,Con Law 1/5/09

• Different from last semester

• Structure of Government, within which laws are enacted and enforced
o One step removed from the facts of the case
o Facts disappear from analysis early in the decision
o Law being scrutinized
 Scrutinizing what the government has done
 Almost always a law
 Law applies to petitioner
 Analyzing whether the law governing government is being
broken
• Hierarchy of Law
o Supremacy clause—federal law prevails over state law
Federal State
Constitution 1 5
Statutes 2 6
Admin Regs 3 7
Common Law 4 8
• Courts do not like to interpret Constitutional issues
o Avoid Constitutional questions
• Heller
o Second Amendment: A well-regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms,
shall not be infringed
o Issue: Whether the 2nd Amendment guarantees individuals the right to
keep and bear arms for purposes unrelated to service in a militia?
 Majority Opinion: Yes, the 2nd Amendment guarantees
individuals the right to keep and bear arms for purposes
unrelated to service in a militia.
o Law prohibiting the possession of handguns in DC
o Why?
Yes No
• Historical: States had • Historical: State Constitutions
Constitutional provisions outlined the right of self-
that protected the right defense, or doesn’t include
• Consensus/tradition: In the prefatory clause
our culture, the right to… • Protects the right of
is generally accepted individuals to keep and bear
• Historical argument to arms in defense of the state
prevent governmental and against tyranny on the
tyranny—but government part of both state and federal
can regulate militia government
• Natural Right—a right that o Living
pre-existed the Constitution/Ethos: Due
Constitutiton to changed conditions
o A fundamental, the 2nd no longer its
natural right of self- original purpose, so
 defense don’t enforce it/give it
a huge amount of
weight
• Construe the Amendment in
light of the first (prefatory)
clause
o Constitution not only about constitutional rights but also about
structure
 Structure to protect individual rights to carve up power
• Horizontally (Legislative, Executive, Judicial)
• Vertically (Federal, States)
 Do you have a right against a particular actor?
o 2nd Amendment has not yet been incorporated into 14th
 States still technically have the right to create laws like DC did in
Heller
 Federal government doesn’t have the right, would infringe upon
2nd
• How to read a Con Law case
o Flag particularly persuasive or especially unconvincing arguments
 Why were they persuasive or not?
• Incorporation
o 14th Amendment—Due process clause, States cannot infringe rights
 Bill of Rights generally apply
 But 2nd Amendment may or may not be included
o District of Columbia NOT a state, but part of Federal Government
• Rights Enforcement
o To enforce a right, must have a right against the entity trying to limit
that right
o E.g., must have the right against a state to enforce the right
Con Law 1/6/09

• Sources of Constitutional Interpretation (in order of importance/priority,

generally agreed upon in practice)
• Text
• If there is a distinction between what words mean today vs. what
they meant then, past meaning prevails
i. Present meaning might diverge with meaning in ways that
are at odds with meaning when provision was enacted
• Often linked with History—Original Meaning
i. Contemporaneous dictionary (1771)
• History—Original Meaning
• Dictionary
• Legislative History
i. Madison’s original language speaks to conscientious
objectors
1. Why speak of military context for arms if not linked?
2. But have no way of knowing why provision was
dropped?
3. And not part of what was actually approved.
ii. State Constitutions with other similar provisions
1. Range of provisions with diverse wording
2. Scalia argues interpretati
• Historical Context/Purposes
i. Scalia argues the right was to protect against government
tyranny
1. No logic if government you are trying to defend
against has the right to exclude people from militia
and therefore eliminate the right
• Meaning v. Intent
i. Intent involves trying to ascertain what framers intended to
do/accomplish
1. Pope: Original Intent not be a viable interpretive
modality
2. Asks what framers/ratifiers intended the provision to
do
a. An application of the provision, not a principle
ii. Do you ask an abstract or specific question?
• History—Tradition (“Vectors of History”)
• Organically developing traditions
i. No real formula for due process—balancing act (Harlan)
ii. Tradition as a living thing
1. Regard to traditions from which it developed AND
traditions from which it broke
2. How do we know if a tradition is rejected?
a. E.g., 14th Amendment Equal Protection Clause—
break from racism
iii. What does it take to make a tradition?
1. How long?
 2. How strong?
3. Where must it prevail?
4. Tradition of gun ownership in the US
5. I.e., since Miller permitted gun regulations since 1939,
is that enough tradition?
a. No court has enforced 2nd amendment
b. But ongoing controversy
iv. What if the tradition is a tradition of change?
1. US increasing inclusion
a. Moral arc to US and its constitution
• In Heller
i. Commentators, contemporaneous/subsequent cases
• History—Synthesis
• Structure
• Political Organization and Government Structure
i. Principles as implicit in structures created by the Constitution
• Laws that disadvantage discrete and insular minority presumed to
be unconstitutional
i. Majoritarian structures (e.g., legislature) generally not
overruled
ii. But Courts often overturn b/c minorities cannot protect
themselves vs. this majority rule
• Separation of Powers/Federalism
• Considering Provisions in Light of Rest of Constitution
i. E.g., individual protection of free commercial speech
• Precedent-Doctrine
• Time, Place, Manner
• Rational Basis, Strict Scrutiny
• Common Law
i. Stare Decisis
1. Policy, not a rule of law
2. Need to rely on law to organize activities
3. Levels
a. Radicals
i. Original meaning of Constitution should
control, and if court made a mistake, rule
should be overturned
ii. E.g., Thomas
b. Others rely more on precedent
• Evaluation of Miller
i. Determination of weight of decision
ii. Distinguish v. Overturn
• Why so many race cases?
i. Cruikshank
1. Informal black militias in South fighting the
2. Collective self-defense, Pope not sure why Scalia cited
ii. Element of Race as incendiary
• Prudential/Consequential
• Culture/Ethos
 • Natural Law
• Generally bumped up to higher level by incorporating it
• How to incorporate change?
o 1-4
o Scalia rejects argument that permitted weapons should be limited to
those that existed at the time of Constitution
 Even a strict version of originalism can account for change
• Frame meanings as ones that make sense whenever
• Argument an application to changed conditions, still
taking into account the original meaning
 Should be weapons that are commonly used by people for lawful
purposes
• Can be an inquiry undertaken at any time in history
o General or specific when considering history?
o
• Interpretation or Imagination?
o Calder v. Bull
 Ex-post facto laws banned
 Chase: natural law position
• Comes out of social contract theory
o Imagine that government formation created social
contract
o Needed government to perform certain functions
o What reasonable people agree upon if reasonable
people organized
 Iredell:
• Court cannot cannot enforce natural justice
o No fixed standard
o Policy made by legislative branch
• Judicial review shouldn’t exist
o Almost no one today will make a natural law argument standing alone
 Viewed as illegitimate without support
 But in Heller
• Scalia cites Blackstone’s reference to natural law, right to
human self-defense
o Includes it in his historical—original meaning
argument
 But natural exerts a convincing argument for many people
• Innate sense of justice, so often try to include
• But rarely pure natural law (Locke, Augustine)
o No real authoritative weight
• DC v. Heller (cont).
Does Congress have the authority to refuse to seat the Senator from IL?
• Google Akhil Amar and Blagojevich
Con Law 1/7/09

