Con Law Bible 1

Con Law Final Outline 1
Differences between Articles of Confederation and the Constitution:
· Articles of Confederation:
o Ratified by state legislatures
o Mentions sovereignty of states
o Merely a “firm league of friendship”
o Delegates can be recalled by state govt.
o One State, one vote
o No separation of powers
o President appointed by Congress and has little power
o Amendment to Articles must be approved by every state legislature
o Legislators are paid by the states
o Delegates can be recalled by state govt.
o Unicameral legislature.
o Each state retains every power not “expressly” delegated to the United States
(Article 2); Amendment 10 of the Constitution omits the word “expressly”
· Constitution:
o Ratified by specially elected conventions held in each state
o Three separate branches
o Provides bicameral legislature
o Gives much more power to executive
o Sounds more like a popular document (we the people)
o Amendment process
 Amendment proposed by a) 2/3 of both houses; b) by special convention
called for by 2/3 of state legislatures
 Amendment approved by a) 3/4 of state legislatures; b) 3/4 of states in
Conventions (Congress decides which approach to take)
· Amar thinks the biggest difference between the two is that the Const. was ratified by the
people.
· Why the Constitution and not the Articles?
o Amar thinks that what people were afraid of was not their own state, but other
states.
o Federalist #8: Geostrategic argument: we need more perfect union otherwise we
will start killing each other: we eliminate borders, we eliminate tensions, and can
concentrate on expanding and accruing wealth: Amar sees this view as
explaining Louisiana Purchase and Manifest Destiny.
o Otherwise each state will have to keep a standing army, which is a threat to
liberty.
o Federalists presented people with three possible choices:
 1) 13 countries at each others throats
 2) Regional confederacies: would still have disputes and squabbles.
 3) A strong union, protected by the Atlantic Ocean, with a view to
expansion
How Democratic was the Constitution?
Answer: The Constitution was pretty democratic by eighteenth-century standards, but

there were problems.
 Ratification occurred in special conventions. Delegates were specifically elected to the

conventions. More democratic than the Articles of Confederation, which were approved by
state legislatures. Legislators aren’t elected for the specific purpose of voting on the
Constitution.
 Only those states that ratified the Constitution would be bound by it. North Carolina and
Rhode Island had not ratified Constitution by the time of Washington’s inauguration.
 Several states waived standard voting restrictions and allowed a uniquely broad class of
citizens to vote for ratification convention delegates. Also, states generally allowed an
especially broad group of Americans to actually serve as ratifying convention delegates. No
states held delegates to the higher property qualifications of their upper-house of Congress,
and most exempted delegates from even the property qualifications of the lower house.
 Never before had a people got to vote on the founding document of their nation.
Ancient societies relied on a single lawgiver—Athens had its Solon and Sparta its Lycurgus.
Most nations in the late 1700s were ruled by monarchs, and Britain lacked a written
constitution that its people could have approved through a democratic process.
o Only the states of Massachusetts and New Hampshire had before 1776 submitted
proposed constitutions to a popular vote.
 Why not do a single nationwide referendum?
o Conventions allowed delegates to debate the fine points of the Constitutions.
Delegates could thus inform themselves more easily on the issues and make a
decision to represent the interests of the people who had voted for them.
o Never before had a nationwide referendum of such scale been attempted.
o Cynical answer: If you could get the ratification ball rolling in a few states, the other
states might hop on board. If it’s a one-time shot in a nationwide referendum,
however, the Constitution might not be accepted.
 The Constitution also allowed the people to amend its provisions when they deemed the
status quo to be outdated or imperfect.
 No property qualifications to serve in Congress or as President.
 Article I prohibits state and federal authorities from granting titles of nobility.
 All legislators and other public officers would receive a salary, so men of ordinary means
could serve the nation.
 Problem of representation: Women, slaves, and free African-Americans could not vote
for convention delegates and were disenfranchised under the new constitutional regime.
 Problem of slavery: At best, the Constitutional is neutral on slavery.
o Article I: 3/5 clause; can’t end importation of slaves until 1808, nor place a tax on it
of more than ten dollars per person
o Article II: Electoral College preserves power of slave interests under 3/5 clause;
allowing the legislature to determine how electors are appointed allows the
legislature to protect slave interests.
o Article IV: Clause requiring free states to return fugitive slaves back to their owners
o Article V: Can’t amend clause dealing with congressional control of slave trade
 We have been progressively dealt with these short comings through the amendment
process: 13th, 14th, 15th, 19th, 24th, and 26th Amendments
McCulloch v. Maryland (SupCt., 1819) (pg 38)
Established power of federal government over individual states and expanded the power of the
national legislature to use means it deemed necessary to achieve constitutionally mandated ends.
BACKGROUND:
· Alexander Hamilton proposes Nat'l. Bank Dec. 1790; Senate approved.
· Madison’s view:
o Opposed to bank as beyond Congress’ power.
o Says there could be three possible powers that would allow the chartering: to lay
and collect taxes; to borrow money; to pass all laws necessary and proper…
o Says in none of these there is the power to charter.
o Points out that process of linking arguments for why chartering bank is allowed
can be carried to extreme and encompass any and everything.
o Points out that certain powers (i.e. to make war) could imply other powers (to
raise an army), but these were not left to be implied, but were specifically put
into Const.
· The Attorney General’s Opinion:
o Edmund Randolph thought the bill was unconstitutional.
o Like Madison, didn’t find any power whatsoever for Congress to incorporate
bank…
· Jefferson’s Critique of the Bank:
o Also thought there was no power in Const. for chartering bank
o He says President’s veto is there to guard against this “type” of abuse, BUT that
if the argument is very close, then respect for legislature dictates that he should
not use veto.
· Hamilton’s Defense:
o Says that Randolph and Jefferson’s views on strict construction would be fatal to
authority of the U.S.
o Proposes a broader principle: that all purposes vested in U.S. gov’t are sovereign
and include right to employ all the means requisite and fairly applicable unless
restricted by the Const.
o Speaks of implied powers being delegated to the US as well as express powers.
· The Second Bank:
o First bank lapsed in 1811, but in 1816 bill was passed and signed by Madison
for 2nd bank.
o Many states were opposed and passed “annihilative” taxes on the bank: led to
McCulloch v. Maryland.
FACTS:
· Maryland assembly passed a $15,000 tax on banks not chartered by MD legislature; tax
applied only to Bank of the United States.
· J.W. McCulloch (cashier of Bank of US) refused to pay tax; MD sued in its own courts,
successfully
HOLDING: (Marshall)
· C.J. Marshall dealt with two questions:
o 1) Did Congress have the power to create the bank?
o 2) Could MD constitutionally tax the bank?
· Marshall answered them this way:
o 1) Congress does have implied powers to create the bank; he bases this on a
mixture of textual, structural, historical and pragmatic arguments;
o 2) Maryland cannot tax the bank; the power to tax is the power to destroy, and
the Const. makes clear that federal gov’t is supreme over states (part can’t
destroy an act of the whole).
REASONING:
· First Question: Congress has the power to charter the bank.
o Paragraphs 3-5: Acts of the legislature shouldn’t be disregarded lightly; people
have been thrown in jail for defrauding the Bank; “an immense property has
been advanced” (4); people like Washington have signed off on the bank
o Paragraphs 8-11: U.S. govt. acts directly on the people and derives its authority
from the people; Constitution not mere treaty among sovereign states.
o Paragraphs 14-15: Within its sphere of action, the U.S. govt. is supreme; when it
exercises its legitimate authority, the acts of U.S. Congress trump acts of state
legislatures
o Argument from the Nature of the Constitution
 Chartering a bank is not one of Congress’ express powers.
 But the Constitution is not meant to be a prolix legal code. Only the
“great outlines” are marked, and “the minor ingredients which compose
those objects” expressly laid out in the Constitution are to “be deduced
from the nature of the objects themselves.” (16)
 Marshall’s syllogism (17)
1) Congress has the power to “provide for the common Defence and
general welfare of the United States” (Article I, Section 8.1)
2) Bank is very useful to that purpose (soldiers need to get paid).
3) Congress has the power to establish a bank as a means to the end
of providing for the common defense.
*Remember that Marshall was at Valley Forge with Washington.
 Marshall does not require the “necessary and proper clause” to
reach his decision: “The government which has a right to do an act,
and has imposed on it the duty of performing that act, must, according
to the dictates of reason, be allowed to select the means.” (20) See
also: “To waste time and argument in proving that, without [the
necessary and proper clause], Congress might carry its powers into
execution, would be not much less idle than to hold a lighted taper to
the sun.” (34)
 The burden of proof is thus shifted to Maryland; it must show that
establishing the Bank is not an appropriate means of implementing the
powers vested in Congress.
o The “necessary and proper clause”: Congress has the power to “make all Laws
which shall be necessary and proper for carrying into Execution” the powers of
the U.S. govt. (Article I, Section 8.18)
 Maryland claims that the “necessary and proper” clause limits
congressional power
 “Necessary” does not imply that Congress can only pass those laws
without which the power would be “nugatory.” Necessary can also mean
“convenient, or useful, or essential.” (27)
 Article I, Section 8.18 uses the word “necessary” instead of the phrase
“absolutely necessary.” (27)
 If we adopt the strict interpretation of the word “necessary,” we reach all

sorts of absurd conclusions; example of Congress’ power of enacting
legislation to punish people who “rob the mail,” which is thought to
derive from Congress’ power to “establish post offices and post roads”
(30).
 “The clause is placed among the powers of Congress, not among the
limitations on those powers.” (35) Why would the framers disguise a
limit on power as a grant of power? The people were afraid that
Congress would be too powerful, not that it wouldn’t be powerful
enough! (36)
 The “necessary and proper” clause just adds clarity: It is simply
meant to “remove all doubts respecting the right to legislate on that vast
mass of incidental powers which must be involved in the constitution.”
It is not strictly necessary! (37)
 Intra-textual argument: “Necessary” is defined earlier in the Constitution,
and Marshall refers to it here in order to establish scope.
o Basic Idea: “Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.” (38)
o Questions of Degree Aren’t for the Court to Decide: Congress gets to
decide how “necessary” a given measure is for exercising its powers. (42)
· Second Question: Maryland can’t tax the U.S. Bank, at least not without U.S. govt.’s
approval
o Const. and fed. laws are supreme: this gives rise to three corollaries (50):
 1) Power to create implies power to preserve (Congress can preserve
bank)
 2) Power to destroy is incompatible with power to create and preserve
(States can use the power to tax to destroy the Bank)
 3) Where this incompatibility exists, authority that is supreme should
control (U.S. Congress represents all the people of the U.S. Maryland
legislature just represents the people of Maryland. The Maryland
legislature cannot trump an act of Congress because that act is
representative of the people as a whole).
 Basically: The part can’t trump an act of the whole!
o The only protection against excessive taxation is representation. If
representatives tax too much, they will be ousted in the next election.
Therefore, states can tax their constituents because state representatives are
subject to an electoral check on their taxing power. (55-6)
o But by this logic, states cannot tax institutions created by the federal
government. The Bank was created by the national Congress, which represents
the people of the United States. Not all of the people in the U.S. are represented
by the Maryland legislature. Therefore, Maryland can’t tax the Bank. (56)
o The U.S. govt. can tax state banks, but states can’t tax the U.S. Bank. (71)
o States can tax land on which Bank sits (if the tax applies to all land in Maryland
equally) and interest earned by Maryland citizens from the Bank’s operations.
(75)
o Basic Idea: “The question is, in truth, a question of supremacy; and if the right
of the States to tax the means employed by the general government be
conceded the declaration that the constitution, and the laws made in pursuance
thereof, shall be the supreme law of the land, is empty and unmeaning
declamation.” (47)
WHAT IF CONGRESS SAID THAT THE STATES COULD TAX THE BANK?
· Amar argues that Marshall would have upheld a provision passed by the U.S. Congress
that allowed the states to tax the U.S. Bank.
1) Such a provision would have been passed by a body that represents the people of the
United States. Therefore, it would have overcome the hurdle of “taxation without
representation.” The whole would be granting the part permission to tax its instruments.
If the people of the United States did not agree with these taxes, they could elect
representatives who would rescind the states’ right of taxation.
2) Generally, John Marshall showed great deference to the acts of Congress. Only case in
which he strikes down an act of Congress is Marbury v. Madison.
3) John Marshall wouldn’t want to tie Congress’ hands. What if the only way to get pro-
states’ rights representatives to vote for the Bank bill was to allow states to tax the
Bank?
THE DEMISE OF THE SECOND BANK

· Andrew Jackson vetoed bill extending charter in 1832: felt constitutionality question not
settled.
o Said that each branch is entitled to, and should be guided by, its own view of the
Const. “The opinion of the judges has no more authority over Congress than the
opinion of Congress has over the judges, and on that point the President is
independent of both.” (52) There are two possible ways of reading Jackson’s
argument:
 One red light trumps two green lights: Although the Supreme Court and
Congress seem to think the Bank is constitutional, Jackson can use his
veto power to block the Bank bill if he thinks it’s unconstitutional.
 Much more extreme view: Even if the Supreme Court declares a law
unconstitutional, the executive can still enforce it if he believes the law
to be constitutional.
o Marshall merely said that it’s up to Congress to decide the degree of necessity.
Jackson argues that many features of the Bank are not necessary and proper to
carry out the enumerated powers of the U.S. govt.
o Jackson points to the fact that many provisions were intended to help the rich
over the poor.
o Jackson disagrees with Marshall: thinks states have power to tax a business,
even if incorporated by fed. gov’t.
· Memo: Presidential Authority to Decline to Execute Unconstitutional Statutes
(by Walter Dellinger; P. 79-81):
o Interesting position on the requirements/duties of President.
o Says there are circumstances in which the President may appropriately decline to
enforce a statute that he views as unconstitutional;
o Pres. required to act in accordance with laws-including Const. which takes
precedence over all other laws…
o Pres. has enhanced responsibility to resist unconst. provisions that encroach
upon the constitutional powers of the Presidency.
o The fact that a prior sitting president signed the statute in question does not
change this analysis.
· Note: Congressional Spending for the “General Welfare” (P. 81)
o Example of Madison vetoing a domestic spending bill for internal improvements

as being unconstitutional. (Tried to spend funds to build canals and roads…)
o Congress argued that it could pass the law because the Constitution gave it the
power to provide for the “general welfare.”
o Madison worried that such a loose interpretation of Article I, Section 8.1 would
entrust Congress with too much power.
Cases Dealing with Similar Issues to McCulloch v. Maryland

· Chae Chan Ping v. United States (P. 399), 130 U.S. 581 (1889) [The Chinese
Exclusion Case]
o Chinese national left with certificate to return, but law was repealed.
o Court sees that treaties are on the same level as laws, so treaties do not “trump”
laws
 So the last word of legislature is what counts.
o Addresses whether Congress has the power to exclude aliens; The Court says
yes, it must, it is essential.
· U.S. v. Curtiss-Wright Export Corp. (P. 621) (J. Sutherland) (1936):
o Argues that national sovereignty never resided with the States.
o From before the Const., the Union dealt with foreign issues exclusively.
o “The Union existed before the Const.”
The Sedition Act of 1798
 In the late 18th century, Bill of Rights became focal point of controversy regarding the
scope of the 1st Amendment guarantee of freedom of speech and press
 1798 Sedition Act pushed through by Federalists prohibited the writing, printing, uttering,
or publication of any false, scandalous and malicious writing or writings against the gov’t. of
the U.S. or either house of Congress or the Pres. with intent to defame or to do anything else
negative (BLBA 84)
 Was perceived as a Federalist measure to silence opposition and retain power
 Kentucky and Virginia Resolutions of 1798-1799 (BLBA 89)
• Sedition Act vehemently opposed by resolutions adopted by the legislatures of
Kentucky and VA, which had been written by Jefferson and Madison, respectively
• 5th Virginia Resolution condemned the Sedition Act
• Kentucky Resolutions declared that the Sedition Act violated the 1 st Amendment
 Federalism and States’ Rights
• 3rd Kentucky Resolution provides that “no power over the freedom of religion,
freedom of speech, or freedom of the press, being delegated to the United States by
the Constitution, nor prohibited by it to the states, all lawful powers respecting the
same did of right remain, and were reserved to the states, or to the people”
• 4th VA resolution echoes similar sentiments
 Doctrine of Nullification
• Kentucky Resolutions of 1799 asserted that “the several states who formed the
Constitution, being sovereign and independent, have the unquestionable right to
judge of its infraction and that of a nullification, by those sovereignties, of all
unauthorized acts done under color of that instrument, is the rightful remedy”
(Doctrine of Nullification; BLBA 91)
• On the other hand, in a movement opposing the doctrine of nullification, Rhode
Island passed a resolution stating that Article III, Section 2, of the Constitution
places in the federal courts, exclusively, and the Supreme Court, ultimately, the
authority of deciding the constitutionality of Congressional acts and laws (rejects not
only the doctrine of nullification, but also the very idea that it had the authority to
assess the Act’s constitutionality; BLBA 94)
• Does rejection of the doctrine of nullification necessarily entail “exclusive” authority
of assessment in the judiciary (or any other specific institution)? (Amar would say
no)
 Even though the federal courts upheld the constitutionality of the Alien and Sedition Acts,
Congress refused to extend them, and Jefferson pardoned everyone who was convicted
under the acts.
Marbury v. Madison (1803) and Judicial Review
Establishes classical conception of judicial review; mostly dicta but one of the most important
cases in U.S. history in that it asserts sweeping power of the Supreme Court to review
constitutionality of other branches of national government.
FEDERAL JUDICIAL REVIEW OF STATE LEGISLATION:

· Both Martin v. Hunter’s Lessee (1816) and Cohens v. Virginia (1821) effectively settled
the Supreme Court’s authority to revise the judgments of state courts when they dealt with
federal issues and, in effect, settled the federal judicial power to determine the
constitutionality of state laws.
· Rationale: textual basis for jurisdiction=Article VI supremacy clause; while state judges
are supposed to follow federal laws, state biases might inevitably get in the way; there needs
to be uniformity in what the laws and constitution mean throughout the states.
BACKGROUND OF MARBURY:
· Jefferson and Republicans win presidency and both houses of Congress in the election of
1800: will take office on March 4, 1801.
· Federalists hope to retain power by packing the judiciary. On February 13, 1801, the
lame-duck Congress passes the Circuit Court Act, which created 16 new circuit judgeships.
Two weeks later Congress passes the Organic Act of the District of Columbia, which created
42 positions for justices of the peace in D.C.
· President Adams quickly appoints Federalists to fill these positions. The Senate approves
these appointments, but commissions of William Marbury and a few others are not delivered
before Jefferson takes office.
· Jefferson, once in office, instructs Madison (new Secretary of State) not to deliver these
commissions. Marbury and three others initiate action. They want the Court to issue a writ
of mandamus commanding Madison to hand over their commissions as justices of the peace
in D.C.
· Once the Republican Congress took power, it repealed the Circuit Court Act, thereby
eliminating the “midnight judges.” The Supreme Court will have to deal with whether this act
of Congress was Constitutional.
· John Marshall was John Adams’ Secretary of State and was appointed by Adams to the
position of Chief Justice.
MARSHALL’S DILEMMA
· In 1803, the Supreme Court was very weak: judges left the Court to join state courts,
mostly because they hated riding circuit; federal judges were despised for upholding the
Alien and Sedition Acts; judges have been impeached (and Marshall could be impeached if he
rules against Jefferson)
· Option 1: Marshall issues the writ of mandamus. President Jefferson orders Madison to
ignore it. The Supreme Court is shown to be weak and is embarrassed.
· Option 2: Marshall holds that Marbury isn’t entitled to his commission. It looks like the
Court is bowing down to Jefferson.
· The Brilliance of Marshall’s Decision: Marshall holds that Marbury is a justice of the
peace and is entitled to his commission. However, Marshall says that the Court does not
have jurisdiction to hear the case; therefore, it cannot issue the writ of mandamus. In the
end, the Court does nothing, so there’s no order for President Jefferson to defy. In the
process, Marshall establishes the Court’s authority to review the constitutionality of
congressional legislation.
HOLDING IN MARBURY: (Marshall) - 108

1) On the facts and the law, Marbury is entitled to his commission.

2) A judicial remedy will not interfere improperly with the executive’s constitutional
discretion.
3) Mandamus is the appropriate remedy.
4) Madison cannot assert sovereign immunity
5) Section 13 of the Judiciary Act of 1789 authorizes the Court to issue a writ of mandamus
in this case
6) But Section 13 is unconstitutional insofar as it authorizes the Court to issue an original
writ of mandamus in a case not within its original jurisdiction.
REASONING:
 Marshall presents the questions the Court has to answer:
1) Has the applicant (Marbury) a right to commission?
2) If he has a right, and that right has been violated, do the laws afford him a remedy?
3) If they do afford him a remedy, is it a mandamus issuing from this court?
 The First Question: Marbury does have a right to the commission.
• Marbury, as a justice of the peace, cannot be removed by the President at will. Once
appointed, he holds his office for five years, independent of the executive. Thus, the
question of what completes his appointment is of special concern, because once he’s
appointed, he can’t be removed at will (13-4).
• When a commission is signed by the President, the appointment is made. When the
seal of the United States has been affixed to the commission by the Secretary of
State, the appointment is complete (12).
• The delivery of the commission is not necessary to constitute the appointment (10).
 The Second Question: Marbury has a right to the commission; a refusal to deliver it is
a plain violation of that right, for which the laws of the U.S. afford him a remedy.
 The Third Question: The appropriate remedy is not an original mandamus issued by
the Supreme Court.
• Section 13 of the Judiciary Act of 1789 authorizes the Supreme Court “to issue writs
of mandamus, in cases warranted by the principles and usages of law, to any courts
appointed, or persons holding office, under the authority of the United States.” (29)
• Article III, Section 2.2: “In all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the supreme Court shall have
original jurisdiction.”
• Section 13 is unconstitutional insofar as it authorizes the Court to issue an original
writ of mandamus in a case not within its original jurisdiction.
• Why can’t Congress alter the original jurisdiction of the Supreme Court through
ordinary legislation?
o If Congress had the power to change the original jurisdiction of the Supreme
Court, there would be no reason for laying out the Court’s original
jurisdiction in the Constitution. It would make the jurisdictional provision of
the Constitution “mere surplusage” (34). “It cannot be presumed that any
clause in the constitution is intended to be without effect; and therefore such
construction is inadmissible, unless the words require it.” (36)
o Article III, Section 2.2 explicitly says that in all cases not falling within its
original jurisdiction, the Supreme Court will have appellate jurisdiction.
o Venue: You don’t want to force people to come from across the nation to
have their trials heard at the Supreme Court.
• When an act of Congress conflicts with the Constitution, the Constitution prevails and
the act of Congress is null and void (49).
o The Constitution was ordained and established by the whole people of the
U.S. (44)
o Statutes are passed by congressmen. They may be representatives, but
they are not the people themselves.
o When acts of Congress contradict the will of the people as expressed in the
Constitution, the Constitution should prevail.
• Marshall’s Syllogism for Judicial Review
1) Constitution is the supreme law of the land.
2) “It is emphatically the province and duty of the judicial department to say what
the law is.” When laws conflict, the judiciary must resolve that conflict (52).
3) In fact, Article III, Section 2.2 says that “[t]he Judicial Power shall extend to all
Cases… arising under the Constitution,” and judges take an oath to support the
Constitution.
4) When applying the law to particular cases, the judiciary may declare an act of
Congress unconstitutional.
CLASS DISCUSSION:
· Should Marshall be deciding this case, or should he have recused himself?
o Marshall was Adams’ Secretary of State and was responsible for affixing the seals to
the commissions
o Marshall’s brother didn’t deliver Marbury’s commission
o Jefferson is Marshall’s second cousin
o Marshall is both a judge and a witness in this case
· Jurisdiction: Power of court to decide a case
o Marshall issues a declaratory judgment for Marbury before even considering whether
the Supreme Court has jurisdiction to hear the case. Isn’t this backwards?
· Marshall says that Marbury is justice of the peace because his commission was signed
and sealed. Marbury can seek a writ of mandamus in a lower court if he wants. He’ll have a
strong argument given Marshall’s opinion.
· Marshall did not have to declare Section 13 unconstitutional: He could have
interpreted the provision as merely granting the Supreme Court the power to issue
mandamuses in cases where it did have jurisdiction.
· Marshall could also have ruled that Article III, Section 2.2 merely set a lower limit for the
Court’s original jurisdiction.
· What’s the effect of judicial review? Consider the following hypothetical: The Court
on a 5-4 decision strikes down a law as unconst. The Court’s personnel changes. The Atty.
Gen. declares that he will start enforcing the law because it’s never been taken off the books.
The case reaches the Supreme Court, and the Court finds the law to be Constitutional.
· Some Kind of Judicial Review is Intended by the Constitution:
o Article VI says that Congress must make laws “in Pursuance” of the Constitution.
o Article III says that the federal judiciary shall hear cases arising under the
Constitution.
MODELS OF JUDICIAL REVIEW

1) The Court can declare a law or act unconstitutional, but the President need not heed that
judgment (example, Ex Parte Merryman).
2) The Supreme Court is the only branch of government competent to decide issues of
constitutionality. The executive and legislative branched don’t need to worry their pretty
little heads about the Constitution.
3) One red light trumps two green lights: Each branch of government in effect has a
constitutional veto.
a. Legislators can refuse to vote for bills they believe to be unconstitutional.
b. Judges can find laws to be unconstitutional.
c. The President can veto laws that he believes to be unconstitutional.
4) An expanded view of the above theory:
a. Juries can refuse to convict a person charged under an unconstitutional statute.
b. The President has a numbers of option other than the veto:
• He can pardon people charged with laws he believes to be
unconstitutional.
• He can refuse to enforce laws that he believes to be unconstitutional.
• The President can refuse to prosecute people under laws he believes to be
unconstitutional.
Amar’s view: The legislative and executive branches should consider the issue of
constitutionality very carefully:
1) It takes a long time for issues to get to the courts.
2) The courts might just defer to the legislature.
JUDICIAL REVIEW IN A DEMOCRATIC POLITY (BLBA 126)
· Bickel: The case against judicial review (BLBA 126):
o Problem of “counter-majoritarian force in society.”
o Both Marshall and Hamilton in Fed. 78 speak of courts asserting rights of the “people”
to limit legislatures/executive from going beyond their powers. But Bickel argues that
they are asserting rights of “people” from long ago when constitution was enacted and
against the wishes of the “people” of here and now.
o Bickel calls judicial review “a deviant institution in the American democracy.”
· Justifications for Judicial Review:
o Supervising the Inter- and Intra-governmental relations (relations with foreign powers;
horizontal checks-and-balances; vertical federalism)
o Preserving fundamental values:
 Courts are better, if not the only ones, equipped to “act on principle” and have
long view of things, whereas legislatures are too prone to act quickly and
without thought. Also, courts have to deal with specific cases, not abstract
statutes…
o Protecting the Integrity of the Democratic Process
· The Countermajoritarian Difficulty Challenged:
o Makes arguments for why we have judicial review:
 Other countermajoritarian elements in system: Senate, Electoral College
 Also argument that historically, if the Court did something that most people
disagreed with, the decision was either overturned, or overruled by an amend.,
etc….
o Also argues against life-tenure of judges, esp. in Supreme Court:
 We should not vest so much power in people whose formative experience
happened long ago; ok if they are elected, but not if it was b/c they were
approved 20 or 30 yrs. ago.
 Proposal for 18-year non-renewable term.
Restrictions on Judicial Review: Political Questions, Standing, Mootness, and

Justiciability (BLBA 887-892)
· Standing (BLBA 889):

o Litigants must assert their own rights and not define the rights of others.
o Plaintiff must show he was injured in fact, injury was caused by the defendant,
and that the injury is capable of redress.
o Article III does not say what harms count, when, or for whom; only substantive
law can do this.
· Political Question Doctrine (BLBA 890):
o Gives the reasons for judicial abdication.
o The Constitution is higher law that is enforceable in the courtroom (Marbury) and
the Political Question Doctrine is a refinement to this.
o Baker v. Carr tries to define the boundaries of a political question (see P. 890)
o There are 3 concerns under the umbrella of the political question doctrine.
 Jurisdictional reasons for abdication:
· In certain instances the Constitution vests adjudicatory power in
another branch (ex. Senate impeachment, House judging
qualifications of its members).
· This is the textually demonstrable constitutional commitment of
the issue to a coordinate branch.
 Lack of Doctrinal Rules:
· Constitutional principles cannot be implemented with a judicially
manageable standard –there are no judicial standards for
resolving something.
· It admits the Constitution is higher law and is enforceable but
sometimes things get lost in the court system in translation.
 Underenforcement of the Constitution:
· Courts have political disabilities since they are less politically
accountable (they are not elected) and have to act sometimes
after decisions have already been made by other branches (ex.
waging war).
o Example cases:
 Coleman v Miller – time lapse on a Constitutional amendment was seen
as a political question since there were no judicially manageable
standards – the Constitution gives no time limits so the court can’t
decide the case.
 Nixon v US – It was a political question when Nixon tried to bring
objections about his Senate trial.
Powell v. McCormack (1969)
Congress does not have the power to add to the standing qualifications of its members.
BACKGROUND:
· John McCormack is Speaker of the House of Representatives.
· Adam Clayton Powell, Jr., is the highest ranking African American politician in the U.S.
o He’s from Harlem.
o He’s gone on foreign soil to criticize the war in Vietnam.
· Plaintiffs: Powell and 13 voters. Defendants: McCormack, other House members, Clerk,
Sergeant at Arms, and Doorkeeper of the House.
· Powell was elected to serve in the House of Representatives for the 90 th Congress. He
was denied his seat by the adoption of House Resolution No. 278, which the Speaker had
ruled was on the issue of excluding Powell and could be decided by a majority vote. The
House’s action followed charges that Powell had misappropriated public funds and abused
the process of the New York courts.
· Powell and certain voters of his congressional district brought suit, seeking to get Powell
seated. Powell’s suit included claims for back pay.
· While the case was pending before the Supreme Court, the 90 th Congress ended and
Powell was elected to and seated by the 91st Congress.
· Mootness: The case was once proper for judicial determination, but not anymore
· Ripeness: The case is not yet proper for judicial determination because the violation has
not yet occurred (and may not occur).
· Article I, Section 2.2: Standing qualifications of age, residency, and citizenship for
House.
· Article I, Section 5.1: Each House shall be the Judge of the qualifications of its own
members.
HOLDING: (WARREN’S LAST OPINION)

 Although the case should be dismissed against the respondent Congressmen, it may be
sustained against their agents.
 Powell is entitled to a declaratory judgment that he was unlawfully excluded from the
90th Congress.
 Congress can only exclude members who fail to meet the standing qualifications, and
Congress does not have the power to add to the standing qualifications for membership.
EARL WARREN’S REASONING:

 The case is not moot just because the 90th Congress has ended.
• Powell’s claim for back salary remains viable even though he has been seated in the
91st Congress. The Court thus does not have to determine whether other issues
have become moot (P. 6).
• The Court punts on the issue of whether the voters’ claims are moot (Footnote 8).
• Even if Powell’s claims for back pay aren’t sufficiently definite, the Court may still
grant Powell declaratory relief (P. 6). Declaratory judgment is a form of relief for
Powell; it says that Powell’s rights have been violated. But if the Court can offer
Powell declaratory relief, why can’t it do the same for his constituents? Why did the
Court punt on the issue of whether the voters’ claims are moot?
 Although the Speech or Debate Clause (Article I, Section 6.1) bars action against
respondent Congressmen, it does not bar action against the other respondents, who are
legislative employees charged with unconstitutional activity.
 Exclusion vs. Expulsion
• The resolution excluding Powell was adopted by a vote in excess of 2/3 of the 434
House members present (307 to 116). Art. I, Sect. 5.2 grants the House the
authority to expel a member with “the Concurrence of two thirds” (P. 9). The
Speaker has said that only a majority vote was needed to exclude Powell (P. 10).
• Why is exclusion different from expulsion?
1) Expulsion first requires that Powell be seated. He could defend himself in a
floor speech and vote on the expulsion resolution.
2) The House traditionally does not expel member for pre-election misconduct
(P. 10).
3) House members may have voted strategically. The exclusion amendment
did not win a majority. Maybe some representatives voted to exclude Powell
simply because they knew that the motion would pass. If a 2/3 vote were
required to exclude/expel Powell, however, it’s not clear that the measure
would have passed. Some House members may have voted against it if the
resolution’s fate were in doubt (P. 10).
 The Court has subject matter jurisdiction over the case. The case is one “arising under”
the Constitution within the meaning of Art. III, since Powell’s claims “will be sustained if the
Constitution… [is] given one construction and will be defeated if it [is] given another.” Bell v.
Hood
 Justiciability:
• Can the court issue a remedy that can be enforced? Yes, a declaratory judgment (P.
13).
• Political question doctrine (See P. 13):
o Respondents argue that under Art. I, Sect. 5, there has been a “textually
demonstrable constitutional commitment” to the House of the “adjudicatory
power” to determine Powell’s qualifications (P. 14).
o House cannot exclude any person, duly elected by his constituents, who
meets all the requirements for membership expressly prescribed in the
Constitution (which Powell does) (P. 14)
o The Court does not express a view on whether the federal courts are “barred
by the political question doctrine from reviewing the House’s factual
determination that a member did not meet one of the standing
qualifications.” The Court hints, though, that it would not be able to review
such a decision (Footnote 42).
o By downplaying the word textual and playing on the word adjudicatory, this
case does not present a political question and thus the court can hear it.
• Why can’t Congress add to the standing qualifications of its members?
o Historical argument: While serving as a member of Parliament in 1763, John
Wilkes published an attack on a recent peace treaty with France. Wilkes was
arrested and expelled from the House of Commons for “seditious libel.”
After a period of exile in France, Wilkes returned to England in 1768 and was
elected to Parliament. Parliament excluded Wilkes from membership.
Although Wilkes was reelected to fill the vacant seat three times, each time
Parliament declared him ineligible and refused to seat him. Finally, the
House of Commons passed a resolution in 1782 that the prior House actions
were “subversive to the rights of the whole body of electors of this
kingdom.” Wilkes’ exploits were followed closely in the U.S., and Wilkes’
final victory came just five years before the Constitutional Convention began
(P. 16-7).
o Legislators could manipulate the standing qualifications to perpetuate their
own power (P.18).
o The people ought to have the power to choose their own representatives.
o Expulsion requires a 2/3 vote. Exclusion only requires a majority. Choosing
to require a 2/3 majority for expulsion was a shift from the English system,
which only required a simple majority for expulsion. Seems that the
founding fathers thought the grounds for exclusion were much narrower
than the grounds for expulsion (P. 18).
• Conclusion: “Art. 1, 5, is at most a ‘textually demonstrable commitment’ to
Congress to judge only the qualifications set forth in the Constitution.” (P. 22)
STEWART’S DISSENT
 The fact that the 90th Congress has ended renders this case moot.
 Powell’s plea for back salary is only an incidental claim.
 Powell should pursue his back-salary claim in the Court of Claims.
CLASS DISCUSSION:
 Douglas’ concurrence discusses the case’s “racist overtones,” but Chief Justice Warren
does not discuss this aspect of the case in his decision.
 Powell’s similarities with Marbury v. Madison:
·Same structural issues.
oCan a court give a mandamus, jurisdiction, declaratory judgments, underling
can be sued, immunity, political questions
·Style – both have close Constitutional readings, but Powell is even more historical and
textual
·Marshall is good at giving textual/historical/structural arguments, and you see Warren
trying to do the same in Powell (e.g., discussion of John Wilkes).
·Almost the same case: person denied office in coordinate branch of gov’t. saying please
reinstate me. Head of other branch being sued—political question, immunity—
Marbury substituted President for Speaker of the House
 Do Powell’s constituents have standing?
o The Supreme Court allows the lower court to decide this issue (Footnote 8).
o It seems like the voters should have standing—they have a right to be represented in
Congress by a person of their choosing.
o If a declaratory judgment counts as a remedy for Powell, why shouldn’t it count as a
remedy for the voters?
o C.J. Warren probably didn’t want to inject more political venom into his opinion by
deciding on the voters’ standing.
 Political Questions: For some things, Congress itself is the relevant court. Example of
impeachment (Art. I, Sect. 2.5, 3.6, 3.7, and Art. II, Sect. 4). Judiciary probably cannot
review House’s decision to impeach (in fact, that’s what the Court ruled in U.S. v. (Walter)
Nixon) or Senate’s decision to convict.
 Are there any limits on Congress’ power to expel? Could the House have
expelled Powell simply because of his race?
o Warren’s opinion sidesteps this issue (Footnote 27).
o Justice Douglas’ concurrence implies that the Court probably could not review the
House’s decision to expel a member by a vote of two thirds (P. 35).
The Legislative Power
Congressional Power to Restrict Federal Jurisdiction (BLBA 887-889)
Powers
a. “Madisonian Compromise” – Congress may create lower federal courts but is not required
to
b. Number of justices on the Supreme Court is at Congress’ discretion
c. Congress can make “exceptions and regulations” to the Supreme Court’s appellate
jurisdiction
Application
Question: To what extent can Congress use its powers in tandem to remove various cases
entirely from all federal courts?
 Hart School – Congress may combine its powers so as to leave the last word on certain
cases in the state courts. Such actions should not intrude on the “essential functions” of
the SC.
 “Two-tiered” theory of Article III – Congress cannot combine its powers so as to strip
federal courts of jurisdiction over federal question cases (Art. III – “The judicial power of
the United States shall be vested in” the federal judiciary and “shall extend to all cases,
in law and equity, arising under this Constitution, the laws of the United States…”).
Federal courts (not necessarily SC) must stand as the last word on federal question cases
(not on diversity cases). Congress cannot take away this power granted to federal
judiciary by the Constitution.
Amar
 Congress can leave lower federal courts as the last word on some federal question cases
but cannot take away the SC’s supremacy over lower federal courts.
 Congress can take jurisdiction from some Art. III judges and give it to other Art. III
judges, but cannot give it to state judges. State judges have different requirements for
becoming judges, are responsible to state legislatures rather than to Congress, and are
less independent than Art. III judges.
 In practice, Congress has made exceptions to SC appellate jurisdiction and limited district
court jurisdiction in diversity cases but not in federal question cases.
Basic Idea: There must be some way for a case arising under the Constitution to be heard in
federal court.
Congressional Power to Define Constitutional Rights
Question: The Reconstruction Amendments give Congress the power to enforce the
amendments’ provisions by “appropriate legislation.” Does Congress have the power to go
beyond what the Court has found unconstitutional under the Reconstruction Amendments and
outlaw other practices by the states in the name of enforcing those Amendments?
South Carolina v. Katzenbach (SupCt., 1966) (BLBA 572)
Congress can find that case-by-case litigation is not an effective means to end voting
discrimination and may enact a regulatory regime (Voting Rights Act of 1965) to do so.
McCulloch test will be used to evaluate such legislation.
BACKGROUND
 In Lassiter v. Northampton Board of Elections (1959) the Supreme Court had
unanimously upheld a literacy test against constitutional attack (BLBA 572).
 The 15th Amendment gave Congress the power to enforce its provisions (i.e., keep the
States from barring people from voting on account of their race) by appropriate legislation.
 Court finds:
1) Congress felt itself confronted by an insidious and pervasive evil which had been
perpetuated in certain parts of the U.S. through unremitting and ingenious defiance
of the Constitution.
2) Congress concluded that the unsuccessful remedies which it had prescribed in the
past would have to be replaced by sterner and more elaborate measures in order to
satisfy the clear commands of the 15th Amendment.
 Voting Rights Act of 1965 (BLBA 573)
o Congress shifts the burden of time and resources to States that have a history of
denying people the right to vote on account of their race.
o The Act lays down a formula defining the States and political subdivisions to which
the remedies described in the Act apply.
o The first remedy is the suspension of literacy tests and similar voting qualifications
for a period of five years from the last occurrence of substantial voting
discrimination.
o Second remedy is the suspension of all new voting regulations pending review by
federal authorities to determine whether their use would perpetuate voting
discrimination.
o Third remedy is the assignment of federal examiners on certification by the Atty.
Gen. to list qualified applicants who are thereafter entitled to vote in all elections.
HOLDING (WARREN):
Voting Rights Act of 1965 is a constitutional use of Congressional power under the 15 th
Amendment. Congress can prohibit literacy tests even though SC had found them constitutional
in Lassiter v. Northampton Board of Elections (1959).
REASONING:
 Though the 15th Amendment is self-executing (enforceable and interpretable by courts),
§2 explicitly gives Congress the power to enforce it by appropriate legislation. Some
legislative enforcement was contemplated by framers of the Amendment. (BLBA 574)
 “The basic test to be applied in a case involving §2 of the Fifteenth Amendment is the
same as in all cases concerning the express powers of Congress with relation to the reserved
powers of the States.” That test is from McCulloch v. Maryland – “let the end be legitimate”
(within the scope of the Constitution) and the means that are appropriate, and not
prohibited, consistent with Constitution are constitutional. (BLBA 574)
 “After enduring nearly a century of systematic resistance of the 15th Amendment,
Congress might well decide to shift the advantage of time and inertia from the perpetrators
of the evil to its victims.” (BLBA 575)
 While literacy tests are not prima facie unconstitutional, if Congress finds that they are
being used to perpetuate voting discrimination, Congress can suspend their use in order to
enforce the provisions of the 15th Amendment (BLBA 575).
BLACK, CONCURRING AND DISSENTING (BLBA 575)

 Concurs with “substantially all” of the Court’s opinion “sustaining the power of Congress”
to suspend state literacy tests and other voting requirements and to appoint federal
examiners to register voters.
 Dissents from holding that §5 of the Voting Rights Act is constitutional. §5 says that a
State covered by §4(b) of the Act cannot amend its constitution or laws relating to voting
without first getting approval from the U.S. Attorney General or the Federal District Court
for the District of Columbia. This regime “so distorts our constitutional structure of
government as to render any distinction drawn in the Constitution between state and
federal power almost meaningless.”
Katzenbach v. Morgan (SupCt., 1966) (BLBA 576)
Congress can prohibit English literacy tests from being used as a voting requirement for certain
Puerto Ricans in NY. Upholds Voting Rights Act provisions in a non-Southern state.
BACKGROUND:
 Voting Rights Act of 1965 also prohibits states from using English literacy requirement to
deny the vote to people who completed the 6th grade in a public school in, or a private school
accredited by, the Commonwealth of Puerto Rico in which the language of instruction was
other than English.
 NY argues that Congress can only prohibit State laws and practices under 14 th Amend. §5
that are prohibited by that Amendment as interpreted by the Courts. In other words, NY
argues that Congress under the 14th Amendment can only take remedial actions to uphold
the decisions of the Supreme Court.
HOLDING (BRENNAN):
Using the McCulloch standard, the law is “plainly adapted to” the ends of enforcing the Equal
Protection Clause and is consistent with “the letter and spirit of the constitution.” §5 gives
Congress McCulloch-like powers to enforce the 14th Amend.’s provisions. Congress has the ability
to legislate for the purpose of enforcing 14th Amendment as it interprets the Amendment, not
only as the Courts have interpreted it.
REASONING:
 The question before the Court is: “Without regard to whether the judiciary would find
that the Equal Protection Clause itself nullifies New York’s English literacy requirement as
so applied, could Congress prohibit the enforcement of the state law by legislating under
Sect. 5 of the 14th Amend.?” (BLBA 577)
 Framers of 14th Amend. intended to give Congress “the same broad powers expressed in
the Necessary and Proper Clause” (BLBA 577)
 Brennan’s Ratchet: Congress has power only to add to the Court’s bans on states
under the 14th Amend., not to subtract from them. If the Court has found something
(i.e., racial segregation) to be prohibited by the 14th Amendment, Congress cannot by
legislation allow states to do that thing (BLBA ??).
 How does the Voting Rights Act in this instance ensure the Equal Protection of the laws?
o Step toward nondiscriminatory treatment in voting qualifications.
o Step toward reducing discriminatory treatment toward Puerto Ricans in NY
regarding the provision or administration of governmental services, such as
public schools, public housing, and law enforcement. Enhanced political power is
a step toward gaining nondiscriminatory treatment in public services for the
entire Puerto Rican community (BLBA ??).
 The standard is not whether the Court would find NY’s literacy requirement
constitutional. Instead, “it is enough that [the Court] perceive a basis upon which
Congress might predicate a judgment” that NY’s law “constituted an invidious
discrimination in violation of the Equal Protection Clause.” (BLBA ??)
 The Voting Rights Act did not violate the 15th Amend. by limiting the extension of voting
rights to certain non-English speakers from Puerto Rico. Congress was extending rights,
not proscribing them. In acting to extend rights, Congress can enact its reforms a step
at a time as long as the Court can perceive a basis for such a “go-slow” approach
(BLBA ??).
DISSENT (HARLAN AND STEWART) - 580

 A state law must violate the equal protection clause in order for §5 to be relevant at all,
and that is a decision for the courts. If reviewing the NY statute as a Court, dissenters
would find it rationally related to a legitimate State aim and constitutional under the
equal protection clause.
 Congress cannot define the substantive scope of the 14th Amendment.
 South Carolina v. Katzenbach was different because there Congress had evidence to
show that the law was functioning in a discriminatory and unconstitutional way. That
record is not present in this case; it’s pure speculation.
 NY law should be given a presumption of validity, and only interfered with if there is
reason to believe it’s functioning in an unconstitutional way.
Jones v. Alfred H. Mayer Co. (1968) (BLBA 591)
 Over the dissent of Justice Harlan (joined by Justice White), the Court construed 42
U.S.C §1982 to prohibit certain forms of private race discrimination in real estate.
 The Court upheld Congress’s authority to pass a law banning certain forms of private
race discrimination under Section 2 of the Thirteenth Amendment.
 The Court explicitly recognized that Congress’s power under Section 2 of the 13 th Amend.
went well beyond what judges could plausibly prohibit under Section 1.
 Section 2 “clothed Congress with the power to pass all laws necessary and proper for
abolishing all badges and incidents of slavery in the United States” (BLBA 592).
 Section 2 grants Congress the power “rationally to determine what are the badges and
incidents of slavery, and the authority to translate that determination into effective
legislation” (BLBA 593).
Oregon v. Mitchell (1970) (BLBA 594)
Congress went too far in attempting to confer voting rights upon young adults.
 Under the Voting Rights Act Amendments of 1970, Congress sought to ban the denial of
suffrage in both state and federal elections on account of age, to anyone 18 years or older.
Congress claimed that the rule in place in most states, setting the voting cutoff at age 21,
had the “effect of denying to citizens eighteen years of age… the due process and equal
protection of laws” (BLBA 594). Congress thus claimed to be acting under Section 5 of the
14th Amend.
 Five Justices ruled that this law went beyond the Reconstruction powers vested in
Congress, but they failed to coalesce around a single opinion on this key point. Four Justices
(Douglas, Brennan, White, and Marshall) voted to uphold the law in its entirety. Four
Justices (Burger, Harlan, Stewart, and Blackmun) voted to strike down the law as it applied
to both state and federal elections. Justice Black believed that Congress did have the power,
under Art. I, Sect. 4, to give young adults the right to vote in federal elections, but lacked
authority under the Reconstruction Amend. to mandate this rule for state elections. The
import of the Court’s ruling was thus that Congress could set an age cutoff for
federal elections but that it went beyond its power under Section 5 of the 14 th
Amendment in setting an age cutoff for State elections.
 Big Question: Katzenbach v. Morgan said that Congress can have a different
interpretation of the dictates of the 14th Amend. than the Court. If Congress finds that it’s
necessary to bar some State practice in order to enforce the provisions of Section 1 of the
14th Amend., it doesn’t matter if the Court itself would have found those State practices
unconstitutional. The Court must simply be able to perceive a basis on which Congress acted
to remedy state practices that the Congress found to violate equal protection or due process.
Congress found the State practice of barring 18 year olds to vote as violating the Equal
Protection and Due Process clauses. Why couldn’t Congress enact legislation to bar this
State practice that it found to violate the 14th Amend.?
City of Boerne v. Flores (1997) (BLBA 629)
Congress does not have the power under §5 of the 14th Amend. to alter the substantive
protections of the Amend. but can only enforce what the Court has taken it to mean.
BACKGROUND:
 Court ruled in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990) that
absent special circumstances, the free exercise clause (of the 1st Amend.) was not violated by
a facially neutral and secular law, drafted without legislative animus, that had the effect of
interfering with a given religious practice.
 Congress thinks that the Court’s ruling is not sufficiently protective of the right to the free
exercise of religion. Congress tried to re-implement the previous doctrinal test (State must
show a compelling state interest for restrictions of free exercise religion and use the least
restrictive means to achieve that interest) through legislation (the Religious Freedom
Restoration Act of 1993).
 Local zoning authorities denied a church a building permit. The church challenged the
decision under the Religious Freedom Restoration Act (RFRA).
HOLDING (KENNEDY): RFRA provisions invoked are beyond congressional authority and it is
the Court’s precedent, not RFRA, that must control the case.
MAJORITY’S REASONING:
 Congress claims that it is only protecting by legislation one of the liberties guaranteed by
the 14th Amend.’s Due Process Clause, the free exercise of religion, beyond what is
necessary under the Court’s ruling in Smith.
 Congress does not have the power under Sect. 5 to decree the substance of the 14th
Amend.’s restrictions on the states. Congress has the power to enforce, not the power
to determine what constitutes a constitutional violation (BLBA 632).
 Congress’ power under §5 of 14th Amendment is “remedial” not “plenary.”
 Congress that enacted 14th Amendment rejected the first version because of concerns
that it would give Congress plenary power to make laws regarding any aspect of “life,
liberty, and property” and therefore frustrate federalism (BLBA 632).
 Uses the Civil Rights Cases (1883) to say that Congress’ power under the 14 th Amend. is
“corrective or preventive, not definitional.” In the Civil Rights Cases, the Court
invalidated sections of the Civil Rights Act of 1875 that prescribed criminal penalties for
anyone denying to any person “the full enjoyment of” public accommodations or
conveyances, on the grounds that it exceeded Congress’ power by seeking to regulate
private conduct (BLBA 634).
 Lots of language about Congress’ laws enforcing 14th Amend. must be proportional to the
evil being perpetrated by the states. There’s a difference between an entrenched system
of racial domination and laws that happen to burden certain religious groups without
intent to discriminate. This law is too broad and far-reaching in proportion to the
problem of religious bigotry.
 “RFRA is not designed to identify and counteract state laws likely to be unconstitutional
because of their treatment of religion” (636). It just puts a costly burden on states and
municipalities with no targeted intent to end discrimination. (This distinguishes it from
the Katzenbach cases).
 If Congress could define its own powers by altering the 14th Amendment’s meaning then
the Constitution would no longer be superior to regular laws. (634)
 Bottom Line: Sect. 5 does not grant Congress the power to determine the substance of
the 14th Amend.’s protections. The Court should show deference to Congress’
determination that certain State practices violate the 14 th Amend., but ultimately, it’s the
Court’s job to interpret the 14th Amend., not Congress’.
STEVENS’ CONCURRENCE:
 RFRA is a “law respecting an establishment of religion” and therefore invalid.
O’CONNOR’S DISSENT, JOINED BY BREYER:

 Agrees with the majority that Congress lacks the “power to decree the substance of the
Fourteenth Amendment’s restrictions on the States” but thinks that Smith was wrongly
decided and that this case should be used as an opportunity to revisit that decision and
overturn it (BLBA 638).
 Congress is called upon to consider the requirements of the Constitution, but “when it
enacts legislation… Congress must make its judgments consistent with this Court’s
exponsition of the Constitution.” (BLBA 638)
SOUTER’S DISSENT:
 Agrees about rehearing on Smith’s value as precedent. Doesn’t mention §5 issues.
BREYER’S DISSENT:
 Agrees with O’Connor about the Smith decision. Doesn’t agree with her about §5.
Doesn’t find it necessary to consider that question.
CHALLENGING THE COURT’S DECISION:

 None of the Justice’s took issue with the Court’s interpretation of congressional power
under Section 5. Here are some arguments to counter the majority’s opinion:
 The Textual Counterargument (BLBA 639): “The Court says that whenever Congress
goes beyond the Court’s interpretation of the substantive rights conferred by Section 1 of the
14th Amend., Congress thereby ceases to ‘enforce’ Section 1. Congress has the power only to
‘enforce’ the true meaning of Section 1, not add to it.” But this argument begs the question
of what is the true meaning of Section 1. Why should the Court’s interpretation of Section 1
trump Congress’ interpretation? If Congress thought that the Supreme Court had interpreted
the First Amend. incorrectly in Smith, why couldn’t it take action to remedy the Court’s
decision, which Congress found to violate the right to the free exercise of religion? The text
of the 14th Amend. says that Congress is to enforce that amendment. Shouldn’t Congress’
interpretation of the amendment thus be given some important weight?
 The “Intratextual” and Doctrinal Counterargument (BLBA 640): The enforcement
clauses of the 13th and 14th Amendment are essentially identical. The Court has ruled that
under Section 2 of the 13th Amendment, Congress has the power to pass “broad substantive
legislation ranging far beyond the self-executing rights under Section 1 (as defined by the
Supreme Court).” Why doesn’t the same rule apply to the Fourteenth Amendment?
 The Structural Counterargument (BLBA 641): The Court wraps itself in Marbury’s
language that it is the peculiar province of the Court to say what the law is. But Marbury
doesn’t deny that other branches can play a role in Constitutional interpretation. If Congress’
conception of civil rights is broader than the Court’s, why should the Court’s conception of
the Constitution trump that of the legislature?
 The Historical Counterargument (BLBA 641): The same legislators who took a
broad interpretation of Congress’ power under Section 2 of the 13th Amend. wrote the
enforcement clause of the 14th Amend.
United States v. Morrison (SupCt., 2000)
Construes §5 of 14th Amendment not to allow Congress to create a federal civil cause of action
against perpetrators of violence based on gender. The 14 th Amendment prohibits state action,
not private conduct.
BACKGROUND: Woman brought claims under the Violence Against Women Act against men
who allegedly raped her. VAWA allowed federal civil claims against perpetrators of crimes of
violence motivated by gender.
HOLDING (RHENQUIST): §5 of the 14th Amendment did not give Congress the power to enact
the civil remedies portion of the Violence Against Women Act. The 14 th Amendment prohibits
only state action, not private conduct.
REASONING:
 The Fourteenth Amendment prohibits only state action, not individual conduct.
 Rhenquist cites the Civil Rights Cases (1883). In the Civil Rights Cases, the Court held
that the public accommodation provisions of the Civil Rights Act of 1875, which applied to
purely private conduct, were beyond the scope of Congress’ Section 5 enforcement power.
 The Court also takes issue with the fact that the federal civil claim is available to women
throughout the nation, not only to women in states with a history of discriminating against
women.
 Civil Rights Cases have not been overturned, are still good law.
DISSENT A LA AMAR:
 First, Rhenquist relies on the Civil Rights Cases to uphold his claim that Congress under
the 14th Amendment only has the power to regulate State action, not individual conduct. But
weren’t the Civil Rights Cases overruled by Jones v. Alfred H. Mayer Co. (1968)? In Jones,
the Court found that the enforcement clause of the 13 th Amendment gave Congress the
power to prohibit certain forms of racial discrimination in private real estate transactions.
The enforcement clauses of the 13th and 14th Amendments are essentially the same. If the
enforcement clause of the 13th Amendment gives Congress the power to proscribe private
discriminatory conduct that the Court would never find unconstitutional under the self-
executing provisions of Section 1, why doesn’t the 14 th Amendment give Congress a similarly
broad power?
 Rhenquist says that the Civil Rights Cases are due a great amount of respect because the
members of the Court at the time were most familiar with the events surrounding the
adoption of the 14th Amendment. However, many congressmen who voted for the laws
struck down by the Civil Rights Cases also helped write the 14th Amendment. They certainly
thought that the 14th Amendment gave Congress the power to regulate some forms of
private conduct.
 The Fourteenth Amendment was meant to overrule the Dred Scott decisions, which said
that African-Americans weren’t citizens.
 The “badges and incidents of citizenship”: One possible dissent to Morrision
o The 14th Amendment says that women are equal citizens of the U.S.
o Under Section 2 of the 13th Amendment, Congress has broad power to define the
“badges and incidents of slavery” and to legislate against these relics of slavery.
o Similarly, Section 5 of the 14th Amendment should be read to grant Congress the
power to define the “badges and incidents of citizenship.”
o Under Section 2 of the 13th Amendment, Congress can regulate the conduct of
individuals if that conduct is, in Congress’ determination, a “badge or incident of
slavery.”
o Under Section 5 of the 14th Amendment, Congress should have the power to
regulate individual conduct that threatens a certain group’s ability to enjoy its
rights as equal citizens.
o Gender-motivated violence threatens the equal citizenship rights of women. It
suggests that women are second-class citizens, that they do not deserve the
same respect and protection afforded to men. Gender-motivated violence
against women can pose a threat to equal citizenship in a manner analogous to
the ways that other power structures have threatened the equal citizenship of
blacks.
o VAWA was a symbolic statement that gender-motivated violence is unacceptable.
It was Congress’ way of reaffirming the equal citizenship rights of women under
the 14th Amendment.
o Congress’ action is especially important as a way of making amends for past
government actions that have invested men with an improper sense of
entitlement over women’s bodies (i.e., unjustified obstacles to rape prosecution,
such as the outcry requirement).
o Bottom Line: When Congress “can honestly be understood as affirming equal
citizenship for those who have historically been denied equality on the bases of
birth status, judicial review of enumerated power should be no less deferential
than in Prigg or McCulloch, on which the Fourteenth Amendment’s supporters
justifiably relied.” Congress may pass expressive laws affirming women’s equal
status as citizens so as to make clear that women have rights that men are
bound to respect.
Academic views on Reconciling role of Courts and Congress in enforcing

Reconstruction Amendments (BLBA 586-591)
 Brennan’s Ratchet: Congress has power only to add to the Court’s bans on states, not
subtract from them (BLBA 586).
 Robert Burt: Congress enforces the Court’s value preferences on the states in
circumstances where the Court could not provide such detailed policies and apply them
broadly. Congress is a “less constrained line-drawer.” The Court’s decisions need to be
based on principles that it can apply to future cases. It’s rather hard for the Court to draw
arbitrary lines (e.g., Puerto Ricans with a sixth grade education should be able to vote in NY
but not Mexican immigrants who can’t speak Spanish). Congress is much more able to draw
such lines. (BLBA 587)
 Archibald Cox: in Morgan, the federal and state laws rested on inconsistent legislative
evaluations of whether the English literacy requirement was permissible or invidious. The
supremacy clause makes the federal determination paramount. Congress is a superior fact-
finder to the Court. Through its fact-finding, Congress may find state legislation to be
discriminatory in practice even though in theory it isn’t prima facie unconstitutional (e.g.
literacy tests). (BLBA 588)
 William Cohen: even if the Court would uphold a law, the State could choose not to
have it. States are represented in the Congress, so congressional legislation resolving the
issue at the national level reflects a balance of national and state interests and should win
out. (BLBA 589)
 Lawrence Sager: the Court may “under enforce” constitutional ideals for judiciary-
specific reasons. Congress should be able to make law to bring Court’s true vision to fruition.
But Congress should not be allowed to implement its own substantive vision of the
Constitution itself, where that vision is different from the Court’s. (BLBA 589)
o Amar’s Objection to Sager: That’s not what the Court said in Jones. There
the Court ruled that Congress has broad power to define the “badges and
incidents of slavery.” Enforcement clauses of 13 th and 14th Amendments are
essentially identical. Why shouldn’t Congress have the same broad power to
define the “badges and incidents of citizenship and freedom” under the 14 th
Amendment?
 Amar: Congress can expound on what are truly “fundamental” rights, those rights would
be enforced against states or at least used by Courts as important guides as to what is a
fundamental right. “The most sensible reading of the Fourteenth Amendment would involve
both courts and Congress in the task of protecting truly fundamental rights against states,
with states generally held to whichever standard was stricter—more protective of
fundamental freedoms—in any given instance.” (BLBA 590)
The Executive Power
The Non-Prosecution and Pardon Powers
United States v. Cox (5th Cir., 1965) (BLBA 737)
Executive has non-prosecutorial discretion. Neither Courts nor grand jury can compel prosecutor
to prosecute a case. Prosecutor does not have to sign a grand jury indictment.
BACKGROUND:
 Four legal issues are in play in Cox:
o Article II: The executive power is vested in the President. The executive power
includes the power to decide not to prosecute in a given case.
o Amendment 5: “No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury…”
o Federal Rule of Criminal Procedure 7: “[A grand jury indictment]” shall be signed by
the attorney for the government…”
o Fed. Rule of Crim. Proc. 48: U.S. atty. may by leave of court file a dismissal of an
indictment.
 Facts:
o Goff and Kendrick, two African-Americans, testified in a suit by the U.S. against the
Registrar of Clarke County, Mississippi, and the State of Mississippi, to enforce the
voting rights of African-Americans.
o There was reason to believe that Goff and Kendrick were mistaken in some of the
facts in their testimony. Judge W. Harold Cox stated from the bench that Goff and
Kendrick should be “bound over to await the action of the grand jury for perjury.
o In June 1963 the Department of Justice’s Criminal Division advised the local U.S.
attorney, Robert Hauberg, that the matter presented “no basis for a perjury
prosecution.”
o Nevertheless, Judge Cox ordered that the case be presented to an (all-white) grand
jury, and the grand jury asked Hauberg to prepare and sign an indictment for
perjury.
o Hauberg refused to prepare and sign the indictment on instructions from Acting
Attorney General Nicholas Katzenbach, and Judge Cox thus found Hauberg to be in
contempt of the Court.
HOLDING (PLURALITY OPINION):

U.S. Attorney could not be required to validate an indictment by signing it but could be required
by the grand jury to draft forms of indictment.
JONES’ OPINION:
 The grand jury exists to protect the accused from an over-zealous prosecutor. The Fifth
Amendment should not be read as conferring to the grand jury any rights of its own (BLBA
738).
 The executive power is vested in the President, who is required to take care that the
laws be faithfully executed. The Attorney General and other U.S. attorneys are the officers
whom the President has appointed to ensure that the laws are faithfully executed. The
executive power includes the power to decide not to prosecute. Federal Rule of Criminal
Procedure 7 must be read in light of the executive’s powers under Article II. According to
Fed. Rule of Crim. Proc. 48, the U.S. must get the leave of the court to dismiss a case after
an indictment has been signed. But the court has no power to force the executive to
prosecute. Therefore, Rule 7 should not be read as requiring the U.S. attorney to sign a
grand jury indictment. Once an indictment is signed, charges have been brought, and a
prosecution has begun. If Rule 7 is to be constitutional, it must be construed as leaving the
U.S. atty. with the option of not signing the indictment (BLBA 738).
 The U.S. attorney’s signature on the grand jury indictment is not a mere attestation of
the grand jury’s act. The signature of the foreman performs that function. When the U.S.
atty. signs the indictment, he signs on to the prosecution of the accused.
GEWIN AND BELL (CONCURRING IN PART, DISSENTING IN PART):

 The grand jury has both the power of the sword and the shield: It is to protect persons
from unfounded prosecutions and to bring to trial persons accused of crimes upon just
grounds (BLBA 739).
 “The signature of the United States Attorney is a mere authentication that the indictment
is the act of the grand jury…” (BLBA 740)
 If the U.S. attorney doesn’t want to prosecute, he may ask for the leave of the court to
dismiss.
o The court may require some showing of good faith, and a statement of some rational
basis for dismissal.
o Gewin and Bell equivocate on whether the court could appoint new counsel to
prosecute the case when it believes the prosecutor has acted in bad faith (BLBA
740).
o Gewin and Bell say that their system of having the prosecutor file for a dismissal in
open court is best because it makes public the executive’s decision not to prosecute.
BROWN’S CONCURRENCE:
 The U.S. attorney doesn’t have to sign the grand jury indictment, but he does have to
help the grand jury prepare the indictment.
 U.S. attorney’s signature isn’t required to validate an indictment. The grand jury can
simply be asked in open court if the indictment is valid. Once the U.S. attorney signs the
indictment, a prosecution has commenced (BLBA 741-742).
 By forcing the U.S. attorney to prepare the indictment even when he will not sign it,
Brown’s proposal makes public the fact that the executive is exercising its power of non-
prosecutorial discretion.
WISDOM’S CONCURRENCE:
 The grand jury earned its place in the 5th Amendment for its function as a shield, not a
sword. “The grand jury never had a plenary power to indict. It had a limited power to indict
—after accusation by…the Government in the form of a bill of indictment preferred to the
grand jury.” (BLBA 744)
 The 5th Amendment does not offer a grand jury a choice between presentment and
indictment. “It is entirely in the hands of the Government whether to submit an accusation
to the grand jury leading to presentment in the form of an indictment and serving as the
initial pleading in a criminal prosecution.” If the U.S. Attorney does not wish to prosecute,
the most that a grand jury can do is prepare a presentment that takes notice of the fact that
the grand jury has probable cause to believe that a crime has occurred (BLBA 744).
 Publicity check: The grand jury always has the power to “present either findings and a
report or an accusation in open court by presentment.” (BLBA 744)
 The Constitution set up a system of checks and balances. The grand jury shields the
accused from an oppressive prosecutor, but the U.S. attorney can also shield a person from a
biased grand jury by refusing to prosecute (BLBA 744).
 In dealing with prosecution, issues of national policy are at stake. Should Mississippi get
to intimidate blacks through perjury prosecutions, or should Congress’ Civil Rights laws be
given preference? These are decisions for the executive branch to make.
CLASS DISCUSSION:
 Notice how the majority reads Fed. Rules of Crim. Procedure 7 and 48 in light of Article
II. If the U.S. attorney must sign the indictment, then Fed. Rule of Crim. Procedure 48,
which requires the U.S. attorney to seek leave of the court to dismiss a case, might be
unconstitutional in light of Article II.
 The publicity problem—Letting the public know that the executive is exercising his power
of non-prosecutorial discretion:
o Gewin and Bell: The U.S. attorney must sign the indictment and then ask for a
dismissal in open court
o Brown: The U.S. attorney must prepare, but not necessarily sign, an indictment
o Wisdom: The grand jury can prepare a presentment to make known its view that a
crime has probably occurred.
 Why should we vest the power of non-prosecutorial discretion in the executive?
o The executive might think that there’s not enough evidence to prosecute.
o The executive might think that the accused will not receive a fair trial due to the
biased and parochial interests of the likely jury members.
o National security concerns
 Don’t want to make sensitive evidence public
 In the case of Goff and Kendrick, the U.S. was fighting the Cold War. Jim
Crow doesn’t play well in places like Africa, and the U.S. was trying to woo
African leaders as its allies. The prosecution of people such as Goff and
Kendrick was part of Mississippi’s plan to intimidate African-Americans so
that they would not press for their voting rights.
o Consideration of public policy: If Goff and Kendrick were prosecuted for testifying in
a voting rights case, then other African-Americans might not cooperate with the
government in the future, and the government relied on the testimony of
disenfranchised minorities to show the discriminatory practices of southern states like
Mississippi.
o Sometimes you want to cut deals with criminals. If you promise not to prosecute
them, they might “flip” on their co-conspirators.
o The executive might think the law under which the accused is to be tried is
unconstitutional.
 Self-perpetuating cycle of political exclusion: Goff and Kendrick were to be indicted
by an all-white grand jury. African-Americans rarely served on Southern grand juries
because they couldn’t vote. Goff and Kendrick were trying to end this disenfranchisement.
United States v. Nixon (SupCt., 1974) (BLBA 749)
Executive privilege not to produce documents is not absolute or unqualified.
BACKGROUND:
 Nixon fired the original special prosecutor, Archibald Cox, when he subpoenaed the
President to produce certain tapes, memoranda, papers, transcripts, and other writings
relating to precisely identified meetings in the Oval Office between the President and others.
 Nixon was forced by political pressure to appoint a new special prosecutor, Leon
Jaworski. Jaworski was given the power “to contest the assertion of Executive Privilege,” and
the President promised not to fire Jaworski “except for extraordinary improprieties on his
part” and not without first consulting leading members of Congress.
 On March 1, 1974, a grand jury indicted seven of Nixon’s closest advisors with various
offenses relating to the 1972 Presidential Election. Although Jaworski was not prosecuting
the President, the grand jury had named Nixon as an un-indicted co-conspirator.
 Jaworski subpoenaed the President for records relating to certain conversations held in
the Oval Office. Jaworski was to use the documents in his prosecution of Nixon’s advisors.
 Nixon refused to hand over the documents, claiming executive privilege against
disclosure of confidential communications.
HOLDING (BURGER):
The specific need for evidence in this case prevails over executive privilege. Nixon must hand
over the documents.
REASONING:
 Justiciability: Can the Court decide this case?
o Nixon’s lawyers argued that “the matter was an intra-branch dispute between a
subordinate and superior officer of the Executive Branch and hence not subject to
judicial resolution.” According to United States v. Cox, the President’s executive
power included the power not to prosecute. Doesn’t then follow that a President’s
decision is final in determining what evidence is to be used in a given criminal case?
(BLBA 750)
o Burger’s response (BLBA 750-751)
 The Attorney General may appoint subordinates to help him execute the
laws.
 The Attorney General has delegated special authority to Jaworski to contest
claims of executive privilege in the process of seeking evidence deemed
relevant to the prosecution of Nixon’s advisors.
 The Attorney General has not amended or revoked the regulation defining
the Special Prosecutor’s authority.
 Until the Attorney General revokes the Special Prosecutor’s authority,
Jaworski still has the power to contest claims of executive privilege.
 The President’s claim of executive privilege against the disclosure of confidential
documents is not absolute. “The generalized assertion of privilege” may “yield to the
demonstrated, specific need for evidence in a pending criminal trial” (BLBA 755).
CLASS DISCUSSION:
 The irrelevance of United States v. Burr (1807): “In Burr, a criminal defendant
(former Vice President Aaron Burr) sought to subpoena evidence to prove his innocence,
whereas in Nixon, the ‘government’ (i.e., Jaworski) sought to subpoena evidence to prove
the guilt of various criminal defendants.” Burr dealt with fundamental issues of due process,
and if President Jefferson didn’t want to hand over the documents, he would in essence
simply be exercising his power of non-prosecutorial discretion as the case against Burr would
have to be dismissed. But in Nixon, Burger claims that all possible evidence must be
produced, even if the defendants and the President would prefer otherwise (BLBA 759).
 The structural argument for executive privilege (BLBA 759)
o As a matter of federalism, state and local prosecutors should not be allowed to
disrupt the proper performance of national executive functions. Example: A state
prosecutor could subpoena documents relating to confidential communications about
Presidential appointee Jane Doe to embarrass Jane Doe and/or the President.
o As a matter of separation of powers, each branch needs some internal space to
ponder its delicate business, free from the intermeddling of other branches.
 A Possible Concurrence for U.S. v. Nixon (BLBA 760)
o I concur in the judgment of the Court only that Nixon’s claim of executive privilege
does not shield him from handing over the documents to the Special Prosecutor.
o The Court says that executive privilege must be balanced against the judicial need
for evidence. But doesn’t this standard make for a rather puny privilege? According
to the Court’s logic, the need for confidentiality will be outweighed if the evidence
sough for a judicial proceeding is specific, admissible, and relevant. But anyone can
resist a subpoena that is overbroad or irrelevant.
o I would uphold a broad notion of executive privilege that protects the confidentiality
of good-faith conversations with executive-branch aides about proper executive-
branch policy.
o But, like other privileges, executive privilege has limits and exceptions. One of these
limits is the crime-fraud exception to attorney-client privilege, which says that this
privilege cannot be invoked to hide from view ongoing criminal misconduct and
obstruction of justice.
o Similarly, executive privilege does not shield conversations by executive officials who
are planning ongoing crimes.
o The evidence under seal already in the Court’s possession provides strong and
independent confirmation of the President’s role in a criminal conspiracy.
o The President cannot invoke executive privilege to hide his role in this conspiracy.
o While executive privilege is broad, it must succumb to the judicial need for evidence
in this specific case given that independent evidence has given the Court probable
cause to believe that the President has engaged in serious misconduct. In this
unique situation, executive privilege must yield.
 What could Nixon do?
o A regulation that delegates Executive power and can only be revoked with
permission of members of Congress is an unconstitutional violation of separation of
powers. Delegation of authority MUST be revocable. So Nixon/Attorney General
could revoke the regulation. Nixon can’t do this because of public scrutiny. It would
just look too bad.
o Nixon could pardon the indicted after this decision (a la Pres. Bush I pardoning
Casper Weinburger in relation to Iran Contra after losing the election in ’92). This is
also not politically feasible – he’d be impeached.
o He could invoke “national security” on the tapes. This is a lie. His lawyers can’t
advise it because they’d be accomplices.
o So Nixon turns over the tapes and the rest is history.
 Amar – THE SYSTEM WORKED THE WAY IT SHOULD. Politics required the Executive to
appoint credible people like Cox and Jaworski, leading eventually to the resignation of a
corrupt President. The Independent Counsel Statute, created by Carter, gets the judiciary
involved unnecessarily and creates real problems of constitutionality.
The Appointment Power
The Constitutional machinery worked well in Watergate, because of political forces such as
Congress (with the power of oversight and impeachment) and the press and opposition party
(armed with the 1st Amend.). After Watergate, some were uneasy with leaving the job of special
prosecutor under the discretion of the President. They could have created formal oversight
within the Congress through a standing Congressional committee, but instead they passed the
Ethics in Government Act of 1978, which created the Independent Counsel. Under the provisions
of the Act, the Attorney General was authorized to bring certain preliminary investigations of high
governmental officials and insiders to the attention of a special panel of three federal judges
picked by the Chief Justice. These judges, in turn, were supposed to appoint a special
prosecutor to continue the investigation.
Art. II §2 – The President “shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments.”
In Re Sealed Case (Cir. 1988) (BLBA 761)
The Ethics in Government Act of 1978 on which the independent counsel’s authority is based is
unconstitutional (overturned by Supreme Court in Morrison v. Olson)
BACKGROUND:
3 former government officials, including Ted Olson, now solicitor general, then an assistant
attorney general, challenged the authority of the independent counsel to issue subpoenas
compelling their testimony. Olson had given conflicting testimony to the House Judiciary
Committee; it looked like he was lying to Congress. The House could have tried to impeach him,
but instead asked the AG to appoint an independent counsel (IC). This absolved the Congress of
much of their responsibility: impeachment carries the public risk of appearing to go too far,
whereas if the IC goes too far, Congress can simply blame the IC. And the IC can say she’s doing
her job. The IC’s name is Alexia Morrison.
HOLDING (SILBERMAN):
The Ethics in Government Act that created the office of independent counsel is unconstitutional
(overruled by Morrison v. Olson).
REASONING:
 The independent counsel is not an inferior officer. Therefore, she should have been
appointed by the President and confirmed by the Senate, not simply appointed by a three-
judge panel (BLBA 762-763).
o An inferior officer is subordinate to an inferior officer.
o The Attorney General can’t be thought of as the IC’s constitutional superior. The AG
can’t appoint the IC, can’t define, circumscribe, or supervise her duties, nor can
remove her or terminate her office at will (BLBA 763).
o If the three-judge panel is seen as the IC’s superior officer, then the Act
unconstitutionally vests executive supervisory power in the judiciary.
 Even if the IC is an inferior officer, the Constitution does not allow for inter-branch
appointments. Principal officers can only appoint their own subordinates, not the
subordinates of other departments and especially not of other branches (BLBA 764-765).
 The Ethics in Government Act violates Article II by taking executive power away from the
President.
o The President is charged with ensuring that the laws are faithfully executed.
o The President can only carry out this duty through appointed officials (BLBA 649).
o Congress cannot take this appointment power from the President and vest it in a
three judge panel.
o Congress also interferes with the President’s executive power by not allowing the
Attorney General to dismiss the independent counsel at will. Even if the President
believes that the independent counsel is over-zealously prosecuting a flimsy case, the
President does not have the power to remove the IC without the approval of the
three-judge panel (BLBA 651-3).
 The Act vests Article III judges with non-Article III powers (BLBA 764-765).
o The judicial power extends only to the classes of cases and controversies detailed in
Article III, Sect. 2.1.
o The Ethics in Government Act impermissibly vests the three-judge panel with an
executive responsibility.
 Appointing the IC is an executive function. The three-judge panel must take
political considerations into account when appointing the IC (who would be
acceptable to Congress, the President, the media, the American people,
etc.?). Also, judges might not be very good at appointing prosecutors. In
the case of Kenneth Star, the Special Court appointed a former judge who
didn’t know much about prosecutorial discretion.
 The Special Court also defines the IC’s jurisdiction. It has some control over
the scope of the IC’s prosecution. This means that the Special Court has
some control over who is investigated and who isn’t. But surely this is an
executive function (BLBA 657).
o “Intimate involvement of an Article III court in the supervision and control of a
prosecutorial office undermines the status of the judiciary as a neutral forum for the
resolution of disputes between citizens and their government…” (BLBA 658)
 Problem of Accountability
o The IC has unique incentives to seek an indictment and prosecute aggressively. IC is
created to investigate one person or group of people. The IC also is not really
accountable to anyone. He/she doesn’t have a clear superior, and isn’t subject to an
electoral check (BLBA 655).
o The President is subject to an electoral check that might temper the way in which he
wields his prosecutorial power.
Morrison v. Olson (SupCt., 1988) (BLBA 773)
Overturned the Circuit Court’s ruling in In re Sealed Case. The office of independent counsel
established in accord with the Ethics in Government Act is constitutional.
BACKGROUND: Same as In Re Sealed Case, Ted Olson and others challenge the
constitutionality of the IC Statute.
HOLDING (RHENQUIST): The Independent Counsel Statute is constitutional.
REASONING:
 Independent counsel is an inferior officer.
o She is subject to removal by a higher Executive Branch official.
o She is empowered by the act to perform only certain, limited duties.
o Her office is further limited in jurisdiction by the three-judge panel.
o The IC’s office is limited in tenure (the IC’s mandate ends when her investigation
ends).
 Under the Appointments Clause, Congress can vest the courts with the power to appoint
inferior officers in the executive branch (inter-branch appointments are not barred by the
Constitution, although Congress’ power to prescribe inter-branch appointments is not
unlimited).
 Problem of past case law (BLBA 776)
o Myers v. United States (1926): A federal statute by which certain postmasters of the
United States could be removed by the President only “by and with the advice and
consent of the Senate” was unconstitutional.
o Humphrey’s Executor v. United States (1935) and Wiener v. United States (1958):
Congress can require the President to show “good cause” for the removal of a
“quasi-legislative” or “quasi-judicial” executive branch official.
o The Court reinterprets its rulings in Myers, Humphrey’s Executor, and Wiener:
Congress just can’t try to interpose itself in the executive’s decision to remove an
Executive Branch official. Here Congress doesn’t interfere with the Pres.’s removal
power. It’s a court that has to sign off on the IC’s removal.
 The Independent Counsel statute does not improperly vest executive power in the
judiciary. Congress under the Appointments Clause can vest the power to appoint the
independent counsel in the judiciary. A limited power to define the scope of the IC’s office is
tied to this power to appoint. Basically, a pragmatic argument: Congress recognized that
there was a problem when the executive had to investigate possible crimes committed by
high ranking government officials. There was a need for an independent prosecutor to
investigate such cases. If the President couldn’t appoint that prosecutor, who was better
fitted to do so than the judiciary? (BLBA 775)
 The Act is not an unconstitutional usurpation of executive power because “[n]o
independent counsel may be appointed without a specific request by the Attorney General,
and the Attorney General’s decision not to request appointment if he finds ‘no reasonable
grounds to believe that further investigation is warranted’ is committed to his unreviewable
discretion.” (BLBA 778)
SCALIA’S DISSENT:
 Scalia’s syllogism
o Article II, Section 1 vests all the executive power in the President (BLBA 779).
o The conduct of a criminal investigation or prosecution is a purely executive power.
o The IC Statute deprives the President of exclusive control over the exercise of this
power.
o Therefore, the IC Statute is unconstitutional.
o “It is not for us to determine… how much of the purely executive powers of
government must be within the full control of the President. The Constitution
prescribes that they all are…” (BLBA 780)
 Two checks to President’s abuse of his power of non-prosecutorial discretion when the
suspects are high-ranking government officials: impeachment by Congress and removal from
office by the voters in the next election (BLBA 780).
 The independent counsel is not an inferior officer because she is not subordinate to any
officer in the Executive Branch. Article III speaks of “inferior” courts that are “inferior”
because they are subordinate to the Supreme Court. Inferior officers must be subject to the
supervision of superior officers; that’s not really true for the IC (BLBA 782).
 It is not a sufficient condition for inferior officer status to be subordinate to another
officer, but it is a necessary condition.
 The IC Statute divides the executive and raises a myriad of problems because the IC is
not really accountable to anyone, least of all to the voters of the U.S. Possibility of over-
zealous, politically motivated independent counsels (BLBA 785).
CLASS DISCUSSION OF MORRISON V. OLSON:

 Congress didn’t have to establish the office of independent counsel to deal with the
problem of criminal activity committed by high-ranking officials in the executive branch.
Congress could establish a special committee to investigate misconduct committed by
executive branch officials. It could publish its findings in a grand jury-esque presentment
and say that if the U.S. Attorney’s office doesn’t file charges in 60 days, Congress will have
deemed that the President has decided not to prosecute the suspect wrongdoers.
 Congress can also impeach high ranking officials who are suspected of misconduct or
even the President himself if he refuses to investigate such misconduct. Remember, the
President can’t use his pardon power to shield executive officers from impeachment.
 The President can use his pardon power to make the independent counsel go away or to
try to control the IC’s investigation (President Bush pardoned Caspar Weinberger in
December 1992, effectively putting the Iran-Contra independent counsel Lawrence Walsh out
of business).
 Ironically, it was not the Court but the Clinton administration that had the last word on
the IC. Clinton let the act expire. AG Janet Reno explained why to Congress in March 1999:
“The IC Act is structurally flawed and those flaws cannot be corrected within our
constitutional framework… the IC is vested with the full gamut of prosecutorial powers, but
with little of its accountability.”
 Given the change of the Court’s line-up, it’s not clear whether the IC, if passed, would
today be found constitutional. See Edmund v. United States below.
Edmond v. United States (SupCt., 1997) (BLBA 792)
Inferior officers are subordinate officers. At some level, their works must be directed and
supervised by a principal officer who was appointed by the President and confirmed by the
Senate. (If this is so, wouldn’t the IC be a principal, not an inferior officer?)
BACKGROUND: Petitioners contest appointments by the Secretary of Transportation of civilian

judges to the Coast Guard Court of Criminal Appeals, arguing that those judges are not “inferior
officers.”
HOLDING (SCALIA): The judges are inferior officers and their appointment is in conformity with
the Appointments Clause of the Constitution.
REASONING:
 Generally speaking, “whether one is an ‘inferior’ officer depends on whether he has a
superior.” Inferior officers are “officers whose work is directed and supervised at some level
by others who were appointed by presidential nomination with the advice and consent of the
Senate.” (This seems to overturn the Morrison majority’s conception of the IC as an inferior
officer.)
 The Judge Advocate General can remove the judges in question without cause.
Supervision of the judges is divided between the JAG (who is subordinate to the Secretary of
Transportation) and the Court of Appeals for the Armed Services.
 The judges of the Court of Criminal Appeals “have no power to render a final decision on
behalf of the United States unless permitted to do so by other executive officers.”
SOUTER’S CONCURRENCE:
 In order to be an inferior officer, one must have a superior; however, that doesn’t mean
that if one has a superior, one is an inferior officer. It is also necessary to look at the duties,
jurisdiction and tenure of the office. As such, the Solicitor General might not be considered
an inferior officer despite the fact that he is “inferior” to the AG.
The Veto Power
The President, in addition to executing the laws, is a vital part of the legislative process through
use of the Veto Power.
Immigration and Naturalization Service v. Chadha (SupCt., 1983) (BLBA 796)
The one-house legislative veto is unconstitutional.
BACKGROUND:
 Jagdish Chadha’s student visa had lapsed and the INS began deportation proceedings.
 There was a provision allowing the Attorney General, acting through the INS, to suspend
the deportation of aliens who had been continuous residents in America for at least 7 years
and for whom deportation would be an “extreme hardship.” Chadha got such an exemption.
 Under the suspension provision, if either house of Congress in the next congressional
session vetoed the AG’s suspension by a majority vote, then Chadha would be deported. If
both houses remained silent on the matter, Chadha would get to stay.
 The House passed a resolution saying that Chadha’s case did not meet the statutory
requirements of hardship and that therefore Chadha should be deported. The resolution was
not sent to the Senate or presented to the President.
 Chadha challenged the constitutionality of the House’s “legislative veto,” and the INS
agreed with Chadha that the legislative veto was unconstitutional.
HOLDING(BURGER):
There is a controversy to be decided, the House’s legislative veto of Chadha’s exemption violates
the Constitution’s separation of powers, and the legislative veto provision is severable from the
provision granting such discretion to the AG.
REASONING:
 The Court considers the question of whether the legislative veto proviso can be
separated from the rest of the suspension clause as a question of Chadha’s standing. If the
legislative veto is constitutional, then Chadha’s deported. If it’s not constitutional and not
severable, the Attorney General’s suspension power gets struck down together with the
legislative veto, and Chadha gets deported. The legislative veto proviso must be severable
for Chadha to have standing, for the resolution of the case to mean anything to him.
 The Court rules that the legislative veto proviso is severable from the clause granting the
Attorney General the power to suspend deportations.
o Before the Immigration and Nationality Act of 1952 was passed, the Secretary of
Labor was charged with deporting any alien who entered or remained in the U.S.
unlawfully.
o To suspend deportation, both houses of Congress had to pass a private bill, which
had to be approved by the President.
o This system proved too burdensome. Thus, Congress approved the system of
Attorney General suspensions for cases of hardship with the possibility of a legislative
veto (BLBA 798).
 Even though the INS agrees with Chadha that the one-House veto is unconstitutional,
this case presents a “controversy” because if the Court finds the one-House veto to be
constitutionally permissible, Chadha will be deported (BLBA 799).
 The Court lauds the INS and the Attorney General for continuing with the deportation
proceedings against Chadha even though they believed the legislative veto to be
unconstitutional. Why should the Court approve of such behavior? (BLBA ??)
 Proof #1: There are three constitutional powers: the legislative, the executive, and the
judicial. The House must have been exercising one of these in passing the resolution on
Chadha. If it was exercising legislative power, then it faced the requirements of
bicameralism and presentment. If it was exercising some other power, it was going beyond
the power specifically vested in the House in the Constitution.
 Proof #2: In passing the resolution that vetoed the Attorney General’s deportation
suspension, Congress could have been doing two things. First, it could have been
pronouncing its judgment that Chadha did not meet the hardship standard set by its
legislation. But that would be exercising a judicial power not vested in Congress. Second, it
could have been saying that Chadha met the hardship standard laid out in its legislation but
that the hardship standard was set too low and needed to be amended. But an amendment
to legislation must be passed by both houses of Congress and presented to the President.
POWELL, CONCURRING IN THE JUDGMENT

 Powell doesn’t want to strike down the legislative veto, which has been included in about
200 other bills and is seen by Congress as a necessary tool for controlling the delegation of
power to administrative agencies (BLBA 804).
 Powell would instead find Congress’ veto of the Attorney General’s deportation
suspension unconstitutional on the grounds that “[w]hen Congress finds that a particular
person does not satisfy the statutory criteria for permanent residence in this country it has
assumed a judicial function in violation of the principle of separation of powers” (BLBA 804).
 The one-House veto was very similar to a constitutionally impermissible Bill of Attainder,
which is a legislative act that singles out an individual or group for punishment without a trial
(BLBA 804).
WHITE’S DISSENT
 About 200 pieces of legislation contain a legislative veto provision. Congress needs the
legislative veto to secure the accountability of executive and independent agencies (BLBA
805). The legislative veto is necessary in a complex regulatory state with a large
bureaucracy (BLBA 806).
 The law creating the legislative veto itself passed both houses of Congress and was
approved by the President.
 In practice, the legislature delegates some legislative (i.e., lawmaking) authority to
independent or executive agencies. If Congress can delegate legislative power to
independent and executive agencies under Article I, why can’t it reserve some power for
itself to oversee how these agencies use their lawmaking authority (BLBA 807).
o Amar’s Response: Technically speaking, Congress can’t delegate its legislative
authority. It can only create new executive power, the power to enforce the laws
passed by Congress. When Congress passes a law, it cannot reserve power to itself
to check how the Executive enforces that law. Congress therefore should be careful
how much new power it vests in the executive through its legislation, because once it
creates new executive power, it has no authority to oversee how that power is
exercised. All that Congress can do is try to pass a new law that restricts the
executive’s power, but that will be hard to do given the President’s veto power.
o Bottom Line: The legislature should avoid passing vague statutes and should make
its laws as specific as practicably possible because it cannot retain a veto power over
how the executive wields the discretionary power Congress vests in him (BLBA 813).
 The one-house veto in this case doesn’t violate the separation of powers doctrine.
Separation of powers stands for the idea that no change from the legal status quo should
occur without the concurrence of the legislature and the President. We have that here:
o The legal status quo is that Chadha should be deported.
o The President approves of a change in this status quo through his Attorney General,
who orders the suspension of Chadha deportation.
o If both houses of Congress stay silent on the issue, they tacitly approve the Attorney
General’s view that Chadha should be given the status of a permanent resident.
o If one house or the President disapproves of a change in the legal status quo,
however, no change occurs (assuming no legislative override of a presidential veto).
In this case, one house disapproved of the change in the legal status quo that
Chadha should be deported. This is no different than one house refusing to pass a
private bill granting Chadha the status of a permanent resident.
o Amar’s Response: But this system is different from the usual way of passing a bill.
The President’s “approval” comes at the beginning rather than the end. Also, with a
private bill system, there needs to be a majority in each house to keep Chadha in,
with a tie in either house leading to Chadha’s deportation. In the system established
by the Immigration and Nationality Act, there needs to be a majority in one house to
keep Chadha out, with a tie in a house keeping Chadha in the U.S.
RHENQUIST’S DISSENT, JOINED BY WHITE

 Disagrees with the majority that the legislative veto is severable from the grant of
authority to AG. Congress repeatedly refused to grant executive full control over such
exceptions to deportation. If it’s not severable, then Chadha’s exemption is gone too, and he
must be deported.
CLASS DISCUSSION:
 Why does the Court laud the INS and AG’s willingness to carry out a law they believe to
be unconstitutional? What if Congress had told the AG to cut off Chadha’s head? Should he
prepare to execute the Bill of Attainder and in fact do so in the absence of some judicial
injunction?
 Fast-track legislation: Congress can come very close to replicating the legislative veto
with the following system. AG can suspend deportation for one year only, and then must
deport. Where the AG finds hardship, she can propose to Congress a waiver for the alien in
question. If each house approves the waiver within a year (under special internal rules that
allow for quick consideration), the alien stays in the U.S. Otherwise, the individual is
deported (BLBA 814).
 Chadha and Coase: The issue of severability (BLBA 815-816)
o If the Court says that the legislative veto provision is not severable from the
suspension clause and strikes down the AG’s power to suspend deportation,
Congress has many options:
 If it wants to grant Chadha permanent residency status, it can pass a private
bill to that effect.
 If it wants the AG to have unfettered suspension power in cases of hardship,
it can pass a new law, this time aware that it cannot retain the power to veto
the AG’s suspensions.
o By saying that the legislative veto proviso is severable from the suspension clause,
the Court leaves Congress with few cards to play:
 A bill singling Chadha out for deportation would probably be an
impermissible Bill of Attainder.
 If Congress did not wish for the AG to have suspension power that was not
subject to congressional review, it would have a hard time of depriving the
executive of its suspension power. Congress could try to pass a law taking
the power back from the AG, but it’s likely that the President would veto it.
 Why Amar loves this case: the separation of powers is designed to encourage
legislators to draft standards generally and prospectively, behind a kind of veil of ignorance.
All persons who do X shall henceforth be deported unless Y and Z. And once the general rule
is in place, the executive carries it out, and if the executive misapplies the rule, or if the rule
itself is unjust, legally aggrieved persons (those with standing) complain to the judiciary.
Thus it is the executive and the judiciary who deal with specific individuals—but they don’t
get to make up the rules. This lovely, well-balanced system is no system at all when
Congress tries to pass rules that aren’t really rules at all, and that can be taken back when
they decide (using a legislative veto). If Congress is allowed to freely use the legislative veto,
there’d be much less incentive to write rules with specificity and clarity. The goal of the
separation of powers is to tell Congress: draft as carefully as you can!
Clinton v. City of New York (1998) (BLBA 817)
The “line item veto” is unconstitutional.
 Line Item Veto Act of 1996 (LIVA)

o After signing a budget bill into law, the President has 5 days to trim spending. He
can either spend the amount set aside in the bill on X, or he can decide to spend $0.
o If Congress disagrees, it can pass a disapproval bill, which must be approved by the
President, or if the President vetoes the bill, the veto must be overridden by a 2/3
majority in each house.
 The Court, in a 6-3 vote, struck down LIVA. In the majority opinion, Justice Stevens
argued that “LIVA was unconstitutional because the President was in effect vetoing individual
lines in a bill rather than the bill as a whole; because he was in effect repealing a duly
enacted law without securing a new law supported by majorities in both houses; because he
was in effect rewriting law rather than enforcing it.” (BLBA 817)
 The dissenters (Justice Breyer and Scalia, joined by O’Connor) argued that LIVA was
constitutionally benign. After all, Congress could always pass a law that said: “The President
may choose to spend either X or $0 on Program Y. And he must make his decision within
five days of signing the budget bill.”
 One possible problem with the bill: It can be seen as coercing the President to sign a
congressional budget. The President loses his authority to trim spending if he vetoes the bill
and his veto is overridden by Congress.
 Two ways to replicate a line-item veto in Clinton’s aftermath (BLBA 818):
1) Explicitly write budget laws along the lines the dissenters suggested (spend X or 0).
2) Enact each budget line as a separate bill so that the President can pick and choose
which lines to veto.
The Power of the Sword
Youngstown Sheet & Tube Co. v. Sawyer (1952) (BLBA 823)
President cannot use war powers to seize steel mills to prevent a strike.
BACKGROUND:
 The case arises in the context of the Korean War.
 In April 1952, after months of efforts at mediation between the United Steelworkers of
America and the management of the country’s major steel producers, the union announced
its intention to begin a nationwide strike on April 9.
 President Truman in an executive order authorized the Secretary of Commerce, John
Sawyer, to seize the steel mills and to operate them in the name of the United States.
 Truman claimed that the uninterrupted production of steel was vital to the successful
prosecution of the Korean War. Truman notified Congress of his action; Congress took no
action.
 The affected companies filed suit claiming that the seizure violated the Constitution.
 At the District Court, the Administration argued that ALL of the Executive power is given
to the President by the Constitution, in contrast to the expressly delegated powers of the
legislature. They also argued that the legislative route was too slow for this emergency, and
the Constitution cannot have meant for such emergency measures to be impossible to
implement. District Court enjoined the seizure, Court of Appeals for the District of Columbia
stayed the order, and the SC immediately granted cert.
QUESTIONS PRESENTED:
1) If the laws are merely silent on the issue of seizures, does the President win?
2) Are the laws merely silent?
HOLDING (BLACK):
President must have an affirmative law allowing him to take such actions. He does not have the
power to do this if the laws are silent. Doesn’t reach the second question. (Though 5 justices
sign this opinion, 3 don’t actually agree with the reasoning)
BLACK’S OPINION:
 The President’s power, if any, to seize the steel mills must stem either from an act of
Congress or from the Constitution itself.
o There is no act of Congress that explicitly authorizes the President to seize property
as he did in this case.
o In fact, Congress had refused to adopt the seizure technique as a way of resolving
labor disputes in the past.
 If the President had the power to seize the steel mills, that authority must stem from the
Constitution.
o President’s power as Commander-in-Chief of the Army and Navy: “Even
though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander in Chief of the Armed Forces has the
ultimate power as such to take possession of private property in order to keep labor
disputes from stopping production.” That’s Congress’ job, not the Commander-in-
Chief’s (BLBA 823).
o President’s power to enforce the laws: Truman was not enforcing a piece of
legislation. In essence, he was making law himself, giving himself the authority,
through the Secretary of Commerce, to seize the nation’s major steel mills. The
executive cannot wield such legislative authority. Congress might have been able to
pass this order, but not the President (BLBA 824).
FRANKFURTER’S CONCURRENCE:
 The Court should put aside the question of “what powers the President would have had if
there had been no legislation whatever bearing on the authority asserted by the seizure, or if
the seizure had been only for a short, explicitly temporary period, to be terminated
automatically unless Congressional approval were given” (BLBA 825).
 Congress could have lodged the power of seizure in the President in its Labor
Management Relations Act of 1947 but chose not to. “Congress has expressed its will to
withhold this power from the President as though it had said so in so many words.” The Act
gave the President certain enumerated powers in handling labor disputes, and by its silence,
refused to grant him the power of seizure (BLBA 825).
 Congress has issued no declaration of war (such that the President’s war powers could
be claimed) nor has approved the President’s actions through legislation. Truman is thus
different from Lincoln, whose seizure of railroads was ratified by Congress (BLBA 826).
DOUGLAS’ CONCURRENCE:
 Really concurs in Black’s judgment – the Constitution gives all legislative powers to
Congress, this is a legislative act, and beyond the power of the President.
 Adds that the 5th Amend. says property can only be taken with just compensation.
President doesn’t have power to raise revenues and thus cannot compensate for a seizure.
Thus a seizure is unlawful until and unless Congress authorizes it.
JACKSON’S CONCURRENCE:
 Before being named to the Supreme Court, Justice Jackson had served as Solicitor
General and Attorney General under President Roosevelt (BLBA 827).
 Three categories of Presidential authority (BLBA 828):
1) When the President acts pursuant to an express or implied authorization of Congress,
his authority is at its maximum.
2) When the President acts in absence of either a congressional grant or denial of
authority, he can rely only upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain. “In this area, any actual test of power is likely to depend on
the imperatives of events and contemporary imponderables rather than on abstract
theories of law.”
3) When the President takes measures that are incompatible with the expressed or
implied will of Congress, “his power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitutional powers of Congress
over the matter. Courts can sustain exclusive presidential control in such a case only
be disabling the Congress from acting upon the subject.”
 Congress has passed laws on seizure, none with which Truman’s act conforms. Truman’s
seizure of the steel mills thus belongs to the third category. If Truman had the power to
seize the steel mills, he must have relied on some constitutional authority that Congress
could not take from the President. “We can sustain the President only by holding that
seizure of such strike-bound industries is within his domain and beyond control by Congress.”
(BLBA 828-829)
 The title of Commander in Chief of the Army and Navy does not make the President
Commander in Chief of the country, its industries, and its inhabitants. If Congress has
implicitly denied the President’s power to seize private property without a declaration of war,
then the President does not have the authority under his powers of Commander in Chief of
the Army and Navy to do so (BLBA 829).
 Our forefathers knew something about emergency situations, but still refused to grant
the executive the power, of his own volition, to invest himself with undefined emergency
powers (BLBA 830).
BURTON’S CONCURRENCE (BLBA 831):

 Congress prescribed for the President specific procedures, exclusive of seizure, to use in
meeting this type of emergency. The President’s order invaded the jurisdiction of Congress
and violates separation of powers.
 This is not comparable to an imminent invasion or threatened attack.
CLARK’S CONCURRENCE (CLARK CONCURRS ONLY IN THE COURT’S JUDGMENT)

 Where Congress has laid down specific procedures to deal with a crisis, the President
must follow those procedures in meeting the crisis. In the absence of such action by
Congress, the President’s independent power depends on the gravity of the situation (BLBA
831).
 Clark cannot uphold the President’s actions because he failed to comply with the
procedures established by the Selective Service Act of 1948, which expressly authorizes
seizures when producers fail to supply necessary defense material (BLBA 831).
VINSON’S DISSENT, JOINED BY REED AND MINTON

