholdslawthatrequiresvaccinations
3.
The state may prevent family members fro terminating treatment for each other
a. The right belongs to the individual NOT the family members
b. But a living will may be enough to count for clear and convincing
evidence.
ii. Unresolved Questions
1. No level of scrutiny articulated
2. Clear and convincing proof
a. SC did not definebut said that oral testimony may be legitimately
excluded
i. Written will might be the only way
3. If the person had designated a surrogate/guardian to make the decision for him
a. Situation not addressed by the SC
i. Though opinion stated that the situation may arise where the
state has to defer to a third party if evidence established that
the patient had desired the decision to terminate to belong to
another
C. Physician Assisted Suicide (PAS).
a. SC has rejected challenges to state laws prohibiting PAS56,57
i. Upholds law of 49 states that prohibit PAS
ii. BUTleft open the possibility of legal protection for such a right at both the state level
and future SC holdings
b. WashingtonThere is no constitutional right to die
i. Rights are only considered fundamental for the purposes of being protected under the
Due Process Clause if supported by history or tradition
1. Tradition has always disapproved of suicide
ii. Bottom LineSC did not want to reverse centuries of legal tradition
iii. SC ruled that WA was NOT infringing on a fundamental rightRATIONAL BASIS
REVIEW
1. Law reasonably served legitimate state interests
a. Preservation of life
b. Preserving the integrity of the medical profession
c. VaccoLaws prohibiting PAS did NOT violate Equal Protection
i. Did not involve a suspect class nor violate a fundamental rightRBT
d. Future possibilities
i. States may enact statutes protecting PAS
1. Unconstrained by the Constitution
ii. Laws prohibiting PAS may be declared unconstitutional in SPECIFIC CASES
1. OConnors concurring opinions specifically mentioned that the decision of the
SC did not necessarily apply in cases where a mentally competent person who
was suffering has a constitutionally protected interest in his own death
2. Stevens concurring opinions mentioned that in some cases an individual claim
of such right may be strong and the states interest much less
iii. All in all five justices left open the possibility of challenging the application of laws
prohibiting physician-assisted suicide in particular cases
1. THE STRONGEST CHALLENGE would likely be a state law prohibiting a
physician from prescribing pain-reliving medication that would hasten a
terminally ill patients death
e. CONCLUSIONmain difference between the SC and the Ninth Circuit is that Ninth Circuit has
held the right to die as a fundamental right and the SC has said it is a right whose treatment should
be determined by the political process
Sexual Orienation
56Washingtonv.GlucksbergNinthCir.declaredunconstitutionalaWA.lawthatprohibitedphysiciansfromassistinginaterminallyill
patentssuicideThereisaconstitutionalrighttodieSCreversed
57Vaccov.Quill
OVERVIEW
A. Modern Rule: A persons sexual conduct now receives substantive due process protectionSC seems
willing to recognize a fairly broad autonomy/liberty interest in private consensual adult sexual conduct.
B. Old Law: Bowers v. Hardwick (1986)
a. STATUTE: GA statute made it a crime to perform or submit to any sexual act involving the sex
organs of one person and the mouth or anus of another. Violations were punishable by up to 20
years in prison.
b. HOLDING [White, J.]:
i. ISSUE: whether the Federal Constitution confers a fundamental right upon homosexuals
to engage in sodomy
ii. Not a fundamental rightfundamental liberties are:
1. Implicit in the concept of ordered liberty, or
2. Deeply rooted in this Nations history and tradition. not a tradition
iii. Privacy of home irrelevant
1. Rationale: extending protection to homosexual conduct within the home, would
make it difficult to ban adultery, incest and other sexual crimes committed in the
home.
c. DISSENT [Blackmun, J., Brennan, J., Marshall, J. & Stevens, J.]
i. ISSUE: case is about the right to be let alone.
1. Decisional: a right to be free of governmental interference in making certain
private decisions
2. Spatial: the right to privacy of certain places without regard to the activities that
go on there
ii. Decisional violationMajority has refused to recognize: the fundamental interest all
individuals have in controlling the nature of their intimate associations with others.
iii. Spatial violation: activities that take place in ones own home deserve special protection.
LAWRENCE V. TEXAS
A. FACTS: Houston Police entered the apartment of one of the two s through an unlocked door (in response
to a reported disturbance involving a weapon). The police discovered the s, two men, having sex. s
were arrested, held in custody overnight, tried, convicted and fined.
a. TXs state interest: promotion of morality.