• Ninth Amendment
o Is it judicially enforceable?
 Rights generally not found to be enforceable under ninth
amendment
 Justification for protecting not enumerated rights
• In combination with additional sources
• Usually Due Process clause of 5th and 14th amendments
o E.g. abortion
o If so, how can judges tell what rights it protects?
o But remember that judicial enforcement is not the only method of
enforcement
 Although it’s what we focus on in this class
• DC v. Heller
o Right to bear arms as tied to the militia vs. individual right
 Scalia’s argument: how can right be tied to duty when Congress
has right to limit participation in the Militia?
o Still do not know yet whether 2nd amendment applies to states (as
incorporated into 14th)
o Breyer: even if majority right, individual right to keep and bear arms
for non-military purposes, would survive constitutional scrutiny
• Tiered Review and the Unequal Status of Constitutional Claims
o In Con Law, generally court reviewing a decision by another branch
 Legislative bodies
 Executive branch
o Various limits on government generally treated differently
o What weight to give each?
 Do you defer or challenge views?
• Policy
• Findings of fact
o 3 basic standards of review (in theory)
 Minimal Scrutiny (Rational Basis Test)
• Assumption of constitutionality
• Critics argue “Lunacy Test”
 o In order to find a law unconstitutional under this
standard, must find the means not rational to the
ends
o Find the legislation not rational
o Illegitimate interest
• Very deferential standard
o Court generally stands back, allows other branch to
act
• General Government Action
o Generally not ones presumed to violate an
inherent, enumerated Constitutional right
 Strict Scrutiny (Compelling Interest)
• Assumption of unconstitutionality
o Constitutionally suspect
o Presumptively invalid
• Interest must be compelling
• Not just legitimate (as in minimal scrutiny)
• Balancing test
o Not just yes or no, as in rationality
• Traditionally subordinated groups fall under this category
• Critics argue “Strict in Scrutiny, Fatal in Fact”
o Very rarely pass once strict scrutiny applied
o E.g., affirmative action
 Dissenters argue that strict scrutiny not
really applied in majority
• Constitutional Rights infringed
o More likely strict scrutiny—avoid rational/minimal
basis
 Intermediate Scrutiny
• Governmental interest must be substantially related to
the ends
• Clearly a balancing process
• Courts avoid
o Judge-empowering test
o Doing same thing other branches do
o Policy decision
o Shouldn’t be role of courts
 Sometimes no explicit level of scrutiny
• Separation of powers
• Due Process Clause
o Consider not only what the court SAYS it’s doing with what it’s
ACTUALLY doing
• US v. Heller
o Scalia argues rational basis cannot be applied
 Toothless
 Would eliminate the right
o But doesn’t actually express the test/level of review
 • No guidance
• Evaluates the right only
o Says that it would fail under any level of scrutiny
• Defines the right (limits its scope)—law won’t conflict with
o Restrictions on ultra-dangerous weapons
o Restriction on carrying weapon in sensitive
locations
• Intrusion on right so great that no government interest
could justify it
o Breyer balancing test
 Suggests that Scalia is disposing of entire categories
 Throws them out of the realm of a violation
 Couldn’t do that if it were strict scrutiny basis
 Inconsistent with any complete analysis of constitutional rights
today
 Governmental importance great (life or death)
 Means tailored to the end (albeit doesn’t say explicitly narrowly)
• Limited to small urban area
• Limited to only handguns
• Calibrated to deal with issue of urban handgun crime
 Defends balancing by saying what else are you going to do?
• If not strict scrutiny, then must complete a balancing act
o Outstanding issues
 What is the standard of review?
 Will it be incorporated into 14th amendment and therefore
applied to the states?
Con Law 1/8/09