 These are extraordinary times. Congress has sanctioned the war in Korea in numerous
ways, including authorizing a draft. The President has the duty to execute that legislative
program.
 President Lincoln took energetic action during the Civil War without congressional pre-
authorization of his actions (summoning troops and paying them without congressional
appropriation of funds; proclaiming a naval blockade of the Confederacy and seizing ships
that violated the blockade; Emancipation Proclamation; seizing rail and telegraph lines
without express statutory authority—Congress only recognized and confirmed the President’s
power to seize railroads and telegraph lines many months later) (BLBA 832).
 The President seized the steel mills to ensure the faithful execution of congressional
legislation (BLBA 832):
o Congress had procured money for military equipment. That equipment could not be
built without steel. The President had to seize the steel mills to ensure that the
necessary steel would be produced.
o While a shutdown could have been averted by granting the price concessions
requested by the steel industry, granting such concessions would have disrupted the
price stabilization program also enacted by Congress.
 President Truman informed Congress of his actions and said that he would abide by any
legislative action that approved, disapproved, or amended his original seizure order. He was
only acting temporarily to preserve the legislative programs mentioned above until Congress
could act.
 Bottom Line: Truman was acting in an emergency situation to maintain the status quo,
thereby preserving legislative programs from collapse until Congress could act (BLBA 834).
CLASS DISCUSSION:
 Counting noses
o On the question of whether the President wins if the laws are truly silent, the ruling
is probably 7-2 in favor of the President, with only Black and Douglas definitely
suggesting that the President did not have the power to seize the steel mills even if
the laws were truly silent.
o On the question of whether the laws are silent, the President may win 5-4. Five
justices may believe that the laws are silent (Black, Douglas, Vinson, Reed, and
Minton). Four justices definitely believe that Congress has implicitly denied the
President the power to seize the steel mills as he did (Frankfurter, Jackson, Burton,
and Clark).
o The Court’s ultimate ruling is 6-3 against the President’s power to seize the mills.
Justices Jackson, Frankfurter, and Burton sign on to the majority opinion even
though they may not agree with its rationale. Clark writes a separate opinion,
concurring in the Court’s judgment only.
o Why do the justices do this? Probably so that there is a majority opinion, so that the
newspapers wouldn’t report the next morning that the “justices struck down the
President’s seizure in a sharply divided decision in which a majority of the justices
could not agree to a single opinion.”
o Many scholars believe Justice Jackson’s opinion to be more important than Justice
Black’s opinion for the Court.
 Is Truman truly like Lincoln?
o Lincoln seemed to suggest that his emergency measures required Congressional
approval to be legitimate. Otherwise, they might lapse. Truman says that Congress
can renounce or amend his order through legislation, but that requires a majority in
both houses (and possibly a 2/3 majority to override a presidential veto).
o If Lincoln hadn’t have acted, the Constitution might have fallen. If Truman hadn’t
have acted, the worst that would have happened is the U.S. would have had to
withdraw from Korea.
War Powers Resolution of 1973 (BLBA 839)
 Passed by Congress, over President Nixon’s veto, in the aftermath of the Vietnam War.
 It requires the President to submit a report to Congress within 48 hours of the
commitment of troops to certain combat situations in the absence of a declaration of war.
 If the Congress does not act to somehow authorize the President’s commitment of troops
within 60 days of receiving the report, then the President must withdraw the troops.
 The President can extend the 60-day decision-making period by 30 days if he notifies
Congress of his intention to do so. Congress, however, can direct the President to remove
the troops by a concurrent resolution. This concurrent resolution is not subject to a
Presidential veto.
How Lincoln Wielded the Power of the Sword
Lincoln won the 1860 election with 39% of the popular vote and NO electoral votes in any future
confederate state besides Virginia. By the time of his inauguration on March 4, 1861, seven
states had seceded from the union. Lincoln was worried that the remaining 8 slave states would
do the same (BLBA 261). Shots were fired on Fort Sumter on April 12 (BLBA ??).
The Case for Secession (BLBA 261)

Speech to the Senate of Louisiana Senator Judah Benjamin.
 It is the right of the people to throw off a government that is “destructive of their
interests or their safety” – as recognized in the Declaration of Independence.
 A convention assembled in one generation can lawfully undo the act of a convention
assembled in a previous generation. This is what South Carolina did.
 The Articles of Confederation specifically said they’d be perpetual, yet when the
Constitution was ratified 9 states seceded from the Articles (and joined the Constitution)
on the grounds that some of the States had violated their compact under the Articles.
 Who is to judge if the Constitution has been violated? For some questions, that’s clearly
a matter for the Courts, but there are political questions over which the Court has no
authority that may also constitute a violation of the Constitution.
o What if the Northern states suddenly said, “The Northern states will each have 3
Senators” and, controlling the Senate, swore in these extra Senators. Clearly the
Constitution would have been violated, but no remedy is clearly provided by the
Constitution for the Southern states. Would they be unjustified in rebelling?
o What about when the terms that violate the Constitution don’t seem as plain to
everyone, but seem just as obvious to the Southern states? (Free Soil Act)
 The right to withdraw in such circumstances is not revolutionary but results from the
nature of the compact and was a power reserved to the states. (BLBA 261)
 The powers granted to the Federal government are such that they can be perverted and
abused to oppress the South to the benefit of the North. This abuse gives rise to the
right to revolution.
 We will not be subjugated! (BLBA ??)
The Prize Cases (SupCt., 1863) (BLBA 271)
Authorizes sweeping powers of the President during a time of war, even though not officially
declared by Congress.
BACKGROUND:
After the Confederacy fired on Fort Sumter on April 12, 1861, Lincoln called a special session of
Congress for July 4, but before the Congress met, he issued proclamations blockading
Confederate ports and authorizing the seizure of ships carrying goods to them. The ship owners
sued, arguing that this was beyond the President’s authority without a formal declaration of a
state of war by the Congress.
HOLDING (5-4 DECISION): The action was justified by the fact of war, even if not officially
declared.
REASONING:
 The Constitution doesn’t even provide for Congress declaring war against a State.
 The President is Commander-in-Chief, and by Act of Congress he is authorized to call out
the militia in case of invasion or to suppress insurrection.
 The President is bound to meet invasions and civil wars in the “shape it presented itself”
without waiting for Congress to “baptize it with a name.”
 It is up to the President to decide whether the threat rises to the level as to be like an
invasion.
 If legislative sanction is required, it exists in the acts passed in the special session of
June 1861, all aimed at prosecuting the war with “vigor and efficiency.” Congress also
passed a law blessing the actions taken by Lincoln in April.
Dissent (Nelson, Taney, Catron, Clifford):

 War, in the legal sense, can exist only by declaration of Congress.
 The Constitution and Acts of Congress enable the President to deal with immediate
invasions/insurrections by calling forth the militias of as many states as necessary. The
President can act as Commander-in-Chief of these armed forces to put down the threat
without a declaration of war.
 None of the Acts give the President the authority (nor could they) to seize property
(ships) without a declaration of war.
Suspension of Habeas Corpus (BLBA 276)
Art. I §9 – authorizes the suspension of habeas corpus “when in cases of rebellion or invasion
the public safety may require it.”
But who decides?
Ex Parte Merryman (1861)
BACKGROUND (BLBA 276):

 On April 27, 1861, Lincoln issued an order authorizing Commanding General Winfield
Scott to suspend the writ of habeas corpus.
 On May 25, military troops arrested John Merryman for participating in the destruction of
railroad bridges following an antiwar riot in Baltimore.
 Merryman’s lawyer filed a writ of habeas corpus before Chief Justice Taney. General
George Cadwalader refused to attend the hearing before Taney or produce Merryman.
HOLDING (TANEY): Only Congress can suspend the writ of habeas corpus.
REASONING:
 Privilege of the writ of habeas corpus can only be suspended by Congress, not the
President and certainly not by a general.
 Article I, Section 9 allows for the suspension of habeas corpus. Article I deals with the
legislative power wielded by Congress. Because of its location in the Constitution, its clear
that the Constitution vests the authority to suspend habeas corpus in the Congress, not in
the President.
 In England, only parliament can suspend the writ of habeas corpus.
 The Final Result: The Administration indicted Merryman for treason, but he was
released on bail and never tried.
 Amar’s Argument: Merryman was clamoring for Maryland to secede. If Maryland had
seceded, D.C. would have been surrounded and the Civil War would have been lost.
Lincoln, First Inaugural Address (March 4, 1861)
 By the time of his inauguration on March 4, 1861, seven states had seceded from the
union. Lincoln was worried that the remaining 8 slave states would do the same (BLBA 261).
 Lincoln announces that he has no intention to interfere with the institution of slavery in
the states where it already exists (1).
 The Union of States is perpetual (3).
o Even if the United States is a mere contract among states, all states must agree for
the contract to be unmade.
o The Union of States is much older than the Constitution. It was formed by the
Articles of Association in 1774 (3). Amar disagrees—he thinks that the perpetual
union was established when “we the people” ratified the Constitution in conventions.
o One state cannot simply opt out of the Union. That would be to allow the part a
veto over the decisions of the whole. It’s not democratic when the losers in a given
election can simply opt out of the system. They are bound by the rules of the game
to stay in the country and try their luck in the next election. A country cannot stand
if states can opt out whenever they please (5).
o Argument from national security point of view: The Confederacy and the Union can’t
split like a husband and wife and go their separate ways. They’ll always share a
border and likely will be hostile to each other (6).
 If the people don’t like my administration, they can kick me out of office in four years.
Don’t rebel; just wait for the next election (7).
Lincoln, Special Session Message (July 4, 1861)
 Lincoln’s speech to the special session of Congress convened on July 4, 1861. Fort
Sumter had been attacked on April 12, 1861.
 The part should not be able to destroy the whole. It’s undemocratic to allow a minority
whose rights have not been violated to destroy the unity of the nation simply because it lost
an election. Secession inevitably ends in anarchy (4).
 In response to Taney on habeas corpus: “[A]re all the laws, but one, to go
unexecuted, and the government itself go to pieces, lest that one be violated?” Is it okay to
violate one law to ensure that the rest of the laws don’t go to pieces? (6)
o But it wasn’t unconstitutional for the President to suspend the writ of habeas corpus.
The Constitution says that the writ shall not be suspended except in cases of
rebellion or invasion when the public safety may require it. The President was
confronted with a rebellion. The public safety required suspension of the writ. The
Constitution is silent as to whom may suspend the writ. The provision was written
for cases of emergency. Emergencies may make it vital that the President can
suspend the writ when Congress itself cannot act. Our forefathers surely did not
wish to deprive the President of a power necessary to save the nation in a crisis.
Congress can then ratify the suspension when it later convenes (6-7)
 Again, Lincoln argues that the “Union is older than any of the States” (9). Amar
disagrees.
 “Whatever concerns the whole, should be confided to the whole—to the general
government; while, whatever concerns only the State, should be left exclusively to the State”
(9).
 The Constitution gives the United States the duty of guaranteeing to every State a
republican form of government. The only way to guarantee that is to stave off the
disintegration of the Union (12).
 In addition to asking Congress to vest him with the necessary war powers, Lincoln also
asks Congress to ratify the steps he has already taken.
The Emancipation Proclamation (January 1, 1863)
 In his first inaugural address Lincoln took a moderate stance toward slavery. He says he
doesn’t intend to interfere with slavery where it exists but he vigorously opposed its
extension into the territories.
 Only applies to States and districts that are rebelling against the U.S. government.
 Sets slaves in rebelling States and parts of States free.
 Lincoln claims to be acting under his power as Commander-in-Chief. The proclamation
states that emancipation is “a fit and necessary war measure for suppressing” the rebellion.
 Lincoln invites the freed slaves to fight as soldiers with the Union.
 The act is “believed to be an act of justice,” is “warranted by the Constitution,” and is
militarily necessary.
Argument Against the Proclamation (BLBA 280)

 This executive decree proposes to repeal State laws. The President can neither make
nor repeal laws.
 The decree is being used as punishment against LOYAL Southern slave-owners because
a majority in their State are in rebellion. (Slaves of people guilty of treason were already
freed by an Act of Congress.)
 It can’t be defended on the theory that “rebels have no rights” because if the Union
position is held to be true, then the acts of secession were void and the Constitution applies
just as much now as it ever did in those states.
 It is essential to the fundamental principles of our Constitution that even in difficult
times, the Constitutional actors comport with their delegated and express duties and powers
and not usurp power from other branches.
 If slaves were “property,” wasn’t this taking property without just compensation, in
violation of the 5th Amendment?
o One answer: Other than the obvious justice of the act, Lincoln’s Emancipation
Proclamation was “ratified” in 1865 by the 13th Amendment, which banned slavery.
o Another answer: Military necessity called for depriving the South of this needed
economic resource.
Amar’s Thoughts on Lincoln’s Actions and the Constitutionality of Secession
LINCOLN’S SUSPENSION OF HABEAS CORPUS; ELECTIONS

 The best argument for the legislature being the one to decide is that the clause is in Art.
I
 Response to that is that it’s in Art. I because ultimately the legislature had to approve the
suspension of habeas corpus at the first moment it assembled. (Lincoln believed this).
 Amar thinks Lincoln is justified because unlike most other American wars, this is one
where the existence of our country was seriously in jeopardy. That’s harder to argue for
foreign wars, wars that did not directly threaten American soil.
 It’s AMAZING that Lincoln holds an election in 1864. He thinks he’s going to lose.
He thinks that his opponent will hand everything the Union won in the war back to the South.
But he holds the election anyway. He lets soldiers in the field who he thinks will vote against
him vote. He distinguishes between people criticizing him and treason. He exercises
amazing restraint.
 And this is why we’re better than England. They didn’t hold elections from 1939 –
1945 during WWII. A whole generation that was dying in the war hadn’t gotten a chance to
vote on it. We held elections then, because of LINCOLN.
AMAR ON SECESSION—Amar Article – “Abraham Lincoln and the American Union”

Amar’s take on Lincoln’s views on/arguments against secession
 Job of the executive is not to fix the terms for the separation of the states (which the
People may do if they so choose) but to administer the present government and transmit it
to his successor.
 Lincoln counters the compact theorists by saying that a compact may only be
rescinded by agreement of all the parties, but does he really believe the Union could only be
dissolved by ALL the states, what if only 1 wanted to keep it?
 Lincoln, in reality, believed in majority rule and thought that if a minority could secede
because the majority wouldn’t do what it wanted, then that would just lead to anarchy. If
South Carolina could secede on those grounds, then why couldn’t Charleston then secede
from South Carolina, or one neighborhood from Charleston?
o The response of secessionists was that Lincoln was right to emphasize majority rule,
but wrong to emphasize a national majority rather than a state majority. Within a
well-ordered democratic polity, the majority did properly bind the minority; thus the
minority of South Carolinians who preferred the Union were properly bound by the
majority that preferred secession. Charleston had no lawful right to unilaterally
secede from South Carolina, because the state was the proper juridical entity over
which to tally votes.
o Counter-response is that the supremacy clause privileges the Union over the States.
 Lincoln saw the issue of secession as whether the secessionists, who had lost at the
ballot box, would win by force, or whether a democratically elected government could
preserve itself in the face of a minority’s insurrection.
o “. . It is now for [our people] to demonstrate to the world, that those who can fairly
carry an election, can also suppress a rebellion--that ballots are the rightful, and
peaceful, successors of bullets; and that when ballots have fairly, and
constitutionally, decided, there can be no successful appeal, back to bullets; that
there can be no successful appeal, except to ballots themselves, at succeeding
elections. Such will be a great lesson of peace; teaching men that what they cannot
take by an election, neither can they take it by a war.”
 The proper constitutional response of the federal government should depend on how the
confederates came to power. If they won control by toppling duly elected state governments
by force, the federal government would be obliged to resist and if possible undo this
antidemocratic coup d'etat—based on the Article IV, section 4 Republican Government

clause.
o Constitutional routes to secession might include a Constitutional Amendment that
provides for the breaking up of the states into two or more countries, with provisions
for how to split the existing national debt or allowing the North access to the
Mississippi river. Also, a non-binding, national referendum to determine the will of
the “people” before such an Amendment.
 If the American people truly wanted secession, they would be free to vote for an openly
secessionist President in 1864. (Thus very important that Lincoln held elections in 1864)
 Constitution is not silent on issue of secession. “More perfect Union” references
the union between Scotland and England which was clearly understood not to be unilaterally
revocable by Scotland (10). In addition, Federalists did not use the argument that secession
was possible in order to help get the Constitution ratified. At the time of the Founding, no
one thought secession was ok.
 Lincoln also shares Amar’s view of the geo-strategic importance of Union. “Physically
speaking, we cannot separate. We cannot remove our respective sections from each other,
nor build an impassable wall between them.” (13-14)
 Race - Lincoln's early vision was of an ultimate Union that would largely be of, by, and
for whites; But the experience of the Civil War itself, and the bravery exhibited by black
soldiers, helped persuade Lincoln to embrace a more inclusive conception of Union, bringing
together not merely different regions but also different races. (15)
· A Democratic Union
o Lincoln’s arguments that the president could not allow dissolution of the Union:
 “perpetuity is implied, if not expressed, in the fundamental law of all
national governments,” though Lincoln admits The People can choose
to break the Union
 Lincoln’s response to the “compact theory” (that states entered Union by
contract and were thus free to leave at will):
· “unanimous state consent” theory – if Union is a contract,
then all parties must rescind; parties cannot rescind unilaterally
 Allowing every minority to have a freedom to leave union would create
anarchy and precedent for continued splintering; democracy requires
majority rule
 Fed. gov’t had duty to provide states with Republican form of gov’t (Art.
IV, sec. 4 Guarantee Clause), and Confederacy created by force of
arms doesn’t qualify
o Amar speculates that Lincoln might have found an Article V amendment, act
of Congress, or a national referendum sufficient for breaking the Union (as
expressions of majority will)
o Lincoln accepted that People could elect a secessionist president in 1864
(another expression of majority will)
o Amar asks why South didn’t just wait until 1864 to vote out Lincoln
 Answer: Lincoln could use post offices to establish the Republican party
in the South and to distribute abolitionist literature
· A Constitutional Union
o Jefferson Davis also argued for majority will, but will of people of states, not
entire Union (e.g., a majority desiring secession in S.C. could bind those in state
not wanting to secede)
o Lincoln’s response: the Constitution privileged Union over any state acting
unilaterally
 claims no state was ever a state outside of the Union: founding states
moved directly from British colonies to members of Union; others were
conquered or purchased
 Amar: this makes sense coming from Lincoln as an Illinois guy – Illinois
was part of original Northwest Territory and never had independent
existence, unlike Virginia, Texas
o Robert E. Lee and others: states had own legal regimes before founding, own
laws, own constitutions; they were thus sovereign before entering Union;
expressly sovereign in Articles of Confederation; had choice to join Union or not
(Art. VII)
o Amar believes latter theory is more accurate than Lincoln’s; however, states
gave up sovereignty when they entered Union
 Art. V does not allow states to change Constitution unilaterally
 length & seriousness of state debates before ratification indicate
awareness that secession was impermissible
 “perfect union” of preamble, emphasized by Lincoln, echoes Act of Union
between Scotland and England, understood to be irreversible
 Federalists 5, 11, writings/speeches of Madison & James Wilson all
indicate indivisible union intended
 no evidence of Federalist/Anti-Federalist debate claiming state could
withdraw at will
· A Geographic Union
o Lincoln aware of military/geographic considerations
 as pointed out in early Federalist essays, union would protect states from
each other
 states must continue to interact; interaction will be more fruitful as
members of union than as separate states/nations
 afraid of hostile nations on same continent, trade wars, arms build-ups
 regions are interdependent: e.g., interior provides food but has no
shipping
 as a Midwesterner, Lincoln is concerned for lack of defensible borders
 all Americans had stake in all American territory
· A Multiracial Union
o Lincoln advocated freeing slaves and selling land to compensate slave owners
and provide land outside Union for free slaves (2nd Annual Message to Congress)
– a tithe to be paid for the sin of slavery
o after Emancipation Proclamation and contribution of black soldiers in Civil War,
Lincoln changed view to multiracial nation and advocated black voting rights
shortly before his death
o Amar suggests early views reflected bigotry of place (again Illinois), but Lincoln
was flexible
Presidential Privileges and Immunities (BLBA 881-885)
· While Art. I § 6 gives legislators immunity from lawsuit based on their “speech or
debate,” Constitution is silent on matter of presidential immunity.
· Immunities have been derived from structural considerations.
· Though Vice-Pres. is not mentioned in speech or debate clause, it would be anomalous
to not give immunity to Vice-Pres. as presiding officer in Senate or to allow Pres. to be sued
for statements in State of the Union address
· Spalding v. Vilas (1896) held judges also privileged against lawsuits for statements in
court
· Nixon v. Fitzgerald (1982) held ex-pres. Nixon could not be sued for allegedly violating
plaintiff’s 1st Amend. rights while in office
o criticism: wouldn’t chilling such behavior be good, and shouldn’t deprivation of a
constitutional right have a remedy?
· Clinton v. Jones (1997) held acting pres. Clinton could be sued for violating plaintiff’s
civil rights while governor of Arkansas.
o weaker than Nixon case in that Clinton act was private (sexual harassment) while
Nixon’s was in office as pres.
o stronger than Nixon case in that Clinton only wished to defer trial so as not to
interfere with work of presidency (similar to “in session” immunity for legislators in
Art. I § 6)
· In both Nixon and Clinton cases, Supreme Ct. indicated Congress could deviate from
rulings w/ legislation
· Open question: can sitting pres. be prosecuted criminally outside impeachment ct.?
o Amar testified before Congress that sitting pres. is immune from criminal trial other
than impeachment
 based on structural argument (separation of powers/federalism)
 entire executive power of government is vested in president
 if South Carolina could have indicted Lincoln, Union might not have survived
– a part cannot undo the whole
 same is true of federal courts – federal grand or petit juries are selected
locally, but pres. must be judged by body representing whole (Congress)
 efforts to indict by independent counsel violate Art. II Appointments Clause
(§ 2 P. 2) because an officer who may indict the pres. is not “inferior.”
Should have been appointed by Pres. and confirmed by Senate.
 President can be indicted when no longer in office and may waive immunity
while in office.
Presidential Selection and Succession
Bush v. Gore, 121 S.Ct. 525 (2000)
Supremes take on a huge political question with a self-dealing 5-4 decision. Majority upends
traditional deference to states in holding their own elections, claiming violation of equal
protection and lack of time to fix problem, despite Congressional authority to decide on disputed
slates of electors.
BACKGROUND:
 Nov. 8, 2000, FL. Div. of Elections reported counting of votes: Bush 2,909,135; Gore
2,907,351.
 Automatic machine recount for small margin of victory under FL. statute showed victory
for Bush. Gore requested manual recount in specified counties pursuant to FL. statute.
Dispute arose concerning deadline for local boards to submit results to Sec. of State, who
declined to waive Nov. 14 deadline. Fl. Supreme Ct. set deadline to Nov. 26. U.S. Supreme
Court vacated in Bush v. Palm Beach County Canvassing Bd. finding uncertain grounds for
the extension of the deadline. Fl. Supreme Ct. reinstated date.
 On Nov. 26, Fl. Elections Canvassing Commission certified election results & declared
Bush winner.
 Gore filed complaint contesting certification of state election results in FL. pursuant to
state statute, claiming a number of illegal votes or rejection of legal votes sufficient to place
in doubt the result of the election.
 On December 8, the Florida Supreme Court decided:
1) A “legal vote” is “one in which there is a clear indication of the intent of the voter.”
(2)
2) The contest provisions vest broad discretion in the circuit judge to “provide any relief
appropriate under [the] circumstances.” (2)
3) The Circuit Court of Leon County was ordered to tabulate by hand 9,000 ballots in
Miami-Dade County. (1)
4) The Florida Supreme Court also ordered the inclusion in the certified vote totals of
215 vote identified in Palm Beach County and 168 votes identified in Miami-Dade
County for Gore (1).
5) The Florida Supreme Court further held that relief would require recounts in all
Florida counties where so-called “undervotes” had not been subject to manual
tabulation. The Florida Supreme Court thus ordered that a state-wide
recount begin at once.
 Bush filed for a stay of this mandate. The Court treated the application as a writ of
certiorari and granted cert. The Court also ordered a stay of all manual recounts until
the Court could issue its opinion.
 Safe harbor provision: If the selection process for presidential electors is completed
six days prior to the meeting of the electoral college, Congress shall take the State’s selection
of electors to be conclusive (8).
 Disparate voting mechanisms: Ballots of voters in counties using the punch-card
systems were more likely to be disqualified than those in counties using the optical-scan
systems. “Thus, in a system that allows counties to use different types of voting systems,
voters already arrive at the polls with an unequal chance that their votes will be counted.”
(24)
HOLDING:
The Florida Supreme Court violated the Equal Protection Clause by ordering a “standardless”
recount. Since there is no time left to conduct a recount and allow Florida to take advantage of
the “safe-harbor” provision, the recount cannot go forward. Basically, Bush wins.
REASONING (PER CURIAM OPINION):

 Article II, Sect. 1.2: Americans don’t have an absolute right to vote in presidential
elections. Electors are to be appointed “in such Manner as the Legislature” of the state “may
direct.”
 Once the state legislature decides to allow state citizens to vote for their electors, the
voting procedure must ensure that all people are provided the “equal protection of the laws.”
The state may not arbitrarily value one person’s vote more than another.
 “The recount mechanisms implemented in response to the decisions of the Florida
Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters
necessary to secure” the equal protection of the laws (4).
o The criterion for a legally cast vote is the “intent of the voter.” The problem is that
this criterion is not further clarified by specific standards to ensure its equal
application.
o The search for intent can be confined by specific rules designed to ensure uniform
treatment. The Florida Supreme Court would have to come up with such uniform
rules to determine the voter’s intent for the recount to pass constitutional muster.
o The lack of uniform rules has led to different standards in different counties, and
sometimes even different standards within the same precinct. One ballot might be
counted in one precinct while the same ballot would be discarded in another.
o This doesn’t satisfy the requirements of the Equal Protection Clause. Two people
who voted in the exact same way might have their votes treated differently.
 The manual recount is also only of undervotes, not “overvotes.” A person who didn’t
follow directions and thus cast an “undervote” might get her vote counted, but not a person
who made a mistake and thus cast an “overvote.” (5)
 This decision basically has no value as precedent: “The recount process, in its
features here described, is inconsistent with the minimum procedures necessary to protect
the fundamental right of each voter in the special instance of a statewide recount under the
authority of a single state judicial officer. Our consideration is limited to the present
circumstances…” (5)
 The Court is not saying that different counties can’t have different standards and
procedures for voting in the original election. Instead, the Court is saying that the Equal
Protect Clause prohibits a court from ordering a standardless state-wide recount when
uniform standards for how the recount should be conducted could be set (5-6).
 The Florida Supreme Court has said that the Florida legislature had intended for Florida
to have its slate of electors set by December 12, the “safe-harbor” deadline. The Supreme
Court issued its opinion on December 12. Thus there’s no time to conduct a state-wide
manual recount with the necessary procedural safeguards (6). Therefore, the Supreme Court
reverses the Supreme Court of Florida’s order for a manual recount to proceed.
 Seven justices (Scalia, Thomas, Rhenquist, Kennedy, O’Connor, Souter, and Breyer)
agree that there are constitutional problems with the recount ordered by the Florida Supreme
Court that demand a remedy (Ginsburg and Stevens are the dissenting justices).
RHENQUIST’S CONCURRENCE, JOINED BY SCALIA AND THOMAS

 Most of the time, the Supreme Court defers to the judgment of State Courts on issues of
State law.
 But this is a special case. Article II, Section 1.2 provides that the State legislature shall
determine the manner of appointing a State’s presidential electors. “A significant departure
from the legislative scheme for appointing presidential electors presents a federal
constitutional question.” (8)
 The precedents cited by the concurrence for the Supreme Court overruling a state court’s
interpretation of state law both stem from the civil rights movement. Basically, the state
courts in these cases were distorting state law to harass African Americans. That seems very
different from the current case.
 These three justices would “[h]old that the Florida Supreme Court’s interpretation of the
Florida election laws impermissibly distorted them beyond what a faired reading required, in
violation of Article II.”
o The Florida Supreme Court’s interpretation of “legal vote” plainly departed from the
legislative scheme. “Florida statutory law cannot reasonably be thought to require
the counting of improperly marked ballots.” (10)
o In fact, “[t]he Secretary of State, who is authorized by law to issue binding
interpretations of the election code… rejected [the FL court’s] peculiar reading of the
statutes.” (11) The Secretary of State’s standard should have been binding on the
FL court.
o My Response: Why should the Court listen to Katherine Harris’ interpretation of the
state election law in a contested election? The State canvassing board or election
board is, after all, the DEFENDANT in the election contest (10). Gore is asserting
that the State of Florida HAS DONE SOMETHING WRONG. Why should the Court
take the word of a representative of the executive branch of the State of Florida that
“legal vote” means one thing rather than another. The contest provision places great
discretion in the circuit judge to “investigate” the complaint and “to provide any relief
appropriate” to “correct any alleged wrong” (10). The FL Court wasn’t impermissibly
distorting the legislative electoral scheme. The legislature vested the judiciary with a
great deal of authority to handle election contests, and the courts were merely
exercising this discretion!
 One problem with the concurrence: The more the concurrence stresses a state’s right to
oversee its own process for appointing electors under Art. II, the less salience the Per Curiam
opinion’s Equal Protection Argument has. If the legislature can appoint electors in any
manner it chooses, why should the Court be worried at all if state procedures violate the
Equal Protection Clause? Is this case like Youngstown in that justices sign on to an opinion
with whose reasoning they do not agree in order to show a united front on a politically
sensitive issue?
STEVENS’ DISSENT (W/ GINSBURG & BREYER)

 State legislature is responsible for deciding the manner in which electors shall be
appointed. The state court is responsible for interpreting state law. The Supreme Court may
be required to intervene in a state election process when a federal issue is raised. This isn’t
such a case.
 The Florida Supreme Court wasn’t unconstitutionally distorting the legislative scheme for
appointing electors. It was merely interpreting state law.
 Florida Supreme Court did not violate the Equal Protection Clause in failing to set uniform
standards for what would count as a legal vote in the manual recount.
o The “intent of the voter” standard is no more vague than the “beyond a reasonable
doubt standard in criminal cases.
o If we follow the majority’s logic, then Florida’s decision to allow different counties to
used different voting machines and procedures on Election Day certainly violated the
Equal Protection Clause.
 Even if the manual recount as ordered by the Florida Supreme Court violated the Equal
Protection Clause, the case should have been remanded the Florida Court instructed to set a
more precise standard for the recount.
 The “safe harbor” provision is not a federal deadline for states. A state may choose to
take advantage of the safe harbor provision or not.
SOUTER’S DISSENT (W/ BREYER; STEVENS & GINSBURG TO ALL BUT PART C)
 Court should not have heard this case nor ordered a stay of the recounting prior to the
issuing of the Court’s decision.
 Question 1: Whether the State Supreme Court’s interpretation of the statute providing
for a contest of the state election somehow violates the “safe harbor” provision?
o “Safe harbor” date is not a deadline for states to have electors set.
 Question 2: Whether the Florida Court’s construction of the state statutory provisions
governing contests impermissibly changes a state law from what the State’s legislature has
provided, in violation of Article II, Section 1.2?
o The Florida Court’s interpretation of State electoral law was within reason. The Court
was not effectively disregarding State law and legislating itself. (16)
 Question 3: Whether the recount violates the equal protection or due process
guaranteed by the 14th Amendment?
o Yes, the Florida Court should have provided a clearer standard for the recount than
“a clear indication of voter intent.” Should remand with order to set clear, uniform
standards.
GINSBURG’S DISSENT (STEVENS JOINS; SOUTER AND BREYER TO PART I)

 The Court generally shows great deference to a state court’s interpretation of state law.
 Rhenquist’s opinion cites three cases where the Supreme Court has overturned a state
court’s interpretation of state law. But Rhenquist does not discuss the historical context of
those cases. Two of the cases, for example, arose from the civil rights movement. In those
cases, the state judiciary was distorting state law to harass African-Americans fighting for
their civil rights (20).
 “By holding that Article II requires our revision of a state court’s construction of state
laws in order to protect one organ of the State from another, [Rhenquist] contradicts the
basic principle that a State may organize itself as it sees fit” (i.e., with the Florida Court
acting as the ultimate interpreter of legislative acts) (21).
 Ginsburg agrees with Stevens that Bush has not presented a substantial equal
protection claim. (21)
 Even if there was a colorable equal protection claim, the recount should be allowed to go
forward (this position is held by Justices Stevens, Ginsburg, Souter, and Breyer). (21)
 The real deadline that pertains to presidential elections is January 6, when Congress
meets to determine the validity of electoral votes (22).
BREYER’S DISSENT (STEVENS & GINSBURG TO 1-A-1; SOUTER TO 1)

 The Court was wrong to take the case, wrong to grant a stay, and now should vacate the
stay and permit the Florida Court to decide whether to go ahead with a recount.
 The majority raises three Equal Protection problems with the Florida Court’s recount
order:
1) The failure to include overvotes in the manual recount
2) The fact that all ballots, rather than simply the undervotes, were recounted in some,
but not all, counties
3) The absence of a uniform, specific standard to guide the recounts
 Breyer agrees only with the third concern. The Florida Court probably should have set
specific criteria for determining when there was a “clear indication of voter intent.” (23)
 The proper remedy to the equal protection concerns would have been to remand the
case and allow the Florida Court to set a single, uniform substandard for determining when
there was a clear indication of voter intent. In other words, let the Florida Court decide
whether it’s more important to gain “safe harbor” or to count every legal vote possible.
 Reasonable people might disagree as to the Florida Court’s interpretation of State law,
but it certainly wasn’t an impermissible distortion.
 After States have tried to resolve disputes about presidential elections, Congress is the
body primarily authorized to resolve remaining disputes (Electoral Count Act). Amendment
12 also says that Congress, in joint session, is responsible for counting electoral votes. It’s
thus the appropriate body to resolve disputes concerning which slate of electors from a single
state is legitimate. (“The power to judge of the legality of the votes is a necessary
consequence of the power to count.”) After all, when there’s a tie in a presidential election,
the matter goes to the House. (27)
o Congress reflects the people’s will far more accurately than an unelected court.
Congress, not the Court, should resolve disputes that the states themselves cannot
solve in a presidential election (28).
o Embroiling the Court in such a sensitive political issue undermines respect for the
judicial process (28).
o Large concern for how this decision, which split along partisan lines, will undermine
respect for the Court (29).
Class Notes:
 This is a political question that the court shouldn’t even address:
o May be a state law question which should be left to state Supreme Ct.
o Congress has ultimate job of judging which electors to recognize when there is a
dispute.
 Judges aren’t elected. Legislators are. If there’s a dispute, the legislators
are better equipped to resolve that dispute. Getting the judiciary involved
just undermines the people’s respect for the judicial process (example of
Tilden-Hayes election in 1876- P. 28)
o Justices shouldn’t pick president b/c pres. picks justices – conflict of interest,
separation of powers problem – see BLBA 733-735
 Presidential appointment of new justices is one of main checks on Supreme
Ct. (along with constitutional amendment)
o This does fit larger pattern of Supremes taking decision-making power for selves
(Nixon tapes case, VAWA case, for example)
 Catch-22: If the Florida Supreme Court had issued specific sub-standards for
determining voter intent, the Court might have found that it was impermissibly taking power
from the Florida legislature. But in not issuing such standards, the Court found that it
violated the 14th Amendment. Basically, any recount the FL Court ordered was going to be
struck down by the Supreme Court. No matter what, Bush wins.
 Breyer joins Souter and Stevens, even though they are in direct contradiction regarding
equal protection question – this is just embarrassing
 If majority really believes in equal protection, why does it allow different kinds of
machines in different areas that register large differences in undercounting?
 Interpreting ballots has always required a number of individual “umpires” (is x close
enough to the box? – everyone will interpret intent slightly differently), and there has always
been a wide variety of systems, but this has never been seen as an equal protection problem
before
Kennedy and O’Connor wrote the opinion, which Rehnquist, Scalia, and Thomas joined
Kennedy O’Connor Rehnquist Scalia Thomas Stevens Souter Ginsburg Breyer
Equal Y Y Y Y Y N probably N Yes and

protection no
violated?
Can S. Ct. Y Y Y Y Y N N N N
overturn
state court’s
ruling?
Should the N N N N N Y Y Y Y
recount be
allowed to
continue?
Federalism
 Federalists called themselves Federalists to avoid being labeled Nationalists. They could
not get rid of state governments b/c states were too well-established. The Virginia House of
Burgesses, e.g., had been around since 1620. Until 1774 all political expression had been
through the states and they were not going to disappear. The states were legally as distinct
as Ireland and India. People were attached to them and had just fought a war over
oppressive consolidated gov’t.; they wouldn’t buy continentalism w/o significant power in the
states.
 Vertical Federalism diffused gov’t power between fed. and states and allowed gov’ts to
check each other (e.g. local militias balanced national armies; local juries balanced national
judges; state representatives balanced more national senators and executive; states were
required to amend Constitution; states could resist national repression as in Virginia and
Kentucky Resolutions).
 Horizontal Federalism is concerned with the relationship between states and how the
fed. gov’t affects these relationships, as with the Commerce Clause.
 The big sources of federalism questions: commerce clause, taxing and spending
power, structure of constitution, reconstruction amendments, 10 th Amendment
INTERSTATE COMMERCE CLAUSE

 Art. I § 8 P. 3: Congress shall have Power “To regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes”
 Main thrust of interstate commerce clause, says Amar, is not commerce per se but a
concern with spillover and resulting race to the bottom.
 Race to the bottom argument (BLBA 470): Let’s say that most states want to
implement minimum wage and maximum hour rules. If there are a few rogue states that
don’t, then companies producing goods in those states will be able to sell their goods for
lower prices than companies in states with the stricter labor rules. The companies in the
rogue states will thus be more competitive. States with the stricter labor rules can’t place
“taxes or duties” on goods produced in the rogue states under Art. 1, Sect. 9, Par. 5.
Without congressional intervention, we have a race to the bottom to attract companies
through loose state labor laws and a free-rider problem faced by any state that wishes to
implement stricter labor laws.
 In the past century, Congressional power has expanded under the Commerce Clause to
have little, if any, limit, to the detriment of states’ power. This is largely b/c the fed. gov’t
does much more and there is much more interstate activity. In early America, the Congress
didn’t meet for long and didn’t do much but collect customs and settle the West. Expansion
of federal universe is partly explained by technological advances. In early America, there
actually was little interaction between states and therefore minimal spillover effect. What
may have been an unconstitutional infringement of federalism then may not be now as
transportation and communication developments have made every aspect of life interstate.
The Civil War also showed the fed. gov’t and not the states to be the guarantor of civil
rights and the Reconstruction Amendments severely limited the power of states over their
own citizens (human rights were a new role for fed). War and other national crises tend to
consolidate power in the fed. gov’t and the executive. The 16th and 17th Amendments
allowing fed. income tax (for revenue and income redistribution during progressive era–
which can’t be done at state level due to race to bottom) and popular election of senators
also shifted balance of power between fed. and states.
NLRB v. Jones & Laughlin Steel Corp (1937), BLBA p. 464
The switch in time that saved nine. Marked abrupt end of Lochner substantive due process era
and start of vast expansion of federal power under the Commerce Clause.
BACKGROUND: The National Labor Relations Act of 1935 (NLRA) prohibited employers from
engaging in unfair labor practices affecting commerce. Defined commerce to include the
trade/transportation/communication of commerce between states, or the “flow of commerce.”
These restrictions included prohibitions on activities that might lead to labor disputes, which
themselves would affect the flow of commerce.
FACTS: Defendant corporation was alleged to have interfered with the rights of employees to
organize and bargain.
HOLDING: NLRA upheld.
REASONING: Defendant was a multi-state company, with properties and facilities in several states,
and sent 75% of its product out of state. Congress can legislate an intrastate activity if that
activity has a close and substantial relation to interstate commerce and the legislation is
essential or appropriate to protect commerce from burden or obstruction. However, the
Court was careful to note that this was not license to regulate all activity and that certain
activities affected commerce too remotely to be regulated. There was a line to be drawn (a
foreshadowing of Lopez).
NLRB v. Friedman-Harry Marks, 301 U.S. 58 (1937), BLBA p. 465
Court said the defendant employer could not interfere with rights of employees to strike
because this would be an unfair labor practice affecting commerce, and thus a violation of NLRA.
The Court justified its decision by noting that the company was an interstate firm whose
manufacturing materials came from other states and whose goods were primarily sold in other
states. To prohibit striking would affect interstate commerce. Dissent said the effect would be
indirect and remote.
United States v. Darby (1941), BLBA, pp. 465-468
Congressional motives not a factor in Commerce Clause. Congress can even regulate intrastate
activity to address spillover problems if means are reasonable.
FACTS: Darby, lumber manufacturer, challenged minimum wage and maximum working hours for
employees engaged in the production of goods related to interstate commerce per Fair Labor
Standards Act of 1938. Act prescribed minimum wage and maximum hours for employees
engaged in production of goods related to interstate commerce. Also prohibited the shipment of
goods prepared by employees whose wages and hours violated the act and prohibited companies
from employing workers who produced interstate commerce products at other than proscribed
rates and hours.
HOLDING (Stone): Congress can regulate the shipment of goods in interstate commerce
regardless of motive and Congress can regulate intrastate activities connected to
interstate commerce that create spillover problems as long as the regulation is a reasonable
means of advancing general welfare.
REASONING: Congress may regulate activities incidental to interstate commerce b/c

commerce clause gives plenary power, regardless of fed. motivation or overlap w/incidents of
state police power.
· Darby overruled Hammer v. Dagenhart, which said Congress could not regulate
interstate sale of products based upon the fact that they arose from child labor -- could only
regulate articles if the articles themselves were inherently noxious.
Wickard v. Filburn (1942), unanimous, BLBA p. 468
 Holding: Congress can prohibit action that is intrastate if it substantially affects

commerce. This can include acts that may seem trivial when examined at an individual level,
but whose aggregate or cumulative effect on interstate commerce would be significant.
 Facts: Agricultural Adjustment Act of 1938 set caps on wheat production per farmer. A
farmer grew wheat in excess of the cap but only used it for his own consumption. When
looked at individually, the fact that the individual farmer exceeded cap and consumed it
himself did not substantially affect interstate commerce. But if a great number of farmers
did so, this would substantially decrease demand for wheat and thus affect interstate
commerce.
Civil Rights Act of 1964 (BLBA 471)
Title II of the Civil Rights Act of 1964 relied mainly on the Commerce Clause, the idea being that
discrimination and segregation in areas of public accommodation (hotels, restaurants, etc.)
affected interstate commerce.
 Amar: Civil Rights Act should have been justified with 13 th and 14th Amendments
o the 14th Amend. §5 states the Congress shall enforce the amendment with
appropriate legislation, can be used to protect “badges of citizenship” as alluded to in
§1
o tricky part is that 14th Amendment on face applies to states, not individual actors
o privileges and immunities protection of reconstruction amendments emasculated by
Slaughterhouse
o for other objections to use of commerce clause in Civil Rights Act, see BLBA 471-2
Heart of Atlanta Motel v. U.S. (1964), BLBA p. 472
· Challenged Title II. Since motel was readily accessible to highways, 75% of clientele
came from out of state, and it advertised on national media, if it discriminated it would affect
interstate commerce by forcing blacks to find alternate places for rest or by discouraging
them from traveling at all. Discrimination would decrease travel and commerce. Thus,
Congress had power to regulate.
Katzenbach v. McClung (1964), BLBA p. 473
· Diner got food from interstate sources. If it discriminated it had less business, ordered
less interstate goods, and thus affected commerce. Thus, Congress has rational basis to
regulate. Court noted that though individually the restaurant may not substantially affect
commerce, the cumulative effect (see Wickard) of all restaurants on commerce would.
· Justice Douglas claimed that it would have been better to justify Title II on 14 th, §5 --
this would bypass question of whether a business is within commerce definitions or not.
Daniel v. Paul (1969), BLBA p. 475

Congress could prohibit discrimination in an Arkansas amusement park because it had a covered
snack bar that sells interstate goods and that interstate travelers bought food from it. Black
dissents and says this is a stretch of the commerce idea. Would have preferred 14 th, §5.
Perez v. U.S. (1971), BLBA p. 475

Congress can restrict credit extortion activities even if intrastate because of the spillover effect of
organized crime between states. Such activity is a “federal problem.”
 National problem v. federal problem, BLBA p. 476.
o Congress should identify more than just a national problem when regulating. A
“national problem” is one that occurs in each state around the country, the effects of
which are felt solely within each state. Congress should have to justify use of
commerce clause with a “federal problem,” where a spillover problem between the
states exists. In Perez, loan sharking is arguably a federal problem because
organized crime has important interstate dimensions that make it hard for states
individually to use their police power to clamp down on mob activities.
United States v. Lopez (1995), BLBA pp. 512-530
Rhenquist Court issues first significant break in pattern of expansion of commerce power since
1937.
FACTS: The 1990 federal Gun-free School Zones Act made it a federal offense for a student to
carry a gun onto campus. Lopez was charged and convicted under the act. On appeal, he
contended that the Act was beyond Congress’ powers under the Commerce Clause.
HOLDING: Congress did not have the power under the interstate commerce clause to pass the
Gun-free School Zones Act.
REASONING (RHENQUIST’S MAJORITY OPINION)

· Three broad categories that Congress may regulate under its commerce power (BLBA
513):
1) Congress may regulate the use of the channels of interstate commerce.
2) Congress is empowered to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat may
come only from intrastate activity.
3) Congress may regulate those activities having “a substantial relation to interstate
commerce, i.e., those activities that substantially affect interstate commerce.”
· “Where economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained.” (BLBA 513) But possession of a gun in a school
zone is not economic activity: “The possession of a gun in a local school zone is in no
sense an economic activity that might, through repetition elsewhere, substantially affect any
sort of interstate commerce.” (BLBA 515)
· With enough inferences and assumptions, anything can affect interstate commerce, but
for limited fed. gov’t. to have meaning, there must be a cutoff.
CONCURRENCE (Kennedy)
· Though we should not be bound by an 18th century worldview, Federalism requires court
to preserve powers reserved to states; education is such a state power.
· Federalism preserves liberty; state govt. check on Federal Govt. (BLBA 517)
· States as “laboratories for experimentation (BLBA 518)
CONCURRENCE (Thomas)
• Interpretation of Commerce Clause has drifted too far from original narrow meaning.
• The framers of the Constitution used the term “commerce” to mean “trade;” it doesn’t
refer to productive activities such as agriculture or manufacturing (BLBA 519).
• Port Preference Clause (Art. 1, Sect. 9, Par. 6) suggests that the term “commerce”
denoted sale and/or transport rather than business generally. (BLBA 520)
• If congress can regulate anything that substantially affects commerce, no need for
Constitution to specify congressional authority to regulate bankruptcy, coin money, or fix
weights and measures, or establish post offices, etc. Article I, §8 would be surplusage on
intratextual reading. (BLBA 520)
DISSENT (Stevens)
· Education has major impact on economy. Guns are articles of commerce and can be
used to restrain commerce.
DISSENT (SOUTER)
· Great summary of the history of Commerce Clause interpretation (BLBA 522-
4)
· Before 1930s, the Court often gave strict scrutiny to congressional legislation under the
Commerce Clause.
· After NLRB v. Jones & Laughlin Steel Corp. (1937), the Court switched to a rational-basis
review standard for congressional legislation under the Commerce Clause. If the Court can
perceive a rational basis for Congress’ determination that the proscribed conduct has a
substantial effect on interstate commerce, the Court should uphold the congressional
legislation. There was a basis on which Congress could ground a determination that guns in
schools substantially affect interstate commerce, so the Court should uphold the legislation.
DISSENT (BREYER, w/Stevens, Souter & Ginsburg)

· Should defer to Congress under rational-basis review. Points to mountain of studies
linking education to economy and showing mutual exclusivity of education and violence – this
shows rational connection to national economy. Cumulative effects of guns in schools will
have demonstrable effect on national economy.
· Commercial/non-commercial distinction is insufficient. Congress has treated education as
a commercial activity (investment) and education spending is a major component of
economy.
NOTES:
 Rehnquist makes 3 methodological moves: 1) education is traditionally local, 2) guns in
schools are not economic, 3) distinguishes direct and indirect effect, but CJ’s real concern is
slippery slope (if Congress can do this, what can’t it do?)
 Amar the spillover/externalities idea again. State should be trusted and allowed to
regulate “national problems,” problems faced in each state but whose effects are confined
to each state’s borders. But Congress should be able to deal with things that spill over and
affect other states as well, so called “federal problems” that affect relationships between
and among states. And under this view commerce should be understood to mean
not just economic affairs (Thomas’ view) but “dealings” or “transactions.” (BLBA
532)
o Note the McCulloch-like idea of representation here. The people of New Jersey are
not represented in the New York legislature. Therefore, if some conduct in New York
(i.e., the hunting of endangered species that cross state lines) has an effect on the
people of New Jersey, the people of New Jersey have no say in the New York
legislature to try to control or curtail the practice. This seems rather undemocratic.
Shouldn’t Congress be able to step in to solve this externality?
 Congress might be able to prescribe a basic national curriculum: Economic
growth depends on ability of workers to migrate easily from state to state. But cutting
across states is harder when curriculums differ. Common curriculum makes it easier for
parents to move without disrupting child’s education. Without federal intervention, no
state has incentive to abide by a nation-wide standard. And state may not have
incentive to invest in primary education if it thinks it will not reap long-term benefits because
people are transient and move from state to state. Thus Congress has incentive to impose
minimums or bribe states to do certain things.
 Temporal Framing: Often whether or not an activity is deemed to have a substantial
effect on interstate commerce depends on whether the Court takes a “broad” or “narrow”
temporal view. Under “broad” temporal frame, guns in schools do seem to affect interstate
commerce. But a “narrow” temporal frame seems more appropriate for school violence given
its visceral and bloody impact. (BLBA 532-3)
National League of Cities v. Usery (1976), BLBA pp. 552-555
Second decision since 1930s (1st being Oregon v. Mitchell) striking down Congressional act on
federalism grounds. Commerce power cannot impose on states’ rights under 10 th Amendment.
Overturned by Garcia v. San Antonio Metropolitan Transit Authority (1985)
BACKGROUND: Congress had extended Fair Labor Standards Act (maximum hours and
minimum wages) to almost all state and municipal employees with a 1974 amendment
under the commerce clause. Petitioners claimed that the imposition infringed on essential state
power activities protected by the 10th amendment.
HOLDING (Then-Justice Rehnquist): Though an act may be within the commerce power of
Congress, Congress cannot violate traditional state powers.
REASONING
· While Congress has power under the commerce clause to set minimum wages and
maximum hours for the employees of employers that engage in activities that substantially
affect interstate commerce, there are other constitutional limits on Congress’ use of this
power (for example, Congress can’t use the power in a way that violates the 6th Amend.)
· “One undoubted attribute of state sovereignty is the States’ power to determine the
wages which shall be paid to those whom they employ in order to carry out their
governmental functions, what hours those persons will work, and what compensation will be
provided where these employees may be called upon to work overtime.” (BLBA 553)
· Since the Constitution requires that the Federal Govt. respect the sovereign powers of
the states (see 10th Amend.), Congress cannot use its commerce power to set minimum
wages and max. hrs. for state employees.
· Congress cannot regulate in areas of “traditional governmental functions” (BLBA
554).
· Court overrules Maryland v. Wirtz.
DISSENT (Brennan, w/Marshall & White)