B. STATUTE: crime to engage in deviant sexual intercourse with another individual of the same sex. Deviant
sexual intercourse was defined to include:
a. Contact between the genitals of one person and the mouth or anus of another, or
b. Penetration of the genitals or anus of another by an object
C. HOLDING [Kennedy, J., Stevens, J., Souter, J., Ginsburg, J., & Breyer, J.]
a. TX statute violated the s substantive due process rights and concluded that Bowers was wrongly
decided.
b. Overruled Bowers:
i. Goes beyond sexual conduct
ii. Laws targeting same-sex couples did not develop till the late 20th centuryhistorical
conclusions were overstated
iii. Recent law shows an emerging awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters pertaining to sex.
iv. Europeother countries governments do not bar private homosexual conduct.
v. Recent case law show serious erosion of Bowers doctrine
vi. These types of laws have the effect of subjecting homosexual persons to discrimination in
public/private spheres
c. The right to liberty under the DPC gives them the full right to engage in sexual conduct without
intervention of the government.
i. Applies RBT: State furthers no legitimate state interest that justifies intrusion into the
personal and private life of the individual.
1. NOTE: Did not state that pursuing homosexual conduct is a fundamental right
ii. Does NOT state that this extends to give formal recognition to any relationship that
homosexual persons seek to enter (i.e., gay marriage)
D. CONCURRING [OConnor, J.]:
a. EPC Violation: TX statute applied only to sodomy between same-sex partners and not between
opposite sex partners.
i. TX was treating the same conduct differently based solely on the participants.
b. RBT: moral disapproval of a group is an interest that is insufficient to satisfy rational basis review
under the EPC. Must show some provable harm
c. Conduct vs. Status: TX claimed they were discriminating against homosexual conduct and not
homosexual persons:
E. DISSENT [Scalia, J., Rehnquist, J., & Thomas, J.]:
a. Stare Decisis: No reason to depart from past law
b. History of Anti-Sodomy Laws: general tradition of anti-sodomy laws
c. Foreign Nations Approach Irrelevant: in evaluating a constitutional entitlement, what counts is
solely the values and history of this country.
d. Rational Relation: TX interest was identical to that for laws criminalizing fornication, bigamy,
adultery, incest, bestiality and obscenity.
i. If the promotion of majoritarian sexual morality is not even a legitimate state interest,
none of the above-mentioned laws can survive rational-basis review.
ii. But in all these instances there is provable harm (except fornication) and under RBT,
the mere fact that a state can articulate some plausible danger posed by the conduct
(beyond mere moral repugnance) should be enough to satisfy the rational-relation
standard.
e. Homosexual Agenda: SC has taken sides in the culture wardeparting from its role as neutral
observer. Hes down for promoting agenda through democratic means. But: Court was allowing
gays to achieve judicially what they had been unable to achieve politically.
i. Gay marriage: if moral disapprobation of homosexual conduct is no legitimate state
interest what justification could there be for denying benefits of marriage to homosexual
couples?
1. Cant be justified as encouragement of procreationbecause sterile and
elderly are allowed to marry.
2. Majoritys insistence that Lawrence does not involve the issue of homosexual
marriage makes sense only if one entertains the belief that principle and logic
have nothing to do with the decisions of this Court.
F. IMPACT
a. RBT will continue to be applied to government attempts to regulate human sexualitybut clearly
with more bite.
b. Anti-Sodomy Laws: applying to both heterosexuals and homosexuals
i. Kennedy opinion suggests that these laws would be invalidthats why he didnt use an
EPC violation claim.
c. Gay Marriage
i. PRO: Liberty protects intimate contact as an element in a personal bond that is more
enduring. Could be extended to the element of having society recognize that the two
have created the bond.
ii. CON:
1. Criminalization of homosexual conduct demeans the lives of homosexual
personswhereas mere unavailability of gay marriages may not have the same
demeaning effect (or does it?)
2. Rational relation analysisSS is still not applied. States could still conjure up
the following:
a. societys special recognition of marriage is in part an attempt to further
the goal of encouraging men who father children to take a long-term
interest in the welfare of those children.
b. Straight men are far more likely to father children (and be more
encouraged by the availability of marriage to take an interest in the
child)
c. When a social policy is evaluated by the rational-relation test, the fit
between the ends and the means need not be very tightlegislature
could plausibly have thought that there was some connection.
3. One step at a time: RBT test permits the state to combat an Evil one step at a
time. If state is tackling the evil of fathers abandonment of their children, the
fact that the state has done so by offering different-sex marriage and not by the
additional step of offering same-sex marriage should not be fatal.
4. Deeply Rooted Tradition: Bowers overstate tradition of anti-gay-sodocmy laws;
but tradition of ban on same-sex marriages is quite deeply rooted.
iii. POTENTIAL ISSUE: recognition of gay marriage that occurred in another state
1. Gay marriages are legal in Canada but may not be recognized by states.
2. Defense of Marriage Act (1996)authorizes states to ignore any same-sex
marriage granted by another state.
3. If SC decided that right to same-sex marriage is a substantive DP right then the
Act would be unconstitutionalmany conservatives are attempting to get C
amendment to ban gay marriages to preempt this.