1. Sources of Constitutional Amendment

a. Text
b. Original Meaning
c. Structure
d. Precedent (Doctrine)
e. Tradition (Vectors)
f. Prudential
g. Natural Law
2. Burris controversy
a. Article I, Section 5
i. Each House shall be the Judge of Elections…
ii. Slippery slope
1. If you give Congress such power…
2. Could limit it to case where the selection process is
corrupt
a. Clear issue of corruption
th
b. 17 Amendment
i. Burris appointed according to procedure
ii. Doesn’t say anything about bizarre circumstances
c. Tradition argument
i. Long history of refusing to seat Congressmen
1. From South
a. Condition of ratification of 13th amendment
2. Victor Berger—WWI German Socialist Congressman
3. NY State Legislature rejected
4. Contrasted with Powell v. McCormick
ii. Harlan
1. Concerned with traditions we have embraced and those
from which we have broken
2. Consider arguments carefully with respect to both
d. Practical Problem
i. How can IL sanitize its selection?
1. Interim appointment until constitution
2. Blagojevich is the executive
a. Would have to impeach, trial, etc.
e. Function v. Doctrinal Arguments
i. Slippery slope argument
1. Related to level of fear about each party
3. Marbury v. Madison
a. Boot camp of Constitutional Law
b. Lynchpin case
c. Primarily about role of court
i. Not really about the Constitution
d. 2 Qs
i. What does this provision mean?
ii. What role should the court play in enforcing the provision?
e. Institutional roles
i. Counter-majoritarian difficulty
 1. Constitution sets up a representative democracy
2. Court appointees have life tenure
a. Relatively insulated from political pressure
i. Some limits
ii. Congress can come back and require
testimony
iii. Congress can issue new law
iv. Congress can take away court’s jurisdiction
v. Congress can limit funding for the court
3. Striking down an action goes against will of the majority
a. If you argue that elections represent a will of the
majority
b. Relatively undemocratic action
c. Court can be reluctant to strike down that action
d. Limit it to when courts find it appropriate
e. Concern for Constitutional consequences
f. Underenforced norms
i. Zone might be wide, but fail to enforce
ii. Marbury focuses on Supreme Court as an actor
f. Secretary of State Marshall—Federalist
i. Appointee of John Adams
ii. Supposed to deliver commissions for Adams’ appointment
1. Signed by president
2. Seal affixed
3. Ready to go
4. Never delivered
g. Secretary of State Madison—Anti-Federalist
1. Refuses to confirm the appointment
2. Marbury seeking writ of mandamus
h. Issues
i. Is Marbury entitled to the Commission?
1. Yes
2. Questionable reasoning
ii. Does Marbury have a remedy?
1. Yes
iii. Is the issue justiciable?
1. Yes
a. Not a political issue
b. Just a question of delivery
c. Not a “touchy” issue
2. Is it an issue for a court?
3. Becomes political question doctrine
a. Court refraining from enforcing actions of an
executive when he has such power
b. Court prefers to stay out of political arguments
iv. Does S13 of the Judiciary Act give the Supreme Court jurisdiction
to issue a writ of mandamus?
1. Yes
v. Is S13 of the Judiciary Act Constitutional?
1. No
 a. Sets up a dichotomy
i. Either this or that
ii. Either appellate OR original
iii. Otherwise clause meaningless
b. But why can’t it mean that these are the situations
in which original jurisdiction apply DEFINITELY, but
others too?
i. Doesn’t say ONLY
c. Beware an either/or dichotomy
i. Not necessarily just a surplusage
vi. Whether SC must enforce an unconstitutional law?
1. Proposals
a. Whether an unconstitutional statute is still the law
of the land? (Marshall)
b. Whether the SC can strike down an Act of Congress
as unconstitutional?
c. Whether SC must enforce an unconstitutional
law? (Pope)
2. Marshall’s arguments
a. Structural
i. What’s the point of having a written
constitution of Congress can just violate it?
1. But congress has legislative power
a. Clear from Article I
b. Could argue that legislative
body should evaluate its own
actions
2. Or could say that legislative body
trying to meddle in an area that was in
the sphere of courts
ii. Written Constitution as enforced by multiple
mechanisms
1. Popular mechanisms
a. People voting out those who
pass unconstitutional laws
b. Up to people to enforce
Constitution
c. Document that people could
read for themselves
2. Debate between whether or not Court
should be enforceable mechanism
b. Textual
i. Article III’s grant of judicial power over cases
arising under the Constitution.
1. Can review constitutionality of state
issues only
ii. Constitutional provisions specially directed to
courts
iii. Supremacy Clause
 1. But no express textual authority to do
so
2. Presidential veto, and House and
Senate mechanisms to so override, no
such
3. Mightn’t the framers have outlined
this accordingly?
4. Isn’t this where the Court is reaching
out and giving itself a massive power?
iv. Judges’ Oath
3. Alternative potential arguments
a. Precedent
b. Framers’ Intentions
i. Hamilton
1. Not force or will by Court, but merely
judgment
2. Not asserting superiority of courts
over other two branches
a. When judiciary strikes down
law, Court enforcing will of
people, as opposed to the
actions of people’s agents
4. Briefing
a. Holding
i. What did the Court determine?
b. Reasoning
i. Decide key, convincing reasoning
ii. Part of holding
Con Law 1/12/09