· 10th Amendment does not constitute a “limitation on congressional exercise of powers
delegated by the Constitution to Congress” (BLBA 554).
· Brennan sees here how a conservative ct. can be activist as he was under Warren ct.,
calls decision a “patent usurpation of the role reserved for the political process.”
DISSENT (Stevens): Seems inconsistent to allow federal government to prohibit states from
discrimination in hiring, to require taxes be withheld from paycheck, to observe safety
regulations, etc., but not to allow feds to regulate pay or hours worked.
CLASS NOTES: Rehnquist doesn’t rely too heavily on 10th Amendment b/c 10th Amendment
doesn’t explicitly limit Congress (10th cuts across Bill of Rights) and b/c 10th also refers to rights of
the states and the people. Argument is really structural one about proper relationship between
fed. and state gov’ts.
Garcia v. San Antonio Metropolitan Transit (1985), p. 555-563
Blackmun changed vote to overrule League of Cities v. Usery after just 9 years.
FACTS: Garcia appealed from a decision for San Antonio Mass Transit Authority (SAMTA) holding
that municipal ownership and operation of a mass transit system is a traditional gov’t function
and thus immune from wage requirements of Fair Labor Standards Act (under League of Cities).
HOLDING (Blackmun): Overrule National League of Cities v. Usery.
REASONING
· The “traditional governmental functions” test (i.e., Congress can’t use its commerce
power to regulate “traditional governmental functions”) has proven unworkable (BLBA 555).
How can courts determine what is or is not a traditional govt. function?
· The principal protection of state power lies in the structure of the Federal Govt. itself.
The Federal Govt. was structured to protect the states from overreaching by Congress (BLBA
556).
o The Framers gave the States a role in the selection both of the Executive and the
Legislative Branches of the Federal Govt. (This check has been undermined by direct
popular elections for senators rather than appointment by the state legislature).
 Control over voting qualifications for House and Senate elections (must be
eligible to vote for lower house of the state legislature to vote in Federal
elections.
 Control over the designation of electors for the presidency.
 Equal representation in the Senate, which is protected from Constitutional
amendment by Article V.
o “State sovereign interests, then, are more properly protected by procedural safeguards
inherent in the structure of the federal system than by judicially created limitations on
federal power” (BLBA 556).
· The courts should step in only when there’s been some apparent failure in the political
process. Otherwise, the courts should defer to Congress (BLBA 557).
DISSENT (POWELL): Majority decision denies judicial review to protect states from expansive fed.
regulation. States do not have sufficient control over fed. elections to justify denying judicial
review. History of Bill of Rights shows framers intended stricter division of authority between
fed. & states.
DISSENT (O’CONNOR):
· The judiciary has a role to play in protecting state power from congressional
overreaching (BLBA 561).
· Federalism protects the people’s rights by diffusing governmental power. The states and
the Federal Govt. act as checks on one another (BLBA 562).
· The growth of a truly national economy, as well as the decline of state legislative power
over the Senate through the 17th Amend., has imperiled state power (BLBA 562).
DISSENT (Rehnquist): Believes National League of Cities rule will be vindicated.
Coyle v. Oklahoma (1911): Congress can’t tell a state where to locate its capital (BLBA 563).
Note: The highly decentralized nature of American political parties may protect state power.
Even national politicians need to forge political alliances with state and local officials (BLBA 564).
Rehnquist Court: Finding Affirmative Limits (for fed. against states)

National League evidenced Rehnquist’s belief in states’ rights & a willingness to use the court to
enforce them. But Garcia overruled National League, which had overruled Maryland v. Wirtz.
Notice how the following cases seek to “move” the law to recognize states rights while
maintaining some fidelity to Garcia.
Gregory v. Ashcroft (1991), BLBA pp. 567-574
Brennan replaced by Souter after Garcia; hence, states win this one. Age Discrimination in
Employment Act does not apply to state’s appointment of its most important officials. If fed.
wishes to regulate states, it must be clear (plain statement rule).
FACTS: Two Missouri judges challenged a state rule mandating their retirement at age 70.
Claimed violation of 14th Amend. and of Federal Age Discrimination Employment Act (ADEA),
which says there shall be no employment discrimination according to age against those over 40.
HOLDING (O’Connor): ADEA does not apply to state judges.
REASONING
· Benefits of federal system (BLBA 568):
o Decentralized govt. that will be more sensitive to the diverse needs of a heterogeneous
society.
o Increased opportunity for citizen involvement in democratic processes.
o Allows for more innovation and experimentation in govt.
o Makes govt. more responsive by putting States in competition for a mobile citizenry.
o Check on abuses of governmental power.
· Defining the qualifications of govt. officials, such as judges, is an essential governmental
power. It must be clear that Congress intended to infringe on this power before the courts
interpret congressional legislation in such a way. As against Congress’ commerce power,
“the authority of the people of the States to determine the qualifications of their
governmental officials may be inviolate” (BLBA 570).
· Applies a plain statement rule to avoid “a potential constitutional problem” (BLBA
570). The Court determines that under a plain statement analysis, the ADEA doesn’t apply to
state judges. In other words, the Court cannot be “absolutely certain” that Congress
intended for the ADEA to apply to state judges, so it will construe the law as not applying to
state judges.
· The exception for “appointee[s] on the policymaking level” may apply to judges. It’s
therefore not clear that the ADEA was meant to apply to state judges, so the Court construes
it as not applying to state judges (BLBA 571).
· Missouri’s mandatory retirement age for state judges does not violate the Equal
Protection Clause (BLBA 572-3).
· If the Court is going to abide by a Garcia-like standard under which the states seek
protection through the political process, Congress must make itself clear that it is intending
to regulate a “traditional” state power so that the states can speak up.
CONCURRENCE IN PART, DISSENT IN PART (White): Agrees w/ outcome b/c ADEA excluded judges
in definition of employee. Rejects new plain statement rule in favor of Garcia state protection
through political process.
DISSENT(BLACKMUN, W/ MARSHALL): ADEA clearly does apply to state judges, and that’s okay
under Garcia.
NOTE: Note that 2 justices clearly thought the ADEA did not apply to state judges, and 2 justices
thought that it clearly did! (BLBA 575)
New York v. United States (1992), BLBA pp. 576-591
Thomas replaced Marshall, leading to 6-3 decision in favor of states’ rights. Ct. rules 10 th
Amendment or lack of enumerated power precludes Congress from forcing states to pass
particular legislation.
FACTS: 3 states (NV, WA, SC) had disposal sites for radioactive waste. National Governors’ Assoc.
devised plan which became the 1985 Low-Level Radioactive Waste Policy Amendments
Act, which gave 7 years for every state to join a regional waste compact, develop in-state
disposal, or find another way to dispose of its waste. 3 incentives: 1) sited states could impose
surcharge w/ funds to be returned to compliant states, 2) sited states could deny access to
non-compliant states, 3) any state not in compliance by 1996 must take title to all waste
generated in state or become liable to in-state waste generators for all damages. By 1990, NY
had not joined regional compact and sued for declaratory judgment that act was violative of state
sovereignty under 10th Amend. and Guarantee Clause (Art. IV § 4). Sited states intervened as
defendants.
HOLDING (O’Connor): Congress may not order a state government to enact particular
legislation; 3rd incentive is unconstitutional under 10th Amend. (for lack of enumerated
congressional power) and is severed from the Act.
REASONING
· Garcia doesn’t apply because Garcia dealt with legislation that applied to both state
governments and private parties. The legislation at issue in this case applies only to state
governments. (BLBA 579)
· Congress may no “commandeer the legislative processes of the States by directly
compelling them to enact or enforce a federal regulatory program.” (BLBA 579)
· Congress may “influence” state legislatures through monetary incentives (as long as the
incentives “bear some relationship to the purpose of the federal spending”), but it cannot
commandeer or coerce state legislatures to enact or enforce federal regulatory programs.
Bottom line: monetary incentives okay, commandeering not. (BLBA 581)
· Problem of Accountability: Federal officials can’t make state and local officials do their
dirty work for them. When federal officials force state legislatures to enact federal regulatory
schemes, accountability become unclear. People might blame their state officials for the
unpopular program when federal representatives are really to blame. When should state
legislators be voted out of office for an unpopular decision that was really made at the
Federal level? This is especially a problem with such a political hot-potato as nuclear waste
sites. (BLBA 581)
· The Act’s “take title” provision for all intents and purposes unconstitutionally coerces
states to enact the federal regulatory program (BLBA 583).
· “Where a federal interest is sufficiently strong to cause Congress to legislate, it must do
so directly; it may not conscript state governments as its agents.” (BLBA 583)
· The fact that New York at first supported the Act does not change the fact that the “take
title” provision is unconstitutional. Congress cannot constitutionally consent to give up its
powers to the President. The “legislative veto” unconstitutionally took from the executive’s
power even though many executives had signed bills containing legislative vetos (INS v.
Chadha (1983)). In a similar way, states cannot consent to give up their constitutionally
protected powers to Congress, thereby aggrandizing Congress’ power beyond the powers
enumerated in Art. I. (BLBA 584-5)
· “The Federal Government may not compel the States to enact or administer a federal
regulatory program.” (BLBA 587)
CONCURRENCE AND DISSENT (WHITE, W/ BLACKMUN & STEVENS): Act was product of cooperative
federalism. States can consent to relinquish some sovereignty. Art. I §10 cl. 3: “no State shall,
without the Consent of Congress,…enter into any Agreement or Compact with another State.”
This was a mere interstate agreement made with Congress’ blessing.
CONCURRENCE AND DISSENT (STEVENS): Articles of Confederation allowed fed. to issue commands
to states. Constitution enhanced power of federal govt. Congress already regulates state-
operated railroads, school systems, prisons, elections, and could command states to supply
troops in war.
NOTES
- Again, ct. avoids Garcia; distinguished in that Garcia dealt with a law that applied both to states
and private parties. The law at issue in New York applies only to states.
- Amar: New York should be read as saying that state governments are designed to be
constitutionally independent from the federal government in certain ways, in part so that they
may stand as competing political power centers and rallying points for opponents of the central
regime. States are watchdogs. Consider the Sedition Acts. State legislatures were the locus for
the criticism of them. If the feds were able to direct states, it would be to obliterate this role.
State legislatures should be able to define their own agendas and remain a locus for criticizing
the federal government.
- The power to commandeer is the power to destroy. The federal government could force state
legislatures to spend all their time enacting federal regulatory regimes, not allowing them to deal
with other substantive issues.
- Why didn’t O’Connor overturn Garcia? Note that two weeks later she handed down the
majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which
included a famous paean to stare decisis.
Printz v. United States (1997), BLBA pp. 595-606
Souter changes vote; states’ rights now win 5-4. Congress cannot compel state executive officials
to execute federal laws.
FACTS: Brady Handgun and Violence Prevention Act required Attorney General to establish
national gun background checks. Until national system could be instituted, the act required chief
law enforcement officers to do background checks. Two western sheriffs challenged requirement
as violation of New York decision and constitution.
HOLDING (Scalia): Congress cannot force state executive officials to participate in the actual
administration of a federal program.
REASONING
· History is inconclusive. Constitution imposed upon state judges to follow federal law, but
did not allow Congress to impose upon state executive officers. There is an absence of
executive-directing legislation throughout the history of Congress.
· Structure: If Congress could compel state executive officers this would violate
federalism (as it protects individuals against tyranny) and separation of powers (Congress
could circumvent president and require all states to implement the laws. But president is the
one in charge of executing federal law. It’s potentially dangerous if Congress can rely on
state executive officials instead of the President to enforce congressional legislation). (BLBA
598)
o But doesn’t Scalia’s argument that forcing state officials to enforce federal regulatory
programs unconstitutionally takes from the power of the President prove too much?
Scalia doesn’t want to say that it’s unconst. for states to volunteer to enforce federal
regulatory programs, but doesn’t that take from the President’s enforcement power as
well? (BLBA 607)
· Precedent most conclusive: To allow this act to stand would contradict New York.
There is no significant difference between forcing the legislature to act and forcing state
executive officers to perform ministerial tasks.
· Problem of Accountability: The Federal govt. can’t pawn off its dirty work to state
officials. If Congress can force states to participate in the administration of federal
regulatory programs, Congress can pass popular legislation and force the states to bear the
costs of implementing that legislation (possibly by raising taxes). The ire of people who
disagree with the legislation would also probably be focused on the state agents enforcing it,
not on the Congress that passed the bill (BLBA 599).
CONCURRENCE (O’CONNOR): State officers may comply with Brady Act voluntarily or by contract.
Ct. appropriately refrains from deciding whether reporting requirements are similarly invalidated
(e.g., requiring state & local law enforcement to report missing children to Dept. of Justice).
CONCURRENCE (THOMAS): Commerce Clause does not extend to intrastate point-of-sale

transactions.
DISSENT (Stevens, w/Souter, Ginsburg & Breyer):

· Congress has express constitutional power to regulate commerce, which includes power
to regulate private individuals as well as state actors. State officers are bound by oath to
support Constitution and nothing in Constitution indicates state officers can ignore command
of legitimate fed. statute. Cites Garcia for proposition that states can defend themselves
politically in Congress. Distinguishes New York: that was about compelling state legislation,
not action in support of fed. law.
· Under the Articles of Confederation, Congress could issue commands to the “sovereign
states.” Why would today’s Congress have less power than the weak Congress created by
the Articles? (BLBA 601)
DISSENT (SOUTER): Congress cannot make states enact laws, but can use their officers to enforce
fed. law.
DISSENT (BREYER W/ STEVENS): Cites European constitutional governments and their practice of
compelling executive action. Notes that requiring creation of huge federal bureaucracy to
enforce federal regulatory laws may diminish, not promote, state sovereignty and individual
liberty.
Alden v. Maine (1999), BLBA 608-10
Maine State Court could not be obliged to hear damage suits brought against the state of Maine
itself, even if the state had indeed violated a valid federal law.
· The case dealt with the application of the Fair Labor Standards Act, which prescribes
minimum wages and maximum work hours, to state employees. This, of course, was the
issue in National League of Cities and Garcia.
· The Court ruled that if a state violated the FLSA, it could not be obliged to entertain a
private suit for damages at the behest of the wronged employee.
· In the earlier Seminole Tribe cases, the Court had in effect barred private employees
from bringing FLSA damage suits in federal district court. In other words, Alden was out of
luck. He couldn’t sue Maine in federal court, and the Maine courts were not obligated to hear
a case brought against the state. But notice that Alden still could bring a suit against a state
official, if not against the state itself.
To summarize this line of cases: Garcia suggested that states could best protect themselves
procedurally and not through courts, thus Congress had wide authority to regulate state
activities. Ashcroft qualified this power, requiring Congress to be clear when it intended to
intrude on state authority. New York and Printz state that Congress can neither compel a state’s
legislature to adopt a federal regulatory scheme nor compel a state’s exec. officer to carry out
any federal law. Alden held that state courts cannot be forced to hear suits brought against the
state itself for a violation of a valid federal law.
United States v. Morrison (2000)
Also see discussion of Congress’ power under the 14th Amendment on Page 26. This section
deals with Congress’ power under the Commerce Clause. Rehnquist held that neither Commerce
Clause nor 14th Amendment provide Congress with authority to enact civil remedy provision of
Violence Against Women Act (VAWA) – violence against women does not substantially affect
interstate commerce.
FACTS: Former university student Brzonkala brought claim under VAWA, which provides a federal
civil remedy for victims of gender-motivated violence.
HOLDING (RHENQUIST): Affirmed 4th C.A. decision that Congress does not have authority to
provide a civil remedy for gender-motivated violence under Equal Protection Clause or Commerce
Clause.
COMMERCE-CLAUSE REASONING:
· Congress may regulate intrastate economic activity that has a substantial effect on
interstate commerce.
· Gender-motivated crimes of violence are not economic activity.
· VAWA does come with legislative findings, but legislative findings aren’t alone sufficient
to uphold the constitutionality of a bill. Gender-motivated violence has only an attenuated
effect on interstate commerce. If Congress can create a cause of action for gender-
motivated violence under the commerce clause, there is no criminal activity that Congress
cannot regulate.
· “We… reject the argument that Congress may regulate noneconomic, violent criminal
conduct based solely on that conduct’s aggregate effect on interstate commerce.
CONCURRENCE (THOMAS): “Substantial effects” test is inconsistent with original understanding of

commerce power and can only lead to fed. appropriation of state police power in guise of
regulating commerce.
DISSENT (Souter, w/Stevens, Ginsburg & Breyer):

· The voluminous legislative findings accompanying this legislation do substantiate a
finding that gender-based violence does substantially affect interstate commerce.
· Bemoans Lopez as a deviation from standard test court applied to commerce clause
enactments, particularly under substantial effects. Correct test is merely to ask whether
Congress had a rational basis for creating a regulatory scheme to protect commerce.
· Also says that court reintroduces commercial/non-commercial activity distinction that was
erased by Wickard.
· Cites Darby for notion that Congress can regulate an intrastate activity that may
traditionally be within state power.
· Mentions Garcia for idea that procedural safeguards should protect states, not the courts.
· Recognizes that the majority is trying hard to protect federalism, which means making
unprincipled decisions regarding Congress’ commerce power.
· The majority wants to uphold states’ rights. But most state Attorney Generals supported
VAWA and appreciated the federal resources in fighting gender-motivated violence.
DISSENT (Breyer, w/Stevens; Souter and Ginsburg join I-A):

· Says that it is difficult to draw a line between federal and local. In modern world it
cannot be done with any reliability.
· The economic/non-economic distinction makes no sense. There is no reason to prohibit
regulation of non-economic local activities if those activities have a large effect on interstate
commerce. It is the effects of an activity and not the cause that are material. Just because
a cause is local does not mean that its effects are not felt between states (echoes of
spillover).
· Also mentions that Congress protected federalism values by enlisting views of states,
whose Attorney Generals supported the legislation.
U.S. Term Limits v. Thornton (1995)
State cannot impose term limits on its federal elected officials (states lose this one b/c Kennedy
switched).
FACTS: Action was brought challenging amendment to the Arkansas Constitution which precluded
persons who had served certain number of terms in the United States Congress (two or more
terms in the Senate for election to Senate; three or more terms in House for election to House)
from having their names placed on the ballot for election to Congress.
HOLDING (Stevens): States may not impose qualifications for offices of the United States
representative or United States senator in addition to those set forth by the Constitution. State
provision is unconstitutional when it has likely effect of handicapping a class of candidates and
has the sole purpose of creating additional qualifications indirectly.
REASONING:
· Following Powell v. McCormick analysis, Ct. finds that congressional qualifications cannot
be changed by Congress or states.
· This historical view also supported by (1) egalitarian ideal: everyone should be able to
run for office and (2) the people should be able to select whomever they please. (3)
· Power to set additional qualifications was not reserved to the states by the Tenth
Amendment. The Qualification Clauses of the Constitution “were intended to preclude the
States from exercising any such power.” (4)
· The Framers never mentioned that States have the power to add qualifications for
membership in Congress, although doing so would have strengthened their hand against
anti-Federalists (5).
· State-imposed restrictions on candidates for Congress violates the principle “that the
right to choose representatives belongs not to the States, but to the people” (5). Contrast
w/ the Articles of Confederation, which allowed State legislatures to choose congressional
delegates. (5)
· Allowing states to impose additional qualifications would lead to a patchwork of
qualifications; uniformity and national character of Congress would be jeopardized. (6)
DISSENT (Thomas, w/Rehnquist, Scalia & O’Connor):

· The Court tries to protect the people’s “right to choose their representatives” by striking
down a Constitutional amendment that was passed by popular referendum.
· The Constitution is silent on whether the States can add to the qualifications of their
congressional representatives. According to the 10th Amendment, then, this power is
reserved by the States. “[T]he Qualifications Clauses do nothing to prohibit the people of a
State from establishing additional eligibility requirements for their own representatives…”
(12). Only Congress is barred from setting additional qualifications.
· Also, the Arkansas amendment doesn’t bar the incumbents from running; it just says that
their names can’t appear on the ballot (17).
· Incumbents already have a huge advantage. Why can’t states choose to level the
playing field?
· The internal rules of seniority in Congress already “fine” a district that ousts an
incumbent and elects a freshman congressional representative. (18)
NOTES:
o Amar: Term limits might create rotation amongst various state and congressional offices.
If senators come back to state offices and vice versa this may make federal legislators more
sympathetic to state concerns & thus more protective of state rights procedurally, as Garcia
promises. Term-limits better protect states’ rights through the political process.
o Prisoner’s Dilemma: Any district that imposes term limits will regularly have
congressional representatives without seniority. Term limits may only be feasible when
implemented state-wide or nationwide. Otherwise, individual districts have incentive to
defect to have senior congressional members who can bring home the pork. (20)
o Term-limits Amendment seems unlikely since this requires 2/3 of Congress, members of
which want to stay. They could write Amendment so that it wouldn’t effect anyone in office
at time of passage, but this would make Congress look hypocritical. An amendment has
never been ratified through the mechanism of a “national constitutional convention.” (20)
o Does this mean states can take away felons’ right to vote but not their right to run for
national office?
Taxing and Spending Power, Art. I § 8 Clause 1
Sozinsky v. United States, 300 U.S. 506 (1937), BLBA p. 477

 representative of long trend of deferring to legislative tax and spend power
 upheld law requiring persons dealing w/certain firearms to pay annual tax
 petitioner argued act was designed to prohibit transfer of such weapons, not raise
revenue
 ct. said every tax is regulatory and ct. will not make inquiry into hidden motives of tax
Steward Machine Co. v. Davis, 301 U.S. 548 (1937), BLBA pp. 477-479
In the major post-1937 challenge to Congress’ taxing and spending power, Social Security Act of
1935 was upheld.
FACTS: The Social Security Act taxed companies with 8 or more employees. The funds went into
the General Treasury. Any taxpayer who made contributions into a state unemployment fund
could have those payments credited against the federal tax. Steward paid the tax and filed a
claim to recover the payment, claiming the statute to be unconstitutional.
HOLDING: Cardozo: the federal unemployment insurance tax is constitutional
REASONING: When taxing and spending power exercised in coercive nature it is unconstitutional
as a violation of 10th amendment. But when merely persuasive/an inducement, the exercise of
the power is constitutional. Congress enacted the statute to safeguard its own treasury. The
proceeds are not earmarked for a specific group. The law works to the attainment of a lawful
end, the relief of unemployment, for which the fed. and states may cooperate. The fed. here is
acting (taxing) in the interest of the general welfare b/c w/o fed. action, states could not easily
impose unemployment taxes (businesses would move to other states).
CLASS NOTES:
 Unlike Commerce power, tax and spend power not limited to interstate problems.
But wasn’t there an interstate problem in Steward? Each state on its own might not
adopt unemployment policies financed by taxes on employers (because of fear of taxing
business during Depression would force them out of business or scare them out of state).
And providing benefits when other states do not might make you an unemployment
haven, attracting the unemployed from far and wide. This might induce a race to the
bottom. States would reduce their unemployment programs, and in response other
states would as well, until all states had minimal/no unemployment programs. An
interstate compact could remedy this situation (Article I, §10—requiring congressional
approval) or congress could act according to tax and spend power. (Or even commerce
under spillover effects argument?)
 Sozinsky suggests courts take a hands-off approach in evaluating intent behind tax
power acts. But are there objectives of Congress that the court should not allow to be
attached to exercise of tax power? What if Congress tried to prohibit women’s birth
control with high taxes on it? How about tobacco? Policy argument about court
review of exercises of taxing power: Frankfurter dissent in United States v.
Kahriger (challenging a statute placing tax on bookies) said that Constitutional issues do
arise whenever taxing power is not passed solely to raise revenue but to regulate
conduct. When tax power is tied to a regulation over which Congress has control, Court
should not question. But when tax power has a regulatory intent in area over which
congress would not otherwise have control (because left to states) court should be
vigilant.
 Conditional funding powers are extremely broad. But should Congress be able to
condition funding on a state moving its capital? Or requiring a state to elect rather than
appoint its AG? Coyle v. Smith suggests no. Congress cannot tell a state how to
govern, even through broad conditional funding authority.
South Dakota v. Dole, 483 U.S. 203 (1987), BLBA pp. 533-535
Fed. can influence states through spending power where it cannot regulate them directly, but
within limits.
FACTS: S.D. challenged fed. law withholding percentage of federal highway funds state would
otherwise receive if it did not permit persons under 21 to drink. State claimed law violated 21 st
Amendment, which gave states control of liquor sales & distribution, and was in effect a national
drinking-age law.
HOLDING: Rehnquist: fed. act was constitutional.
REASONING: b/c Congress acting under spending power, act was constitutional even though
Congress may not directly regulate drinking age. In its analysis the Court noted that Congress
can seek to achieve things through spending power and granting of federal funds that are not
within Article I enumerated powers. But that power has limits:
o (1) Spending must be in pursuit of the general welfare, but Courts defer to
Congressional judgment in such matters.
o (2) if Congress seeks to condition receipt of federal funding, the condition must be
unambiguous and clear to the states, leaving them to choose
o (3) conditions on grants may be illegitimate if unrelated to the federal interest in
particular national project/program
o (4) other constitutional provisions may bar conditional grant of federal funds. This
means that feds cannot force states to engage in acts that would themselves be
unconstitutional, such as discrimination.
In this case, though there was a constitutional amendment at issue, requiring a 21 year old
drinking age infringed upon no one’s constitutional rights.
DISSENT: O’Connor: if the intent of funding is to improve roads and thus road safety, and
condition to prohibit 21 year olds from drinking is intended to improve safety because younger
individuals more likely to drink and drive, then the condition is too over- and under-inclusive.
Over inclusive because it stops teenagers from drinking even when not about to drive. Under
inclusive b/c teenagers only small part of drunk driving problem.
Hughes Court to Burger Court: Practically No Limits (on fed)?

Between New Deal Court and Rehnquist Court, state claims for exemptions from fed. regulations
under Commerce Clause, reconstruction amendments, and taxing and spending power did not
fare well before the court. Fed. power was dominant. But that changed with Rehnquist Court.
Constitutional Rights
The Bill of Rights in General
CLASS NOTES
· Why didn’t the original Constitution contain a Bill of Rights?
1) Certain rights are already protected under the Constitution
a. Privilege of Writ of Habeas Corpus (Art. 1, Sect. 9, Cl. 2)
b. No Bill of Attainder (Art. 1, Sect. 9, Cl. 3)
c. Right to trial by jury (Art. 3, Sect. 2, Cl. 3)
2) The most important way to protect rights is through the structure of the govt.:
federalism, checks-and-balances, separation of powers
3) Congress only has enumerated powers. Don’t need Bill of Rights to protect against
governmental censorship b/c power to censor isn’t given to Congress by the
Constitution.
· Barron v. Baltimore (1833): The Bill of Rights applies to the Federal Government, not to
State governments. Why didn’t the framers choose to apply the Bill of Rights to the State
governments as well?
o The fear at the time was of an imperial national government. People were not so afraid
of their state governments.
o The fear of the “tyranny of the majority” embodies the 14th Amendment, not the original
10 Amendments
· Today, most of the provisions of the Bill of Rights have been “incorporated” so that they
apply against the States.
o Three rights that have not been incorporated: right to a grand jury; right to jury
in civil cases; and right to bear arms (BLBA 407)
o Courts rely on the “Due Process Clause” to incorporate the Bill of Rights so that it
applies against the States.
 The Slaughterhouse Case interpreted the “privileges and immunities clause” in
such a way that it essentially became meaningless.
READING NOTES (BLBA 401-13)

· Madison proposed an amendment requiring that the states respect speech, press,
conscience, and juries, but it didn’t pass the Senate (BLBA 403).
· Bill of Rights originally had an important federalism element.
o “Congress shall make no law respecting an establishment of religion”: Congress couldn’t
establish a national church, but it couldn’t disestablish state churches, either (BLBA 402-
3).
· Bolling v. Sharpe (1954) (BLBA 409): Reverse incorporation of the Equal Protection
Clause through the 5th Amend. Due Process Clause. The federal government cannot deny
the people of the U.S. equal protection of the law.
· Case Study: The Second Amendment (BLBA 410-13)
o The original purpose of the Second Amendment was to “assure the continuation and
render possible the effectiveness of the militia, a mode of military organization that
would, presumably, limit the import of standing armies, a matter of great concern to
many within the framing generation” (BLBA 411).
o Militia was originally conceived to include “all males physically capable of acting in
concert for the common defense” (BLBA 411).
o Today the Second Amendment might be incorporated against the States and seen as
standing for something other than a check against an overweening federal government.
The right to bear arms could be seen as “a decidedly personal right to protect one’s
homestead… Reconstruction gun-toting was individualistic, accentuating not group

rights of the citizenry but self-regarding ‘privileges’ of discrete ‘citizens’ to individual
self-protection.” (BLBA 412)
Property Rights
The Early Years: Contracts and Takings
Contracts Clause (Article 1, section 10): “no state shall… pass… any… Law impairing the
Obligation of Contracts….”
Takings Clause (5th Amendment): “…nor shall private property be taken for public use, without
just compensation.” (The Takings Clause was the FIRST CLAUSE of the Bill of Rights to be
incorporated so that it applied against the states.)
Fletcher v. Peck (SupCt., 1810) (BLBA 104-9)
Marshall gives a very broad reading of the contracts clause: original grants of land count as
contracts—an attempt to protect vested property rights.
BACKGROUND: The Contracts Clause was included in the constitution to avoid what happened
after the Revolutionary War, when many states passed debtor relief laws enabling people to
escape long-held contracts. It was assumed that the clause applied to contracts between private
individuals, but wasn’t clear whether it also precluded a state from, in effect, rewriting its own
contracts.
FACTS: In the 1795 notorious Yazoo land grant scandal, a majority of the Georgia legislature was
bribed to give 35 million acres of state land to private companies at the ridiculously low price of
1.5 cents an acre. In 1796 the legislature rescinded the grant, but much of the land had already
been sold to northern investors. The question is whether the 1796 rescission affects the rights of
those who had made purchases and hadn’t been aware of the fraud scheme.
HOLDING (BY MARSHALL): Repeal of law did NOT divest third parties of their property.
REASONING:
· Once legislature has granted land, like a contract, it can’t then summarily change its
mind. If it could, “all titles would be insecure.”
· A land grant has the nature of a contract. Once legal rights have vested, a future
legislature can’t act to rescind them. (BLBA 105)
· The Contracts Clause prohibits Georgia from rescinding the land grants:
o A land grant is a form of contract.
o The Contracts Clause applies to contracts made both by private parties and by the state
itself. The State cannot impair the obligation of a contract that it has entered into.
CONCURRENCE (BY JOHNSON): Says it makes no sense to use the contracts clause, since states
make laws impairing contracts all the time, and we’ve never cared before. He justifies the result
strictly based on natural law: a state simply does not have the power to revoke its own grants.
NOTES:
· Marshall’s expansive interpretation of the contracts clause to protect vested rights

continued in DARTMOUTH COLLEGE v. WOODWARD (1819) (p.107), which held that the
New Hampshire legislature could not unilaterally modify private institution’s charter and place
it under public control. Again, a state cannot create a vested (property) right and then take it
away.
· Tension between this and Barron v. Baltimore. Barron says states can take property
because Bill of Rights doesn’t extend to states. Why can’t NH just take Dartmouth? Or GA
just take Yazoo lands? Distinguish Barron as a 5th Amendment takings clause case? But until
the 20th century, the takings clause applied only to federal, not state action.
· Marshall’s only dissent in a constitutional case came in a dispute over bankruptcy:
everyone on the Court agreed that state could not pass retrospective bankruptcy laws, but in
Ogden v. Saunders (1827), the Court held that states could pass prospective bankruptcy
laws, holding that a statute in existence at the time of a contract becomes part of the
contract itself. Marshall, relying on natural law, said the contracts clause should prohibit the
states from dictating in advance what contracts should look like.
· One other note: There is no reverse incorporation of the contract clause. The feds can
pass bankruptcy laws, and even retrospective bankruptcy laws.
Note: Natural Law, Vested Rights and the Written Constitution: Sources for Judicial
Review (BLBA 109)
Natural law is a way of finding unenumerated rights, similar to looking at what other rights state
constitutions grant. The written constitution is seen as a written expression of “natural rights”
that already existed; thus, a wider batch of private rights also existed.
There were several notions of rights in the early 19th Century:

1. “Natural Law” Tradition
· Concept in 18th cent Am: a universal law superior to all manmade law
· Sources of natural law doctrine: a) Judge did not “make” common law; rather through
reason, discovered immutable legal principles; b) Magna Carta, Declaration – claimed not to
establish new principles but declare preexisting ones; c) John Locke – “social compact” is
largely designed to protect distributions of wealth.
· On this view, the written constitution was a core of a wider region of private rights,
which are also entitled to the protection of gov’t
2. Judicial Protection of “Vested” Rights
· Marbury - once his commission “vested”, gov’t could not deprive him of his right
· Fletcher - protected “vested rights” – entitlements. Once belong to person, government
can’t divest it at will.
· Gov’t cannot deprive citizens of vested property right.
3. Explicit Federal Constitutional Protection of Rights
· Judicial protection of individual rights (i.e.-property) still depended mainly on written
state and US constitutions. Several rights protected in Philly Const (freedom to contract, bills
of attainder, ex post facto)
· Supplemented by Bill of Rights in 1791.
 1833: Barron v. Baltimore holds that Bill of Rights applies only to Fed Govt.
4. Ninth Amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people”
· Part of Constitution that most embodies concept of natural rights
· Purpose of amendment ambiguous  Protect indiv. or the state? Does it protect

individual liberties not enumerated in first 8 amendments OR protect states against feds
assumption of undelegated powers?
The Antelope Case, 23 US 66 (1825) (pp.114-17).
FACTS: Antelope apprehended off FL by US ship carrying 280 Africans in violation of slave trade
abolition. Spain and Portugal claimed slaves on the ship as their property since they were being
shipped to Cuba or Brazil, and not the US (where slave trade had been illegal since 1808).
QUESTION: Did the federal ban on slave trade, which required sending slaves brought into the
US back to Africa, also mean that slaves owned by foreign nationals were to be forfeited and sent
home?
HOLDING (Marshall): He denounces slave trade as violating the law of nature but says that
international law has yet to adopt this element of natural law as general legal norms. Principle of
equality of nations is recognized. So US must recognize claims of int’l slaveholders and return
property illegitimately seized.
SIGNIF: This was a conflict b/w positive law and natural law (“general principles”), and b/w
“sacred rights of liberty and property.” Property, of course, wins.
· Were Marshall’s concern not to antagonize foreign nations, and sensitivity to the most
divisive constitutional issue of the beginning of the Republic (slavery) legitimate reasons for
refusing to enforce the purported slaves’ natural right to enjoy the “sacred principle” of
liberty?
· Legal Scholar Robert Cover argues when judge caught between law and morality, there
are only 4 choices in the static and simplistic model of law: 1) apply law against conscience;
2) apply conscience; 3) resign; 4) cheat: state that the law is not is what others believe it to
be, thus preserving the appearance of conforming to both. But in a more realistic and
dynamic model of law, law is always in process of becoming. Judge has a legitimate role in
determining what the law will become; it’s a dynamic, not static, process.
And then, the Civil War happens…
The 14th Amendment Limited (1873-1934)

· Central question: what comprised the rights and freedoms presumably guaranteed by the
14th Amendment?
o Guarantee Blacks equal treatment? OR
o Guarantee all citizens a substantive set of rights that were protected from gov’t
interference
· SupCt: not that much protection of blacks. Used 14th Amendment to protect rights of
propertied against efforts to redress economic imbalance. This was NOT judicial restraint: the
Court struck down a lot progressive state legislation, while upholding Jim Crow.
·
The first case to test meaning of “free labor” was SlaughterHouse...
Slaughter-House Cases (SupCt, 1873) (BLBA 315-25)
The Court decides to give ZERO weight to the Privileges and Immunities Clause of the 14 th
Amendment—it becomes a dead weapon and the Court has never since revived it. SC holds that
there are no Substantive Rights protected from State (and that Privileges and Immunities Clause
doesn’t protect “innate” property rights).
FACTS
An 1869 Louisiana statute authorizes Crescent City Co to set up slaughterhouse available to any
butcher who pays “reasonable” fee and outlaws use of other facility. Two possible stories here:
1) Louisiana, to protect the health of its citizens, passed a zoning law forcing the slaughtering of
animals to happen in one location, downwind. 2) The less benign version: New Orleans created a
monopoly for their friends. Butchers sue for violation of 14 th Amendment rights. They argue that
pursuing their craft/livelihood is one of the privileges and immunities of citizenship. They also
argue that the right to product of one’s labor was a sacred property right.
HOLDING (BY MILLER): In a 5-4 vote, the Court says we can’t strike down this law in the name of
property rights. The dissenters say the privileges and immunities clause needs to be read with
real meaning—and not read out of the constitution.
REASONING:
· It was a legitimate exercise of the municipality’s police power for Louisiana to require
that butchers do their slaughtering at one specific location and nowhere else (BLBA 316).
· McCulloch v. Maryland: If the state can best exercise its police power by granting a
charter to a private corporation, then the state can do so (BLBA 317).
· “[T]he authority of the legislature of Louisiana to pass the present statute is ample,
unless some restraint in the exercise of that power be found in the constitution of that State
or in the amendments to the Constitution of the United States…” The Court finds no such
constitutional restraint (BLBA 317).
· The Reconstruction Amendments were written to achieve the following: “the freedom of
the slave race, the security and firm establishment of that freedom, and the protection of the
newly-made freeman and citizen from the oppressions of those who had formerly exercised
unlimited dominion over him” (BLBA 318).
· The LA law did not create an involuntary servitude forbidden by the 13 th Amendment.
· The LA law did not abridge the privileges and immunities of citizens of the U.S.
o Distinction between “citizenship of the United States” and “citizenship of a State, which
are distinct from each other, and which depend upon different characteristics or
circumstances in the individual.” (BLBA 319)
o Privileges and Immunities clause speaks only of the privileges and immunities of
“citizens of the United States, and does not speak of those of citizens of the several
States” (BLBA 319). Therefore, the 14th Amendment only bars the States from
abridging the privileges and immunities of “citizens of the United States.”
o If the 14th Amendment applies to the “privileges and immunities” of a citizen of a
particular state, then the Federal Government’s power vis-à-vis the states has been
dramatically increased. The Court does not have to read the 14th Amendment in this
way, so it will choose not to.
o Short list of “privileges and immunities of citizens of the United States” (BLBA 321). It
includes the right “to come to the seat of government to assert any claim he may have
upon that government, to transact any business he may have with it, to seek its
protection...” and the “right of free access to [the nation’s] seaports.” (BLBA 321)
· The LA law did not deprive the butchers of their property without due process of law
(BLBA 321).
· The LA law did not violate the Equal Protection Clause.
· Substantive Due Process is rejected: The P and I clause did not require state to
grant any particular right to any person, but only prevented state from conferring benefits on
own citizens while denying them to citizens of other states. (p319)
· Butchers were not attacking due process procedures of ordinance but substantive
fairness of slaughterhouse monopoly. The majority dismisses the substantive due process
claim – still smarting from Dred Scott which attacked Missouri Compromise on
Substantive grounds.
DISSENT (Field)
· Louisiana did not have to give a corporation a monopoly in order to protect the health of
its citizens (BLBA 322).
· All monopolies in any kind of trade or manufacture are an invasion of the privileges and
immunities of citizens of the U.S., “for they encroach upon the liberty of citizens to acquire
property and pursue happiness…” (BLBA 323)
DISSENT (BRADLEY)
· The citizens of the United States (at least men) have a fundamental “right to choose
[their own] calling” (BLBA 324).
· The philosophy of incorporation: The rights listed in the first 10 Amendments, “and still
others specified in the original Constitution, or in the early amendments of it” are “among the
privileges and immunities of citizens of the United States” (BLBA 324).
· “In my judgment, it was the intention of the people of this country in adopting [the 14 th
Amend.] to provide National security against violation by the States of the fundamental rights
of the citizen” (BLBA 324).
· A law that establishes a monopoly and thereby deprives “a large class of citizens of the
privilege of pursuing lawful employment, does abridge the privileges of those citizens. [It
also deprives them] of liberty as well as property, without due process of law” (BLBA 324).
· The Reconstruction Amendments were not only meant to free the slaves. They were
also meant to reign in the powers of the states, which had shown an “intolerance of free
speech and free discussion which often rendered life and property insecure, and led to much
unequal legislation” (BLBA 325).
Note: The fundamental reason Taney declared that blacks could not be citizens in Dred Scott
was to prevent blacks from claiming the privileges and immunities of citizenship. The 14 th
Amendment made blacks citizens, but The Slaughter-House Cases stripped citizenship of any
important legal consequences. “So long as blacks cannot be citizens, enormous importance is
attached to the concept; as soon as blacks can become citizens, the concept is drained of all
meaning” (BLBA 328).
The Case of Myra Bradwell (BLBA 330)
· Illinois SupCt refused Bradwell license to practice law solely because she was woman,
even though no one doubted she was otherwise qualified. Her attorney said that the right to
choose one’s vocation is one of the “privileges” of citizens of the United States.
· On appeal to US SupCt., MILLER for Majority reaffirmed opinion in SLAUGHTER-HOUSE
that regulating licenses of occupations is not a power transferred to Feds – it remains with
States (thus, getting a license is not a right of citizenship protected by the 14 th amendment).
· Some of the dissenters in Slaughter-house don’t dissent in this case. They argue that
there are separate spheres for men and women. According to these justices, the woman’s
place is in the home, not the courtroom.
The Rise of Substantive Due Process (1874-1890)
SupCt moves from: (a) ignoring  (b) upholding state leg.  (c) protecting property rights by
requiring judicial review
· After SLAUGHTER-HOUSE (1873), SupCt. abdicates duty to rule on State laws; leaves
this to State Cts. The State Courts generally chose to protect property rights; hostile to social
legislation.
· Then by 1890 the SC gets back into picture and embraces theory of DISSENTERS in
SLAUGHTER-HOUSE. The SC calls it Substantive Due Process: Limits on what states can
do when regulating in the economic domain. High watermark is LOCHNER v. NY (1905),
below.
· Post-civil war  pace of industrialization, along with concentrations of economic power
 social protest;
Responding to social discontent  legislatures pass progressive pro-labor laws and attempt to
regulate business,1870s-80s
Corporation lawyers respond by pressing Courts to defend rights of property against legis.
regulation.
· SupCt response changes over time.
o At first US SupCt upholds regulations passed by the state legislatures:
Property can be regulated if it affects the public interest.
1. MUNN v. ILLINOIS (1877) – upholding state price regulation of grain-storage
warehouses; right to regulate under “police power” when regulation becomes
necessary for public good.
2. RAILROAD COMMISSION CASES (1886) upholding regulation of railroad tariffs.
Though power to regulate is not unlimited, in this case legislature acts within its
power.
3. SANTA CLARA COUNTY v. SOUTHERN PACIFIC RR (1886) – word “person” in due
process clause of 14th Amendment applied to artificial persons (i.e.
corporations, who were entitled to similar protections of law).
Gradual weakening of SupCt’s opposition to substantive due process (which was
outright rejected in Slaughter-House).
· Emergence of fed doctrine of substantive due process (BLBA 335): Minnesota Rate Cases
(1890) – Court struck down statute granting state railroad commission unreviewable
authority to set rates. “Reasonableness of rates is question for judicial investigation,
requiring due process of law for its determination.” If a company is deprived of power of
charging reasonable rates for use of its property, and the deprivation takes place absent a
judicial investigation, the company has been deprived of lawful use of its property w/o due
process itself.
 It’s not simply the role of the judiciary to review the procedural due process, but to determine
whether rates themselves were reasonable. This “practically” overrules MUNN V. ILLINOIS
(1877), above.
· Within a decade, SupCt. expanded inquiries to review substantive validity of
all sorts of legislation.
Note: Incorporation of the Takings Clause (BLBA 336-7)
PUMPELLY v. GREEN BAY COMPANY (1871)

14th Amendment does not Incorporate Bill of Rights against States.
Wisconsin authorizes erection of dam that flooded Pumpelly’s property. Pumpelly argues that
Wisconsin effectively took property and therefore has duty to compensate. Court rules like in
Slaughter-House (and Barron) that 14th Amendment doesn’t incorporate Bill of Rights:
“though the const. provides that private property shall not be taken for public use
w/o just compensation, it is well settled that this is a limit on Fed power, not on
States”.
Ironically, 5th Amendment’s right to just compensation for property taken by state was the first
part of the Bill of Rights that was eventually incorporated against the states (per 14 th
Amend.) in CHICAGO, BURLINGTON AND QUINCY RR v. CHICAGO (1897).
Federalist 10 is very opposed to redistribution, as is the contracts clause and the takings clause:
together (and then read into the privileges and immunities clause or substantive due process
clause), these form the structural argument in favor of banning redistribution. And this is what
the Court begins to hold onto after the Slaughterhouse cases.
Amar’s view of the Privileges and Immunities clause: it must mean more than the majority in
Slaughterhouse says (it cannot just guarantee right to petition legis, because that already exists),
but Amar says it does not go so far as banning redistribution. Amar relies on the Bill of Rights
and structural arguments for his middle ground.
The Court can’t use Privileges and Immunities Clause after Slaughterhouse, so it moves to
Substantive Due Process, and this brings us to Lochner.
Lochner v. New York, (SupCt. 1905) BLBA 337-343
No Robin Hood stuff in the Constitution. A law whose purpose is to redistribute income or to
benefit labor at the expense of management violates the due process clause of the 14 th
Amendment.
FACTS: In 1895, NY passed a bill stating that no employee could work in a bakery more than 60
hrs per week or more than 10 hrs per day. Joseph Lochner was convicted for employing baker in
excess for 60 hrs. in a week. Lochner argued the law limiting the number of hours employed was
unconstitutional under the Due Process Clause of the 14 th Amendment.
HOLDING (PECKHAM): 5-4 decision strikes down the statute, saying it interferes with an important
liberty interest—the right to contract.
REASONING
· The statute interferes with the right of contract between the employer and employees.
· The 14th Amendment’s Due Process Clause protects the right of an individual to contract
in relation to his business (substantive conception of due process).
· The State’s police power can trump the right of contract in some cases (i.e., people can’t
enter into a contract that is extremely dangerous for one party’s health)
· The question before the Court is thus: “Is this a fair, reasonable and appropriate exercise
of the police power of the State, or is it an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his personal liberty or to enter into those
contracts in relation to labor which may seem to him appropriate or necessary for the
support of himself and his family?” (BLBA 339)
· This was not a valid exercise of New York’s police power. Maximum working hours are
not necessary to protect the health of bakers or the welfare of the public (BLBA 339).
· The real purpose of this law was to benefit labor at the expense of management. The
Constitution does not allow the State to try to even up bargaining power between the
employer and the laborer (BLBA 340-1).
DISSENT (HARLAN, W/ WHITE AND DAY)

· The right to contract is protected by the 14th Amendment, but States also have a police
power by which they can regulate contracts to protect public health and morals. The correct
standard is rational-basis review (i.e., minimal scrutiny), and generally the Court should defer
to the State’s determination that the law was necessary to protect public health or morals.
· There is a rational basis on which New York’s legislature could have grounded a
determination that maximum work hours were necessary to protect the health of bakers
(BLBA 342). The Court should therefore defer to the state legislature.
DISSENT (HOLMES)
· “[A] constitution is not intended to embody a particular economic theory, whether of
paternalism and the organic relation of the citizen to the State or of laissez faire” (BLBA 343).
· The Court should not read its capitalist viewpoint into the Constitution.
NOTES
· Amar says the anti-redistribution holdings may have made sense in 1905, but after the
16th Amendment’s income tax provision—a progressive amendment—these arguments don’t
make sense anymore. [And you could go back even farther: the 13 th Amendment is a
massive redistribution of property without compensation].
· The one decision upholding workplace regs was one limiting women’s hours, in Muller v.
Oregon (1908) (BLBA 346-7). The Court upheld a statute limiting the workday of women in
factories and laundries. In public interest b/c physical well-being of a woman is essential to
vigorous offspring! But after the 19th Amendment gives women the right to vote, the Court
distinguishes Muller, reading a more expansive view of women’s equality into the
Constitution.
1. Transformation and Federalization of Constitutional Law

Pre-Lochner, general constitutional law was limited to vested rights doctrine, protecting only
“vested rights” from legis action:
Assumed basic legitimacy of given legal regime (legislature’s police, taxing and
eminent domain powers were broad)…
EXCEPT vested rights were protected (protected individuals against retroactive
impairment of rights acquired under the regime, per Fletcher)
Then, Lochner signals newly restricted view of police power.
 The Court became a check on the legis to ensure the ostensible use of police
power to invade private rights was truly a legitimate use of that power
(public safety, health, welfare). Look at true legis purpose.
Ct wanted to ensure that any limits on individual autonomy were truly for a
legitimate public purpose, and not “special interests” using coercive power of
legislature on their own behalf
2. The Meaning of “Liberty, “Property”, and “Power”
· Concept of “Liberty” expands, becoming the right to purchase or sell labor, and to make
any contract in lawful ways.
· Even if liberty and property are read expansively as protecting right to buy and sell labor,
how should we read “process” requirements of “due process of law”? What “process” is
insufficient in LOCHNER – the legis process in passing maximum hrs reg? The judicial
process by which Lochner was convicted? Such is the problem with substantive due
process.
3. The Scope of Police Power: Permissible and Impermissible Objectives
· Proper limits of police powers are “to compel every one to so use his own property
and conduct himself as not to injure his neighbor or infringe upon his rights” (BLBA 345)
OR “fairly deemed necessary to secure some object directly affecting the public welfare,
even though enjoyment of private rights of liberty and property may be incidentally
hampered.” (BLBA 346).
· Must be a limit to police powers; Cannot allow any indiv right to be infringed under
ostensible police powers, otherwise there are no indiv rights.
· Muller v. Oregon (1908): The Court upholds a statute limiting the workday of women in
factories and laundries to 10 hours because healthy women are “essential to vigorous
offspring” (BLBA 346).
4. Burdens of Proof and Questions of Degree
· In Lochner, Harlan says that the criterion is that the law must “have a real or substantial
relation” to the public interest and concludes that “there is room for honest difference of
opinion” whether long hours are injurious.
· Is it just a question of degree? Are the majority and dissent applying the same standard,
but with different burdens of proof OR with the burden of proof on different parties?
5. Laissez Faire, Lawyers, and Legal Scholarship
· Early 19th century opponents of rate and labor regulation argued that rights of property
were insecure in the hands of popularly controlled legislatures. Further arguments for
private property and inequality:
o laissez-faire Adam Smith – market will regulate itself much better than gov’t
o Social Darwinists - emphasized natural selection as support for inequalities of
wealth
6. Survey of the Court’s Work (1890-1934):
· Between 1890 and 1934, the Supreme Court struck down some 200 statutory and
administrative regulations, mostly under the due process clause of the 14th Amendment
(BLBA 350).
· Police Power: The Supremes let stand laws that appeared to protect health, safety and
morals of the general public or prevent consumer deception; although particularly onerous
regs were struck down as unreasonable
· In area of labor regs
o upheld limitations on women’s working hours in MULLER v. OREGON (1908)
o upheld ten-hour day limit for male factory workers in BUNTING v. OREGON
(1917)
o upheld anti-labor union regs in ADAIR v. US (1908) and COPPAGE v. KANSAS
(1915)
o struck down minimum wage law for women in ADKINS v. CHILDREN’S HOSPITAL
(1923). The Court said that after the passage of the 19 th Amendment, women
no longer required special protection in the workplace.
The Modern Era (BLBA 415-63)
Overview: During the Great Depression, both the feds and the states adopted a series of
emergency measures dramatically expanding government’s role in the economy. At first the
Supremes appeared to acquiesce (see Nebia and Blaisdell), albeit by just one vote. Then, from
1935-1936, the Supremes fought back, striking down 6 regulatory schemes as inappropriate
interventions in economic matters (see Morehead). This pissed off FDR, so he proposed to pack
the Court; Justice Roberts then switched sides and the Court allowed reams of legislation despite
challenges to it based on federalism, due process and the contracts and takings clauses.
Also note that the 16th Amendment was passed in 1913, which was explicitly meant to overturn a
terrible Supreme Court decision saying income taxes were unconstitutional. The Amendment is
crucial to redistribution because you can’t do redistribution very well at the state level—and it
gives documentarians reason to ditch the anti-distribution bent of the Lochner era.
I. DECLINE OF JUDICIAL INTERVENTION AGAINST ECONOMIC REGULATION
Nebbia v. NY (1934) (BLBA 416)
During the Lochner era the Court only allowed regulation of a “business affected with a public
interest”—all other regulation violated substantive due process. Nebbia begins to reverse course,
taking a broad view of what was business affected with a public interest.
FACTS: New York fixed the price of milk at no less than 9 cents a quart. A storekeeper was
convicted of selling below that price; he challenges the law as a violation of substantive due
process (property rights).
HOLDING: the law is upheld by a 5-4 vote.
REASONING: The guarantee of due process “demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the means selected shall have a real and
substantial relation to the object sought to be obtained.” New York’s law setting minimum milk
prices passes this test.
DISSENT: Fixing prices is not within a legislature’s power. It deprives a “fundamental right” to
“conduct [your] own affairs honestly and along customary lines.” The milk industry is not an
industry affected with a public interest.
Home Building & Loan Association v. Blaisdell, (1934) (BLBA 417)

The Minnesota Mortgage Moratorium Case
Minnesota has the power to pass an emergency measure granting temporary relief from
foreclosures.
FACTS: 1933 Minnesota legislature enacted Mortgage Moratorium Law: emergency measure
granting temporary relief from mortgage foreclosures (but didn’t reduce overall mortgage
indebtedness). Home Building & Loan foreclosed on Blaisdell’s house. Law gave Blaisdell an
extension. Company challenged law as a violation of the contract clause: Article 1, Section 10:
“No state shall…pass any…Law impairing the Obligation of Contracts.”
HOLDING (HUGHES): Mortgage Moratorium Law is Constitutional.