• Judicial Review
o Cooper v. Aaron
 Gov of Arkansas argued he was not bound to Brown v. Board of
Ed—said he was not party, could not be bound
 Narrow view of judicial review
• Allows judiciary to decline to enforce something the court
thinks is unconstitutional
• Does not question/challenge/usurp other branched of
government
 Marbury v. Madison contrasted
• Court deals with constitutional question
• Mandate of Con to uphold Con
• Ordering someone else to comply with Court’s view
different
o Enforcement v. interpretation
o Reaching out and order around other branches of
government a more aggressive point of view
 Strong view of what Brown v. Board means
• Enhances strong view of ruling to begin with
• Once Court rules, law, and applies to everyone
• Brown binding on Gov, cannot challenge issues brought
up in Brown de novo
o Thomas Jefferson
 Court acting unconstitutionally
 Does not want Court to issue order to other branches in other
spheres, telling them what to do
o Andrew Jackson
 Jackson vetoed rechartering of the Second Bank
 Thought it was unconstitutional—that was the original thought of
executive mandate in those days
 P. 22, authority of SC should not control other branches, prevent
them from acting in legislative capacities
• Should only have influence as the force of their reasoning
may desire
o Enforcement
 Ruling without ability to enforce means no enforcement of
ruling?
 NO!
 Can be upheld in other ways, upheld by other branches
o Lincoln
 Dred Scott
 He does what he thinks is constitutional, I am not bound by
Supreme Court
• People should remain their own rulers
• Cannot grant to tribunal all authority
 • Contrary to most legal reasoning
o Judicial review as extending beyond just the parties
o Judicial review of a coordinate branch v. state
 Supremacy clause
• Can review actions of state governments
• Review of a coordinate branch of govt controversial
o Pre-Civil War
 Dred Scott
• Accurately enforced Con as existing at the same time?
 Lincoln’s executive action
• Rejected Dred Scott
o Post-Civil War
 Congress passed laws post-Civil War
• Force Act Cases, Civil Rights Cases
o SC struck down acts that were proving to be
effective on the ground to limit actions attempting
to thwart equal rights (redemptionists)
o Plessy v. Ferguson
o Pre-New Deal Period
 Adair—strikes down Federal law protecting right to unionize
• Court strikes down
 Shecter—strikes down Act attempting to address Depression
• FDR introduces legislation—his own constitutional
interpretation
• Election of 1936, Chaos—unions take over
• Settlement Function
o Need for finality
 Dahl study—SC overturning of laws, how long did it last?
• SC holds things back a while
• But eventually comes to be
o SC as Super-Senate
 6 Senate, 2 HoR, average SC justice is 12yrs
 Appointed out of a political process
• Presumption of Constitutionality
o Limit routine overturning of other branches
o When should the court intervene?
• Amendment Process
o Constitutional formalist answer to Executive wanting to Challenge
Court
 But very hard to pass an Amendment
• Does that emphasize Court’s supreme role
 Skewed from political norms
• Not person, one vote
o Is this an issue upon which the skewed Amendment process causes a
problem?
 Amendment usually not an option
 Go at the Court or Give Up
  May be the question other branch asks itself.
• Judicial review of state govt actions not controversial in general
o Only in the sense it contravenes principles of Federalism
• Passive judicial review (Marbury)
o Not really all that constitutional
o Stating an opinion of unconstitutionally, but failing to challenge
executive directly
• Active judicial review
o Controversial when Court reaches out and orders a coordinate branch
to do something
• Huge amount of residual angst about all applications of judicial review b/c of
Counter-Majoritarian view
o Court not democratic
• Political Doctrine Question (p. 88)
o Case or controversy under Article 3?
 Is there judiciable question?
 For the Courts to resolve?
 Case law chaotic on matter
o Doctrines
 Idea of standing
• Party must have suffered an actual injury
 Mootness
• Case must still be a live issue
• Although exceptions when SC will still judge on these
 Rightness
• Has to have happened
o Political Question Doctrine
 Doctrine has a fully constitutional feel to it
 Principles (90)
1. Textually demonstrate commitment to a coordinate
political department
o Some Con provisions seem to say that a
specific branch has authority
2. Lack of judicially discoverable and manageable
standards
o Impossible to administer
o So many provisions are vague, and that
doesn’t bother the court most of the time
 What’s really going on in these
situations?
• Court afraid to decide
• Court afraid to challenge its
prestige
3. Need for “initial policy determination of a kind
clearly for nonjudicial discretion”
4. Lack of respect for coordinate branches
5. Unusual need for unquestioning adherence…
6. Potentiality of embarrassment
 1, 2 most important
4, 5,6 general reasons, not so much independent
content—kind of more policy issue—bad
consequences of court intervention
3 confusing
• Baker v. Carr
o Luther v. Borden
 RI case
 Secondary government established
 Conflict between two claims of legitimate government
• Who is the real government of RI?
• Door Rebellion
 Gets to Court on a Torts Case
• Taney
o Political question
 Will not rule on merits of the issue
o Reasoning
 P. 91
o About Race
o Court has the will to reach out to take surprising leap
o Concerned about failure to reapportion is depriving black voters of their
vote
o Dissent
 Guarantee Clause
• Republican Government form guaranteed
• Contrary to that for Court to rule
o Majority
 Equal protection clause
• Previously not used very much
 Avoid Guarantee Clause
o What about list above considering Political Doctrine Question?
 Is Equal protection judicially discoverable and mgble std?
• How can you say what standard the clause establishes?
o Eg Senate of US—not a direct proportion of votes to
voter
• Bush v. Gore
o Says no Constitutional prohibition from approving FL’s evaluation of votes
1/14/09

• Office Hours: 4-5pm Tuesday, Rm. 425

• McCullough v. Maryland
• Encapsulation of course into one opinion
• Timeline/cross-cultural effort
• Federalism
• What is the purpose/value of Federalism?
i. Concrete question
1. Answers to which provide arguments for Federalism
cases
a. E.g, if fact patter matches/diverges, reasons
become source of argument
2. Not all pro Federalism
3. Not all PC
1. Liberty of Individual Choice
i. Liberty of individual choice can be frustrated by a
national rule
ii. Local rule more responsive to differences in
preferences
iii. Liberty to move from one state to another
1. Take advantage of the diversity of different
regimes in different states
2. E.g., mixed race couple, gay couples
3. Where would you want to end up if you have
this or that life situation
4. Good coming out of autonomy to determine
things at local level
2. Experimental laboratories
i. State experiments precede national amendments
1. Eg women’s sufferage
a. Doomsayers proven wrong—negative
consequences did not ensue
2. Environmental regulations
a. Started in states
3. Labor regulation
a. Against resistance of Supreme Court
4. Not something framers/ratifiers intended
3. Thwarting Tyranny
i. In minds of framers
ii. Evident in Heller decision
iii. Subdividing govt renders one single controlling entity
emerging difficult
iv. This is a vertical division
1. In contrast to horizontal separation of powers
v. Keeping states capable of independent action
1. Unclear how much that still applies
vi. State Autonomy Could be bad from that point of view,
depending on how you define tyranny
 1. States can thwart national policy setting by
federal govt
a. Eg DE re: corporations
b. States can design policy for the nation
4. Controlling Negative Externalities
i. Argument against state rights
ii. Local decisions have impacts outside their jurisdiction
iii. What about those?
1. Some paramount authority necessary to prevent
this—this is the Federal govt
iv. Pope example
1. Idea of an inherently national problem
a. If you allow states to take their own
positions on national issues, then policy
favored by overwhelming majority of
states and people can be thwarted by the
actions of only one/few states
i. Eg Child Labor
1. Hypo: NC allows child labor
2. NC would attract a huge
amount of industry—
prosperity results
3. Other states come under
pressure to allow child labor
b. Could apply to any regulatory handling of
business
c. Regulation of businesses, when national
in scope, capital mobile
i. Inherently national problem
ii. E.g. New Deal
v. Dictation of National Policies by States/Race to the
Bottom
1. An alternate heading for that section
5. Fidelity to the Constitution’s Design
i. 10th amendment
ii. Constitution presupposes that the federal govt’s
powers are defined and finite and the residuum of govt
power is vested in the state
iii. Constitution (even after Civil War and New Deal) has
state autonomy/state autonomy persists
iv. Doctrine changed under precedents, public demand
v. How much do you incorporate these changes
6. The Practical Value of Uniformity
i. As activity becomes more and more interconnected
across geographic boundaries, becomes more and
more inconvenient/inefficient to deal with diverse
regulatory regimes
ii. Efforts to standardize
• Ackerman’s Synthetic Interpretation of Constitution (addendum to reason #5
above)
 o Regime shifts in blocks—Quasi-Constitutional Moments
 Post Civil-War
 New Deal Era
 Can act in a unique way as a politically active people
o After each large transformation, constitutional interpretation requires a
synthesis of original Con w/ transformed constitution with each
amendment (13, 14, 15—new synthesis)
 Eg hate speech incorporated into freedom of speech (1, 2
synthesis)
o Post Civil-War
 Amendments initiate a fundamentally changed field of
interpretation favoring national govt over state autonomy
 Federal Govt protects individual Rights
 Major shift
o New Deal Era
 Constitutional Law was stood on its head
 Commerce clause no longer an exception
 Principle of property rights changed
 Further increase in national power
• Further shift away from individual rights as protected
against govt
• Govt may be useful in protecting individual rights
• Change in fundamental change
• McCulloch v. Maryland
o How the idea of Sovereignty fits into Constitutional interpretation?
o Facts
 Congress passes a law setting up a National Bank, MD
establishes law taxing National Banks
o Issue
 Does Congress have power to incorporate a bank?
o Narrow Holding
 Yes
o Principle/Broad Holding—tentative, never know how it will be applied in
the future
 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 Con are constitutional
o Reasoning
 There is an implied power to establish a national bank to carry
out explicit powers to raise taxes, etc.
• Structural argument
o Constitution as broad
 Cannot enumerate everything
 Totally impractical to so do
 Structural argument
• Practical constitution cannot list every
subdivision of every power
 o Constitution power of people, should not be states
viewed as relevant sovereigns
 We the people can grant powers as we so
determine
• Analogy of post office
o Structural, Original meaning, Text, Precedent
• Textual argument
o “Expressly” omitted from 10th amendment, whereas
in the parallel Articles of Confederation
• 1) It’s okay to imply powers that are means to an end
• 1b) Power to establish national bank?
 2) Necessary and proper clause also permits the implication of
powers to establish means to ends
• Bank is “necessary and proper” means to raise taxes, etc.
• Counterargument: Necessary means necessary!
o Bank isn’t necessary
• Court holds:
o Textual argument
 N&P clause expands the powers of congress,
doesn’t limit them
 Necessary means convenient
• Nothing would ever get done
(Structural & Consequences
Argument)
o Drawing on sense of how things
work
o If govt limited to means that are
“necessary,” won’t be able to
make a choice
o It must be, b/c otherwise govt
wouldn’t function, would block
govt from picking best means
• Original Meaning (Trick, actually
Consequences and Structures
argument!)
o Imputed Intent argument
 Not referring to anything
that independently
indicates that
 Does not add
independent evidence
o Intended by framers
o Must have been the intention of
those who gave these powers to
insure
1/14/09