REASONING
· The Contracts Clause was a response to debtor-relief laws passed by the states following
the revolutionary period (BLBA 418).
· The temporary restraint of the enforcement of contracts is allowed when it’s necessary in
an emergency situation to protect the general welfare. Given the Depression, this is such a
situation, the Minnesota law only grants a temporary moratorium on mortgage foreclosures
(BLBA 419).
· The Court’s conclusions (BLBA 420-1):
o An emergency existed in Minnesota which furnished a proper occasion for the exercise
of the reserved power of the State to protect vital interests of the community.
o The legislation helps mortgagees as well as mortgagors. It’s not in anyone’s interest for
the entire population of a state to default on mortgages.
o The legislation is temporary in operation; it is limited to the emergency that called it
forth.
CARDOZO UNPUBLISHED CONCURRENCE: History of SC property doctrine has transformed since the
passage of the 14th Amendment. Maybe the contract clause, post the 14th, shouldn’t carry so
much weight. So long as the state is trying to further its own good, rather than the selfish good
of individuals, the Court should not interfere.
DISSENT (Sutherland, w/ Van Devanter, McReynolds, and Butler): This type of bill is
exactly what the contracts clause was supposed to prohibit: taking away creditors’ fair share. The
Contracts Clause was meant to keep the states from taking special measures to protect debtors,
especially in times of economic distress. Majority responds: we’re not singling out debtors or
creditors; we’re actually helping both sides. By stringing out the payments, this system may
actually help the creditors.
Note: The Court hints that Minnesota’s law helps both creditors and debtors. Creditors aren’t
helped if there are massive defaults and the economic base of the state is weakened. But there’s
a prisoner’s dilemma here. All creditors are better off when they all show restraint, but each
individual creditor has an incentive to free-ride—to foreclose and take advantage of the restraint
shown by other creditors. Minnesota had to act to force restraint by all creditors, thus solving
the prisoner’s dilemma.
SIGNIFICENCE: contract clause still matters, but only really for truly redistributive schemes.
II. 1935-37: THE COURT SWITCHES (BLBA 426)

· Court composed of 3 progressives, 4 conservatives, 2 swing; After NEBBIA and
BLAISDELL, swing votes side with conservatives and strike down recovery measures of New
Deal
· FDR threatens to pack court with additional justices; Chief Justice Hughes and Owen
Roberts switch: the “switch in time that saved nine” SC begins to uphold New Deal legis.
· While MOREHEAD v. TIPALDO (1936) invalidated NY minimum wage law for women,
WEST COAST HOTEL CO. v. PARRISH (1937) overruled Adkins v. Children’s Hospital (1923),
and upheld similar law. West Coast holds that “regulation which is reasonable in relation to
its subject and is adopted in the interests of the community is due process.” Allowing
unfettered contracts may create a “subsidy for unconscionable employers.”
III. THE MODERN DOCTRINE OF ECONOMIC DUE PROCESS
United States v. Carolene Products Co. (1938) (BLBA 428-31)
How to justify judicial review after 1937 transformation abandoned substantive due process? As
long as there is a “rational basis” for legislation, it is presumed to be constitutional.
FACTS: In the “Filled Milk Act,” Congress prohibited shipment in interstate commerce of skimmed
milk adulterated with fat or oil other than milk. Did this law exceed power of Congress to regulate
interstate commerce or infringe 5th Amendment?
HOLDING (STONE): The “Filled Milk Act” is constitutional because it passes a rational-basis review.
REASONING
· There is evidence to indicate that Filled Milk as a substitute for pure milk is “generally
injurious to health and facilitates fraud on the public” (BLBA 429).
· The Court takes a highly deferential stance toward congressional economic regulations.
The Court presumes that congressional economic regulations are constitutional, and just
searches for some rational basis for the regulations: “[R]egulatory legislation affecting
ordinary commercial transactions is not to be pronounced unconstitutional unless in the light
of the facts made known or generally assumed it is of such a character as to preclude the
assumption that it rests upon some rational basis within the knowledge and experience of the
legislators” (BLBA 430).
· Footnote 4: But that doesn’t mean that the Court will give minimal scrutiny to all
congressional acts. For example, discrimination against “discrete and insular minorities” may
call for a more searching form of judicial review (BLBA 430).
o Judicial review is justified by textual commitments in the Constitution, including most
prominently the Bill of Rights.
o Judicial review is also needed to protect democratic representation (John Hart Ely’s view
of “representation enhancing” role for the court; protect the rights of discrete and
insular minorities)
Later cases in CAROLENE line (BLBA 434-5):

· OLSEN v. NEBRASKA (1941): The Court upholds a statute fixing the maximum fee that
an employment agency could collect from an employee; “We are not concerned… with the
wisdom, need, or appropriateness of the legislation…”
· US v. DARBY (1941) upholds Federal Fair Labor Standards Act
· LINCOLN FEDERAL LABOR UNION v. NORTHWESTERN IRON & METAL CO (1949)
upholds prohibition on closed shops; Justice Black, in the Lincoln Federal Labor case, sets the
new test: “states have power to legislate against what are found to be injurious practices…
so long as their laws do not run afoul of some specific constitutional provision.”
Williamson v. Lee Optical Co., (1955) (BLBA 435-37)
The Court applies rational-basis review in upholding Oklahoma law that requires prescription for
opticians to fit lenses.
FACTS: Oklahoma law makes it illegal for any person not a licensed optometrist or
ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other
optical appliances, except upon written prescriptive authority of an Oklahoma licensed
ophthalmologist or optometrist. Basically, you need a prescription from an optometrist or

ophthalmologist before an optician can fit lenses for you. A prescription is even needed if an
optician is going to “take old lenses and place them in new frames and then fit the completed
spectacles to the face of the eyeglass wearer” (BLBA 436).
HOLDING (Douglas): The Oklahoma law does not violate the Due Process or Equal Protection
Clause.
REASONING
· The Court upholds the law under minimal scrutiny. “The Oklahoma law may exact
needless, wasteful requirements in many cases. But it is for the legislature, not the courts,
to balance the advantages and disadvantages of the new requirement.” (BLBA 436)
· “The legislature might have concluded that the frequency of occasions when a
prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses”
(BLBA 436).
· Court typically treats actual purposes behind economic legislation as largely irrelevant
to constitutionality so long as some hypothetical purpose satisfies requirements of
minimum rationality.
IV. MODERN CONTRACT CLAUSE DOCTRINE

· Black’s dissent in EL PASO v. SIMMONS (1965) argued that Supreme Court in BLAISDELL
“practically read the Contract Clause out of the Constitution.” And he was right, until
2 cases in…
· Late 1970s: SC invalidated two laws on grounds that impaired obligations of contracts:
US TRUST CO v. NJ (1977) held that NY and NJ could not simply repeal the covenant
creating the Port Authority; and ALLIED STRUCTURAL STEEL v. SPANNAUS (1979) struck
down a Minnesota law that applied retroactively to existing pension plans (forcing employers
to be far more generous in old contracts).
· But the Court mostly continues to uphold laws against contract clause challenges. In
Energy Reserves Group v. Kansas Power and Light, Co., 1983, the Court unanimously upheld
a Kansas law limiting energy price increases, even though such increases had been agreed to
in contract. Blackmun’s opinion nicely sums up current contract clause doctrine, in which the
extent to which a state law impairs a contract must be weighed against the state interest:
o “If the state regulation constitutes a substantial impairment, the State, in
justification, must have a significant and legitimate public purpose behind the
legislation.”
· CONTRACT CLAUSE v. TAKINGS CLAUSE: both limit gov’t redistrib of wealth but contract
clause applies against states not fed govt, takings vice versa; paradigmatic violation of
contract clause is govt redistrib from private creditor A to private debtor B. Paradigmatic
takings clause violation involves govt redistrib from property owner to itself.
· PRIVATE v. GOVT CONTRACTS – historically less deference to states themselves in
making their own contracts because of possible govt self-dealing
V. MODERN TAKINGS CLAUSE DOCTRINE
Jed Rubenfeld, Usings, 102 Yale L.J. 1081-94 (1993) (BLBA pp.446-61)
Key question: What, exactly, constitutes a taking?
· 1. eminent domain, the classic (and only fully agreed upon) example. It’s the state’s
prerogative to seize property, dispossess owner and assume full legal right and title in name
of public good. But Govt must pay for prop seized.
· Beyond eminent domain, though, the question is harder. There are 3 cases, each
involving a different type of “taking,” that laid foundation for modern takings doctrine:
1.PHYSICAL INVASION: PUMPELLY v. GREEN BAY CO (1871) Land flooded after dam
erected by state authorized company and compensation awarded physical invasion rule
2.HARM: MUGLER v. KANSAS (1887) – brewery owner challenged state prohibition against
manufacturer selling alcohol – claimed factory taken because law entirely destroyed
beneficial use of it. SC held that no violation of takings clause. Private prop had implied
obligation that use not injurious to community
3.ECONOMIC IMPACT: PA COAL CO. v. MAHON (1922): PA had prohibited coal mining that
would cause damage to streets and structures above; SC struck down –holds that
diminution of value of owners’ rights would be decisive factor in determining existence of
taking; if economic impact on regulated prop too severe, considered a taking
· MODERN TAKINGS LAW: DOCTRINAL CONFLICT, AD HOC ANALYSIS: Ideas emerging
from these 3 cases fraught with internal conflicts. Especially between harm principle and
economic impact test. What if harm-preventing measure diminished value of regulated
property: does it convert regulation into taking? Courts typically choose to ignore one or
other.
· Day of reckoning in KEYSTONE BITUMINOUS COAL ASS’N v. DEBENEDICTIS (1987): facts
virtually identical to PA COAL but argued that it was not total loss of economic viability so no
taking
· LUCAS v. SOUTH CAROLINA COASTAL COUNCIL (1992): property of plaintiff valueless
because of regulations to prevent beach erosion. SC held that this was taking – decision
mirror image of KEYSTONE – No clear logic here to these rulings. Need for new doctrine
· RUBENFELD advocates: just compensation not simply when govt “takes” prop but when
“uses”. Govt may take away without compensation so long as doesn’t take over 
PUMPELLY, govt using person’s land as reservoir; in MUGLER govt didn’t use brewery; PA
COAL – govt using mass of underground coal to prop up surface structure; LUCAS –use prop
as storm barrier
· Non-instrumentalization principle– govt shouldn’t instrumentalize citizens or their
possessions – what about using citizens’ knowledge; or using citizens through draft?
Recent cases signal a return to more vigorous protection of economic rights through takings
clause.
· ZONING: infringement of property rights? VILLAGE OF EUCLID v. AMBLER REALTY CO
(1926) – upheld zoning provision even though attempt to prevent influx of Eastern
Europeans who could only afford apartments not spacious lots. Should demography impact
be considered?
· MILLER v. SCHOENE (1928) – destruction of large number of cedar trees to protect
orchards from insects. Ruled that cedar tree owners did not need to be compensated. COASE
THEOREM – should cost of apple trees be borne by apple tree owners or cedar growers – can
contract around; neither naturally harmful but two can’t exist side by side
· TAKINGS v. TAXES – what if tax could be payable in taking percentage of land –
different?
· NOLLAN v. CA COATAL COMMISSION (1987) Scalia 5-4 decision – struck down state
decision to make issuance of building permit for beachfront house conditional on conveyance
to public of easement across prop. Scalia saw as “permanent physical occupation” – could
attach conditions to building permit but had to relate to end justified by prohibition.
· DOLAN v. CITY OF TIGARD (1994) strengthened NOLLAN – Dolan owned plumbing store
+ wanted to expand. City determined increase in traffic + stormwater runoff would result;
conditioned permit on dedicating part of prop to floodplain + bicycle path. Court 5-4 struck
down. Rehnquist acknowledges city’s conditions as germane; proper logic nexus between
harms causes + proposed conditions; nevertheless found conditions disproportionate to

cause
· PRUNE YARD SHOPPING CENTER v. ROBINS (1980) – SC upheld local ordinance
protecting speech + petitioning within private shopping centers. Owner claimed ordinance
was a taking
· YEE v. ESCONDIDO (1992) – local rent control ordinance limited ability of owners of
mobile home park to set whatever rents chose. Petitioners said involuntary physical invasion,
giving renters right of permanent occupation; MAJ disagreed – what’s diff between govt
attempt to regulate “use” owner chooses + govt attempt to dictate particular “use”?
· HAWAII HOUSING AUTHORITY v. MIDKIFF (1984) – govt may only take private prop for
public use. Hawaii law redistributed land of large estates. SC reversed. IS THIS
SUBSTANTIVE DUE PROCESS AGAIN? requirement of legitimate use.
· EASTERN ENTERPRISES v. APFEL (1998) – can takings clause be considered for less
physicalist things – like benefits, health-care liability
Voting Rights
SOURCES OF VOTING RIGHTS (being a citizen does not automatically entitle one to vote):
Article IV Sec 4 of Constitution – (Guaranty Clause) Republican form of government.
14th Amendment– (1868)
· Section 1: Equal Protection Clause has been relied upon in most “right to vote” cases
· Section 2: Reduced Congressional representation of those states that denied the vote
to any male inhabitants of a state being 21 and citizens except for participation in
rebellion or other crime.
15th Amendment – (1870) Bars states from denying the right to vote of any citizen on account of
race, color or previous condition of servitude.
19th Amendment – (1920) Prohibits denying the vote on account of sex.
24th Amendment – (1964) Prohibits states from imposing poll taxes as a condition for voting in
elections for federal offices.
26th Amendment – (1971) The right of citizens to vote who are 18 or older.
Recall that the framers went out of their way to say the equal protection clause is not about
voting; however, this is the main basis in the cases below for granting such rights (not privileges
and immunities clause or republican government clause)
There are three basic questions in the voting rights cases:

1) Who has the right to vote?
2) How do we add the votes up? What size should the districts have?
3) What should be the shape of the district?
Voting Qualifications
Harper v. Virginia Board of Elections (1966) (P. 1054)
Supreme Court holds that a poll tax in state elections is unconstitutional under the 14 th
Amendment’s Equal Protection Clause because it discriminates on the basis of wealth.
FACTS: Virginia had a $1.50 poll tax for all over 21. The tax goes to local funds. Does the tax
violate the Equal Protection clause? The Court has upheld state poll taxes in Breedlove v. Suttles
(1937).
HOLDING (DOUGLAS): A state poll tax violates the Equal Protection Clause by discriminating on
the basis of wealth.
REASONING
· “[A] State violates the Equal Protection Clause of the Fourteenth Amendment whenever it
makes the affluence of the voter or payment of any fee an electoral standard” (1054).
· The right to vote is preservative of all other rights. Any denial of the right to vote should
get strict scrutiny.
· A person’s ability or willingness to pay a poll tax “is not germane to one’s ability to
participate intelligently in the electoral process” (1055).
· Overrules Breedlove v. Suttles (1055).
DISSENT (BLACK)
· There are a number of benign reasons why a state might wish to impose a poll tax: the
State’s desire to collect revenue, or its belief that voters who pay a poll tax will be interested
in furthering the State’s welfare when they vote (1055).
· The Court is just imposing its belief that poll taxes are bad on the people of Virginia
(1056).
DISSENT (HARLAN)
· There can be a rational basis for poll taxes, and they have been used throughout U.S.
history (1057).
· The 24th Amendment was needed to abolish poll taxes for federal elections. Why isn’t a
new amendment needed to abolish poll taxes in state elections? Put another way, if the
people of the U.S. did not believe that the 14th Amendment on its own terms was enough to
abolish poll taxes in federal elections, why should the Court consider the 14 th Amendment
sufficient to disallow poll taxes in state elections? Was the 24th Amendment wholly
unnecessary?
Note on the Republican Government Clause: The Court does not invoke the Republican
Government Clause here, but could it have? Most states had ditched poll taxes by the 1960s.
Sure poll taxes and property qualifications may have been okay in republican governments at the
time of the founding, but can we employ an evolving standard of the concept of “republican
government?” If most states have abandoned a practice because its citizens believe the practice
to be un-republican, can the Court force the few holdouts to also abandon the practice?
Note on 15th Amendment: Poll taxes were often used to keep blacks from voting. Could the
Court have struck down Virginia’s poll tax under the 15 th Amendment?
Carrington v. Rash (1965) p1060
A state cannot deprive bona fide residents of the right to vote because of a fear of
their political views.
FACTS: Texas had a provision not allowing those in the military who moved there to vote.
Provision is struck down.
Kramer v. Union Free School District No. 15 (1969) p1060
New York’s qualifications for voting in school district elections violate the Equal Protection Clause.
FACTS: Sect. 2012 of the NY Educational Act set qualifications for voting in school district
elections: ownership or leasing of real property in the district, the spouse of a landowner or
lessee, or the parent of a child in school. The purpose of the law is that the state has an interest
in keeping the vote with those who are directly affected and interested in it. A 31-year-old
stockbroker who lives with his parents who could vote in all other elections sued.
HOLDING (WARREN): Law is struck down as a violation of the Equal Protection Clause.
REASONING
· The Court must give a statute that limits participation in public affairs “close and exacting
examination” (1060-1).
· “The presumption of constitutionality and the approval given ‘rational’ classifications in
other types of enactments are base on an assumption that the institutions of state
government are structured so as to represent fairly all the people. However, when the
challenge to the statute is in effect a challenge of this basic assumption, the assumption can
no longer serve as the basis for presuming constitutionality” (1061).
· It doesn’t matter that this law was passed by the democratically elected New York
legislature (for which all citizens over the age of 21 were allowed to vote). “Legislation which
delegates decision making to bodies elected by only a portion of those eligible to vote for the
legislature can cause unfair representation” (1061).
· It also doesn’t matter that the school board could have been appointed by the legislature
rather than selected through an election. Once New York chooses to have an election for a
school board, it cannot restrict suffrage (1061).
· The New York law allows some people to vote who could care less about the quality of
New York’s schools while denying the right to vote of people who might care a lot about
education even though they don’t pay property taxes or have children in school. The New
York law thus is not narrowly tailored enough to survive strict scrutiny under the Court’s
Equal Protection analysis (1062). The New York law is “not sufficiently tailored to limiting the
franchise to those ‘primarily interested’ in school affairs to justify the denial of the franchise
to appellant and members of his class…” (1063).
DISSENT (STEWART, W/ BLACK AND HARLAN)

· “So long as the classification is rationally related to a permissible legislative end…as are
residence, literacy, and age requirements imposed with respect to voting—there is no denial
of equal protection” (1063).
· The New York law is rationally related to a legitimate legislative aim—making sure voters
in school board elections are sufficiently committed to and knowledgeable of the educational
process in public schools (1063).
· Kramer can vote for the New York legislature, which passed the law setting voting
qualifications for school board elections. There is not self-perpetuating cycle of political
exclusion here. If the people excluded from voting in school board elections don’t like the
policy, they can try to get their legislators voted out of office (1063-4).
· Any voting qualification will keep some people from voting who might care about the
outcome of the election. For example, residency requirements keep New Jersey commuters
from voting in New York elections, even though those elections might bear importantly on
their interests.
CLASS NOTES: This case was decided the same day as Powell v McCormack, which Amar thinks is
an excellent decision. But Kramer’s argument is terrible, says Amar. Powell is motivated by a
structural idea, with a look at the language of exclusion vs. expulsion, and adorned and
reinforced by powerful historical arguments. Kramer basically agrees that all laws draw lines, but
that should lead to a presumption of constitutionality. There is no basis for the Court’s strict
scrutiny here. And the reliance on Harper is totally contradictory. A better argument for
Kramer is that the most recent poll tax amendment, while not applying strictly to
states, begins to imply political rights that are guaranteed. When you take the 14th
Amendment (which may only create civil, not political rights), add it to the 15th and so on, then
maybe there is a right to pure access to voting. Another way to go would be through the
Republican government clause. Still, this may be a bad policy, but it’s tough to say it’s
unconstitutional.
Other issues in voting:

Duration of residency- Dunn v Blumstein, 1972: held that the equal protection clause limits a
state’s authority to impose durational residence requirements. (30 days was long enough).
(1066)
Convicted felons– O’Brien v. Skinner, 1974 – NY must provide absentee registration and voting
for those in jail awaiting trial or convicted of misdemeanors. (1068)
Richardson v. Ramirez, 1974 – equal protection clause does not prohibit a state from
disenfranchising convicted felons. Sect. 2 of 14th Amendment does not decrease the basis of
representation in the House of states who deny the right to vote of people who have participated
in “rebellion, or other crime” (1068).
Party affiliation– Rosario v. Rockefeller, 1973 – upheld a law which required voters to enroll in
the party of their choice at least 30 days before a general election in order to be eligible to vote
in the next party primary. The law was designed to prevent party raiding. (1068)
Age– 26th Amendment set age at 18 – if old enough to fight you are old enough to vote.
Literacy– Lassiter v. Northhampton County Board of Elections, 1959 – upheld a literacy test.
Made moot by Congress, using its 14th Amendment Section 5 powers, when it declared all literacy
tests illegal. (1069)
How are the votes counted? The question of reapportionment.
Baker v. Carr (1962) P. 1074
Reapportionment is not a non-justiciable political question. The courts can thus hear challenges
that malapportioned districts violate the Equal Protection Clause of the 14 th Amendment.
FACTS: Tennessee had not redrawn its electoral districts since 1901 despite dramatic changes in
the state’s demography. By the 1960s, Tennessee’s electoral districts were severely
malapportioned: about 40% of the voters elected 2/3 of the State’s senators and representatives.
Effectively, rural voters had more power at the polls than urban voters. Voters sued to invalidate
the existing apportionment on the ground that their votes were unconstitutionally “diluted”
(1074). Note that Baker came before Harper and Kramer.
HOLDING (BRENNAN): The Court could examine Tennessee’s apportionment scheme.

Apportionment is not a non-justiciable political question.
REASONING
· Court’s conception of which cases raise non-justiciable political questions. Apportionment
cases don’t fall into this category (1074).
· Luther v. Borden (1074-6): The Case that strangled the Republican Govt.
Clause
o The defendants, admitting an otherwise tortious breaking and entering, sought to justify
their action on the ground that they were agents of the established lawful government
of Rhode Island, which State was then under martial law to defend itself from active
insurrection
o Two groups in Rhode Island in the early 1840s laid competing claims to recognition as
the lawful government.
o The plaintiff’s rights to recover depended upon which of the two groups was entitled to
such recognition.
o The Court demurs by simply affirming the lower court’s charge to the jury that the
earlier established or “charter” government was lawful.
o It’s for Congress to decide which government is the lawful one. There are no judicially
manageable standards by which the Court could decide which form of government was
legitimate under the Republican Government Clause.
o Republican Government Clause During Reconstruction: Congress used the
Republican Government Clause to exclude congressmen from ex-Confederate states
because the states did not have republican forms of government.
 Understandably, the courts did not want to decide whether these exclusions
were legitimate. The courts could take shelter under Luther v. Borden’s logic
that it was not up to the judiciary to decide which governments were republican
and which weren’t.
o Brennan hints that some cases arising under the Republican Government Clause might
be justiciable.
o But even if claims under the Republican Government Clause are non-justiciable, this has
no bearing on Baker, in which the Court holds that the judiciary may hear challenges to
state apportionment under the Equal Protection Clause.
· “We conclude that the complaint’s allegations of a denial of equal protection present a
justiciable constitutional cause of action upon which appellants are entitled to a trial and a
decision. The right asserted is within the reach of judicial protection under the 14 th
Amendment” (1076).
CONCURRENCE (CLARK)
• The Equal Protection Clause does not require that an apportionment scheme meet the
standard of “mathematical exactness” (but this is essentially the standard the Court sets in
Reynolds v. Sims)
• There is a self-perpetuating cycle of political exclusion here that calls for the judiciary’s
intervention. Tennessee has no initiative or referendum. The Tennessee legislature has not
proven willing to reapportion, and urban voters lack the political strength necessary to
pressure legislators because of the malapportionment. Any constitutional convention would
have to be called by the Tennessee legislature. Tennessee’s governors have tried to push for
change but have only been rebuffed. State courts have not been sympathetic to the plight of
urban voters. If urban voters are to get any relief, they must find it in federal court, but
Congress is also unlikely to get involved.
DISSENT (FRANKFURTER, W/ HARLAN)

• This is a Guarantee Clause case masquerading as an Equal Protection case. For all the
reasons that cases under the Guarantee Clause are non-justiciable, this case should be held
to be non-justiciable as well.
• You can’t speak of “debasement” or “dilution” unless you first draw some baseline that
reflects what a vote should be worth. This would require the Court to decide a difficult
political question—the Court would have to decide between competing bases of
representation.
Reynolds v. Sims (1964) P. 1079
The Equal Protection Clause requires apportionment of state legislatures on a “one-person/one-

vote” basis (population basis).
Facts: Together with its 5 companion cases, known as the Reapportionment Cases; the Court
addressed the merits of various states’ apportionment schemes.
HOLDING (WARREN): An apportionment scheme that gives one representative each to different
population bases violates the standard of one-person/one-vote required by the Equal Protection
Clause.
REASONING
· Baker says these cases are justiciable.
· Reynolds says there needs to be one-person/one-vote because “weighing the votes of

citizens differently… merely because of where they happen to reside hardly seems
justifiable.” (1079)
· The basis for apportionment for state legislature must be population: “We hold that, as a
basic constitutional standard, the Equal Protection Clause requires that the seats in both
houses of a bicameral state legislature must be apportioned on a population basis” (1080).
· “[A]n individual’s right to vote for state legislators is unconstitutionally impaired when its
weight is in a substantial fashion diluted when compared with votes of citizens in other parts
of the State…” (1080).
· The analogy between Federal bicameralism and state bicameralism does not hold.
Unequal representation in the Senate was the result of a compromise among sovereign
states. The political subdivisions of states were never sovereign.
DISSENT (HARLAN)
· Apportionment is really a political question. The Court is just imposing its political
judgment on the states
DISSENT (STEWART)
· The Equal Protection Clause demands only two things of a state-apportionment regime:
o The plan must be a rational one, in light of the State’s own characteristics and needs
o There must not be a systematic frustration of the will of the majority of the electorate of
the State
NOTES
· There are some major problems with the one-person/one-vote standard
o What’s the denominator? (1087): Must electoral districts have equal numbers of:
· Registered voters?
· Eligible voters?
· Citizens?
· Overall population?
· What about prison towns in Texas? If we take a population-basis
instead of an eligible-voter basis, the votes of prison guards in Harris
County are overweighted because prisoners can’t vote even though
they are considered as part of the population of the electoral district. It
would not seem fair to say, though, that prison guards fairly represent
the views of prisoners in the same way that parents’ votes might be a
proxy for their children’s votes.
o Without the notion of shape of the districts, one-person/one-vote doesn’t automatically
guarantee majority rule or protection of minority vote. Depending on how the district
lines are drawn, different outcomes may result
· The chief virtue of the “one-person/one-vote” standard is that it is easy to apply. But a
better standard might be that there is a violation of the Republican Government Clause
whenever the apportionment scheme causes a systematic frustration of the majority will.
· Jonathan Still presents different criteria of equality in “Political Equality and Election
Systems”:
o Universal Equal Suffrage: Everyone is allowed to vote, and everyone gets the same
number of votes.
o Equal Share: Each voter has the same “share in the election,” defined as what that
voter voted on divided by the number of voters who voted on it.
o Equal Probabilities: Each voter has the same statistical probability of casting a vote
that decides the election.
o Anonymity: The result of the election is the same under all possible distributions of the
voters among the positions in the structure of the election system.
o Majority Rule: Any alternative favored by a majority of the voters will be chosen by
the election system.
o Proportional Group Representation: Each group of voters receives the same
proportion of seats in the legislative body as the number of voters in the group is of the
total electorate.
· In Reynolds, the Court only required “universal equal suffrage” and “equal shares”
What should be the shape of the district? The gerrymandering question.
Whitcomb v. Chavez (1971) P. 1094
Multi-member districting is not a per se violation of the Equal Protection clause, but may be
subject to challenge when the circumstances operate to minimize or cancel out the voting
strength of racial or political elements of the voting population.
FACTS: Residents of Marion County, Indiana, who lived in the Indianapolis “ghetto” sued to
invalidate the multi-member districting scheme employed in Marion County for state house and
senate elections because it invidiously diluted the vote of the black and the poor within the
county. The District Court held for the plaintiffs, finding that senators and representatives tended
to come from the better off areas. Indiana got a stay of the order and held the 1970 election
under the old scheme and then in 1971 adopted a new scheme for single-member districting
throughout the state.
HOLDING (WHITE): Upholds the multi-member districting scheme in Marion County.
REASONING:
· There is no evidence that Indiana intended for the multi-member district in Marion
County to dilute the vote of blacks and the power—there’s no evidence of discriminatory
intent (1096).
· “[W]e are unprepared to hold that district-based elections decided by plurality vote are
unconstitutional in either single- or multi-member districts simply because supporters of
losing candidates have no legislative seats assigned to them” (1098).
Note: Diagram of gerrymandering possibilities (1101).
Davis v. Bandemer (1986) p. 1100
Just because the party in power gerrymanders districts in its favor does not mean the scheme
violates Equal Protection clause.
FACTS
· The Republicans were in power in the Indiana governor’s office and in both houses.
Indiana reapportioned its state legislature but the reapportionment was challenged by the
state’s Democrats as being too one sided—this was gerrymandering for political advantage,
pure and simple.
· In the next election, Democrats received 51.9% of the vote, but only 43% of the House.
For the Senate, Democrats received 53.1% of the vote statewide and won 52% of the
contests.
· Gerrymandering: an incumbent political party designs legislative districts to maximize
the number of seats it can win in a general election.
· The District Court invalidated the reapportionment, as there were single, double and
triple districting, it didn’t follow any county lines, etc. Republicans appeal and argue the case
was nonjusticiable and that it did not violate equal protection clause.
HOLDING (WHITE): This is a justiciable question and not a political one in that it addresses the
issues of representation. But that’s all 5 justices can agree on. A plurality of the court, led by
White, upheld the reapportionment saying that even though it favored Republicans it was not
sufficiently adverse to call it a denial of equal protection. You need both discriminatory intent
(which was obvious here), but also an “actual discriminatory effect,” which was unclear in this
case (given that the Democrats did rather well in the election). You can’t rely on a single election
to prove unconstitutional discrimination.
REASONING
· “[T]he mere fact that a particular apportionment scheme makes it more difficult for a
particular group in a particular district to elect the representatives of its choice does not
render that scheme constitutionally infirm” (1103).
· The Court will find an electoral system unconstitutional only when there is significant
evidence “of continued frustration of the will of a majority of the voters or effective denial to
a minority of voters of a fair chance to influence the political process” (1104).
· You can’t prove unconstitutional discrimination by pointing to the evidence of one
election (1104).
· To prove an Equal Protection violation, you must show both discriminatory intent and
effect. Indiana Republicans may have intended to disadvantage the Democrats, but after
only one election, it’s not clear that they were successful in obtaining their goal (1105).
O’CONNOR, W/ BURGER AND RHENQUIST

· Partisan gerrymandering is a political question that the courts should leave to the
legislative branch (1105).
· The Democratic and Republican parties are not discrete and insular minority groups that
require judicial protection because they historically have been excluded from the political
process. These major political parties are the dominant groups (1106).
· Racial gerrymandering should remain justiciable, but political gerrymandering should not
(1107).
NOTES
· All district mapping is gerrymandering of a certain sort. While the Supreme Court’s exact
stance is not crystal clear, it does not give heightened scrutiny to electoral districts drawn
along partisan lines.
· The saving grace is that incumbents draw electoral districts, and incumbents want to win
by a landslide—they don’t like close elections. Therefore, “safe districts” tend to be very
safe, with lots of wasted votes (votes for winner of the election over and above the minimum
amount necessary to win; also any votes for the loser of an election).
· If political parties cut it too close in drawing district lines, a 51/49 majority could turn into
a 51/49 win for the other side. There’s another incentive not to draw the line too finely.
Slavery and Race
Slavery (pp. 168-214)
Amar’s intro notes:

● The Constitution is a pro-slavery document. Article 1 gives slavemasters 3/5 extra
representation per slave and says you cannot ban the importation of slaves until 1808; Article 2
embeds the 3/5 bias into the electoral college, which allowed all of the first early presidents to be
white slaveholding Virginians except for John Adams; Article 4’s fugitive slave clause; judges
picked by the president, so they’re tainted (which may explain why the early judges were even
more pro-slavery than the document itself); Article 5 says the only thing that cannot be amended
in the document is the 1808 slave trade law delay. (Amar admires Frederick Douglas’s attempt to
cast the 3/5 compromise as anti-slavery, but says it doesn’t hold under even bare scrutiny).
● Slavery as an individual right was protected by judges for a long time.
● The Supreme Court protected slavery far more than did the text of the Constitution.
● Amar thinks that the S.Ct. is today in some ways reverting to this troubling period of history.
Groves v. Slaughter (1841) (BLBA 169)
Is the slave trade interstate commerce, and thus able to be regulates by the feds, or is it strictly
a state matter?
FACTS: Challenge to provision of Mississippi State Constitution that forbade importing slaves into
the state for sale there, as unconstitutional restriction of interstate commerce. Mississippi was a
slave state and provision sought to prevent its own slave trade from competition.
HOLDING (THOMPSON): Upheld challenge on the grounds that Mississippi Constitution required
enabling legislation, which had not been passed. So he avoided the constitutional question, which
was addressed vigorously in concurring opinions.
CONCURRENCE (MCLEAN): Slaves are not an item of commerce but persons under the
Constitution. Therefore, States have power over slavery and the slave trade, including the
transfer and sale of slaves.
CONCURRENCE (TANEY): Power over slave trade belongs exclusively to the states, cannot be
controlled by Congress. (same conclusion as McLean).
CONCURRENCE (BALDWIN): Since slaves are commerce, a state could not ban the importation of
slaves because that would affect interstate commerce, which is the exclusive domain of the feds.
A state can, however, abolish slavery, but it cannot allow slavery and then prohibit the slave
trade. Cites Article 4(2) of the privileges and immunities clause: if trade is lawful for Mississippi
citizens it can’t be denied to citizens of other states inside Mississippi borders (BLBA 170).
Prigg v. Pennsylvania (1842) (BLBA 173)
States cannot place any barriers on slaveowners’ ability to recapture their fugitive slaves from
free states.
FACTS
· Fugitive Slave Clause (Art. 4, Sect. 2, Cl. 3): “No Person held to Service or Labour in one
State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall be delivered up on
Claim of the Party to whom such Service or Labour may be due.”
· The Fugitive Slave Act of 1793 authorized the owner to seize a fugitive slave and bring
him/her before a federal judge or state magistrate, who was required to give a “certificate”
to the owner or his agent upon satisfactory proof “that the person so seized or arrested doth,
under the laws of the state or territory from which he or she fled, owe service or labor to the
person claiming him or her…” (BLBA 173)
· In 1873, Edward Prigg and others captured Margaret Morgan and her children in
Pennsylvania and brought them back to Maryland.
o The prior owner of Margaret’s parents had informally set them free prior to Margaret’s
birth.
o Margaret was married to Jerry Morgan, a free black, and they had in 1832 moved just
across the border to Pennsylvania, where they had several children.
o The heir to the owner of Margaret’s parents claimed Margaret and her children as his
property.
o Without first getting any certificate from a judge, Prigg and Bemis (the heir) took
Margaret and her children into Maryland and sold them to slave traders.
· Prigg was convicted under an 1826 Pennsylvania statute expressly designed to prevent
self-help in the return of fugitive slaves.
HOLDING (STORY): Reversed ruling of PA court; PA statute preventing self-help violated Article 4,
Section 2’s fugitive slave clause. Prigg’s conviction by a Pennsylvania state court cannot stand.
REASONING
· Fugitive slave clause was very important to slave states in ratifying the Constitution.
Slave states may not have accepted the Constitution if it did not contain this clause. (BLBA
175)
· Slave owners have an absolute right to retrieve their slaves. The States cannot pass any
legislation that places a burden on the exercise of this right.
· “[T]he owner of a slave is clothed with entire authority, in every state in the Union, to
seize and recapture his slave, whenever he can do it, without any breach of the peace or any
illegal violence” (BLBA 175).
· Congress has the power to enforce the Fugitive Slave Clause, and it has done so through
the Fugitive Slave Act (BLBA 176).
o In fact, the states can’t be forced to provide a means for helping slave owners retrieve
their fugitive slaves. That’s Congress’ job (BLBA 176).
· Congress’ Fugitive Slave Act supersedes all other forms of state legislation. The states
are in fact prohibited from imposing additional requirements on slave owners when claiming
fugitive slaves (BLBA 177).
· Congress did have the power to enact the Fugitive Slave Act, even though it was not
acting under a clearly enumerated power. Slave owners have a right to reclaim their fugitive
slaves. If Congress had not acted, that right might be in effect nullified. Congress can act to
protect constitutionally protected rights, so Congress had the power to enact the Fugitive
Slave Act as an appropriate means to a constitutionally permissible end (BLBA 177).
· In summary, only Congress can pass legislation regarding how a slave owner can go
about claiming his fugitive slaves (BLBA 178).
· The Pennsylvania law under which Prigg was indicted is thus unconstitutional, and Prigg’s
conviction should be set aside.
CONCURRENCE (TANEY)
· The states cannot pass legislation that impairs a slave owner’s right to reclaim his
fugitive slaves, but they can (and have an obligation to) pass legislation that protects and
supports the slave owner’s claim to his slaves.
· In fact, the Fugitive Slave Act assumes the states will help: Slaveowners can come before
state magistrates, instead of distant federal judges, to claim their rights to their fugitive
slaves (BLBA 179).
DISSENT (McCLEAN)
· Prigg did not have a right to remove the fugitive slave by force without going before
some state or federal officer (BLBA 179).
· In slave states, all blacks are presumed to be slaves, but in free states, all blacks are
presumed to be free. It makes sense to require a slave owner claiming a fugitive slave in a
free state to come before some magistrate to determine whether the supposed “slave” is
really a slave (BLBA 180).
· The Constitution does not give slave owners a right to self-help in reclaiming fugitive
slaves. It’s not a self-executing right—the clause clearly envisioned some implementing
legislation to provide a formal process through which slave owners could claim their fugitive
slaves (BLBA 180).
· States can pass laws to punish those who reclaim slaves without going through the
process set up by Congress. These laws are an exercise of the State’s police power (BLBA
180).
NOTES
· Historians dispute Justice Story’s claim that the Fugitive Slave Clause was a central
compromise of the Constitution and was very important to Southern states.
· Why would Justice Story, a Northerner who opposed slavery, write this majority opinion?
o Story was a fervent nationalist and was worried about the slavery issue, which was
clearly ripping the nation apart.
o Maybe Story wanted to make it harder for slaveholders to claim their fugitive slaves. In
most instances, they would have to go before a federal judge to claim the slave, but
federal judges were too few and far between to be of practical value.
· Was the Fugitive Slave Act unconstitutional?
o There was no enumerated power that gave Congress the authority to pass the Fugitive
Slave Act.
o The Full Faith and Credit Clause gave Congress the power to prescribe “by general
Laws…the Manner in which such Acts, Records and Proceedings shall be proved, and
the Effect thereof.” The Fugitive Slave Clause does not explicitly grant Congress the
power to enforce the clause by appropriate legislation.
· As part of the Compromise of 1850, a new Fugitive Slave Act is passed. It provided for
the appointment of federal commissioners, who were authorized to issue certificates of
removal on the ex parte testimony or affidavits of slaveholders or their agents. The
commissioner was paid $10 for issuing a certificate but only $5 if he denied it. The
(supposed) slaves also could not testify in their own defense (BLBA 182)
· White people could also be drafted into posses to round up fugitive slaves.
Dred Scott v. Sandford (1857) (BLBA 183)
Slaves cannot be made U.S. citizens by moving to free states. Blacks cannot be U.S. citizens. The
Missouri Compromise, which declared slavery prohibited in Louisiana Territory North of 36
degrees/30 minutes, unconstitutionally violates substantive due process under the 5 th
Amendment.
BACKGROUND
· Antagonism between North and South increased after Prigg. Heightened by dispute over
status of slavery in the territories.
· 1954: Missouri Compromise was repealed by the Kansas-Nebraska Act (casebook says
that along with Northern anger at Fugitive Slave Act, this was the most important single
event contributing to the Civil War). Nebraska territory split into Kansas and Nebraska.
Settlers could determine whether their states would be slave or free: Kansas chose slavery;
Nebraska chose to be free. Conflict over Kansas central issue in politics, founding of “free
soil” Republican party, the split in the Whigs, John Brown guerrilla warfare, etc.
FACTS
· Dr. Emerson, an army surgeon took his slave, Dred Scott, from Missouri to Illinois. After
two years, moved to Upper Louisiana. In 1836, Dr. Emerson bought Harriet, a slave, who
married Dred Scott. The couple had two children, one born on Mississippi River, the other in
Missouri. In 1938, Dr. Emerson took Dred Scott and his family to Missouri holding them as
slaves. Dred Scott argues that because Dr. Emerson had taken him and his wife to “free soil”
area of Upper Louisiana, he and his family are citizens of Missouri and not slaves. Brings
action in Circuit Court in Missouri. The question: Can a black man descended from slaves
become a citizen with all the rights, privileges, and immunities of citizenship?
HOLDING (TANEY): Blacks could not be citizens, no matter where they moved. Only citizens have
constitutional rights. The free-soil laws, which outlawed slavery in parts of the territories, were
unconstitutional violations of substantive due process.
REASONING
· Is the plaintiff entitled to sue as a citizen in a court of the United States? No. The
Framers of the Constitution and the citizens of the States who ratified the Constitution never
imagined that blacks would be counted as citizens of the U.S. (original intent and history).
· Descendants of slaves “are not included, and were not intended to be included, under
the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and
privileges which that instrument provides for and secures to citizens of the United States”
(BLBA 186).
· The framers of the Constitution did not consider slaves or their descendants to be
citizens of the U.S. The framers considered blacks to be of an inferior race (BLBA 187).
· The Declaration of Independence proclaims that “all men are created equal.” But the
founders did not treat blacks as equals. Clearly they considered blacks to be “inferior beings”
and not part of the “people of the United States.” The men who framed the Declaration of
Independence were “great men” and “incapable of asserting principles inconsistent with
those on which they were acting.” Everyone in civilized society understood that when the
founders proclaimed that “all men are created equal,” they weren’t referring to blacks (BLBA
189-90).
· The Constitution contains clauses that clearly show that the Framers did not consider
blacks to be part of the “people of the United States”: Slavery Importation Clause and
Fugitive Slave Clause (BLBA 190).
· The States at the time of the Constitution’s ratification did not treat blacks as equal
citizens. Their laws, even in the free states, treated them as inferiors and denied them equal
rights.
· If blacks could be citizens, they could be entitled to all the privileges and immunities of
citizenship (including the right to bear arms and the right to free expression, both of which
could be used to stir up slave rebellions in the slave states) (BLBA 193).
· No State by its own laws can make a black person a citizen of the United States so that
each other State had to treat the person the same as its own citizens (BLBA 194).
· Women, minors, and people who don’t meet property qualifications can’t vote but still
are citizens. Some states allow foreigners to vote even though they are not citizens of the
U.S. The right to vote is not a necessary or sufficient condition for citizenship. Just because
a state might choose to give blacks the right to vote, that doesn’t mean that blacks are
citizens (BLBA 196).
· Dred Scott is “not a citizen of Missouri within the meaning of the Constitution of the
United States, and not entitled as such to sue in its courts…” (BLBA 198)
DISSENT (CURTIS) (BLBA 198)

· At the time of the Constitution’s ratification, blacks could be citizens of the states of New
Hampshire, New York, New Jersey, and North Carolina. Many of these blacks were allowed
to vote in these states. Clearly not all of the states that ratified the Constitution believed that
blacks could not be citizens.
· Some blacks had the right to vote for delegates to the state ratification conventions. It
would be odd to say that they could vote for the people who ratified the document that took
away their citizenship (BLBA 199).
· In Curtis’s opinion, “every free person born on the soil of a State, who is a citizen of that
State by force of its Constitution or laws, is also a citizen of the United States” (BLBA 199).
· Citizenship is “not dependent on the possession of any particular political or even of all
civil rights.” Women and children are citizens of the U.S. although they can’t vote. Taney is
wrong to say that just because blacks are citizens, all States must give them the same rights
as white citizens (BLBA 200).
· Taney’s fear that giving blacks citizenship means they’ll get all privileges and immunities
is wrong, because they’ll simply be treated as other black men.
NOTES:
Taney thought Dred Scott would solve slavery issue, but it instead became nation’s symbol of
irreconcilable division between North and South.
Substantive Due Process: Besides the central holding that Dred Scott did not have standing to
bring his case because he was not a citizen of the U.S., the Court also found the Missouri
Compromise (and all other “free-soil” laws) to be unconstitutional.
The Missouri Compromise prohibited slavery in the Louisiana Territory north of 36 degrees
30 minutes, except for Missouri, which entered the Union as a slave state.
Dred Scott argued that he and his wife Harriet became free when they were brought out of
Missouri into the Upper Louisiana Territory. Hence, when they were brought back to
Missouri, they became citizens of that state. (Question: Does slave status “reattach”
when a former slave returns to a slave state?)
Taney held that the Missouri Compromise was a violation of substantive due process. It
deprived slave owners of their property without due process of law in that it did not
allow slave owners to take their slaves to the Upper Louisiana Territory: “an Act of
Congress which deprives a citizen of the US of his liberty or property [i.e. slaves] merely
because he came himself or brought his property into a particular Territory of the US,
and who had committed no offense against the laws, could hardly be dignified with the
name of due process of law.” (BLBA 203)
Basic problem with the argument: Is the right to own slaves more protected than other
forms of property subject to regulation (would the Court hold it unconstitutional for
Congress to prohibit bringing certain kinds of drugs or alcohol into the Upper Louisiana
Territory)?
Justice McClean disagreed with Taney and said the Missouri Compromise was constitutional
because it was sound national policy: anti-slavery settlers were discouraged from
settling far more of actual territory than slaveowners (anti-slavery settlers would not
want to settle in the Lower Louisiana Territory, where slave owning was allowed).
(Does this suggest that it would be unconstitutional to bar slavery in all territories, since
slaveowners possess a constitutional right to settle with slaves in some, though not all,
of the territory?).
According to Dred Scott, the Republican Party’s platform was unconstitutional. The Republican
Party opposed the spread of slavery to the territories and thus supported free-soil laws.
Lincoln wanted to see Dred Scott overturned.
Lincoln got 40% of the popular vote in 1960, but didn’t get a single popular vote south of
Virginia.
The first sentence of the 14th Amendment overturns Dred Scott’s holding that blacks can’t be
citizens.
Frederick Douglass: Is the Constitution Pro-Slavery or Anti-Slavery?