Supplements/Study Aids
• Tribe Treatise—reference material
• Chimerinsky has good reputation
• Gilbert

McCulloch (Marshall) MD
1. Power to incorporate a bank can
be implied from various
enumerated powers, e.g., to tax,
raise armies…
a. Const. grants implied powers
i. Text: 10th Amendment—
no expressly
ii. History
iii. Structure
1. “Great outlines”—
not every power
could be
mentioned:
2. Const. not a
compact among
the states—“We
the People”
3. Other powers
have been implied
and accepted
b. Bank is an appropriate means;
incorporating something is
merely a means
i. Tradition: (126 last P),
not precedent, but has
been generally accepted
1. Bank has been
accepted for
decades
2. Tilt to support
idea
3. National bank part
of our tradition
4. Could create an
original meaning
argument
a. Immediate
post-
enactment
action
indicates
 original
meaning
ii. Consensus: everyone
agrees the bank is a
good thing
iii. Process/Structure:
Legislative process has
already happened,
judiciary should not
intervene; no problem
with process, no reason
for Court to intervene
1. Court should only
intervene when
political process
broken
2. To protect
discrete and
insular minorities
3. A bit of puffery—
isn’t everything
done with a valid
legislative
process?
2. Power can be inferred under N + P 1. N means necessary
clause; necessary means
convenient
a. N&P grant of power, not a
limitation
i. Location of clause—in
with other grants of
power
b. N means convenient
c. Structure: otherwise govt
would grind to a halt
d. Text: Art. 1, Sec 10, close to
N+P, use “absolutely
necessary.” Since they didn’t
use necessary, doesn’t mean
absolutely necessary.
e. Structure: Institutional
argument, suggesting this is
not one the court should deal
with; to undertake to assess
the degree of its necessity
would be outside the judicial
function
i. Pope: Assessment of
matters of degree not a
legal question
 1. Judicial branch
should not deal
with measuring
2. Black/white;
either/or
3. Should not be
imposing their
will, only
enforcing will of
the people in
constitution vs.
will of the people
as enacted by
legislation
(people)
4. Not a
discretionary role
5. Preserving the
Court’s legitimacy
ii. Counter-majoritarian
difficulty
1. Avoid usurpation
of legislative
function
iii. Congress should decide
the means, matters of
degree
iv. Congress is more
expert/complicated
• 2nd holding
o Issue: Whether MD may, without violating the constitution, tax the
national bank?
o Holding: MD law imposing a tax on the Bank of the US is
unconstitutional and void.
o Broad: States have no power to control the constitutional laws enacted
by Congress to execute their vested powers.
o Reasoning:
 Structural: MD lacks power to tax operations of the Federal govt
• Many citizens of the US are not represented in the MD
legislature
• Normally rely on political process to solve issue of
taxation without representation
o That element not present here
o Is this really true?
 Congress could take care of it, not just the
Judiciary’s role
 There is a political way to answer the issue—
Congress
  Congress had power to create bank, leave it
to Congress to outlaw MD’s tax
 Sovereignty theory
• Slippery slope argument
1/15/09

• Art I, Sec 8 (Cl. 3): ”Congress shall have power.…to regulate Commmerce…
among the several states.”
o Who should interpret?
 Court v. State?
• Congress v. Supreme Court
 Is Court supreme power?
 Or is Congress power of people, only intrude is unconstitutional,
unreasonable means to end.
• Current doctrine of Commerce clause
o Still unstable, shifting
o Under attack from all quarters
o Likely to change dramatically during our professional careers
o Grapple with deep problem of how to apply a clause like this in an
economy where things move very rapidly
 Across state lines
 Through all phases of commerce/manufacturing process
• Gibbons
o Fount of Commerce Clause doctrine
 Dormant Commerce clause
 Judicial creation of a limit on State power
 To be discussed later
o Congress’s effort to exert power of interstate commerce regulation
• EC Knight (Clarence Thomas agrees)
o Manufacture/commerce distinction
o American Sugar Co. acquires 98% of sugar refining capacity
o Sherman Anti-Trust Act
 Can Commerce Clause restrict this trust?
• No, about manufacturing and refining, not commerce
• Distinct
o Inter-state
 Nation-wide trust, but not Commerce
o Congress only has power to regulate commerce
 If it’s not commerce, Congress doesn’t have the power to
regulate
 But how do you define commerce?
• Is this distinction accurate?
o Criticisms
 Nit-picky
 Metaphysical
 Formalistic thinking
 Artificial
• Carves out economic activity
o Pro
 Not matters of degree
 Legal definition
  Says commerce, not manufacture or
economic activity
• Distinct definition of commerce—trade
that crosses state lines (original
meaning)
• Slippery slope stopper
o Only commerce
 Direct/Indirect
• Incidental/indirect effect not sufficient
• Must be direct impact on commerce
• Carter v. Carter Coal
o Direct/Indirect
 Bituminous Coal Conservation Act
• Height of Great Depression
• Court strikes down law designed to smooth out
destructive competition in the coal industry
o Small producers had way more capacity than that
was needed
o Produced coal, more than needed
o Lowered prices
o Threatened company’s existence
o Labor provisions
o Stabilization provisions
• Holding
o Congress can regulate activity if connection is
direct to interstate commerce
o If indirect, commerce can’t regulate it
o Nature of effect to be determined
 Direct/indirect distinction
 Not a matter of degree
 Either/or, bright-line distinction
• Strive for objectivity
• Don’t want to engage in assessment
of matters of degree
• Avoid policy judgments
 Logical judgment, not policy
• Proximate causation
• Like Torts (Palsgraf)
• Chain of events
• Is there an intervening proximate
cause?
o Foreseeability standard in torts
 Trying to uphold categorical/logical approach
o Situation has a terrible impact on interstate commerce
 Congress meant to be regulating this per Constitution
 Sutherland argues irrelevant—not within powers
• Logical approach
 • Consequences should be denied, no matter how good—
need to uphold Constitutional
o Political pressure
 Roosevelt had great political support
 Pressuring Congress to pass popular laws
 Court stood up to majoritarian political process
• Formalistic reasoning
o Direct/Indirect gambit
 Thoughts
• Like “necessary and proper” argument
o McCulloch
o Congress can pick means, but must be within
power
o Power encompasses only commerce and those that
have direct effect on commerce
• Too simplistic of a dichotomy
o Depends on judgment of justices
o Criticism not of formalism per se, but of this
specific direct/indirect distinction
o Can come up with all kinds of possible steps as
intermediates
o Inherently manipulable unless you put limits on it
 Difficult in case of economy
• Coronado Coal
o Union being regulated
o Manipulable test
 Judges don’t have enough determinable clarity to produce
predictable results
 Ideological judgments inform results
 Skewed
o Judges
 Looked at fact pattern through lens of their experience and
values
 Test couldn’t stop their values from tilting values
• Shreveport Rate Case
o Protective Principle
 124 mi w/in Texas—24.8 cents
 66 mi Texas/LA—35 cents
o Interstate Commerce Commission issues order requiring railroads to
charge the same rate for interstate shipments as for intrastate
shipments
o Original meaning
 Confederation unable to deal with interstate competition
 Purpose of this clause was to eliminate it via the Commerce
Clause
o Different outcome than EC Knight and Carter
o Actual impact of interstate commerce
  Court concerned with power of Congress to regulate commerce
o Could have just said that impact was “direct”
 But instead, say more broadly
 Less obfuscatory
 Why?
• Slippery slope not as slippery in Shreveport Rate Case
o No doubt this is a regulation of commerce
o No doubt that this is COMMERCE
 Within commerce/other distinction in EC
Knight
 Just inter/intrastate
o Instrumentalities of commerce
 Railroads, RR cars
 Agents of commerce
o Court loosens up and allows Congress scope
 Cat’s out of the bag
 Can cite purposes
• Stream of Commerce metaphor
o Stafford v. Wallace
 Federal govt regulating stockyards
• Antitrust, health elements
o Along lines of Upton Sinclair’s The Jungle
 Is this within commerce power?
• Is it interstate?
o Yes, eventually maybe pig will be sold in another
state
• But everything that happens in the stockyard is
intrastate!
 Holmes: Stream of commerce metaphor
• Brings to mind water
• Channel, flows, continuous stream
• Even though pig comes to rest in stockyard, still part of
stream of commerce
• Stockyard throat of commerce (stream)
• Where to draw the stopping line
o Workable slippery-slope stopper incentive varies based on trust of
national govt
• Commerce-Prohibiting Technique Cases
o Congressional legislation prohibiting the interstate shipment of things
o Apply directly and specifically to interstate commerce
o Lottery Ticket Case
 Champion v. Ames
• Lottery tickets as article of commerce
o Even though not in and of itself an item of value,
modern acceptance of commercial item, but not
clear at the time
• Conclusion presupposes
 o Lottery tickets were articles of commerce
o Congress has power to regulate interstate
commerce
• Congress says it’s regulating interstate commerce
o But actually might be regulating morality
pretextually
o States have residual powers
 Can regulate morality
 Why should states intervene
• National problem argument
o Appalling evil
o Most states trying to prohibit lottery already
 All we are doing is cooperating with the
states
 And only Federal govt only entity able to
enforce
• Otherwise pestilence will corrupt
everyone’s morals
 Hammer v. Dagenhart
• Child Labor Act
o Banned interstate shipment of goods produced by
child laborers
o Only Federal Govt can manage this, per Lottery
case
• Holding
o Different from Lottery Case
o Act does not impact transportation among the
states
o Aims to standardize ages and manufacturing within
the states
o Product not harmful anymore
 Product doesn’t do any harm
 Locus of harm argument
• Is it before or after stream of
commerce
o In Lottery after
o Child labor before
• Inherently Harmful products
o Interstate shipment of these should be limited
o Hammer v. Dagenhart only situation where an
element ruled not harmful
1/20/09