(Speech delivered in Glasgow, Scotland, March 26, 1860) (BLBA 207)
Douglas argues the Constitution is anti-slavery—a plausible textual analysis but it
doesn’t cohere with historical facts that gave rise to the text.
● Question is not whether slavery existed at time of adoption of Constitution, but (1) Does
Constitution guarantee one class of people right to hold as property another class of people? (2)
Is dissolution of union morally required?
● Douglass employs his own brand of textualism, uses text to fit his own goals: “The paper, and
only the paper itself, with its own plainly written purposes, is the Constitution.”
● Constitution encourages freedom by giving increase of 2/5 political power to free over slave
states; it doesn’t forbid blacks to vote; the provision for abolition of slave trade is a positive
provision—a signal of intention that abolition of slave trade was to sound the death knoll for
slavery; the “slave insurrection” clause, if it does apply to slave insurrections, does not support
slavery. The best way to put down insurrections is to abolish slavery; and the fugitive slave
provision rightly applies to redemptioners not slaves.
● Amar: Douglas provides us with a reminder that S. Ct. Justices aren’t the only ones that decide
Constitutional meaning. Ultimately we the people have amended Constitution to move it towards
Douglas’s vision, but S. Ct. has often stood in the way of this trend.
The Lincoln Douglas Debates: Judicial Supremacy and Dred Scott (BLBA 211)
● Lincoln, in “A House Divided” speech, denounced the Dred Scott decision as conspiracy to
nationalize slavery. He comes back into politics because of Dred Scott.
● Lincoln: If there is a vote in Congress as to whether slavery should be prohibited in a new
territory, in spite of Dred Scott, I would vote yes.
● Douglas: I have never heard of an appeal being taken from the S.Ct. to Congress.
● Makes fun of the idea that Lincoln might “appeal to the people to elect a President who will
appoint judges who will reverse the Dred Scott decision…Suppose you get a Supreme Court
composed of such judges, who have been appointed by a partisan president upon their giving
pledges how they would decide a case before it arises, what confidence would you have in such a
court?” (213) (A good question: somehow the litmus test isn’t so implausible anymore).
● Lincoln: A citizen is not required to confirm his vote to Dred Scott, and Judges are not the
only arbiters of constitutional questions.
Race Discrimination After the Civil War: 1866-1934 (BLBA 241)
The 14th Amendment

● In 1865, the 13th Amendment abolished slavery.
● But the Black Codes, adopted by many southern states, prevented southern blacks from
realizing basic rights. These included laws with unequal penalties for blacks, or specifying
offenses for blacks only; examples: keeping guns or selling liquor, capital offense to rape a white
woman, vagrancy laws, etc.
● 39th Congress played major role in guaranteeing rights to freed blacks.
Civil Rights Act of 1866 (BLBA 242)

● Key phrase in the Act was the “civil rights formula”: “prohibition of discrimination in civil rights
or immunities among the inhabitants of any State or Territory of the United States on account of
race, color, or previous condition of slavery or involuntary servitude….”
· Supporters of the bill insisted that the only rights it secured were those specifically
enumerated in section 1 of the Civil Rights Act—and that all they were doing was enforcing
section 2 of the 13th Amendment (i.e., they were militating against the “badges and
incidents” of slavery).
· Opponents continued to fear that the bill would be construed broadly, including political
rights (ie., the right to vote).
· Other objections included argument that 13th Amendment did not empower Congress to
enact Civil Rights Act and worry that it might be construed to prohibit public school
segregation
· The House and Senate passed the Act in 1866 and then overrode a presidential veto. The
act reads in part: “citizens of every race and color… shall have the same right in every State
and Territory in the US, to make and enforce contracts, to sue, be parties, and give evidence,
to inherit, purchase, lease, sell, hold and convey real and personal property…”
Drafting of the Fourteenth Amendment (BLBA 246).

The Fourteenth Amendment was NOT about voting rights; it’s about civil rights.
● After Civil Rights Act was on the books, the Committee of 15 considered the Fourteenth
Amendment.
● In drafting section 1 the committee wavered between civil rights formula and language of
Bingham amendment; it settled on the latter: “No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States nor shall any state deprive
any person of life, liberty, or property without due process of law, nor deny to any person within
its jurisdiction the equal protection of the laws.”
● Andrew Jackson Rogers was concerned that the “privileges and immunities” of Section 1 might
include the right to marry, to be a juror, to hold political office. His worries about the lack of firm
boundaries foreshadowed later debates, but received little attention at the time either by
Congress or state ratifying committees.
What the Fourteenth Amendment did NOT say (BLBA 248)

● Two proposed amendments mandating color blindness (for example, proposal by T. Stevens:
“All national and State laws shall be equally applicable to every citizen and no discrimination shall
be made on account of race and color”) were explicitly rejected.
● Can we then interpret Article 14 as mandating color blindness (thus standing in opposition to
affirmative action) if this was explicitly rejected by its drafters? Or should we see this as
irrelevant?
Unusual procedural history of the Fourteenth Amendment (BLBA 249)

● Andrew Johnson offered to welcome back confederate states only if they ratified 13 th
Amendment
● December 1865, Republican majorities in 39th Congress exercised power under Article I, §5 to
judge qualifications of its own members and to exclude some congressmen from the South. They
feared that Democrats would block any further amendment or even ordinary laws.
● So 14th Amendment was proposed and passed by a “rump” Congress, without excluded
Southern members
● Without S. representatives, Congress passed Reconstruction acts, putting South under control
of military. Congress supervised conventions to create new State governments. Representatives
from South only allowed back into Congress if their state ratified 14 th Amendment and only if
amendment gained support of ¾ of States.
● How could Congress exclude the south from coming back, when Lincoln’s whole justification for
the war was that they never left? The southern states were suddenly getting 5/5 of slave votes,
without letting slaves vote. This is an exclusion, not an expulsion, based on Luther, which gives
Congress the ability to enforce the Republican government clause. Since the south wasn’t letting
people vote who should have had the right, this seems justified. [Although many northern states
didn’t let blacks vote either, the percentages are so small it makes it de minimus; and no
women’s vote because they are represented by their husbands]. Alternatively, the South could
respond: Why were we deemed Republican in 1859, but not now? Possible counterargument: It
is one thing to exclude slaves from voting, but to exclude free blacks from the franchise is
completely different.
● Should Congress use the Republican govt clause to exclude Dick Armey from sitting, since his
district contains tons of people in jail who count for apportionment but cannot vote?
● Johnson sought to stall conventions to create new state governments and ratify 14 th
Amendment by firing Secretary of War. Led to impeachment trial. Acquitted by one vote.
● By July 1868, States ratified 14th Amendment. NJ and Ohio withdrew earlier ratifications but
Congress declared withdrawal void.
AMAR NOTES:
● Was 14th Amendment properly proposed and ratified, with exclusion of Southern States? If
yes, does this establish a precedent for ratification under Article 5? Could Senate have refused to
seat Senators from states that refused to ratify ERA in 1979?
● Did the exclusion of Southern Senators violate Article V (“No State, without its consent shall be
deprived of its equal Suffrage in the Senate.”)? In 1867, the Supremes dismissed Georgia’s claim
that destruction and reconstruction of the State was unconstitutional. Said that the issue was a
political question not subject to judicial review.
Amar on the Fourteenth Amendment

● The 14th Amendment has two big clauses:
privileges and immunities guaranteed to all citizens (court hasn’t paid much attention to this)
due process of laws guaranteed to all persons.
● If the privileges and immunities clause includes, speech, press, etc. why add due process
clause? Because due process is a right of all persons, not only citizens.
● 14th Amendment and Article 4: Under Article 4, you get the same rights—the same privileges
and immunities—of the citizens of other states when you are in that state. Article 4 is best read
to say the equality of civil rights (to sue and be sued, speak, assemble, have guns) for out-of-
staters must be on the same terms as in-state residents. Therefore it is easy to see why courts
thought that 14th Amendment was about civil rights not political rights (ie. voting). However,
Article 14, §1, is more substantive than Art. 4, in that it says no state shall make laws that
abridge civil rights of citizens.
● §2 of the 14th Amendment said that if you deny the vote to any male inhabitants over 21
years old, representation in Congress will be reduced. First time male is mentioned in the
document—the whole purpose was to make sure that states with lots of women didn’t get
screwed. But the Court looked away and did not ensure that blacks voted under 14 th Amendment.
That is why we needed the 15th.
● Today’s Supreme Court lives in an alternative universe. 14 th Amendment and §1 in particular,
are seen to be about due process and the right to vote, §2 has disappeared like the lost colony of
Atlantis.
● Note how the language of the 13th, 14th and 15th Amendments parallels the language from
other amendments and clauses, and borrows concepts about federal power from McCulloch and
Prigg. (no state shall…, due process…, privileges and immunities…, appropriate… etc.).
EARLY APPLICATION OF THE 14TH AMENDMENT TO RACE DISCRIMINATION
Strauder v. West Virginia (1880) (BLBA 259)
Formally excluding blacks from juries is unconstitutional.
FACTS: Strauder, a black man, was convicted of murder by a jury from which blacks were
excluded by state statute.
HOLDING (STRONG): Exclusion of blacks from jury was unconstitutional. Strauder should be given
a new trial with a jury from which blacks were not formally excluded.
REASONING:
· “[E]very citizen of the United States has a right to a trial of an indictment against him by
a jury selected and impaneled without discrimination against his race or color, because of
race or color” (BLBA 259)
· This law is merely a badge of inferiority—it’s meant to say that blacks are inferior to
whites and can’t be entrusted with the same civic responsibilities (BLBA 260).
· All-white juries might be biased. It’s a denial of “equal legal protection” to make
Strauder stand trial before a jury from which members of his own race have been formally
excluded (BLBA 260-1).
· States may set other jury qualifications that don’t have anything to do with race. States
may “confine the selection to males, to freeholders, to citizens, to persons within certain
ages, or to persons having educational qualifications” (BLBA 261).
FIELD’S DISSENT, AS GIVEN IN EX PARTE VIRGINIA:

· The Equal Protection Clause is not violated when female defendants are tried by juries
from which women have been formally excluded.
· The Equal Protection Clause secures only civil, not political, rights, and it applies to all
citizens, not just African-Americans.
NOTES
· Whose right has been violated: the defendant’s or the excluded black jurors’? Does the
defendant even have standing to bring this case?
· If this case is decided on Equal Protection grounds, isn’t there a problem with the
exclusion of women from juries? Was it unconstitutional for women to be tried by juries from
which females were formally excluded, even before the passage of the 19 th Amendment?
· This case could be decided under the 15th Amendment:
o The 15th Amendment (1870) says that States cannot deny citizens the right to vote on
account of race, color, or previous condition of servitude.
o Why shouldn’t this apply to the right to vote on juries? Jury participation is a political
right—it’s a political act, a civic duty, performed by citizens.
o This would explain why blacks couldn’t be formally excluded from juries while women
could (at least before the passage of the 19th Amendment)
o This analysis leaves a question of standing. Strauder, the defendant, couldn’t claim
right to serve on jury. But Strauder had a right as a defendant to be tried by a jury of
the people. When blacks are excluded, the remaining body is no longer a proper
jury. Thus the statute violates Strauder’s due process rights under the 14th
Amendment. So S has a 14th Amendment claim, but must go through the 15th
Amendment.
Plessy v Ferguson (1896) (BLBA 272)
“Separate but equal” accommodations for blacks and whites do not violate the 13 th or 14th
Amendments.
BACKGROUND: The historical phase that began in 1877 with the Tilden/Hayes compromise,
started with the withdrawal of federal troops from the South and the end of reconstruction. It
was marked by extreme racism in the South and in the North and the abandonment of the fight
for equal rights for blacks. This decision would not have been necessary had the Court not struck
down the Civil Rights Act of 1975. And in the light of Prigg and McCulloch, you’re moving the
goalposts after the game started. AND, this is the beginning of the Lochner era, in which due
process is broadened expansively to protect property (BLBA 271).
FACTS: Homer Plessy was an octoroon (1/8 black). He tried to sit in a coach reserved for whites
and was ejected and arrested under a Louisiana statute that required separate but equal
accommodations on railroads and made it a misdemeanor for a passenger to insist on going into
the train compartment reserved for the opposite race.
HOLDING (BROWN): The Louisiana statute did not violate either 13th or 14th Amendments.
REASONING
· The Louisiana statute does not violate the 13th Amendment. A statute that distinguishes
between whites and blacks does not impose an “involuntary servitude” on blacks.
· The 14th Amendment did not abolish all distinctions based on race or require “social
equality” between the races.
· The Court does not want to bring into question the constitutionality of segregation in
public schools (BLBA 273).
· The forced separation of the races does not place a “badge of inferiority” on blacks
(BLBA 274).
· “If one race be inferior to the other socially, the Constitution of the United States cannot
put them upon the same plane” (BLBA 275).
DISSENT (HARLAN)
· The 14th Amendment requires that laws be color blind: “I deny that any legislative body
or judicial tribunal may have regard to the race of citizens when the civil rights of those
citizens are involved” (BLBA 275).
· The 13th Amendment abolished the “badges and incidents” of slavery, not the mere
institution of forced labor (BLBA 275-6).
· “Every one” knows that this law had a discriminatory intent. It wasn’t truly meant to
keep whites out of black cars. It was meant to keep blacks out of white cars (BLBA 276).
· Harlan’s racism: He does think whites are superior to blacks (BLBA 277).
· However, “in view of the Constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-
blind, and neither knows nor tolerates classes among citizens” (BLBA 277).
· Harlan compares this decision to the Court’s decision in Dred Scott (BLBA 277). This is a
gutsy move, considering he is the ONLY justice in dissent.
· The real meaning of Louisiana’s statute is that blacks are inferior to whites (BLBA 277).
· Harlan’s odd swipe at Chinese people (BLBA 278).
· Bottom Line: Louisiana’s law places a “badge of servitude” on blacks in violation of the
13 and 14th Amendments. “The thin disguise of ‘equal’ accommodations for passengers in
th
railroad coaches will not mislead any one, nor atone for the wrong this day done.”
NOTES
· The social meaning of segregation: Note that the Louisiana law was part of a pervasive
scheme of Jim Crow laws meant to perpetuate the exclusion of blacks from advantages
enjoyed by whites. Maybe separate isn’t inherently unequal (think gendered restrooms), but
the social meaning of segregation based on race was pretty clearly that “blacks are inferior to
whites.”
· On a superficial level, at least, Louisiana’s law was different from the Black Codes at
which the 14th Amendment was aimed because the law placed burdens both on blacks and
whites—blacks couldn’t go into white cars, and whites couldn’t go into black cars. But as
Harlan rightly points out, the real purpose of the law was to keep blacks out of white cars.
· Does Harlan’s dissent militate against affirmative action? Harlan says that the law should
be “color-blind,” but he also says that the Constitution does not allow for a caste system. If
affirmative action is necessary as a remedial action to break down a caste system, is it okay?
The Civil Rights Cases (1883) BLBA 285
The Supreme Court strikes down Section 1 of the Civil Rights Act of 1875. The 14 th Amendment
applies only to State actions.
FACTS
· Sections 1 and 2 of the Civil Rights Act of 1875 made it illegal to deny people “full and
equal enjoyment” of “inns, public conveyances on land or water, theatres, and other places
of public amusement” on the basis of race or previous condition of servitude.
· This case consolidated several cases from various states arising out of exclusion of blacks
from inns, theatres, and railroads on account of race.
· The owners of the public accommodations did not claim an ultimate constitutional right
to engage in discrimination, only that the 13th and 14th Amendment did not prohibit such
discrimination and did not empower Congress to legislate against it. States could presumably
enact anti-discrimination legislation.
HOLDING (BRADLEY): Neither the 13th nor 14th Amendment gave Congress the power to ban racial
discrimination in inns, public conveyances, theaters, and other places of public amusement.
REASONING
· The 14th Amendment only bans certain state actions. “Individual invasion of individual
rights is not the subject-matter of the amendment” (BLBA 285).
o Congress only has the power under Section 5 of the 14th Amendment to prohibit the
States from violating the privileges and immunities of citizens, due process of law, or
equal protection of law.
o The 14th Amendment does not “authorize Congress to create a code of municipal law for
the regulation of private rights; but to provide modes of redress against the operation of
State laws, and the action of State officers executive or judicial, when these are
subversive of the fundamental rights specified in the amendment” (BLBA 286).
o Congress is not “authorized to adopt…general legislation upon the rights of the citizen,
but corrective legislation, that is, such as may be necessary and proper for
counteracting such laws as the States may adopt and enforce, and which, by the
amendment, they are prohibited from making or enforcing” (BLBA 286).
o It is the State’s responsibility to punish private racial discrimination that violates the
rights of blacks. Congress does not have this power (BLBA 288).
· Sect. 1 & 2 of the Civil Rights Act don’t refer to any State action. It instead prohibits
certain acts committed by individuals. Congress doesn’t have the power to pass such
legislation (BLBA 287).
· Congress can directly proscribe the actions of private individuals acting without State
authority under the 13th Amendment. Congress may also legislate against the badges and
incidents of slavery (BLBA 289).
· The act of a “mere individual, the owner of the inn, the public conveyance or place of
amusement, refusing the accommodation,” does not impose “any badge of slavery or
servitude upon the applicant.” If this discrimination violates a black person’s rights, he must
seek redress under the laws of his State (BLBA 291).
· “It would be running the slavery argument into the ground to make it apply” to every act
of private racial discrimination (BLBA 291).
DISSENT (HARLAN)
· Congress had the power to ban race discrimination in inns, theaters, etc. under the 13 th
Amendment
o Slavery rested wholly upon “the inferiority, as a race, of those held in bondage.”
o Congress, therefore, “may enact laws to protect that people against the deprivation,
because of their race, of any civil rights granted to other freemen in the same State”
(BLBA 292).
o That legislation may act upon private individuals as well as state actors.
· Even though railroads are “controlled and owned by private corporations,” these
corporations are agents of the state, managing a public good for public use (BLBA 292-3).
· An innkeeper as well is a “sort of public servant.” “The law gives him special privileges
and he is charged with certain duties and responsibilities to the public” (BLBA 293). The
public nature of his employment makes it impermissible for him to discriminate on the basis
of race.
· To establish a “place of public amusement,” one must have a license from the state.
When the owner of a place of public amusement discriminates on the basis of race, he thus
does it under the imprimatur of the state, in violation of the 14 th Amendment.
· “[R]ailroad corporations, keepers of inns, and managers of places of public amusement
are agents or instrumentalities of the State, because they are charged with duties to the
public, and are amenable, in respect of their duties and functions, to governmental
regulation” (BLBA 295).
· The 14th Amendment does not only apply to states. The majority ignores the 14 th
Amendment’s first sentence—the citizenship clause.
o Congress may protect this citizenship right by direct legislation.
o “Citizenship in this country necessarily imports at least equality of civil rights among
citizens of every race in the same State…”
o Congress may proscribe certain forms of private racial discrimination that threatens the
equality of civil rights of blacks. Maybe Congress can’t force white supremacists to have
dinner with their black neighbors, but it can force institutions and business that are
open to the public to serve blacks.
NOTES
· The Civil Rights Cases established three distinct propositions (BLBA 295)
o The 13th Amendment does not prohibit, or empower Congress to prohibit, most racially
discriminatory practices other than involuntary servitude.
o The Fourteenth Amendment does not empower Congress to prohibit discrimination by
private persons.
o The 14th Amendment does not of its own force prevent private discrimination.
· Contrast the Civil Rights Cases with Prigg v. Pennsylvania (1842) (BLBA 296):
o In Prigg, the Court accepted that Congress has the power to enforce constitutionally
protected rights, even if the Constitution doesn’t explicitly grant Congress the power to
enforce the right.
· Slave owners have a right to reclaim their slaves.
· Therefore, Congress has the power to pass legislation helping slave owners
reclaim their fugitive slaves and providing a process for such reclamation.
· The States were barred from passing their own fugitive slave laws. It was
Congress’ job, and Congress’ job alone, to enforce this right through
appropriate legislation.
o The majority in the Civil Rights Cases “does not suggest that hotel owners and other
purveyors of public accommodations have a right to engage in discriminatory conduct; it
appears to assume that such conduct is barred by the common law and the states will
indeed enforce the right of nondiscriminatory access to public accommodations.” (BLBA
296)
· If the 13th and 14th Amendments did give Americans a right to be free from
racial discrimination, shouldn’t Congress have power to enforce this right, just
as it had the power to enforce the rights of slave owners in Prigg?
· Isn’t the case even stronger here? The 13th and 14th Amendments, after all,
contain enforcement clauses while the Fugitive Slave Clause does not.
· The Fugitive Slave Law can be read as a “No State shall” provision similar to the
14th Amendment. No fugitive slave will become free upon escaping to a free
state, and no free state shall recognize such a fugitive slave as a free man. If
Congress could pass direct legislation under the Fugitive Slave Clause, why can’t
it do so under the 14th Amendment?
· Harlan’s dissent makes three moves:
1) 13th amendment gives Congress ability to get rid of badges of slavery; racial
discrimination by inns, theatres, etc. is a badge or incident of slavery
2) Broad view of “state”—saying that inns and accommodations are part of state power, like
common carriers under common law
3) The first sentence of the 14th Amendment doesn’t say “no state shall”; it says citizenship
Race: the Modern Era
Brown v. Board of Education of Topeka, Kansas (1954) BLBA 742
Segregation in public education is inherently unequal and thus violates equal protection clause of
14th Amendment.
BACKGROUND
· Brown came at a time when the Cold War imperative was in full force. The U.S. was
involved in a life and death struggle with the USSR, for Asia and Africa. Jim Crow was giving
the U.S. a black eye internationally. Domestically, there had been considerable migration
from South to North. There was an increased number of black politicians or white politicians
who were beholden to black swing vote. Breaking of the color line in baseball. In 1948,
Strom Thurmond runs for the Presidency as a Dixiecrat.
· Why Brown was so difficult:
1. If you hold this unconstitutional, you’re striking down all sorts of systems, perhaps all of
Jim Crow
2. precedent of Plessy is on the other side
3. questions about whether the 14th amendment allows symmetric education systems
4. the need for unanimity of the Court.
· Yet Brown did not emerge out of thin air. Series of desegregation cases preceded it.
This was a deliberate strategy on the part of NAACP. (see BLBA 741)
o Sweat v. Painter (1950): law school for black students didn’t offer education equal to
that provided by U. Texas Law School.
o McLaurin v. OK. State Regents (1950): Petitioner admitted to state university graduate
program could not be required to sit in separate sections of the classroom, library,
cafeteria.
FACTS: Four separate cases joined. School children challenged segregation laws prohibiting them
from attending public schools on a nonsegregated basis.
HOLDING (WARREN, FOR A UNANIMOUS COURT): Segregation in public education is inherently

unequal and violates equal protection clause of 14th Amendment.
REASONING
· The legislative history of the 14th Amendment is inconclusive as to whether it was meant
to allow or prohibit segregation in public education.
· The black schools and white schools in some of the districts are substantially equal with
respect to such tangible factors as “buildings, curricula, and qualifications and salaries of
teachers” (BLBA 744). Must decide if the effect of segregation is such that it makes
segregated schools unequal, no matter what their superficial equality in terms of physical
facilities and other “tangible” qualities (BLBA 744-5).
· Education is perhaps one of the most important functions of state and local
governments. Children can’t exceed without an education. When education is provided by
the State, it must be provided equally to all, regardless of a person’s race.
· To separate children “from others of similar age and qualifications solely because of their
race generates a feeling of inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone” (BLBA 745).
o Feelings of inferiority hinder a child’s ability and willingness to learn.
· Separate educational facilities are inherently unequal (BLBA 745).
NOTES
· We are taught that Brown overrules Plessy. But it is merely distinguished Plessy. The
Court says that since 1938 (the same year as Carolene Products) the Court has said it would
not wink at inequality. The cases it mentions are about graduate education (NAACP started
with law schools because the case for equality was so egregious) and not general
accommodations. Applied to Plessy, the court limits its findings in Brown ONLY to public
education. They do NOT say that separate is inherently unequal. The Court does not say
Plessy was a mistake, or that Harlan was right. All they say is that Plessy cannot apply to
public education. And this means that they aren’t saying the framers of the 14 th Amendment
really didn’t want segregation, or that Plessy was wrongly decided. Amar says that if Brown is
the high mark of the S. Ct., the Court compares pretty poorly to the Constitution. If Brown is
right, Plessy must be wrong, but court refuses to admit its mistake. However, on page 745,
the Court does say “any language in Plessy contrary to this finding is rejected….”
· What could an originalist say to justify Brown?
o What part of equal do you not understand? Segregation is not equal and we all know
that. A basic textualist argument.
o 13th Amendment is not just about badges of servitude, it’s about eliminating a caste
system.
o 15th Amendment is inherently integrationist. The 14th Amendment should be read
through the lens of the 15th Amendment.
o Art. 1, Section 9 bans titles of nobility. Is segregation a title of nobility for whites, in
that it is meant to assert the superiority of whites over blacks?
· The problem with not overturning Plessy is that the Court after Brown issues several per
curium opinions striking down segregation at public golf courses, etc., with no real
explanation (they just say “see Brown.”).
· On the ground, after Brown, there is basically no desegregation for at least a
decade. Huge backlash in the South. Moderate politicians became extremists. It wasn’t until
southern LBJ signed the Civil Rights Acts of 1964 and 1965 that real change on the ground
happened.
Bolling v. Sharpe (1954) (BLBA 759)
· The Due Process Clause of the 5th Amendment prohibits racial segregation in the District
of Columbia. There is not Equal Protection Clause in the 5 th Amendment that applies to the
Federal Government. However, “[s]egregation in public education is not reasonably related
to any proper governmental objective, and thus it imposes on Negro children of the District
of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of
the Due Process Clause” (BLBA 760).
· Bolling v. Sharpe has been read to “reverse incorporate” the Equal Protection Clause of
the 14th Amendment so that it applies to the federal government as well as to the States.
Korematsu v. United States (1944) (BLBA 810)
The Court upholds Fred Korematsu’s conviction for violating Civilian Exclusion Order No. 34
FACTS
· After the Japanese attack Pearl Harbor on December 7, 1941, latent anti-Japanese
prejudice comes to a boil in the U.S.
· President Roosevelt on February 19, 1942, signed Executive Order 9066 directing the
War Department to prescribe restricted military zones.
· Military zones were established in the Pacific Coast states, and all persons of Japanese,
German, or Italian ancestry residing in Military Area No. 1, which comprised most of the
Western United States, were ordered to deliver to authorities a Change of Residence Notice if
they wanted to move from their habitual residences.
· Congress makes it a criminal offense not to abide by restrictions applicable to the military
zones.
· General DeWitt on May 3, 1942, issued Civilian Exclusion Order No. 34, which required
that all persons of Japanese ancestry be removed from Military Area No. 1 to detention
camps by noon on May 9.
o Detention camps were chosen over simply requiring resettlement partly out of fear that
the Japanese would face hostility (and possibly even be lynched) if they were not
confined in detention camps.
· Fred Korematsu, a U.S. citizen of Japanese descent, challenged his conviction for
disobeying the Order.
HOLDING (BLACK): Courts must subject all racial classifications to “most rigid scrutiny.” However,
the case at hand withstands the test, and Korematsu’s conviction should stand.
REASONING
· The Court must subject all legal restrictions that curtail the rights of a single racial group
to “the most rigid scrutiny” (BLBA 811).
· The 1942 Congressional Act and the military orders are aimed at the “twin dangers of
espionage and sabotage” (BLBA 811).
· Congress and the Executive had the power to exclude people of Japanese descent from
Military Area No. 1 given the exigencies of the war (notice that the Court focuses only on the
constitutionality of the exclusion order; it does not touch the question of whether forcible
detention is constitutional).
· The military could not separate loyal people from disloyal people. The exclusion order
was not necessarily a form of group punishment. The military could rationally have believe
that it was necessary for national security (BLBA 812).
· The Court only upholds the validity of the exclusion order. It does not deal with the
constitutionality of the detention camps:
O “Since the petitioner has not been convicted of failing to report or to remain in an
assembly or relocation center, we cannot in this case determine the validity of those
separate provisions of that order. It is sufficient here for us to pass upon the order
which petitioner violated…” (BLBA 812)
O “[W]e are dealing specifically with nothing but an exclusion order” (BLBA 813).
O But does it make sense to separate the exclusion order from the detention order?
Those who were removed from the Military Area had to go to detention centers. This
wasn’t a mere resettlement program—it was an unlawful detention order. It was
motivated by animus toward the Japanese and inflicted a form of group punishment.
CONCURRENCE (FRANKFURTER)
· The Constitution confers war powers to the Executive and Congress. The legislature and
executive’s use of these was powers is no more unconstitutional than Congress passing
legislation under the Interstate Commerce Clause.
DISSENT (ROBERTS)
· “[This] is the case of convicting a citizen as a punishment for not submitting to
imprisonment in a concentration camp, based on his ancestry, and solely because of his
ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the
United States”—if this isn’t unconstitutional, nothing is (BLBA 813).
DISSENT (MURPHY)
· This exclusion order “falls into the ugly abyss of racism” (BLBA 814).
· Civilian Exclusion Order No. 34 was not a response to “a public danger that is so
immediate, imminent, and impending as not to admit of delay and not to permit the
intervention of ordinary constitutional processes to alleviate the danger.” Therefore, it’s
unconstitutional (BLBA 814).
· This is obvious racial discrimination, in violation of the equal protection of the laws as
guaranteed by the 5th Amendment (BLBA 814).
· Also violation of substantive due process (violates liberty rights of people of Japanese
descent).
· Also violation of procedural due process because the people detained were not afforded
a hearing to determine whether they were loyal to the U.S. or not.
· Individual hearings were used to separate loyal from disloyal people of German and
Italian descent. Why couldn’t we do the same thing for the Japanese? (BLBA 815)
· “I dissent…from this legalization of racism” (BLBA 816).
DISSENT (JACKSON)
· The only way Korematsu could comply with the exclusion order was to give himself up to
the military authorities and be sent to a detention camp. The majority’s attempt to
distinguish between the exclusion order and the detention order is ridiculous and unfounded
(BLBA 816).
· Just because this was a military order made in a time of war does not mean that the
Court should uphold it:
o Not all military orders can be expected to abide by the Constitution, but that doesn’t
mean that the Court should distort the Constitution to make it seem like the Constitution
permits the military acts (BLBA 817).
o Just because something is a “permissible military procedure” (i.e., it’s expedient) does
not mean that it is constitutional (BLBA 817).
o The Court isn’t in a very good position to adjudicate claims of military necessity. It
must just accept the general’s claim that the order is necessary.
· Jackson is very concerned about the precedent the Court is setting. It is “rationaliz[ing]
the Constitution” to show that it allows for racial discrimination. (BLBA 818)
· “I should hold that a civil court cannot be made to enforce an order which violates
constitutional limitations even if it is a reasonable exercise of military authority. The courts
can exercise only the judicial power, can apply only law, and must abide by the Constitution,
or they cease to be civil courts and become instruments of military policy” (BLBA 818).
NOTES
· Can we rationalize Black’s opinion? Can we explain it, given Black’s progressive social
leanings?
o Plessy v. Ferguson (1896) is the controlling case on the books in terms of segregation.
o Bolling v. Sharpe has not yet “reverse incorporated” the Equal Protection Clause through
the 5th Amendment so that it applies to the federal government.
o Arguably the military order is more like an immigration law than a law that discriminates
on the basis of race. It doesn’t discriminate against blacks, for example. In the 1940s,
immigration law still set country quotas for immigrants. The courts did not strike these
quotas down as violations of equal protection.
o Congress could have deported all enemy aliens. Why couldn’t Congress detain at least
people of Japanese descent who were not U.S. citizens (and maybe also their children,
even if they were natural-born citizens—children typically go with the parents)?
o The military might have known that this order was not necessary for national security,
but the military certainly wasn’t telling the Court that. The Court was hardly in a good
position to question the military’s claims of military necessity. If the Court struck down
the law and then a Japanese spy facilitated a military attack on the U.S., the Court’s
reputation, and possibly the United States itself, would be sunk.
· What options did the Court have?
o This is a political question. Either the Court shouldn’t hear the case, or if it does, it
should not bless the military detention order, even if it was militarily necessary (Justice
Jackson’s opinion—don’t distort the Constitution; it sets a bad precedent).
o Justice Murphy’s route (a la Harlan in Plessy): We all know this military order is racist,
so it’s unconstitutional.
 What if the nation is then attacked? The Court might look pretty bad.
o The military can’t detain citizens, but it can detain enemy aliens (and maybe their
children even if they are citizens).
o The military order can only stand if Congress endorses or the President directly issues
the order—both probably would have supported the order.
o You can detain the Japanese, but you have to compensate them. This spreads the
harm of the detention to all Americans through taxation.
Loving v. Virginia (1967) BLBA 801
Anti-miscegenation statues violate the 14th Amendment’s Equal Protection and Due Process
Clauses.
FACTS
· Mildred Jeter, a black woman, and Richard Loving, a white man, both residents of
Virginia, were married in Washington, D.C. They returned to Virginia where they were
indicted for violating VA’s ban on inter-racial marriages.
· The trial court sentenced them to one year in jail, suspended on condition that they not
return to VA together for 25 years. VA Supreme Court affirmed the conviction.
· Virginia was one of 16 states that prohibited and punished interracial marriage.
HOLDING (WARREN): Statute prohibiting inter-racial marriage violates due process and equal
protection clauses of the 14th Amendment.
REASONING
· The State claims that the law is not a violation of Equal Protection because both the
white person and the black person in the interracial marriage are punished to the same
degree and are guilty of the same crime (BLBA 803).
· Suspect Classification Rationale: The law explicitly invokes a racial classification.
When a law is based on a racial classification, “the fact of equal application does not
immunize the statute from the very heavy burden of justification which the 14 th Amendment
has traditionally required of state statutes drawn according to race” (BLBA 803). The law is
subject to the “most rigid scrutiny” (Korematsu) (BLBA 804).
· Anti-Subordination Rationale: This law is meant to “maintain White Supremacy”
(BLBA 805). It only makes illegal interracial marriage between blacks and whites, not
between blacks and Asians, etc. It is meant to maintain the integrity (and superiority) of the
white race.
· Substantive Due Process Rationale: “These statutes also deprive the Lovings of
liberty without due process of law in violation of the Due Process Clause of the 14 th
Amendment. The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men.” The state cannot restrain a
person’s right to marry or not marry a person of another race (BLBA 805).
NOTES
· There are two conceptions of Equal Protection at play in Loving:
o Suspect Classification Rationale: Race is a suspect classification. Any law that
classifies people on the basis of race will receive the “most rigid scrutiny.” The
Constitution is color-blind.
o Anti-Subordination Rationale: This law was meant to maintain White Supremacy.
The Constitution does not allow States to maintain a caste system, with one superior
race.
· The superficial argument for anti-miscegenation laws passing the Equal Protection test:
The laws punish both white people and black people alike.
o But consider this: A black woman who wants to marry a white man can’t while a white
woman who wants to marry the same white man can. The law seems to be
discriminating on the basis of race. Simply because of her race, the black woman can’t
marry the white man. If she were white, the marriage would be okay.
· Why wasn’t this case decided before 1967, thirteen years after Brown?
o Part of the big opposition to desegregation was the fear of interracial dating (especially
white girls dating black boys). The country wasn’t ready for interracial marriage on a
nationwide scale in 1954, and a Supreme Court decision striking down anti-
miscegenation laws would only have intensified the backlash against Brown.
Hernandez v. Texas (1954) BLBA 831
Exclusion of Hispanics from juries violates the 14 th Amendment’s EP clause.
FACTS: Pete Hernandez convicted and sentenced to life imprisonment for murder of Joe Espinosa
by grand jury in Jackson County, Texas. Alleged that persons of Mexican descent were
systematically excluded from service as jury commissioners, grand jurors, and petit jurors,
depriving him of equal protection under 14th Amendment.
HOLDING (WARREN): Exclusion of people of Mexican descent from juries violated right of
defendant to jury from which all members of his class are not systematically excluded, protected
by 14th Amendment.
REASONING: Hernandez doesn’t allege that state statute discriminates based on race, but that
those administering law do. Petitioner succeeded in proving that persons of Mexican descent
constituted a separate class in Jackson County, distinct from whites. The fact that of the six
thousand jurors called in the past 25 years, none were of Mexican descent bespeaks
discrimination, even if not a conscious or explicit decision.
Class Notes
● Today challenges to jury selections governed by test in Casteneda v. Partida (1977):
-Defendant must show procedures employed resulted in substantial underrepresentation
of race or identifiable group;
-D must show that the group is a recognizable, distinct class singled out for differential
treatment under laws as written or applied;
-D must then prove degree of underrepresentation by comparing proportion in total pop
to proportion called to serve as jurors over significant period of time;
-Once D has shown substantial underrep of his group, has made out prima facie case of
discriminatory purpose, and burden shifts to state to rebut that case.
Palmore v. Sidoti (1984) (BLBA 841)
The State cannot take custody of a child from a white mother and give it to the father simply
because the mother has gone on to marry a black man.
FACTS: When Linda and Anthony Sidoti divorced, a Florida court awarded custody of their
daughter to Linda. Anthony later petitioned for custody on the ground that Linda (a white
woman) was living with a black man (whom she married at the time of the hearing). The Court
awarded custody to Anthony on the ground that Linda had chosen “a lifestyle unacceptable to
her father and to society.” Best interest of child would be to stay in all white family.
HOLDING (BURGER, UNANIMOUS): Florida court’s order is invalidated as a violation of the Equal
Protection Clause, and the is child given back to Linda.
REASONING
· The outcome would clearly have been different had Linda remarried a white man, so the
Florida court’s decision must be given the “most exacting scrutiny” (BLBA 841).
· The Constitution cannot control the natural prejudices that might be aimed at Linda’s
daughter, but neither can it “tolerate them” (BLBA 842).
· Private racial prejudices cannot justify taking a child away from a mother who has been
found otherwise fit to care for the child (BLBA 842).
Note: Racial matching in adoptions—does it violate the Equal Protection Clause? (BLBA 842)
WHEN IS A DECISION WITH DISPROPORTIONATE RACIAL IMPACT A DECISION BASED

ON RACE?
Yick Wo v. Hopkins (1886) (BLBA 846)
Laws that do not classify on the basis of race may nonetheless be administered in a race-
dependent manner in violation of the Equal Protection Clause.
FACTS: The San Francisco Board of Supervisors had the authority to issue permits to operate
laundries in wooden buildings. It granted permits to none of 200 Chinese applicants and to all
but one of about 80 Caucasian applicants.
HOLDING (MATTHEWS): The Court reversed petitioners’ convictions for operating laundries
without permits (Justice Matthews wrote for the Court).
REASONING
· The law was race-neutral on its face but was administered in a discriminatory way—that
violates the Equal Protection Clause.
· The only possible reason for the Board of Supervisors’ discrimination in issuing permits
was animus toward the Chinese, which the 14th Amendment will not allow (BLBA 847).
Griggs v. Duke Power Co (1971) BLBA 849
If an employment practice which operates to exclude blacks cannot be shown to relate to job
performance, the practice is prohibited by Title VII of the Civil Rights Act of 1964.
FACTS: Griggs challenged employer’s policy that job applicants possess high school diplomas and
take a general intelligence test, under Title VII of the Civil Rights Act of 1964. Argued that the
effect of the test was to disadvantage black applicants and that criteria had not been shown to
predict job performance.
HOLDING (BURGER, UNANIMOUS): The IQ test violated the Civil Rights Act of 1964.
REASONING: Even when terms of employment are neutral on their face, and neutral in terms of
intent, “cannot be maintained if they operate to freeze the status quo of prior discriminatory
practices.” Employment procedures or testing mechanisms that have disparate impact on
minority groups and are unrelated to job capability violate Civil Rights Act. Burden is on the
employer to show manifest relationship of requirement to employment in question.
NOTES: Reaction to Griggs led to Civil Rights Act of 1991 which requires employer to
“demonstrate that the challenged practice is job-related for the position in question and
consistent with business necessity.”
Washington v. Davis (1976) BLBA 851
Court declined to read “disparate impact” standard into 14 th Amendment. The mere fact that a
govt policy has a differential racial impact does not mean it violates equal protection. You have to
prove a discriminatory intent or purpose.
FACTS: Black applicants to become police officers in Washington, D.C., were rejected because
they failed a written personnel test. Claimed that test was racially discriminatory in violation of 5 th
Amendment. (At that time Title VII did not cover municipal employees). Appeals court invalidated
test under disparate-impact standard and failure of employers to prove that the test related to
job performance.
HOLDING (WHITE): The ruling of the Appeals Court is reversed and the personnel test is upheld.
Mere disparate impact does not an Equal Protection violation make. There must be some
evidence of a discriminatory intent or purpose.
REASONING
· A governmental action does not violate the Equal Protection Clause merely because it has
a “racially disproportionate impact.” There must also be evidence of a discriminatory intent
or purpose (BLBA 852).
· Disproportionate impact may help to prove discriminatory intent, but it alone does not
prove an Equal Protection violation.
· The Prudential Argument: “A rule that a statute designed to serve neutral ends is
nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one
race more than another would be far-reaching and would raise serous questions about, and
perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing
statutes that may be more burdensome to the poor and the average black than to more
affluent whites” (BLBA 855).
CONCURRENCE (STEVENS)
· It’s hard to know what a legislature intended, so must of the time evidence of a
disproportional impact will be essentially sufficient to prove discriminatory intent.
NOTES
· Defining “Intent”: In Personnel Administrator of Massachusetts v. Feeney (1979), the
Supreme Court ruled that there is not an equal protection violation simply because legislators
should reasonably have known that the legislation would have a disproportional impact on a
protected group (in this case, women). The legislature must have passed the law “because
of” the disparate impact, not “in spite of” it.
· How do you tell if a law was passed with a discriminatory purpose or intent. A lot of
legislators vote on a law, often for many different reasons. How do you divine the intent of a
law passed by several different people in a democratic body?
Batson v. Kentucky (1986) BLBA 876
Prosecutors can’t use peremptory challenges to strike blacks from juries just because the jurors
are black.
FACTS
· Peremptory challenges allow a party to litigation to strike prospective jurors without
having to give reasons.
· In this case, the prosecutor had peremptorily removed all four blacks on the venire from
the petit jury of a black man charged with burglary and receipt of stolen goods, who was
convicted by the all-white jury.
HOLDING (POWELL): Prosecutors can’t use peremptory challenges to exclude blacks from
juries just because they are black.
REASONING
· To establish a case, a defendant must:
o Establish membership in a cognizable racial group
o Establish that the prosecutor has exercised peremptory challenges to remove from the
venire members of the defendant’s race
o Establish that these facts and any other relevant circumstances raise an inference that
the prosecutor used peremptory challenges to exclude veniremen from the petit jury on
account of their race.
· The State then has the burden of offering a neutral explanation for challenging black
jurors. The explanation need not rise to the level justifying exercise of a challenge for cause.
But the reason for the challenge can’t be that the prosecutor assumed that black jurors
would be partial to a black defendant. There must be some race-neutral explanation (BLBA
878).
DISSENT (BURGER W/ RHENQUIST)

· It’s not okay to say that members of a specific race are not fit to sit on juries in any case.
It is permissible to say that they may be biased in a particular case. (BLBA 878)
DISSENT (RHENQUIST W/ BURGER)

· As long as peremptory challenges are used to strike whites in cases with white
defendants, Asians in cases with Asian defendants, Hispanics in cases with Hispanic
defendants, etc., the use of the peremptory challenges is symmetric and does not violate
Equal Protection (BLBA 879).
NOTES
· Georgia v. McCollum (1992): Defendants can’t use racially-motivated peremptory
challenges either.
· Justice Marshall: We should just get rid of peremptory challenges (BLBA 878).
· One argument: But peremptory challenges are symmetric. Black defendants can use
their challenges to remove white jurors, and prosecutors can use their peremptory challenges
to remove black jurors.
o Response: There are usually far fewer blacks in the jury pool than whites. A black
defendant probably can’t strike all white jurors, but a prosecutor might be able to strike
all black jurors. In the end, you get an all white jury pool.
Affirmative Action
Regents of the University of California v. Bakke (1978) (BLBA 899)
Quotas in higher ed violate equal protection, but schools are allowed to use race as a criteria in
admissions.
BACKGROUND: The “suspect classification” doctrine, treating racial classification as presumptively

unconstitutional, was developed in response to discrimination against the members of minority
groups that were the objects of prejudice. But several decades after Brown, the Court addressed
the constitutionality of race-dependent decisions designed to benefit members of minorities who
had been subject to prior discrimination.
FACTS: Bakke challenged special admissions program of Medical School of the U. of California at
Davis, designed to ensure admission of specified number of students from certain minority
groups. Students who were members of minority group were not held to 2.5 GPA cut-off nor
rated against general applicants but considered and accepted until 16 special admissions
students admitted. Bakke, white male, was rejected.
HOLDING (POWELL): Affirmed California Court’s holding that special admissions program was
unlawful and directed Bakke to be admitted to Med. school. Reversed court’s judgment enjoining
university from any consideration of race in admissions.
THE LINE-UP:
1. U. Cal’s admission program unlawful: Powell, Stewart, Rehnquist, Stevens, Burger (Stewart,
et al. avoid constitutional question by holding that quota system violated Civil Rights Act, but not
equating this with 5th Amendment)
2. Affirmative action is not unconstitutional: Powell, Brennan, White, Marshall, Blackmun
3. Only Powell said that U.Cal. could consider race, but its chosen program didn’t withstand strict
scrutiny)
So what was the opinion of the court? This is a huge issue, because if Powell’s is, then
the Court may have to overrule precedent in Michigan cases. Hopwood gets this wrong. The
official holding of Bakke is just 2 sentences: 5C (p. 908), and this says that it IS permissible to
take race into account. This is the precedent.
REASONING: ● 14th Amendment must apply to all individuals equally, whites as well as blacks.
(901-2)
● Concepts of majority/minority are variable, no principled basis for deciding which groups merit
heightened protection. (903)
● Serious questions of justice connected with idea of preference. (1) not clear that preference is
benign (2) may reinforce common stereotypes (3) inequity, burden on the innocent
● To justify use of suspect classification, purpose must be “constitutionally
permissible and substantial, and that its use of the classification is necessary…to the
accomplishment of its purpose or the safeguarding of its interest.” (905)
● U. Cal’s program seeks to (1) reduce historical deficit of particular minorities (2) counter effects
of societal discrimination (3) increase number of doctors who will practice in underserved
communities (4) obtain educational benefits from ethnically diverse student body
● The State has a legitimate and substantial interest in eliminating effects of identified
discrimination. But injury must result from constitutional or statutory violation. And remedy must
work least harm possible to other innocent persons competing for benefit. (905)
● UC Davis has not shown that classification will have significant effect on health care to
deprived citizens (906)
● Diversity is permissible goal institution of higher education. Compelling interest, but leaves
question of whether the program’s classification is necessary to promote interest.
● Quota system isn’t necessary to achieve diversity. Compares to Harvard’s “plus” system,
suggests that such a system would pass constitutional muster (Amar: Is plus system just a fig
leaf, or does it give more chances to Alan Bakkes of the world, making race just one factor
among many for admissions? Is it less stigmatizing than quotas for minorities?)
● Powell also rejects a variety of reasons for affirmative action that would apply to places outside
of education, leaving only a diversity rationale as the compelling state interest. This allows his
opinion to radiate less broadly in other domains.
CLASS NOTES:
● Stevens, joined by Berger, Stewart, Rehnquist, did not address the constitutional question, but
concluded only that quota system violated Title VI of Civil Rights Act of 1964. Justice Brennan,
joined by White, Marshall, Blackmun, concluded that the admissions program did not violate
either equal protection clause of 14th A or Title VI (which he believed prohibited only criteria that
would violate 14th A). Powell had swing vote. Agreed with Brennan’s equation of Title VI with
equal protection clause, but concluded that Davis’s fixed quota system was unconstitutional.
● Could affirmative action ever discriminate against certain minorities within white majority and
thus violate anti-discrimination principle with respect to them? i.e. if the UC program cut out a
disproportionate number of Italians, would they have an EP claim?
● Brennan wrote that state may adopt race-conscious program where there is “reason to believe”
that substantial minority under-representation is due to past discrimination, but program must be
adopted only where state “intended invidiously to discriminate.”
● Possible justifications for admissions program: (1) preventative (to ensure admissions officers
don’t discriminate (2) compensatory for past discrimination (3) Distributive (promote more equal
sharing of social benefits) (3) educational (enrich edu experience through diversity)
● What about upper class bias of standards based on grades and test scores? Derrick Bell
suggests that university did not acknowledge that their admissions practices disadvantaged racial
minorities but instead implied that tests were valid but by minorities simply had trouble with
them. (919-20)
● If you just look at the term equal protection, Bakke wins, but if we think of it as “equal
citizenship,” then maybe he doesn’t, as affirmative action may avoid an entire system of racial
caste.
● What does strict scrutiny mean? It could mean that we will apply the same rigorous test
against laws benefiting minorities as against laws hurting them. But if this is so, does Powell
really apply it? He says he does. But suppose UC Davis says that because there are too many
Jews, we’ll use a “minus” system in the name of diversity. Powell would probably say no, but
then doesn’t this mean there must be two different kinds of strict scrutiny?
● Three theories as to why pluses may be different than quotas (and why Powell may have been
right):
1. A quota is less fair to the Bakkes of the world, because he absolutely is not allowed to
compete for certain slots. A plus system tilts the scales, but at least leaves a potential opening.
2. We care more about stigma than about the Bakkes. So we should do affirmat in the least
polarizing way possible. Quotas create much more backlash and stigma. Switching to a plus is
much smoother because it teams it up with alumni preferences and athletes, etc.
3. We won’t have to do a Nuremberg blood code with pluses, whereas we do with quotas,
because with quotas we need to know who counts to make it into the quota group.
4. We all know these are quotas in the long run, but by calling them pluses, we put a fig leaf
over it and contribute to more racial harmony in the long run.
United Steelworkers v. Weber (1979) (BLBA 920)
Title VII does not forbid private employers and unions to voluntarily adopt affirmative action
plans.
FACTS: White employee challenged plan that reserved 50% of openings in internal training
program for blacks until percentage of black craft workers was commensurate with percentage in
local labor force.
HOLDING (BRENNAN): Divided court upheld private employer’s affirmative action plan under Title
VII without addressing constitutional issue.
REASONING: While Title VI is co-extensive with Equal protection clause, Title VII was enacted
pursuant to commerce power to regulate private decision-making, and so was not intended to
incorporate 5th and 14th Amendment commands. Thus Title VII does not forbid private employers
and unions to voluntarily adopt affirmative action plans.
DISSENT (REHNQUIST): Congress, by passing Title VII, outlawed all racial discrimination in
employment.
Johnson v. Transportation Agency (1980) (BLBA 921)
● Upheld voluntary affirmative action program benefiting women.

● Preferential programs under Title VII require only “manifest imbalance” between percentage of
minorities employed and percentage in population, rather than stricter equal protection standard
of “firm” basis in the evidence
Fullilove v. Klutznick (1980) (BLBA 921)
Upheld “minority business enterprise” (MBE) provision of Public Works Employment Act of 1977
that required 10% of federal funds granted for local work projects be used to procure services or
supplies from MBEs.
No majority opinion in this case.

RULING (BURGER, joined by White and Powell): Congress could reasonably determine that
traditional procurement practices could perpetuate effects of past discrimination. Congress could
use racial and ethnic criteria as means to accomplish elimination of barriers to MBEs if limited and
remedial.
POWELL CONCURRENCE: Government had a compelling interest and means were equitable and
reasonably necessary to redress discrimination.
MARSHALL CONCURRENCE: (Brennan and Blackmunn), concur in judgment. Proper inquiry is

whether (1) classifications designed to further remedial purposes serve important gov’t objectives
and (2) substantially related to achieving those objectives.
STEWART DISSENT: Government may never act to detriment of person solely because of race.
Classifications based on race can only be upheld where sole purpose is to eradicate actual effects
of race discrimination (he thought MBE program went beyond this because it sought racial
balance as goal in itself and may have acted to combat societal disadvantage).
STEVENS DISSENT: Not narrowly tailored as remedy for past discrimination.
Wygant v. Jackson Board of Education (1986) (BLBA 924)
FACTS: School district contracted with local teacher’s union. Promised that when layoffs were
necessary it would lay off non-minority teachers to preserve percentage of minority personnel at
time of layoff.
HOLDING (POWELL, FOR A PLURALITY): Rejected plan.
REASONING:
● Applying strict scrutiny, Powell rejected claim that alleviating effects of societal discrimination
and providing minority faculty role models were compelling state purposes.
● Also denied that program could be justified to remedy past discrimination because no factual
determination that remedial action was necessary.
● Moreover, layoff provision not appropriate remedy.
WHITE CONCURRENCE: Laying off workers not lawful means to integrate workforce.
MARSHALL DISSENT (joined by Brennan and Blackmun): Agreement necessary to preserve

integration of public schools because minority teachers are the last hired, first fired.
STEVENS DISSENT: Finding of prior discrimination was not necessary to justify affirmative action
program. Benefits to students of diverse faculty sufficient justification.
U.S. v. Paradise (1987) (BLBA 926)
FACTS: Challenge to court order against Alabama Dept. of Public Safety arising out of lots of
litigation and noncompliance. The lower court’s order required that one black be hired for every
white hired for particular upper level positions if there were qualified black candidates, if the rank
were less than 25% black, and if the Department had not developed and implemented a
promotion plan without adverse impact for the relevant rank.
HOLDING (BRENNAN, WITH A PLURALITY OF 4): Plan was constitutional. Narrowly tailored to
remedy past discrimination by Department and to preserve the “societal interest in compliance
with judgments of federal courts.”
City of Richmond v. J.A. Croson Co. (1989) BLBA 939
Struck down a provision passed by the Richmond City Council that required that a certain
percentage of public contracts be set aside for minority contractors. The Court gives strict-
scrutiny to state and local affirmative action laws.
FACTS
· Richmond City Council adopted Minority Business Utilization Plan. The plan required
prime contractors to subcontract at least 30% of the dollar amount of the contract to
Minority Business Enterprises (MBEs).
· An MBE is a “business at least 51% of which is owned and controlled by… minority group
members,” where minority group members are citizens “of the United States who are Blacks,
Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” (BLBA 927)
· The plan had no geographical limit (i.e., the MBE could be headquartered anywhere in
the U.S.).
· The plan’s stated goals were remedial and to encourage wider participation of MBEs in
government contracting.
· The plan was in effect for 5 years.
HOLDING (O’CONNOR): State and local governments may sometimes use racial preferences to
remedy past discrimination by that governmental body, but the Court strikes down Richmond’s
plan as a violation of the 14th Amendment’s Equal Protection clause.
REASONING
· A state of local subdivision may eradicate the effects of past discrimination within its own
legislative jurisdiction (BLBA 929).
· But there must be some showing of prior discrimination by the governmental unit
involved (BLBA 929).
· The standard of review under the Equal Protection Clause “is not dependent on the race
of those burdened or benefited by a particular classification” (BLBA 930).
· Representation Deficit Argument: Some would argue that the Equal Protection
Clause is meant to protect “discrete and insular minorities” that are not well represented in
the political process. When the majority race chooses to place burdens on itself, therefore,
the legislation should not be subject to strict scrutiny.
o But blacks comprise approximately 50% of the population of Richmond, and 5 of the 9
seats on the City Council are held by blacks.
· An “amorphous claim that there has been past discrimination in a particular industry
cannot justify the use of an unyielding racial quota” (BLBA 931).
· Richmond has not proven that there is a history of purposeful racial discrimination in the
Richmond construction industry. Therefore, the Richmond City Council could not pass this
law as a remedial measure.
· “While the States and their subdivisions may take remedial action when they possess
evidence that their own spending practices are exacerbating a pattern of prior discrimination,
they must identify that discrimination, public or private, with some specificity before they
may use race-conscious relief” (BLBA 932-3).
· “Nothing we say today precludes a state or local entity from taking action to rectify the
effects of identified discrimination within its jurisdiction. If the city of Richmond had
evidence before it that nonminority contractors were systematically excluding minority
businesses from subcontracting opportunities it could take action to end the discriminatory
exclusion” (BLBA 934).
CONCURRENCE (STEVENS)
The city’s plan doesn’t only apply to MBEs that have suffered from past discrimination. MBEs
that have not been targets of discrimination benefit from the plan as well.
CONCURRENCE (KENNEDY)
“The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.”
(BLBA 936)
CONCURRENCE (SCALIA)
A state should not be able to use racial classifications to remedy past instances of private racial
discrimination.
“In my view there is only one circumstance in which the States may act by race to undo the
effects of past discrimination: where that is necessary to eliminate their own maintenance of
a system of unlawful racial classification…” (BLBA 938)
DISSENT (MARSHALL W/ BRENNAN AND BLACKMUN)

· Of course Richmond discriminated against blacks in the past! It was the former capital of
the Confederacy! This is remedial action meant to rectify Richmond’s own past
discrimination against blacks (BLBA 939).
· The Richmond City Council has supported its determination that minorities have been
wrongly excluded from local construction contracting.
o Minority-owned businesses have received virtually no city contracting dollars.
o They rarely have belonged to area trade associations.
o Congress has itself found that the construction industry is tight-knit and unwelcoming to
minority-held businesses.
· Race-conscious classifications must serve important governmental objectives and must
be substantially related to achievement of those objectives (BLBA 940). Richmond’s plan
meets this two-prong test.
· Richmond’s plan serves an important governmental objective.
o Eradicating the effects of past racial discrimination.
o Preventing the city’s own spending decisions from reinforcing and perpetuating the
exclusionary effects of past discrimination (BLBA 941).
· The Richmond plan is substantially related to the above interests.
o It had a limited duration of 5 years.
o Race-neutral measures would have been ineffective (BLBA 944).
· The Court should not adopt strict scrutiny in reviewing race-conscious remedial
measures. “A profound difference separates governmental actions that themselves are
racist, and governmental actions that seek to remedy the effects of prior racism or to prevent
neutral governmental activity from perpetuating the effects of such racism.” (BLBA 945)
NOTES
· The Court in Croson takes a “color-blind” view of the Equal Protection Clause. Why isn’t
an “anti-subordination” view more appropriate? Under such a view, Richmond’s plan would
be constitutional because it’s trying to break down a caste system and undo the effects of
past discrimination in the construction industry, which has disadvantaged minority-held
businesses. Isn’t unfair to say that after centuries of racial discrimination, now the law has
to be color-blind, even though that allows whites to enjoy the benefits of the past
discrimination while saddling blacks with all of its burdens? Whites arguably got a head start.
Why should they complain about affirmative action programs that are designed to level the
playing field?
· Bottom Line of Croson: Mere past “societal discrimination” is not sufficient to justify a
state or local governmental program that gives special preference to minority groups. Such
racial classifications are subject to strict scrutiny and must be specially tailored to remedy
clearly identifiable cases of racial discrimination.
Metro Broadcasting v. FCC (1990) (BLBA 951)
Certain race-based measures mandated by Congress receive only intermediate scrutiny. Diversity
can be an important government interest.
FACTS: FCC employed two minority preference policies—(1) minority-held businesses given
“pluses” in evaluations for station licenses; and (2) “distress sale” policy: broadcasters whose
licenses were subject to renewal or revocation hearings could transfer them to minority-owned
businesses.
HOLDING (BRENNAN): Upholds policies as permissible under the 14th’s Equal Protection clause.
REASONING: Race conscious classifications by Congress are subject to lesser standard of review—
intermediate, not strict, scrutiny. Benign, race-conscious measures mandated by Congress, even
if not designed to compensate victims of prior discrimination, are ok if they (1) serve important
government interests and (2) are substantially related to achieving those objectives. Diversity can
be an important gov’t interest (like Bakke).
O’CONNOR’S DISSENT: No lower level of scrutiny applies to Fed. govt’s use of race classification;
at most Congress’s § 5 powers let it pass special kinds of legislation to remedy specific acts of
discrimination.
KENNEDY’S DISSENT: Opposed majority’s departure from purely remedial goals for affirmative
action. Affirmative action penalizes members of the majority group who have never to the best
of their knowledge engaged in acts of discrimination, and it can also stigmatize members of
minority groups. Finally, how do you decide which minorities deserve protection and which
don’t?
Adarand Constructors v. Pena (1995) BLBA 953
The Court adopts a single standard of review: Strict scrutiny applies to both state and federal
race-based legislation.
FACTS:
· Central Federal Lands Highway Division (CFLHD), part of US Dept. of Transportation
(DOT), awarded prime contract for highway construction project in Colorado to Mountain
Gravel. Mountain Gravel solicited bids from subcontractors for guardrail. Gonzales
Construction Co. was chosen, though Adarand had the lowest bid.
· Prime contract’s terms said that Mountain Gravel would receive additional compensation
if it hired subcontractors certified as small businesses controlled by “socially and economically
disadvantaged” individuals. Gonzales was such a business, Adarand was not.
· Federal law (Small Business Act) requires that a subcontracting clause similar to this
appear in most federal agency contracts; it also requires clause to state that the contractor
shall presume that socially and economically disadvantaged individuals includes Black
Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other
minorities, or any other individual found to be disadvantaged by Small Business
Administration.
· Adarand claims that the clause that gives additional compensation to a prime contractor
that hires subcontractors certified as small businesses owned by “socially and economically
disadvantaged” individuals violates the Federal Government’s responsibility under the 5 th
Amendment to not deprive individuals of the equal protection of the laws.
HOLDING (O’CONNOR): Strict scrutiny applies both to federal and state race-based classifications.
Case vacated and remanded for further proceedings consistent with this judgment.
REASONING
· Ever since Bolling v. Sharpe (1954), the Equal Protection Clause has been interpreted as
applying to the federal government under the 5th Amendment Due Process Clause. When the
federal government deprives individuals of the equal protection of the law, it deprives them
of Due Process. In terms of Equal Protection, the federal government is held to the same
standard as the states.
· “[W]e hold today that all racial classifications, imposed by whatever federal, state, or
local governmental actor, must be analyzed by a reviewing court under strict scrutiny” (BLBA
957).
· Strict Scrutiny: Racial classifications are constitutional only if they are “narrowly tailored
measures that further compelling governmental interests” (BLBA 957).
· Metro Broadcasting v. FCC is overruled (BLBA 957).
CONCURRENCE (SCALIA)
• “In my view, government can never have a compelling interest in discriminating on the
basis of race in order to make up for past racial discrimination in the opposite direction”
(BLBA 959).
• The law must be color-blind.
CONCURRENCE (THOMAS)
· “In my mind, government-sponsored racial discrimination based on benign prejudice is
just as noxious as discrimination inspired by malicious prejudice” (BLBA 960).
DISSENT (STEVENS W/ GINSBURG)

· “There is no moral or constitutional equivalence between a policy that is designed to
perpetuate a caste system and one that seeks to eradicate racial subordination” (BLBA 960).
The majority can’t place special burdens on an unpopular minority, but it can place burdens
on itself in benefiting a minority group.
· It is not the same to exclude blacks from the military as to engage in recruitment
programs targeted especially at blacks. One is invidious, one isn’t.
· It’s not that hard to tell the difference between affirmative action and invidious racism.
You can hold the two to different standards of review.
· Different standards for race and gender: Under the Court’s “consistency” logic, it is
easier for the government to justify affirmative action programs for women than for African
Americans. Gender-based laws receive intermediate scrutiny, but race-based classifications
get strict scrutiny. How does this make sense? Wasn’t the 14 th Amendment primarily
designed to protect the former slaves? (BLBA 962)
· Congress should not be held to the same standard as the states when it comes to
affirmative action programs:
o State affirmative action programs might place burdens on some people who never got
to vote for the legislature that passed the law. McCulloch-like idea of representation.
All citizens are represented by Congress, so Congress is in a unique position to pass this
form of legislation.
o The 14th Amendment empowered Congress while it placed special restrictions on the
states. The framers of the 14th Amendment wanted Congress to have special powers to
make sure that no American citizen was deprived of the equal protection of the laws.
Affirmative action programs might be necessary to achieve that goal by breaking down
a de facto social caste system. (BLBA 964)
Affirmative Action and original intent (BLBA 967):

● Scalia and Thomas strong supporters of original intent. But would framers of 14 th have objected
to AA? Does idea of colorblind Constitution have basis in original understanding of civil war
Amendments?
● During Reconstruction, Congress adopted a series of social welfare programs (Freedman’s
bureau Acts) whose benefits were explicitly limited to blacks. As was much of the legislation of
39th Congress.
● Was federal reconstruction legislation relevant to 14th, since fed govt not bound? But this would
undermine Adarand. Could argue that it’s the privileges and immunities clause, not equal
protection clause, which binds federal govt as well as states.
● Could argue that court’s rejection of programs that remedy general societal discrim and require
that only gov’t unit that actually discriminated may engage in race conscious remedies are
unsupported by original intent.
● Did framers believe that 14th was colorblind? At most, this view was accepted in area of civil
rights. Kull says that framers wrote “privileges and immunities” and “equal protection” rather
than colorblindness so as not to give blacks the vote.
● Also, are all of the intentions of the past worth holding onto? Should we be faithful to original
intent if framers intended formal equality and perpetual social inequality?
Hopwood v State of Texas (5th Cir. 1996) (BLBA 973)
Court of Appeals disregards Powell’s holding in Bakke. Diversity is not a compelling state interest,
so the state can’t use AA to combat effects of societal discrimination, alleviate institution’s poor
reputation among minorities, or eliminate effects of past discrimination of actors other than law
school itself .
FACTS: Challenge to U Texas Law School’s affirmative action program. Admissions based on TI
score = GPA(10) + LSAT. Blacks born in U.S. and Mexican Americans accorded lower TI range to
meet aspiration of 10% Mexican Americans, 5% blacks, proportional to percentages graduating
from Texas colleges. Separate committees and waiting lists. By the time lawsuit brought to trial,
had abandoned procedures as unconstitutional. Trial court had held the original system
unconstitutional but suggested that T’s new system would be acceptable
HOLDING (SMITH): The old 1992 Admissions program violated equal protection under 14 th A. See
above.
REASONING: Case is governed by Croson, which said that diversity was not a compelling state
interest that meets strict scrutiny. Smith rejects Bakke: “Powell’s argument garnered only his own
vote.” Court in Metro Broadcasting did use diversity rational, but only intermediate scrutiny and
anyway overruled by Adarand. A state may engage in AA only to remedy own effects of prior
discrimination. It cannot take race into account to: enhance diversity; combat perceived effects
of hostile environment; alleviate poor reputation among minority communities; or eliminate
present effects of past discrimination of actors other than law school.
Grutter v. Bollinger (2003)
In terms of public education, racial quotas are not acceptable, but “pluses” for race in order to
achieve student body diversity are. Diversity is a “compelling governmental interest” in the field
of public education, and “pluses” for race are acceptable means of achieving that end.
FACTS
University of Michigan Law School (Law School) follows an official admissions policy that seeks to
achieve student body diversity through compliance with Regents of Univ. of Cal. V. Bakke.
The Law School seeks to enroll a “critical mass” of underrepresented minority students (African
Americans, Hispanics, and Native Americans).
Grutter was denied admission to Law School and sued, alleging that respondents had
discriminated against her on the basis of race in violation of the 14 th Amendment.
HOLDING (O’CONNOR): The Law School’s narrowly tailored use of race as a “potential plus
factor” in admissions decisions to further a compelling interest in obtaining the educational
benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause.
REASONING
· “Critical mass” means “a number that encourages underrepresented minority students to
participate in the classroom and not feel isolated” (6).
· When a critical mass of underrepresented minority students is present, racial stereotypes
lose their force because nonminority students learn there is no “minority viewpoint” but
rather a variety of viewpoints among minority students” (7).
· The Law School’s program is “virtually identical” to the Harvard admissions program
described approvingly by Justice Powell and appended to his Bakke opinion (7).
· What are NOT compelling state interests for the use of racial classifications according to
Powell’s opinion in Bakke?
o Reducing the historic deficit of traditionally disfavored minorities in medical schools and
in the medical profession (9)
o Remedying societal discrimination (9)
o Increasing the number of physicians who will practice in communities currently
underserved (9)
· The consideration of race in university admissions policies is only justified to attain a
“diverse student body” (9).
· First Amendment Rationale: The University is the citadel of thought and discussion.
It’s important that students are exposed to a wide-variety of viewpoints and perspectives (9).
· The standard for judging racial classifications imposed by the government is strict
scrutiny: The policy must be “narrowly tailored to further a compelling governmental
interest.”
· There is a compelling state interest in student body diversity. The Court defers to the
Law School’s educational judgment that such diversity is essential to its educational mission
(11).
o Diversity promotes cross-racial understanding, helps break down racial stereotypes, and
enables students to better understand persons of different races.
o Also prepares students to enter a diverse workforce.
· National Security Rationale: The military learned in Vietnam that it needs an officer
corps that looks like the enlisted men. The military relies on affirmative action to achieve an
officer corps that is both excellent and diverse. “The military cannot achieve an officer corps
that is both highly qualified and racially diverse unless the service academies and the ROTC
used limited race-conscious recruiting and admissions policies” (12).
· Law schools also cultivate the leaders of tomorrow. “In order to cultivate a set of leaders
with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be
visibly open to talented and qualified individuals of every race and ethnicity” (13). This
seems to be LIGHTYEARS from Powell’s opinion in Bakke.
· Narrow tailoring:
o To be narrowly tailored, a race-conscious admissions program cannot use quotas.
o It can consider race as a potential “plus factor,” however (14).
o Race must be used in a “flexible, nonmechanical” way (14). There must be some form
of individual consideration of the totality of the applicant’s file.
o Universities can’t have two separate admissions tracts, one for minorities and one for
nonminorities, and they can’t set a certain number of seats aside for minorities.
Minorities must compete directly with nonminority candidates in the admissions process,
but race can be a “plus factor,” much like legacy status (14).
o An applicant’s race cannot be the “defining feature” of her application (15).
o “Narrow tailoring does not require exhaustion of every conceivable race-neutral
alternative.” What narrow tailoring requires is that the university give “good faith
consideration of workable race-neutral alternatives that will achieve the diversity the
university seeks” (16).
 The Law School does not have to lower its academic standards or admit
students by lottery (17).
· Time Limit: “We expect that 25 years from now, the use of racial preferences will no
longer be necessary to further the interest approved today” (i.e., diverse student body) (18).
DISSENT (RHENQUIST, W/ SCALIA, KENNEDY, AND THOMAS)

• The Law School’s policy is not narrowly tailored to the interest it asserts. The Law
School’s program is really “a naked effort to achieve racial balancing” (20).
• Critical mass is supposed to keep minority students from feeling “isolated” or like a
“spokesperson” for their race. But the Law School admits far more African Americans than
Hispanics or Native Americans. Why is the “critical mass” number larger for African
Americans than for the other two minority groups? (21)
• The proportion of a minority group admitted is roughly equal to the proportion that
minority group makes up of the entire applicant pool. It seems that numbers do matter (29).
DISSENT (KENNEDY)
· Universities can consider race in making admissions decisions, but they must consider
each applicant individually and race can never be a predominant factor (34).
· The Court has not really given the Law School’s policy strict scrutiny.
THOMAS’S OPINION
· A “compelling governmental interest” under the strict scrutiny standard is something like
national security or remedying a government’s own past discrimination (38).
· “The Court upholds the use of racial discrimination as a tool to advance the Law School’s
interest in offering a marginally superior education while maintaining an elite institution”
(39).
· “There is no pressing public necessity in maintaining a public law school at all and, it
follows, certainly not an elite law school. Likewise, marginal improvements in legal education
do not qualify as compelling state interest” (40).
· “The Law School should be forced to choose between its classroom aesthetic and its
exclusionary admissions system—it cannot have it both ways” (42).
· Does the majority opinion provide grounds for racial segregation if a public university can
show that segregation of the races yields educational benefits? (45)
· How does this ruling compare to United States v. Virginia (1996)? In that case, the
Court made VMI change its educational practices, even though VMI said that the introduction
of women would hinder its ability to achieve its educational objectives. And gender-based
discrimination is only subject to intermediate, not strict, scrutiny. What’s going on here?
Why does the Court defer to the U. of Michigan’s determination that diversity will help it
achieve its educational objectives, but the Court does not defer to the opinions of the
administrators of VMI? (45)
· Columbia, Harvard, and other Ivies once gave “minuses” to Jews because there were
“too many” of them in their schools (46).
· Affirmative action may only stigmatize minorities. Make people think they don’t deserve
to be at the law school (48).
· Affirmative action may impede the narrowing of the LSAT gap by discouraging minorities
from studying more (49).
NOTES
· Is strict scrutiny applied in the same way to affirmative action programs as to invidious
discrimination? Is the Court really applying strict scrutiny in Grutter?
· Why are “pluses” different than quotas?
o Quotas create two different admissions tracts. With pluses, minority candidates
compete against nonminority candidates. That’s not really true with a quota system.
Pluses treat minority status like other “soft” criteria such as ability to play a musical
instrument or legacy status.
o Maybe pluses are less stigmatizing for minorities than quotas. It still appears that
minorities got in on their own merits—the totality of their application made them an
attractive candidate.
o With quotas, you have to decide ahead of time which minority groups you are going to
have quotas for. You don’t necessarily have to do this with pluses.
o With quotas, you need some kind of Nuremberg-like blood code to decide who qualifies
as black and who doesn’t. This isn’t necessarily true with “pluses.” You can instead
read the applicant’s application and see if the applicant has the “lived experience” of a
racial minority.
· Diversity is an especially compelling rationale because it is supposed to benefit everyone.
It improves the education of all.
· What about the originalist perspective? Well, the 39 th Congress, which gave us the 14th
Amendment, engaged in race-based affirmative action by creating the Freeman’s Bureau.
Sex and Privacy
1(a) Evolution of the “Intermediate Standard” for Sex Discrimination (BLBA 985)
The court does not remain consistent in its standard of review in gender discrimination cases.
1. Minimum rational basis
2. Reed (1971) – first SCt. case to invalidate a gender discrimination law based on Equal
Protection Clause. Though still purportedly decided on minimum rational basis, something
additional is implied by the decision.
3. Frontiero (1973) – some sort of heightened scrunity, though still not precisely defined.
4. Craig (1976)– SCt. applies intermediate level of scrutiny for gender discrim. cases.
Frontiero Background: Evolution of the “Intermediate Standard”

· Court was reluctant to give women equal rights until fairly recently. Previously, Ct did
not even consider that the Equal Protection Clause might constrain gender classification. (see
Bradwell v. Illinois 1873, which upheld Illionois law that rejected Myra Bradwell’s right to
practice law solely b/c she was female, p985) (see Minor v. Happersett 1875, upheld
Missouri law that limited voting rights to men, although women were citizens, p986)  Minor
gets overruled by the people 
· 19th Amendment – 1920 – removed from states the ability to limit voting rights on
grounds of sex. After this, a few courts reassess women’s political and civil rights.
 Important case: Adkins v. Children’s Hospital (1923) – held that DC law requiring that
women (but not men) received minimum wage violated women’s freedom to contract. By the
end of the 1920s, Cts had strictly limited the 19th A. to the question of voting. p986
o Adkins fully overruled in 1937 as an outmoded Lochner-era decision.
o Recall, West Coast Hotel case that upheld minimum wage law that treated women
different from men. In new era which counseled judicial restraint in “ordinary
social and economic legislation”, Cts didn’t want to use Equal Protection Clause to
strike down statutes to protect women’s interests.
· Goesaert v. Cleary (1948). More ground lost in area of equal treatment for women in
employment sphere. Court applied minimum rationality standard to uphold a Michigan
statute forbidding women to work as bartenders, on the ground that Michigan’s moral and
social interests were enough to meet a minimum rationality standard. Under court’s view, it
was constitutionally acceptable for legislature to define women in traditional terms which
constrained and limited women’s economic and political activity. p986
· Women’s Rights Movement 1960s: Before Reed, the Court had developed two
standards of review to determine whether a state statute violated the equal protection clause
of the 14th Amendment, or whether a federal statute violated the equal protection component
of the 5th Amendment.
o 1. In most cases: The “rational relation” test - a statutory classification which
bares a rational relation to a legitimate legislative objective will survive judicial
review. A classification reviewed under the equal protection clause using the rational
relation test will almost always pass constitutional muster.
o 2. If legislation affects fundamental rights or when the statutory classification is
inherently suspect, a more stringent, “the strict scrutiny” test is applied. (The
suspect class doctrine is based on the notion that a legislature may draw lines
between individuals based on their ability or need, but that it is “presumptively
impermissible to distinguish on the basis of congenital and unalterable biological
traits of birth over which the individual has no control over and for which he or she
should not be penalized.”)  such classification will generally not withstand “strict
scrutiny” unless it is supported by the most compelling affirmative justification.
Because sex-based classifications did not attract a heightened level of judicial

scrutiny prior to the 1970’s, gender based classifications were always upheld.
o It is the “test” that Ginsburg (b/f appointment to SCt.) tries to change with Reed,
Frontiero, and Craig.  Attempts to have the Ct. view women as a suspect
classification, thereby, change the test applied to sexually discriminatory laws.
Ruth Bader Ginsburg and the ACLU’s Women’s Rights Project are major actors in the
next cases…Goal of litigation was to prove that stereotypical/traditional treatment of
gender under the law was unconstitutional. To make the Court realize that “the law’s
differential treatment of men and women, rationalized as reflecting “natural”
differences between the sexes, historically had tended to contribute to women’s
subordination”.
o Ginsburg pursued a series of strategically chosen cases (more than just those below)
that illuminated gender distinctions in the law.
 Reed v. Reed, Frontiero v. Richardson, Craig v. Boren
 Frontiero: Important: she won the case but failed to get a majority for the
“strict scrutiny test.” Because Brennan’s decision in Frontiero was joined by
only three other Justices, it became apparent that the Court was unlikely to
adopt strict scrutiny for gender classifications. Ginsburg adjusted her
objective in response to the outcome in Frontiero and attempted to get the
Court to enunciate an intermediate level of scrutiny for sex classifications.
Although “strict scrutiny” would not be used to judge sex discrimination
cases, “the Court’s heightened mode of review persists that to survive court
review a classification must bear a substantial relationship to an important
government objective.” (Ginsburg quote.)
 Craig: Court explicitly recognizes intermediate level of scrutiny.
 Ginsberg’s strategy was to bring cases involving discrimination against
men, in part b/c SCt was entirely male.
Reed v. Reed (SCt. 1971) BLBA 988
Ct purports to apply only minimal rationality standard, but strikes down Idaho law that required a
man be chosen to be administrator of an estate if a man and woman were equally qualified.
First SCt decision to invalidate a gender classification under Equal Protection Clause.
(Important precedent, many gender cases refer back to this). Change in reasoning from Goesart
to Reed probably reflects the influence of women’s rights movement.
o Ginsburg argued this one in front of the Court.
Ginsburg argued that Sally Reed was denied equal protection which should have been
protected by the Fourteenth Amendment, when her husband was awarded the estate
of their deceased son “because of the Idaho law compelling a preference for the man
when there was a choice between an equally qualified man and woman”. In her
brief, she makes many analogies between race and gender. She argues for the “strict
scrutiny test” to be applied.
o The state said that the statute was designed to reduce the workload of its lower level
courts and to prevent the possibility of intra-family fights.
o The Supreme Court reversed the judgment made by the Idaho Supreme Court, and
stated in the opinion written by Chief Justice Burger, “to give mandatory preference
to members of either sex over members of the other, merely to accomplish the
elimination of hearings on the merits, is to make the very kind of arbitrary legislative
choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.” But
they don’t actually apply the “strict scrutiny test” yet. All they say is the sex
classification at stake was “subject to scrutiny,” implying something higher than

“rational basis test” but not exactly the “strict scrutiny test”.
See p989 discussion in Frontiero.
Frontiero v. Richardson (1973) BLBA 988
Court strikes down Congressional act that extends fringe benefits to spouses of male
servicemembers no matter what but requires female servicemembers to show that their spouses
are dependent upon them for over one-half of their support. Four justices apply strict scrutiny to
the gender classification, but there majority does not apply strict scrutiny.
FACTS
· Congress enacts policy to provide fringe benefits such as medical and dental care to
members of the armed forces and their dependents.
· Under the statutes, a man may claim his wife as a “dependent” without regard to
whether she is in fact dependent upon him for any part of her support.
· A woman, on the other hand, may not claim her husband as a “dependent” under these
programs unless he is in fact dependent upon her for over one-half of his support.
· Sharron Frontiero and her husband Joseph Frontiero challenge statutes after Sharron’s
application for benefits for her husband is denied.
HOLDING (PLURALITY OPINION): The Congressional statutes violate the Due Process Clause
of the 5th Amendment by abridging the equal protection of the law.
BRENNAN (W/ DOUGLAS, WHITE, AND MARSHALL)

· For much of the 19th Century, the position of women in our society was, in many
respects, comparable to that of blacks under the pre-Civil War slave codes: couldn’t hold
office, serve on juries, or bring suit in their own names; married women were traditionally
denied the legal capacity to hold property or to serve as legal guardians of their own children
(BLBA 990).
· “We can only conclude that classifications based upon sex, like classifications based upon
race, alienage, or national origin, are inherently suspect, and must therefore be subjected to
strict judicial scrutiny” (BLBA 991). Notice that only 4 justices sign on to this opinion.
· The Congressional statutes deny benefits to females who provide less than one-half of
their spouses’ support while at the same time granting benefits to males who likewise
provide less than one-half of their spouses’ support (BLBA 991).
· “Any statutory scheme which draws a sharp line between the sexes, solely for the
purpose of achieving administrative convenience, necessarily commands dissimilar treatment
for men and women who are similarly situated and therefore involves the very kind of
arbitrary legislative choice forbidden by the Constitution.” (BLBA 992)
POWELL’S CONCURRENCE (W/ BURGER AND BLACKMUN)

· Gender is not a suspect classification.
· Let’s allow the people to decide this one. “The Equal Rights Amendment, which if
adopted will resolve the substance of this precise question, has been approved by the
Congress and submitted for ratification by the States” (BLBA 993).
NOTES
· Notice that only four justices signed onto the “strict scrutiny” rationale in this case. In
Craig v. Boren (1976), the Court would later adopt an “intermediate scrutiny” standard for
laws that contain gender classifications.
o Intermediate Scrutiny: The classification based on gender “must serve important

governmental objectives and must be substantially related to the achievement of those
objectives.” (BLBA 994)
· The Court’s ruling in Frontiero v. Richardson arguably took some steam out of the
movement for the Equal Rights Amendment. If the 14 th Amendment already protects women
from discrimination, why pass a new amendment?
The Equal Rights Amendment

The ERA (Equal Rights Amendment), after overwhelming approval in the House and Senate,
failed to win the necessary 38 states for ratification, and expired in 1982.
Should the pending status of the ERA have affected SCt cases at that time?
On one hand, some argue that the political processes can take care of women’s equality
issues via constitutional amendment – that is, judges should wait and let women
protect themselves politically
On the other hand, one might ask, how many constitutional amendments do we need
before we can be expected to take equality seriously? -14 th and 19th already protect
equality, and we can’t rely on amendment getting through state legislatures to with
2/3rd of the vote, as women do not constitute 50% of the legislature
p994 for a fuller discussion of ERA
Even if you think case was wrongly decided – and Ct. should not have read sex into the 14 th
Amend.
They in effect constitutionalized the ERA. This decision took the wind out of the ERA, but
it would have been ratified. So it shouldn’t be overturned – since the people would
have ratified the same notion anyway.
Arguments for this decision, and keeping it as good law: (a) Precedent is there now, and if it
hadn’t been there, it would have been adopted by ERA – which is why people don’t challenge
this today in the way that they would challenge Roe v. Wade. (b) 14th Amend (c) 19th Amend
+ 14th Amend.
Catharine MacKinnon criticizes the ERA for reducing the problem of the subordination of women
to one of classification, when it is a problem of broad societal discrimination, not only legal
classification. p997.
The Race Discrimination analogy. p999
Racial discrim isn’t exactly the same as sexual discrim
In Frontiero (above), Brennan reasoned that the discrimination against women is
analogous to racial discrimination.
But it is, of course, in important ways, different:
After the Civil War, racial superiority was enforced by separation and
degradation.
In contrast, women have always lived in close proximity with men. Men don’t
hate women, but think women are better suited to certain roles.
Paternatlistic attitude.
Wasserstein: Discriminatory views are exhibited by paternalism rather
than overt contempt, and enforced through more complicated (and
perhaps more deeply felt and rooted) social structures (p. 999 -
1003).
John Ely, “Democracy and Distrust” (1980), p. 1003
Advocates a purely process-based approach to antidiscrimination.
We should be concerned with lifting the roadblocks to democratic access
Women can then protect themselves.( they are a majority )
Ely argues against substantive correction
If women have “chosen” not to avail themselves to opportunities, or to change

the laws, it is not because they can’t (it is probably b/c they assign it a low
priority).
Ely refutes the counterargument that women have internalized prejudice b/c this
prejudice is under daily public attack and in open discussion.
A male legislature in itself should not be suspicious, if it was elected by a democratic
body. However, a law passed b/f women could vote is suspicious. But if
struck down, and reenacted by current legislature, new law should be upheld as
constitutional.
We may feel that any unequal treatment is just bad, but that is not a constitutional
argument.
Catharine MacKinnon, “Toward a Feminist Theory of the State” (1989) p. 1005
A built-in tension exists b/w concept of equality, which presupposes sameness,
and concept of sex, which presupposes difference.
The problem is an inequality of power, not “differences”. ”Differences” are an excuse for
inequality.
Craig v. Boren (1976) BLBA 994
Intermediate level of scrutiny formally adopted for gender discrimination cases.
FACTS: State law prohibited sale of beer to males under the age of 21 and to females under the
age of 18.
ISSUE: Whether such a gender-based differential constitutes a denial of 18-20 years old males
Equal Protection Clause rights?
HOLDING: State law violates EPC.
RATIONALE: Establishes intermediate scrutiny for sex-based classifications. Such classifications

“must serve important government objectives and must be substantially related to achievement
of those objectives.” Sex-based classifications invalid unless substantially related to an important
government goal.
J.E.B. v. Alabama (SCt., 1994) BLBA 1015
Gender-based peremptory challenges violate Equal Protection Clause.
FACTS: In state action to establish JEB’s paternity, the state exercised 9 of 10 peremptory
challenges to strike male jurors. Although JEB used all but one strike to get rid of female jurors,
the jury in the paternity suit ended up all female.
HOLDING (BLACKMUN): Gender-based peremptory challenges violate the Equal Protection Clause.
Alabama’s gender-based peremptory challenges cannot survive the heightened equal protection
scrutiny that this Court affords distinctions based on gender.
REASONING:
• Gender stereotypes are no more defensible than race stereotypes (see Batson v.
Kentucky), so assumption of juror bias here is impermissible. BUT as long as gender does not
serve as a proxy for bias, unacceptable jurors may still be removed. Parties can still use
peremptories to remove based on presumptive juror bias for classifications other than race or
sex, such as: members of a group or class that is normally subject to “rational basis” review
and even those who exhibit characteristics that are disproportionately associated with one
gender. e.g., military service.
• Gender-based peremptory challenges violate the rights of both the defendant and the
juror who has been struck (BLBA 1016).
CONCURRENCE (O’Connor)
• There are several costs associated with extending Batson to gender-based peremptory
challenges - lengthier trials, an increase in the number and complexity of appeals addressing
jury selection, and a “diminished . . . ability of litigants to act on sometimes accurate gender-
based assumptions about juror attitudes.”
• “[This decision’s] important blow against gender discrimination is not costless. I express
my belief that today’s holding should be limited to the government’s use of gender-based
peremptory strikes.”
• O’Connor thinks women may be different than men and gender matters, but the
government cannot take that into account when administering justice. After all if women and
men vote the same way the 19th amendment would be irrelevant or just symbolic.
DISSENTS (Scalia, Rehnquist, Thomas): How is it sex discrimination if each side can exercise
off-setting preemptory challenges? Why isn’t the system as a whole satisfactory under functional
and formal equality? Group based characteristics are the whole point of preemptory challenges.
United States v. Virginia [The VMI Case] (SCt., 1996) BLBA 1025
Male-only admissions policy at the Virginia Military Institute (VMI) violates the Equal Protection
Clause.
FACTS
• The VMI is a prestigious academy that admits only men. Although it is a military
academy, only about 15% of its graduates go on to careers in the military. Others go to
government, business, and other careers. The VMI is known for its adversative method and
its difficult training process, which requires communal living among the students and lack of
privacy.
• Prompted by a complaint filed by a female high-school student who sought admission to
VMI, the United States sued Virginia and the Virginia Military Institute.
• DCt. found for VMI b/c single sex education added diversity to uniformly coeducational
system. The Fourth Circuit Court of Appeals reversed, and required Virginia to either admit
women, establish parallel institutions for women, or abandon state support.
• Virginia chose to establish a parallel institution, in the form of Virginia Women’s Institute
for Leadership (VWIL) at Mary Baldwin College.
o Average combined SAT score of entrants at VWIL is about 100 points lower than
at VMI
o Faculty is less prestigious at VWIL and receive lower salaries.
o VWIL not use adversative method.
o VWIL lacks alumni network of VMI (BLBA 1035).
HOLDING (Ginsburg): Male-only admissions policy at a public military academy violates 14 th

Amendment, which precludes Virginia from “reserving exclusively to men the unique educational
opportunities that VMI affords”
VOTE: 7-1 (Thomas recuses self b/c his son attends VMI)
REASONING:
· Parties who seek to defend gender-based government action must demonstrate an
“exceedingly persuasive justification” for that action (BLBA 1028). The State must show
(BLBA 1029):
o That the challenged classification serves important governmental objectives
o And that the discriminatory means employed are substantially related to the
achievement of those objectives.
· Virginia presents two justifications for VMI’s male-only admissions policy: (1) single-sex
education provides important educational benefits and the option of single-sex education
contributes to diversity in educational approaches; (2) VMI’s adversative approach would
have to be modified if VMI admitted women. (BLBA 1029)
· Against the justification of educational benefits and the need for educational options:
o VMI’s male-only admissions policy was never meant to provide diversity in educational
options. That’s just a post hoc rationalization (BLBA 1031).
· VMI would have to make special accommodations for women, but that’s what the equal
protection clause requires (BLBA 1032). Women have successfully been integrated into the
federal military academies. Why can’t VMI do the same? (BLBA 1033)
· Ginsburg compares VWIL to the U. of Texas Law School’s attempt to set up separate
facilities for African Americans—Sweatt v. Painter (BLBA 1035). The State has not shown
substantial equality in the separate educational opportunities the State supports at VWIL and
VMI (BLBA 1035).
CONCURRENCE (RHENQUIST)
· Rhenquist doesn’t like the phrase “exceedingly persuasive justification” (BLBA 1036). He
prefers the already established intermediate scrutiny test: substantial relation to important
governmental objective.
· “Had Virginia [after the Court’s decision in Mississippi Univ. for Women v. Hogan] made a
genuine effort to devote comparable public resources to a facility for women, and followed
through on such a plan, it might well have avoided an equal protection violation” (BLBA
1037).
DISSENT (SCALIA)
• Women aren’t a “discrete and insular minority” unable to employ the “political processes
ordinarily to be relied upon” for protection for their interests (BLBA 1040).
o But whites aren’t a discrete and insular minority group either. Why does Scalia
think that affirmative action programs should get heightened scrutiny?
• Single-sex education has pedagogical benefits (BLBA 1040-1).
• VMI will probably have to drop the adversative method once it admits women (BLBA
1041).
• The Court’s decision is really the death knell of State-sponsored single-sex education.
It’s impossible to maintain separate but equal facilities (BLBA 1042).
• Basically Scalia’s dissent rests on the “tradition” of VMI…
Mississippi University for Women v. Hogan (1982) BLBA 1044

All-female nursing school must admit male applicant.
FACTS
· Mississippi University for Women is a state school that limits enrollment to women.
· In 1979, Joe Hogan applied for admission to nursing school and was reject because he
was male.
HOLDING (O’CONNOR): The all-female nursing school must admit the male applicant.
REASONING
· The School had to show an “exceedingly persuasive justification” for its gender-based
admissions policy. The policy cannot reflect “archaic and stereotypic notions” of the roles of
males and females in society (BLBA 1045).
· The nursing school claims that its policy is a form of affirmative action to compensate for
discrimination against women.
· But women haven’t been discriminated against in the field of nursing. In fact, in 1970,
the year before the school was founded, women earned 94% of the nursing baccalaureate
degrees conferred in Mississippi and 98.6% of the degrees earned nationwide. Nearly 98%
of registered nurses were female. (BLBA 1045)
· So the nursing school’s policy actually perpetuates the stereotype that nursing is
“women’s work” (BLBA 1046).
· The nursing school’s policy violates the Equal Protection Clause.
DISSENT (POWELL, W/ RHENQUIST)

· This decision is the death knell of single-sex education.
· Single-sex education has pedagogical benefits (BLBA 1046).
· Hogan could have gone to a coeducational state-run nursing school.
· State efforts that are meant to expand women’s choices should be held to a different
standard than state efforts that invidiously discriminate against women. How is this
consistent with Rhenquist’s view of racial affirmative action, where he believes
that benign and invidious classifications should be held to the same strict
scrutiny? (BLBA 1047)
Garrett v. Board of Education for the School District of the City of Detroit (E.D. Mich.
1991) BLBA 1050
Federal district court rules that City of Detroit must admit female students to new male
“academies.”
FACTS
· City of Detroit established three academies for intercity males in grades five through
eight. The Academies offer special programs including a class entitled “Rites of Passage,” an
Afrocentric curriculum, futuristic lessons in preparation for 21st century careers, an emphasis
on male responsibility, mentors, Saturday classes, individualized counseling, extended
classroom hours, and student uniforms.
· Plaintiffs sue, saying the Academies can’t restrict admission to males.
· The school is meant to address the high unemployment rates, school dropout levels, and
homicide among urban males, but admittance isn’t restricted exclusively to at-risk students.
HOLDING: The Academies must admit females as well as males.
REASONING
· The exclusion of girls is not substantially related to the Board’s objectives of addressing
the “crisis facing African-American males.”
· The district court relies heavily on the Court’s ruling in Mississippi University for Women
v. Hogan.
Personnel Administrator of Massachusetts v. Feeney (1979) 1053
If a law is facially gender-neutral, disproportionate effects alone are not sufficient to violate 14 th
Amendment. There must have been discriminatory purpose by legislature to benefit men as a
class to violate the Equal Protection Clause. It’s not enough to show that the legislators should
reasonably have known that the law would have a disproportional impact on one sex. It has to
be shown that the legislators passed the law “because of,” rather than “in spite of,” the disparate
impact.
FACTS
· Helen Feeney attempted during WWII to enlist in the army, but was rejected because
women under 21 (unlike men) had to obtain parental consent to enlist, and her parents
refused to consent.
· Much later, she was hired by the Massachusetts Civil Defense Agency. Her efforts at
getting promoted and at getting better jobs were thwarted despite her high scores on civil
service examinations, because Massachusetts gave an absolute preference to veterans in
promotion decisions.
· 98% of the veterans in Massachusetts were male. Over ¼ of the Massachusetts
population was composed of veterans.
· Feeney sued, arguing that the absolute preference for veterans in effect excluded
women and violated the 14th Amendment. A three-judge DCt. court agreed.
QUESTION: Does a Massachusetts statute which grants an absolute lifetime preference to

veterans discriminate against women in violation of the 14 th Amendment?
HOLDING (STEWART): No. If a law is facially gender-neutral, disproportionate effects alone are not
sufficient to violate 14th Amendment; need a discriminatory purpose by legislature to benefit men
as a class. Discriminatory purpose is not merely an awareness of what the effects will be but
implies that a particular course of action is chose at least in part “because of”, not “in spite of”,
its adverse effects upon an identifiable group. BLBA 1057
REASONING (STEWART):
· The distinction between veterans and nonveterans is not gender based. Many men are
also burdened by this law. “Too many men are [adversely] affected by [this statute] to
permit the inference that the statute is but a pretext for preferring men over women” (BLBA
1055).
· If Massachusetts’s veteran preference inherently discriminates on the basis of sex
because few women have been able to achieve the status of veteran, then any veteran
preference would be unconstitutional. But Feeney has admitted that a more limited veteran
preference would be acceptable. (BLBA 1056)
· “Discriminatory purpose… implies more than intent as volition or intent as awareness of
consequences. It implies that the decisionmaker, in this case a state legislature, selected or
reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’
its adverse effects upon an identifiable group” (BLBA 1057).
DISSENT (MARSHALL, W/ BRENNAN)

· Massachusetts’ choice of an absolute veterans’ preference system evinces purposeful
gender-based discrimination that is not substantially related to a legit. govt. objective.
· “Where foreseeable impact of a facially neutral policy is so disproportionate, the burden
should rest on the State to establish that sex-based considerations played no part in the
choice of the particular legislative scheme” (BLBA 1058).
NOTES
· Is the statute in Feeney truly neutral on its face? Does it not incorporate by reference
the gender-based exclusions employed by the U.S. military? The statute may not talk about
men and women, but women have been seriously handicapped from becoming “veterans”
throughout this nation’s history. When a statute incorporates by reference another statute
that discriminates based on sex or race, shouldn’t that statute get heightened scrutiny? Why
isn’t the veteran’s preference unconstitutional because of de jure discrimination in the U.S.
Army?
o Wouldn’t this reasoning rule all out veteran’s preferences?
· Is this a formally sex-based discrimination? This is hugely important to the outcome b/c
formal discrim would trigger a certain level of scrutiny w/o the need for a determination of
“purposefulness”. A lot of the justices say they agree that it is not “formal discrim.” Amar
says it is “formal discrim” – interaction of this statute’s use of word “veteran” w/
other laws that apply different rules to men and women for joining military (how
one becomes a veteran). So AMAR says it is a formally sex-based law, which
triggers intermediate scrutiny (per Craig v. Boren)
SCt says “not formally sex discrimination because not all veterans are men and not all
men are veterans” p1058, but it is formal sex discrimination b/c veteran
designation cross-references other laws which do specify gender (like the
draft registration law).
Virtually all laws have a differential impact, so Ct. is reluctant to use heavier
scrutiny to all classifications. But it does so for: Race-based classifications,
Sex-based classification.
Ct says that you can’t transfer the intent of federal statutes that say veteran and
discriminate onto a state law that uses “veteran”. p1056. Amar says that’s
not the point – the word itself is disciminatory “by transfer”. Intent doesn’t
matter.
History of women in the military and the “combat exclusion” BLBA 1104-1119
Women in the Military
1925 – Congress passed a law prohibiting Navy from enlisting women.
1942 – Congress established Women’s Army Auxiliary Corps and Navy Women’s Reserve
1948 – Congress passes a so-called “integration” act, which required that no more than 2%
of each service consist of women
1994 – women excluded only from direct ground combat.
Although the exclusion of women from the draft has been frequently challenged, combat
exclusion itself has been subject to virtually no court tests
Rather, combat exclusion taken for granted. It turn, it is used to justify other
exclusionary practices, such as draft exclusion. (see Rostker below)
Justifications for exclusion:
1) need to maintain national security - grounded in perception that women would
decrease combat effectiveness due to gender-related biological differences: lowered
physical capacities, pregnancy and menstruation; and
2) the need to protect women
Draft Exclusion BLBA 1109
The exclusion of women from combat is appealed to in justifying the exclusion of women from
the draft.
· United States v. St. Clair (D.S.D. 1968). A male plaintiff challenged the draft on the
grounds that it discriminated based on sex. District court rejected the challenge. “Men must
provide the first line of defense while women keep the home fires burning.” (BLBA 1109)
· In 1980, President Carter asked Congress to amend the Military Selective Service Act to
permit registration of men and women. Congress refused.
· In Rostker v. Goldberg (1981), the Court upheld the constitutionality of the Military
Selective Service Act, which exempted women from registration in the draft. (BLBA 1109)
o Majority (Rehnquist) – Stressed that women were unable to serve in combat and SCt
owes Congress a high degree of deference in issues of defense and military affairs.
o Dissent: Women might serve in non-combat situation, and there was no basis for
concluding that excluding women is substantially related to concededly important gov’t
interest in maintaining an effective defense.
o Notice that if women were drafted for non-combat positions, men would just be
bumped into combat positions. Would the drafting of women, combined with the
combat exclusion, unfairly discriminate against men?
· Since 1981, the scope of combat exclusion has been reduced, with a significant number
of women serving in the Persian Gulf War in 1991.
Gender-based Affirmative Action BLBA1113
Unlike race, Court began to consider cases of affirmative action in favor of women, prior to
determining a general standard for discrimination against women:
Older affirmative action cases tend to uphold laws preferring women as a means to combat past
discrimination:
E.g., Kahn v. Shevin, 416 U.S. 351 (1974), upholding tax exemption in favor of widows,
but not widowers, noting the pervasive effects of economic discrimination against
women
Today, the court has some difficulty reconciling these older cases with its newer jurisprudence on
affirmative action, imposing a strict proof requirement for racial affirmative action, in Croson
and Adarand → also need to reconcile this stance on affirmative action with United States v.
Virginia, which announced the requirement of an “exceedingly persuasive justification” for
gender-based discrimination.
The symmetry SCt now requires between reverse discrimination and vanilla-
discrimination, in terms of the level of scrutiny, per Croson and Adarand, means that
it is more difficult for a state to justify affirmative action programs that benefit a
disadvantaged race by classification (strict scrutiny) than to justify such programs for
women (only triggers intermediate scrutiny). In fact, it is even easier to justify
affirmative action for homosexuals and the aged, who currently are not treated as
suspect classes. p1118
Anti-affirmative Action sentiments cogently expressed in Scalia dissent in Johnson v.
Transportation Agency 480 US 616 (1987). The majority decision “completes the process of
converting [Title VII] from a guarantee that race or sex will not be the basis for employment
determinations, to a guarantee that it often will. Ever so subtly… we effectively replace the
goal of a discrimination-free society with the quite incompatible goal of proportionate
representation by race and sex in the workplace.” p1116.
The “Privacy” Cases and Other Implied Fundamental Rights
· There are a series of modern opinions where the Court has protected rights variously
described in terms of: privacy, procreational choice, sexual autonomy, right to choose how to
live (and how to die), family integrity, and intimate association.
· There is a long tradition of constitutional thought since Calder v. Bull that rights can exist
outside the text – rights that are implied from the basic constitutional order, history, and
traditions.
· Other scholars argue that these rights are in the text:
o Privileges and Immunities of national citizenship (but The Slaughter-House Cases
strangled this phrase in the crib)
o Among the “liberties” protected by the Due Process Clause of the 14th Amendment
o Among those rights whose existence is presumed by the language of the 9th A.
· Critics deny that such fundamental rights exist. They also suggest that (a) judges are
incapable of identifying such rights with the precision necessary to resolve constitutional
disputes and that (b) the courts lack the political authority to bind the polity to their
conclusions. BLBA 1131
· After Griswold (below), there was much new scholarly literature regarding the
assignment of substantive meaning to the Due Process Clause. Several approaches to the
debate are outlined: p1146-1156
· Conventional Morality
· Rights based theory – history, tradition, evolving community standards, civilized
consensus
· Justifications for Gov’t regulations – state’s interests in (a) morality and (b) stability of
the family
· Criticism of Fundamental Rights Adjudication: BLBA 1151
(a) Critique of Conventional Morality – Ely denies that American society shares a conventional
morality and further argues that, even if it did exist, it is not reliably discoverable by
Courts.
(b) Critique of Rights Theories – Ely argues that natural law does not exist, at least not in a
form useful for resolving const. disputes
(c) Levels-of-abstraction problem – by adjusting the level of abstraction of the constitutional
issue you can “make it come out like you want it to” BLBA 1154
(d) Lochner-ing – symbolizes for proponents and critics the negative side of fundamental
rights adjudication. Larry Tribe argues that the problem is not the mode of adjudication
but the particular economic values it chose to deem fundamental, which we no longer
deem fundamental in modern society.
· First era of “Substantive Due Process” (pre-Griswold) variously protects: (i) right to
control children’s education (ii) right not to be sterilized (iii) and the right to travel abroad.
p1131-1134. Second era of substantive due process comes to full flower in 1965 with
Griswold…
Griswold v. Connecticut (1965) BLBA 1134
Strikes down a Connecticut law criminalizing the use of or assistance in acquiring artificial
contraceptives by married couples. This case marks the birth of the Court’s modern substantive
due process jurisprudence, although the Court does not claim to rely on the Due Process Clause
of the 14th Amendment in reaching its decision. It claims to find a right to privacy in marital
relations in the “penumbras” of various Constitutional amendments.
FACTS: Connecticut’s anti-contraception law is enforced against married couples, and medical
parties that assist them in acquiring contraceptive devices. Two officers of the Planned
Parenthood League of Connecticut appeal their conviction under this state law. SCt holds that
appellants have standing to raise the constitutional rights of the married people with whom they
had a professional relationship.
ISSUE: Does a law that forbids use of or assistance in acquiring contraceptives violate the
constitution when it is applied to married couples?
HOLDING (Douglas): Yes. It violates a right to privacy in the marital relationship.
REASONING
· The Court claims not to rely on the Due Process Clause in asserting a fundamental right
to privacy in the marital relationship. The Court is still gun-shy of returning to the Lochner
era (BLBA 1135).
· The “specific guarantees in the Bill of Rights have penumbras, formed by emanations
from those guarantees that help give them life and substance” (BLBA 1136). Various
guarantees create zones of privacy:
o Right of association in the penumbra of the 1st Amend.
o 3rd Amend. right against quartering of soldiers in time of peace
o 4th Amend. right to be secure in persons, houses, papers, and effects, against
unreasonable searches and seizures.
o 5th Amend. right against Self-Incrimination.
o 9th Amend.: “The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.”
· There are notions of privacy surrounding the marriage relationship (BLBA 1136).
CONCURRENCE (GOLDBERG, W/ WARREN AND BRENNAN)

· The 9th Amendment was meant to address fears that the enumeration of particular rights
would imply that other rights weren’t protected (BLBA 1137).
· To say that the right to privacy in marriage may be infringed because it’s not protected in
so many words by the first eight amendments is to ignore the 9 th Amendment and to give it
no effect whatsoever (BLBA 1137).
· When deciding if a right is fundamental, justices must look to whether the right is “of
such a character that it cannot be denied without violating those fundamental principles of
liberty and justice which lie at the base of all our civil and political institutions” (BLBA 1137).
· Right to marital privacy is as fundamental as the other rights specifically protected by the
first eight amendments.
JUSTICE HARLAN’S DISSENT IN POE V. ULLMAN

· Justice Harlan concurred in Griswold for the reasons laid out in his dissent in Poe v.
Ullman (1961), which involved an earlier challenge to Connecticut’s anti-contraception law.
· Harlan would use a substantive conception of due process to strike down the law. Under
the 14th Amendment’s due process clause, there is a fundamental right to the privacy of the
home and family life that the state cannot abridge.
· The “conclusive” factor for Harlan is the novelty of the act: While many states and the
federal government have at one time or another forbade the distribution of contraceptives,
none except Connecticut has made the use of contraceptives a crime. (BLBA 1140-1)
CONCURRENCE (WHITE)
· Substantive Due Process Rationale: “In my view this Connecticut law as applied to
married couples deprives them of ‘liberty’ without due process of law, as that concept is used
in the Fourteenth Amendment” (BLBA 1141).
DISSENT (BLACK, W/ STEWART)

· This law is ridiculous, but not unconstitutional. There is no specific constitutional
provision that protects a general “right to privacy” (BLBA 1142).
· The Court should not return to the Lochner-era conception of natural-law due process.
The Court is not in a very good position to determine which rights are truly fundamental, and
that’s not the judiciary’s job anyway.
DISSENT (STEWART, W/ BLACK)

· This is an “uncommonly silly law,” but not unconstitutional. (BLBA 1143)
NOTES
· How might the Court justify its decision in Griswold?
o Substantive Due Process: Some rights are fundamental and can’t be taken away. But
Douglas does not want to rely on Substantive Due Process because he does not want to
be seen as returning to the Lochner era.
o Penumbras of the Amendments in the Bill of Rights
 But the 1st Amendment doesn’t give you a right to assemble in bed.
 The 4th Amendment allows for searches with warrants.
 The 5th Amendment does not say that you can refuse to testify after you have
been given immunity.
o Privileges and Immunities Clause: Wouldn’t be a bad option, but it was taken away by
Slaughter-House.
o Community Standards: No other State than Connecticut criminalizes the use of
contraceptives by married couples.
· What would an Equal Protection justification of the Court’s decision look like?
o Only women can get pregnant. Men can’t. This law place an undue burden on women.
o The law also perpetuates the stereotypic notion of women as mothers and caretakers of
children.
o The law does not prohibit the use of contraceptives to avoid disease. Men can
thus use contraceptives to avoid catching STDs, but women can’t use contraceptives to
avoid getting pregnant.
o This law was adopted in 1879 before the 19th Amendment gave women the right to
vote. Maybe if a similar law was adopted today it should be upheld, but since women
never got to vote on it and it has a disproportionate impact on women, the Court should
strike it down.
· Why doesn’t the Court address the Equal Protection issue?
o There are only men on the Court.
o The Court hasn’t developed the caselaw yet. Sex/gender isn’t yet considered a suspect
classification. Reed v. Reed, Frontiero v. Richardson, and Craig v. Boren aren’t decided
until the 1970s.
Eisenstadt v. Baird (1972) BLBA 1145
A State can’t prohibit the use of contraceptives by non-married individuals either.
· The Court invokes the Equal Protection rational relation standard to overturn appellee’s
conviction for distributing contraceptive foam to individuals, both married and unmarried,
at a public meeting at Boston Univ.
· The Court does not rely on the Due Process Clause in reaching its decision.
The Court instead says that the Equal Protection Clause requires that if a State cannot
prohibit married couples from using contraceptives, it can’t prohibit unmarried couples
from using them either (BLBA 1145).
Roe v. Wade (1973) BLBA 1172

[heard together with Doe v. Bolton (companion case from Georgia)]
Right to zone of privacy is extended to abortion. Mother’s privacy/liberty right trumps state
interest in protecting potential unborn life, until a certain “stage of pregnancy” where the interest
of the state in protecting a new life increases sufficiently to trump mother’s rights.
FACTS
· A pregnant single woman (Roe) brought a class action challenging the constitutionality of
the Texas criminal abortion laws, which made it illegal to procure or attempt an abortion
except on medical advice for the purpose of saving the mother’s life.
· 3 judge DCt. grants declaratory relief holding that statute infringes Roe’s 9 th Amendment
rights.
HOLDING (BLACKMUN): Right to privacy in the 14th Amendment protects a mother’s right to
abortion (partially).
REASONING
· The right to privacy, whether ground in the 14th Amendment’s Due Process Clause as the
Court believes or in the 9th Amendment as the District Court held, “is broad enough to
encompass a woman’s decision whether or not to terminate her pregnancy” (BLBA 1176).
· “We, therefore, conclude that the right of personal privacy includes the abortion decision,
but that this right is not unqualified and must be considered against important state interests
in regulation” (BLBA 1177).
· Any regulation of a woman’s right to have an abortion must serve a compelling state
interest and be narrowly tailored to achieve that objective (BLBA 1177).
· A fetus is not a person within the meaning of the 14 th Amendment (BLBA 1177).
o When the 14th Amendment speaks of “citizens,” it speaks of people born or naturalized
in the U.S.
· The Court does not try to settle the difficult question of “when life begins” (BLBA 1178).
· While the mother has a right to have an abortion, the State does have an important and
legitimate interest (1)in preserving and protecting the health of the pregnant woman and
(2)in protecting the potentiality of human life. (BLBA 1179)
· The State’s interest in the health of the mother becomes compelling at the end of the
first trimester. Until the end of the first trimester mortality in abortion may be less than
mortality in normal childbirth. After the first trimester, the State may regulate abortion in
order to preserve and protect maternal health (BLBA 1179).
· With respect to the State’s interest in the potentiality of human life, the
“compelling” point is at viability. State regulation of abortion after the point of viability is
permitted to protect the potentiality of human life (BLBA 1180).
· The trimester framework (BLBA 1180):

o For the first trimester, the abortion decision must be left up to the woman and her
physician.
o In the second trimester, the State may regulate the abortion procedure in ways that are
reasonably related to maternal health.
o After viability, the State may regulate or even proscribe abortion except when it is
necessary, in appropriate medical judgment, for the preservation of the life or health of
the mother.
CONCURRENCE (DOUGLAS)
· The 14th Amendment’s due process clause protects “freedom of choice in the basic
decisions of one’s life respecting marriage, divorce, procreation, contraception, and the
education and upbringing of children.” (BLBA 1181)
CONCURRENCE (STEWART)
· Griswold was really decided under the doctrine of substantive due process (BLBA 1183).
· The 14th Amendment protects an individual’s liberty to make decisions with respect to
procreation. Roe has the right to have an abortion.
DISSENT (RHENQUIST)
· The Court should have given the Texas law rational-basis review. The law had a rational
relation to a valid state objective, so it should stand (BLBA 1184).
· Anti-abortion statutes were common at the time of the adoption of the 14 th Amendment
—36 states had them (BLBA 1184).
DISSENT (WHITE, W/ RHENQUIST)

· This is judicial activism. The debate over abortion should have been left to the people
and their elected representatives to decide (BLBA 1185).
NOTES
· Roe is different from other “right to privacy” cases because abortion harms the fetus—
the interests of another entity are involved in this case.
· Roe strikes down 37 state anti-abortion laws.
· The trimester framework, and especially the “viability standard,” is subject to changes in
medical technology (BLBA 1187).
· Why doesn’t the state’s interest in preserving potential human life become compelling
before viability (maybe at conception)? At any stage in the pregnancy there is potential
human life.
· The Equal Protection Argument in Roe (See BLBA 1192-4):
o Pregnancy places obligations on women that are not placed on men.
 Men can’t get pregnant. When unmarried people have sex, it is highly likely
that the woman will bear all the costs of pregnancy and possibly of child-raising.
 We don’t compensate women for pregnancy like we do for men who are
drafted.
 Anti-abortion statutes violate the bodily integrity of women in order to protect
the life of the fetus. But we don’t make fathers give up their blood or kidney to
save the lives of their born children—we would consider such a law an
egregious violation of the father’s liberty. Why should we make women give up
their wombs in order to protect the potentiality of human life? Isn’t that a
violation of Equal Protection?
o This law represents archaic and stereotypic notions of the role of women in society.
Women are supposed to get pregnant and have children. They don’t have the option of
forgoing pregnancy once they have been impregnated. “Abortion-restrictive regulation

is state action compelling pregnancy and motherhood.” (BLBA 1192)
 Women may give children up for adoption, but they rarely do (social stigma and
natural attachment to child). The state in adopting anti-abortion regulations is
in effect forcing women to play the role of mothers.
 Motherhood has a secondary social status. Childcare is not compensated by the
state, and mothers often don’t have time to participate in public affairs or run
for public office. It’s also hard for them to succeed and excel in the workforce.
 The bottom line: Anti-abortion regulations force women to have children.
Women with children are less able to participate in politics and the business
world than men. Anti-abortion laws thus function to perpetuate women’s status
as second-class citizens.
o The Texas ant-abortion law was passed before women got the right to vote under the
19th Amendment. Maybe the Court should uphold a similar law passed today, but it
should not uphold a law passed before women were fairly represented in the legislature.
o Objection: Texas’ abortion law never mentions sex or gender. It is facially neutral, and
under Personnel Administrator of Massachusetts v. Feeney (decided in 1979, after Roe),
mere disparate impact does not an Equal Protection violation make—there must be
evidence of a discriminatory purpose or intent.
 Response: That is rather facile analysis. Only women can get pregnant. Men
cannot. Classifications based on pregnancy necessarily classify on the basis of
gender. Such laws should get heightened scrutiny.
· Do anti-abortion statutes violate the 13th Amendment by forcing women to have children
without compensating them (does this rise to the level of involuntary servitude)? (BLBA
1196)
Post-Roe
· Roe generates an enormous political backlash.
Maybe moreso that if this had been a result of a democratic legislative process.
Reagan runs on an anti-Roe platform.
Stewart is replaced by O’Connor (she is anti-Roe)
The Dissenters (White) in Roe write the majority in Bowers.
Blackmun writes the Dissent in Bowers. He wants this to be based on substantative D. P.
· Both Catharine MacKinnon and the right wing suggest that men’s support for abortion
rights may be grounded in the benefits to them of more “free-wheeling” women.
· States enacted statutes to see how much they could limit Roe. p1199-1202
SCt had a series of decisions regarding states ability to regulate aspects of abortion decision.
1. SCt. held state didn’t have to pay for abortion
2. Doctor had to sign a consent form  invalidated by Ct.
3. Spousal consent required  invalidated by SCt.
4. Parental consent required  invalidated by Ct.
5. Parental notification required  invalidated by SCt.
· Legal Realism:
O’Connor had criticized Roe
Kennedy – appointed in 1987
Souter – appointed in 1990
Thomas – appointed in 1991.
Many predicted Ct. would overturn Roe. When the Ct. finally spoke on the issue, it did not…
Casey.
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) BLBA 1202
Five justices uphold Roe’s “essential holding.” Three justices in joint opinion reject Roe’s
trimester framework and use “undue burden” test to determine a regulation’s constitutionality.
FACTS: Challenge of 5 provisions of PA Abortion Control Act of 1982: (a) informed consent of
women (b) minor must obtain consent from one parent or guardian – or can go see a judge (c)
married woman is required to sign a statement that she consulted her husband (d) facilities have
to keep records of events (e) 24 hour waiting period (f) can be exeptions made in event of
emergencies.
HOLDING (O’Connor, Joint opinion. O’Connor, Kennedy, Souter delivered opinion in

part; Stevens joined and delivered opinion for another part): Uphold Roe v. Wade due to
stare decisis. Three Justices rejected Roe's trimester framework and adopted an “undue burden
test” for determining whether State regulations had the purpose or effect of placing substantial
obstacles in the path of a woman seeking an abortion before viability. Here, the notice provision
did impose such an obstacle and is therefore unconst.
REASONING
· Roe’s essential holding, which the Court reaffirms, has three parts (BLBA 1203):
1) Right of woman to choose to have an abortion before viability and obtain it without
undue interference from the state. Before viability, the State’s interests are not
strong enough to support a prohibition of abortion or the imposition of a substantial
obstacle to the woman’s effective right to elect the procedure.
2) State has power to restrict abortions after fetal viability, if the law contains
exceptions for pregnancies which endanger a woman’s life or health.
3) State has legitimate interests from outset of pregnancy in protecting health of the
woman and the life of the fetus.
o [Note: They do not include the trimester framework as part of the essential holding
of Roe]
• Equality Argument: A woman’s suffering is “too intimate and personal for the State to
insist, without more, upon its own vision of the woman’s role, however dominant that vision
has been in the course of our history and our culture” (BLBA 1204).
• First 2/3rds of this opinion is all about Stare decisis.
o There may not have been reliance per se on Roe, but the case has been good for
women and has affected the culture of our nation: “The ability of women to
participate equally in the economic and social life of the Nation has been facilitated
by their ability to control their reproductive lives” (BLBA 1206).
o Need to uphold old decisions to protect the legitimacy of the Ct.
 Ct. can’t look like it is succumbing to political pressure
o Important precedents have been overturned in the past, but in those cases the facts
had changed. You don’t want to overturn precedent if facts haven’t changed (BLBA
1207)
 Lochner created substantive D.P. protection from legislative infringement on
indiv. right to contract.
 Overruled in West Coast Hotel v. Parish, 1937 (stare decisis ignored)
– BUT the facts had changed: Depression brought a lesson that Lochner rested
on fundamentally false factual assumptions about capacity of relatively
unregulated market to satisfy minimal levels of human welfare.
 Plessy (1896) held that legislatively mandated separation of blacks in public

transportation did not violate EPC. Separation did not stamp a badge of
inferiority.
 Brown (1954) Facts, or country’s understanding of them, had changed.
It was clear by 1954 that legally sanctioned segregation did create a “badge of
inferiority”, and whatever Plessy Ct actually thought its decision was clearly
based on facts at odds with the facts apparent to the 1954 court.
 In both cases, the overruling was defensible as applications of constitutional
principles to facts as they had not been seen by the Ct before, not as
victories of one doctrinal school over another by dint of numbers.
 Roe v. Wade. Neither the facts, nor our understanding of them, have
changed
o (The Ct. has never explicitly said this before. It used to just say: we decided X, so
now Y).
o Overruling Roe v. Wade now would undermine the Court’s credibility (BLBA 1209).
 “The Court must take care to speak and act in ways that allow the people to
accept its decisions on the terms the Court claims for them, as grounded
truly in principle, not as compromises with social and political pressures
having, as such, no bearing on the principled choices that the Court is
obliged to make” (BLBA 1209).
 Roe was a case of such dimension that the “Court’s interpretation of the
Constitution calls the contending sides of a national controversy to end their
national division by accepting a common mandate rooted in the Constitution”
(BLBA 1210).
 If the Court overturned Roe, it would look like it’s bowing to political
pressure. That’s bad.
• 3 justices (in Part IV)
o The correct line where women’s interests trump remains viability, but the trimester
framework is not necessary to protect the women’s essential rights. BLBA 1211-13
o New “undue burden” test emerges: states may not place an “undue burden” on
the woman’s right to choose to abort. Implies that state can “interfere” in abortions
even at beginning of pregnancy, e.g. – ensuring that a woman contemplates the
consequences of her actions,  but a “state regulation that has the purpose or
effect of placing a substantial obstacle in the path of the woman seeking an abortion
of a nonviable fetus” is an undue burden, and unconst. p1242-4
o A state can regulate all abortion, but “may not prohibit any woman from making the
ultimate decision to terminate her pregnancy before viability.” p1214
( * Excellent summary of these 3 justices opinion on p1214)
· Specific to this case, find the PA law’s husband-notification requirement unconstitutional.
(BLBA 1220)
STEVENS CONCURRENCE (BLBA 1223)

· Objects to PA’s requirement that doctors provide woman with materials designed to
persuade her not to have an abortion, informed consent requirement, and waiting period.
· Applies “undue burden” test of majority, but says he disagrees with part IV, where it is
established.
BLACKMUN CONCURRENCE (BLBA 1225)

· Equal Protection Argument: “State restrictions on abortion compel women to continue
pregnancies they might otherwise terminate. By restricting the right to terminate
pregnancies, the State conscripts women’s bodies into its service, forcing women to continue
their pregnancies, suffer the pains of childbirth, and in most instances, provide years of
maternal care.” The state does not compensate women—it just assumes that they should be
mothers. This is a stereotypical notion that the Equal Protection Clause does not allow (BLBA
1225).
· Scathing critique of Chief Justice’s opinion. Says it’s too narrow a view of substantive
due process and the liberty compromised by unwanted pregnancies.
REHNQUIST DISSENT, JOINED BY WHITE, SCALIA, THOMAS (BLBA 1228)

· Standard of stare decisis used by majority is novel, and under the “traditional” standard
for stare decisis, Roe can and should be overruled since it was wrongly decided.
o Scathing attack of use of Stare Decisis in Part II p1229
o The notion that overruling Plessy and Lochner was correct (given stare decisis)
because the Court and Nation had learned new lessons in the interim is “at best a
feebly supported post hoc rationalization for those decisions”
o Offers historical proof that due process clause would not extend to abortions—the
same analysis he had in his dissent of Roe. Roe read the earlier privacy cases too
broadly b/c abortion involves purposeful termination of potential life.
· Specifically, would uphold the challenged provisions of the PA statute in their entirety.
Part III p1234
SCALIA DISSENT, JOINED BY REHNQUIST, WHITE, THOMAS. (BLBA 1234)

· Right to abortion is not a constitutionally protected liberty (analogizes to the fact that
there is no constitutionally protected right to “bigamy”, although bigamy and abortion are
liberty interests in some real sense): (1) Neither right is mentioned in constitution (2)
Tradition of American society has permitted both to be legally proscribed.
· So issue should be left to the states and the political process, not the national court
· Would apply “rational basis” test, and therefore uphold PA statute entirely.
· Majority is not using reasoned judgment but personal politics. p1236 – slippery slope
argument.
· Undue burden standard is novel, ad hoc, and therefore bad law – could put all
constitutional infringements at risk if the infringement is not “undue”
· Stare decisis usage is contrived since they insist on adhering not to all of Roe but to
what 3 justices call the “central holding”. Shouldn’t we apply stare decisis to the stare
decisis? I’ve never heard of this keep-what-you-want-and-throw-away-the-rest version…
p1238
· Proper way for the court to obviate political pressure, as desired by the majority, is to
refuse to decide this issue.
NOTES
· Majority decision: Traces precedent for substantive due process growing out of the
14 Amendment. Re-affirms that the liberty at stake for abortions is unique in its singular
th
and extraordinary burden to a woman and, consequently, the decision is a result of personal
convictions and beliefs.
o Casey is rooted in the Griswold line of cases as well as Roe
o Stare decisis is critical because some of the justices in the opinion would prefer not
to have had Roe, but must adhere to it. Calculation for stare decisis includes
 must consider reliance upon a law
 that the current situations do not demand new rules
 erosion of central determination
 special hardship to the consequences of overruling
o Compares Plessy and Lochner to the current situation to illustrate the stare decisis
situation
o 3 justices in majority would Do away with the trimester structure of Roe
because that isn’t how women assess their situation, and it undervalues the state’s
interest in protecting life throughout the pregnancy.
 Keeps viability as the line in the sand because of stare decisis and the belief
that viability is the time the state’s interest begins to weigh heavily against
the woman’s liberty interest.
o Uses a standard of “unusual burden” to test each requirement of the statute
• For the dissenters, this is Dred Scot all over again. In the name of substantive due
process they are constitutionalizing.
o Scalia is especially upset… writes a sharp and personal critique.
o Kennedy was probably initially going to join Rehnquist, and then changed his mind in
the process.
• Amar applauds: Candid account of how sex is not always voluntary. If you give a man
a veto in the decision, you are making him a master over her. Nobles and lords are
prohibited.
• Amar-ian Critique: Stare Decisis:
Ct says it will “especially not admit we were wrong precisely b/c so many people think we were
wrong”. This is worst part of opinion for Amar. Scalia agrees with Amar here p1239.
Sexual Orientation Cases
Bowers v. Hardwick (1986) BLBA 1243 – 1259
There is no fundamental right under the 14th Amendment to engage in homosexual sodomy.
FACTS: Michael Hardwick challenges Georgia’s sodomy law, which carries a punishment of 1-20
years imprisonment for violation. Sodomy is defined by the statute as either oral or anal sex.
The statute does not specify gays; on face, it applies both to homosexual and heterosexual
sodomy.
HOLDING (White): There is no fundamental right, protected by the Constitution, to engage in

homosexual sodomy. The Court strongly suggests, and Georgia admits, that if the law were
applied to heterosexual couples, that would be unconstitutional.
REASONING
· Past “substantive due process” cases deal with matters such as marital privacy and
freedom of choice in matters related to procreation and childrearing. They don’t imply that
homosexuals have a fundamental right to engage in sodomy (BLBA 1244).
· A fundamental right is one “deeply rooted in this Nation’s history and tradition.” The
right to engage in homosexual sodomy doesn’t pass that test (BLBA 1245).
o Proscriptions against homosexual sodomy have ancient roots.
· There is no fundamental right to privacy in one’s home. If one is doing drugs in one’s
home, it’s still illegal. You don’t have a right to engage in criminal conduct just because you
do it in private and out of the public eye (BLBA 1246).
· If people have a right to engage in homosexual sodomy, then laws barring bestiality,
adult incest, masturbation, adultery, and fornication must also fall. The Court is not willing to
say that these laws are invalid (BLBA 1246).
· A rational basis for a law is protecting morality (BLBA 1246).
CONCURRENCE (BURGER)
· Long history and tradition of criminalizing homosexual sodomy (BLBA 1246).
DISSENT (BLACKMUN, W/ BRENNAN, MARSHALL, AND STEVENS)

· This case is not about the “right to engage in homosexual sodomy.” It’s a privacy case.
People have a right to engage in “particular forms of private, consensual sexual activity”
without govt. interference (BLBA 1247).
· Two aspects of the right to privacy (BLBA 1248):
o Privacy interest with reference to certain decisions that are properly for the individual to
make.
o Privacy interest with reference to certain place without regard for the particular
activities in which the individuals who occupy them are engaged.
 This case involves both notions of privacy.
· The choices one makes with regard to sexual intimacy play an important role in defining
one’s identity and sense of self. The Court in its narrow focus on “the right to engage in
homosexual sodomy” misses this important point (BLBA 1249).
· Just because a prohibition has a long history and tradition doesn’t mean that the Court
should uphold it. Segregation and anti-miscegenation laws also had a long history and
tradition of being enforced, but the Court was right to strike them down in Brown and
Loving.
DISSENT (STEVENS, W/ BRENNAN AND MARSHALL)

· If the majority wants to base its decision on the long history of proscribing homosexual
sodomy, it has to accept that heterosexual sodomy has also often been made illegal in the
past. But the Court does not want to uphold the application of Georgia’s law to married
couples and non-married heterosexual couples (BLBA 1251).
· “The fact that the governing majority in a State has traditionally viewed a particular
practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”
(BLBA 1251).
· It’s clear from Griswold and Eisenstadt that Georgia can’t prohibit heterosexuals from
engaging in consensual sodomy (BLBA 1252).
· It’s not clear that the people of Georgia would want the statute to apply only to
homosexuals, and even if they did, they can’t pick out one group for disfavored status (BLBA
1253).
NOTES
· Attorney General Bowers conceded that the application of Georgia’s antisodomy law to
married couples would be unconstitutional because of the right to marital privacy recognized
by the Court in Griswold. It seems to follow from Eisenstadt that the law couldn’t be applied
to heterosexual unmarried couples either (BLBA 1253).
· The Equal Protection Argument:
o Anti-subordination Principle: Homosexuals should be treated as a suspect class.
They should be protected from disfavored treatment. There’s a long history of
discrimination against homosexuals. If this law applied both to homosexuals and
heterosexuals, it would be repealed in a flash.
o Discrimination on the basis of sex: Imagine two people who want to have oral sex
with the same man. One person is a woman and one is a man. The law allows the
woman to have oral sex with the man, but it does not allow the man to have oral sex
with the man. That is a distinction based on sex. The law therefore classifies on the
basis of sex and should be subject to intermediate scrutiny. The law does not seem to
further any important governmental objective (protecting morality?) and is not
substantially related to that objective. So the law is unconstitutional. Tootsie analogy:

Why is it not okay for Dustin Hoffman to kiss the girl when the police officer thinks he’s
a woman, but it suddenly becomes acceptable when he pulls off the wig?
o Perpetuating Stereotypes, Part II: Laws that discriminate against homosexuals are
meant to perpetuate a stereotype of male masculinity. Effeminate males are given
disfavored status under this stereotype because they are like women, who are second
class citizens. Men and women have different roles in society. Men should act like
“men” and be strong, tough breadwinners. Women should act like “women” and marry
men, have children, and play the role of homemakers. Anyone who does not fit these
molds is deviant and therefore subject to disfavored treatment.
Romer v. Evans (1996) BLBA 1259 – 1275
6-3 decision strikes down a 1992 amendment to the Colorado constitution (passed by popular
referendum), which prohibited any statute from giving “protected status” to gays or bisexuals, as
a violation of EPC.
FACTS
· In 1992 Colorado voters adopted by statewide referendum an amendment to the State
Constitution that prohibited any statute from providing “protected status” to individuals of
homosexual, lesbian, or bisexual orientation.
· The drive for the amendment came after several municipalities—Aspen, Boulder, and
Denver—had passed ordinances banning discrimination based on sexual orientation in
housing, employment, education, public accommodations, health, and welfare services.
· Colorado argued that the Amendment did no more than deny homosexuals special rights.
It put them in the same position as all other persons.
HOLDING (Kennedy): The amendment imposes a special disability on homosexuals alone. It

therefore violates the Equal Protection Clause.
REASONING
· “The amendment withdraws from homosexuals, but no others, specific legal protection
from the injuries caused by discrimination, and it forbids reinstatement of these laws and
policies” (BLBA 1261).
· This amendment could even deprive gays and lesbians of the protection of statutes that
prohibit arbitrary discrimination in the provision of government services. Is it okay for the
police to choose not to respond to the call of a gay person, simply because he’s gay?
· But regardless whether homosexuals would still be protected by laws prohibiting arbitrary
discrimination, the amendment is still unconstitutional because it takes from homosexuals the
right to seek “safeguards that others enjoy or may seek without constraint” (BLBA 1262).
· As long as a law does not burden a fundamental right or target a suspect class, the Court
will uphold a legislative classification as long as it bears a rational relation to some legitimate
end (BLBA 1262).
· The Colorado amendment fails even the “rational review” test.
o The amendment has a peculiar property of imposing a broad and undifferentiated
disability on a single named group.
o Its sheer breadth is so discontinuous with the reasons offered for it that the amendment
seems inexplicable by anything but animus toward gays. There is no rational relation to
legitimate state interests here.
· This law singles out a group of people for special disfavored status for no reason except
that the majority disapproves of their lifestyle.
· Colorado’s amendment does nothing more than make gays “unequal to everyone else.
This Colorado cannot do.”
DISSENT (SCALIA, W/ RHENQUIST AND THOMAS)

· Colorado’s amendment is constitutional as long as Bowers is still good law.
· The Court should not insert itself into the culture war over whether homosexuality is
immoral or not. Homosexuals tried to use the democratic process by getting anti-
discrimination statutes passed at the local level, and they were trumped by a democratic
referendum process at the statewide level. Democracy is functioning; the Court should back
off.
· Laws that prohibit arbitrary discrimination in the provision of public services would
continue to protect homosexuals. All the amendment says is that homosexuals can’t receive
special protection that other groups don’t receive.
· “The principle underlying the Court’s opinion is that one who is accorded equal treatment
under the laws, but cannot as readily as others obtain preferential treatment under the laws,
has been denied equal protection of the laws.” (BLBA 1265)
· There is a rational basis for denying special protection to homosexuals: The state can
legitimately criminalize the “defining” activity of homosexuals—homosexual sodomy (see
Bowers). If a state can make homosexual conduct a crime, surely it can pass laws
disfavoring homosexual conduct, and it is definitely constitutional for the State to simply deny
the provision of special protections to those that engage in homosexual conduct (BLBA
1266).
· Responding to the “but orientation isn’t necessarily conduct” argument: “If it is rational
to criminalize the conduct, surely it is rational to deny special favor and protection to those
with a self-avowed tendency or desire to engage in the conduct” (BLBA 1267).
· In Davis v. Beason (1890), the Court upheld a territorial statutory provision that deprived
supporters and advocates of polygamy the right to vote or hold office (BLBA 1269).
o In his opinion, Kennedy questions whether Davis is still good law.
NOTES
· Scalia’s insistence that the Court merely defer to the democratic process in the culture
war over homosexuality does not seem consistent with his view on affirmative action. There
he wants the Court to intervene even to strike down legislation passed by democratic bodies
(BLBA 1274).
· Art. 1, Sect. 10 of the Constitution prohibits States from passing Bills of Attainder. Is this
a Bill of Attainder? It seems to single out a particular group for disfavored status not
because of what they have done, but because of who they are.
· There’s a question of whether the Court really applies the “rational review” standard to
the Colorado amendment. Is this like Reed, where the Court claimed to apply rational review
to a sex-based classification but was really getting ready for the move to intermediate
scrutiny? Is the Court getting ready to move toward heightened scrutiny for laws that
classify on the basis of sexual orientation?
Watkins v. United States Army (9th Cir, 1988) BLBA 1275 – 1297
2-1 decision striking down Army regulation disqualifying gay personnel. This decision is later
vacated by Court of Appeals en banc.
Note: The SCt has never held homosexuality to be a suspect classification.

FACTS: Watkins was honest about his homosexual tendencies on an enlistment form. He served
for 14 years. His homosexuality was common knowledge and was never considered to affect his
performance or to have a degrading effect upon the unit. In 1981, Army promulgated new
regulations that mandated disqualifications of all homosexuals from the Army. Watkins was
discharged, and then challenged the constitutionality of the new regulations.
LAWSUIT #1 HELD: Sexual orientation discrimination violates Equal Protection Clause.
LAWSUIT #2 HELD: Initial decision was later vacated and the case heard en banc, resulting in the
Army being estopped from dismissing Watkins b/c they allowed him to reenlist, knowing that he
was gay..
REASONING OF LAWSUIT #1:

Norris, J:
· Policy is facially prejudicial because the policy discriminates against people, not
actions that people take. There is an unequal treatment of those who might engage in
homosexual acts.
· Bowers distinguished: Bowers not controlling case because it only held that the Due
Process Clause provides no substantive privacy protection for acts of private homosexual
sodomy and that therefore, the state can criminalize homosexual acts; nothing in Bowers
holds that the state may make invidious classifications when regulating sexual conduct.
p1278
o The Court did not address the separate questions of (a) whether heterosexual
sodomy falls outside the scope of the right to privacy or (b) whether homosexual,
but not heterosexual sodomy may be criminalized w/o violating the EPC.
o “If gov’t insists on regulating private sexual conduct b/w consenting adults, it must at
a minimum, do so evenhandedly” not just prohibiting acts by gays. p1278
· Suspect class analysis – goes through SCt. criteria : p1278-1281; also BLBA 1287
o (1) History of purposeful discrimination
o (2) Discrimination poses gross unfairness. This is really a conglomeration of several
factors, including: (a) the irrelevance of the discrimination to the ability to perform
the task
(b) whether the class has been saddled w/ unique disabilities b/c of prejudice – note: “a”
is often evidence of “b”;
(c) Discrimination based on immutable qualities. Gays cannot easily change their
preferences anymore than heterosexuals. Immutability is not what you cannot
change but what you cannot change without great difficulty. e.g., sex change.
(3) Group burdened by official discrimination lacks political power necessary to obtain
redress from the political process. (Eve Sedgewick makes this argument, that the
closet is the modern structure of political oppression of gays.)
· COA here finds homosexuals to be a suspect class based on foregoing analysis.
Suspect class discrimination triggers  strict scrutiny.
· Our deference to majoritarian notions of morality must be tempered by equal
protection principles. Laws that limit the acceptable focus of one’s sexual desires to
members of the opposite sex, like laws that limit one’s choice of spouse to members of the
same race (re: Loving) cannot withstand const. scrutiny absent a compelling gov’t
justification.
o Army Args: that its regulations are grounded in legitimate moral norms. However,
even accepting this arguendo, the EPC does not permit notions of majoritarian
morality to serve as compelling justification for laws that discriminate against suspect
classes (which we have just found gays to be)
REINHARDT DISSENT (p1283): Believed that the majority correctly interprets the Constitution, that
homosexuals have been unfairly treated, and would hold them up as a suspect class. But the
precedent of Bowers from the SCt. forces him to vote otherwise. (b/c homosexuality is not a right
that is protected from state action). Compares Bowers to Plessy, hopes and expects that one
day the Supreme Court will overturn it.
· “I am bound… to apply the Constitution as it has been interpreted by the SCt…, whether
or not I agree w/ those interpretations. B/c of this requirement, I am sometimes compelled
to reach a result I believe to be contrary to the proper interpretation of constitutional
principles. This, regrettably is one of those times”.
· Although Bowers did not reach any direct conclusion on the EPC challenge, its holding
under the DPC is extremely relevant to the EPC question before us today.
· Thinks that Bowers should be interpreted to mean that homosexual acts of sodomy can
be outlawed, but that private heterosexual acts are protected by the Constitution
(presumably under the “privacy” right). The majority says that this interpretation isn’t
possible b/c the EPC would prohibit such an interpretation. Reinhardt says that the EPC
doesn’t prohibit this interpretation b/c gays are not a suspect class and cannot be a suspect
class given Bowers. p1285
o Homosexuals are defined by their conduct (unlike race or gender). The Constitution
does not afford special protection to a group that is centrally defined by its members’
actions. p1285.
· He concludes that he would overrule Bowers, and would make gays a suspect class.
But as a COA judge, it is his duty to do follow the SCt. precedent.
Notes:
· Decision is vacated by COA en banc.
· Dissent arg: B/c homosexual conduct can be criminalized (per Bowers), homosexuals
cannot constitute a suspect class entitled to greater than rational basis review for EP
purposes. p1287
Lawrence v. Texas (2003)
The Court overturns Bowers v. Hardwick. Texas law that criminalizes homosexual sodomy (but
not sodomy committed by heterosexuals) violates the Due Process Clause of the 14 th
Amendment.
FACTS
· Responding to a reported weapons disturbance in a private residence, Houston police
entered Lawrence’s apartment and saw him and another adult man engaging in a private,
consensual sexual act.
· Lawrence and Garner (his partner) were arrested and convicted for violating a Texas
statute forbidding two people of the same sex from engaging in certain “deviate sexual
conduct.”
HOLDING (KENNEDY): The Texas statute prohibiting homosexual sodomy violates the Due
Process Clause.
REASONING
· Liberty protects the person from unwarranted government intrusions into the home and
also protects individual decisions regarding sexual intimacy (3).
· The Court in Bowers failed to appreciate the “extent of the liberty at stake” (6). The
Court thought that Bowers was merely about the “right to engage in homosexual sodomy.”
Instead, the Georgia statute sought “to control a personal relationship that, whether or not
entitled to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals” (6).
· Homosexual conduct is merely one component of a bond between two people that is
“more enduring” (6).
· Kennedy questions Bowers’ claim that there is a long history of proscribing homosexual
sodomy. Must sodomy statutes were just used to add additional penalties when people
committed rape or child molestation, or were meant to substitute for rape charges when rape
per se could not be easily proven (6).
· Only 13 States today have laws prohibiting sodomy, and only 4 enforce their laws only
against homosexual conduct (9).
· The Due Process Clause protects personal decisions relating to “marriage, procreation,
contraception, family relationships, childrearing, and education” (9).
· The Court believes that the Equal Protection Clause argument is “tenable,” but does not
rule on those grounds to avoid states passing laws that facially prohibit both heterosexual
and homosexual sodomy but are applied only against homosexuals. Under the Due Process
Clause, the States simply can’t meddle with these private sexual acts (9).
· The Court incorporates Stevens’ dissent in Bowers: “The fact that the governing majority
in a State has traditionally viewed a particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice” (11).
· Bowers is overruled (11).
· Kennedy tries to assert that this case has nothing to do with gay marriage (11).
CONCURRENCE (O’CONNOR)
· O’Connor joined the Court in Bowers and does not now join in overruling it. But she
believes that Texas’ law violates the Equal Protection Clause because it only criminalizes
homosexual sodomy rather than sodomy in general, regardless of the sex of the people who
engage in it (12).
· “When a law exhibits… a desire to harm a politically unpopular group, we have applied a
more searching form of rational basis review to strike down such laws under the Equal
Protection Clause” (12).
· “The Texas statute makes homosexuals unequal in the eyes of the law by making
particular conduct—and only that conduct—subject to criminal sanction” (13).
· Texas’s sodomy law brands all homosexuals as criminals. This gives state sanction to
discrimination against homosexuals (13).
· Bowers only said that there’s not a right under the Due Process Clause to engage in
homosexual sodomy. It did not hold that “moral disapproval of a group is a rational basis
under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual
sodomy is not punished” (13).
· Texas’ law really is a statement of disapproval of homosexuals as a class. The Equal
Protection Clause doesn’t allow a State to make classifications just to express its disapproval
of a certain group (14).
· An anti-sodomy law enforced against both homosexuals and heterosexuals would not
stand long in our democratic society (15).
· Bottom Line: “The State cannot single out one identifiable class of citizens for
punishment that does not apply to everyone else, with moral disapproval as the only asserted
state interest for the law” (14).
· O’Connor tries to say gay marriage might not be the logical consequence of her Equal
Protection analysis (15).
DISSENT (SCALIA)
· Scalia takes Court to task for paean to stare decisis when abortion is the issue, but not
when it is gay rights.
· Even if we accept substantive due process, that is only supposed to protect fundamental
rights that are “deeply rooted in this Nation’s history and tradition.” The right to engage in
homosexual sodomy is not such a right (18).
· There is a rational-basis for the Texas statute: Expression of the majority’s opinion that
homosexual conduct is immoral (21).
· If Texas’ statute violates Equal Protection, then single-sex marriage is on shaky grounds
(22).
NOTES
· Like the Connecticut law in Griswold, Texas’ statute is an anomaly. Only four states have
laws that criminalize only homosexual conduct.
· Scalia in his dissent responds to Amar’s “sex-based” Equal Protection argument. Even
though the Texas law makes a sex-based classification, there was no intent on the part of
the Texas legislature to discriminate based on sex, so the law should get rational-basis
review. This isn’t like Loving v. Virginia, where the anti-miscegenation statute was based on
the idea of “White Supremacy.”
· Sex-based classification argument: The Texas statute explicitly invoked a sex
classification. Only people who engaged in same-sex sodomy could be convicted under the
statute.
RIGHT TO PRIVACY CASES
Griswold (1965) Bowers (1986) Lawrence (2003) Romer (1996) Roe (1973)
Violation of Due YES NO YES N/A YES
Process (Right to
Privacy)?
Violation of Equal NOT NOT NOT YES NOT
Protection? CONSIDERED CONSIDERED CONSIDERED (but no suspect CONSIDERED
(but see class(ification)
O’Conner’s given).
concurrence)
Result? FAILS PASSES FAILS FAILS FAILS
HEIGHTENED RATIONAL HEIGHTENED RATIONAL HEIGHTENED
SCRUTINY REVIEW SCRUTINTY REVIEW (PLUS) SCRUTINTY
(FAILS
RATIONAL
REVIEW?)
Statute/Amendment INVALIDATED UPHELD INVALIDATED INVALIDATED INVALIDATED
is? (overturning
Bowers)
Why? Privacy applies to (1) Privacy does (1) Privacy applies Amendment Privacy applies to
non-procreative not apply to gay to gay sodomy imposes “broad women’s right to
sex b/w married sodomy (2) Mere moral and choose
folk (2) Mere moral prejudice not undifferentiated
prejudice sufficient to pass disability on single
sufficient to pass rational review group” and
rational review represents
animosity toward
such group
WHERE THE COURT DID NOT CONSIDER AN EQUAL PROTECTION ANALYSIS, THINK OF
HOW IT COULD HAVE DONE SO.

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Con Law Final Outline 1

Differences between Articles of Confederation and the Constitution:

How Democratic was the Constitution?

Answer: The Constitution was pretty democratic by eighteenth-century standards, but

 Ratification occurred in special conventions. Delegates were specifically elected to the

McCulloch v. Maryland (SupCt., 1819) (pg 38)

 If we adopt the strict interpretation of the word “necessary,” we reach all

THE DEMISE OF THE SECOND BANK

o Example of Madison vetoing a domestic spending bill for internal improvements

Cases Dealing with Similar Issues to McCulloch v. Maryland

The Sedition Act of 1798

Marbury v. Madison (1803) and Judicial Review

FEDERAL JUDICIAL REVIEW OF STATE LEGISLATION:

HOLDING IN MARBURY: (Marshall) - 108

1) On the facts and the law, Marbury is entitled to his commission.

MODELS OF JUDICIAL REVIEW

Restrictions on Judicial Review: Political Questions, Standing, Mootness, and

· Standing (BLBA 889):

Powell v. McCormack (1969)

HOLDING: (WARREN’S LAST OPINION)

EARL WARREN’S REASONING:

The Legislative Power

Congressional Power to Restrict Federal Jurisdiction (BLBA 887-889)

Congressional Power to Define Constitutional Rights

South Carolina v. Katzenbach (SupCt., 1966) (BLBA 572)

BLACK, CONCURRING AND DISSENTING (BLBA 575)

Katzenbach v. Morgan (SupCt., 1966) (BLBA 576)

DISSENT (HARLAN AND STEWART) - 580

Jones v. Alfred H. Mayer Co. (1968) (BLBA 591)

Oregon v. Mitchell (1970) (BLBA 594)

City of Boerne v. Flores (1997) (BLBA 629)

O’CONNOR’S DISSENT, JOINED BY BREYER:

CHALLENGING THE COURT’S DECISION:

United States v. Morrison (SupCt., 2000)

Academic views on Reconciling role of Courts and Congress in enforcing

The Executive Power

The Non-Prosecution and Pardon Powers

United States v. Cox (5th Cir., 1965) (BLBA 737)

HOLDING (PLURALITY OPINION):

GEWIN AND BELL (CONCURRING IN PART, DISSENTING IN PART):

United States v. Nixon (SupCt., 1974) (BLBA 749)

Executive privilege not to produce documents is not absolute or unqualified.

The Appointment Power

In Re Sealed Case (Cir. 1988) (BLBA 761)

Morrison v. Olson (SupCt., 1988) (BLBA 773)

HOLDING (RHENQUIST): The Independent Counsel Statute is constitutional.

CLASS DISCUSSION OF MORRISON V. OLSON:

Edmond v. United States (SupCt., 1997) (BLBA 792)

BACKGROUND: Petitioners contest appointments by the Secretary of Transportation of civilian

The Veto Power

Immigration and Naturalization Service v. Chadha (SupCt., 1983) (BLBA 796)

The one-house legislative veto is unconstitutional.

POWELL, CONCURRING IN THE JUDGMENT

RHENQUIST’S DISSENT, JOINED BY WHITE

Clinton v. City of New York (1998) (BLBA 817)

The “line item veto” is unconstitutional.

 Line Item Veto Act of 1996 (LIVA)

The Power of the Sword

Youngstown Sheet & Tube Co. v. Sawyer (1952) (BLBA 823)

BURTON’S CONCURRENCE (BLBA 831):

CLARK’S CONCURRENCE (CLARK CONCURRS ONLY IN THE COURT’S JUDGMENT)

VINSON’S DISSENT, JOINED BY REED AND MINTON

War Powers Resolution of 1973 (BLBA 839)