Case Histories of Commerce Power

• EC Knight: Manufacture/Commerce
• Carter v. Carter Coal: Direct/Indirect
• Coronado Coal: Commerce power reached union strike despite
Manuf/Commerce and Direct/Indirect (not in casebook)
o Important to keep in mind
o Congress power in pre-New Deal Era
• Stafford v. Wallace: Stream of Commerce
• Shreveport Rate Case: “Protective” principle where instrumentalities involved
• Champion c. Ames: Commerce prohibiting Lottery tickets
• Hammer v. D: Commerce prohibiting products produced by child labor

Constitutional Law
• Orderly transition of power
o Since 1861
• Somewhat unparalleled
o Bush v. Gore
 Supreme Court intervention very unique/rare
• Tribute to Constitutional Culture

Commerce Clause
• NRLB v. Jones & Laughlin
o Federal courts had uniformly struck down NLRA as applied to
manufacturing
 Under Carter v. Carter Coal
• Labor provisions very similar to those of National Labor
Relations Act, except only applied to coal
• Even though only prices, not coal, but judges has
expressed that labor provisions also unconsituational
 NLRA could not be applied to manufacturing
o Therefore, ruling very surprising
 Political situation important
 Landslide of FDR
• Constitutional issue/question was an important campaign
issue
 Crisis of shut-downs, strikes
 FDR’s court-packing plan
 Was it political or legal?
• What prompted the shift?
o Emphasis in economic influence in arguments
o But political pressure important
 Whether or not they were knuckling under
pressure for debate
• Switch in time to save 9
o Court torpedoed FDR court packing plan
 o Crucial to convincing people Court had mended its
ways, ready to go off in a new direction
 Not going to continue to rule against labor
reform legislation in contrast with general
popular will
 2 judges switched votes
• Chief Justice Hughes one of them
o Geography
 J&L Steel Mills in Pittsburgh
 Iron Ore mines in Minn and Mich
 J&L also own properties in
• PA, WV
 Pig iron product
o Govt lawyers don’t think they’ll win case
 Want to have enough dissenters to have Congress move forward
despite SC ruling
o Govt arguments
 Precedent
• Stafford v. Wallace—Stream of Commerce cases
• Carter v. Carter Coal—Direct/Indirect
o Strike would be so cataclysmic
o Direct impact on commerce argument
o But direct/indirect in coal case not found
o Even though Coal main source of energy
 Still not direct
 Too long a chain of causation
 Too indirect
o So catastrophic
o Holding
 Majority—2 justices swift sides
 Reject stream of commerce argument
• Don’t even deal with it
• Say this is direct
o Keeping language of direct/indirect
o But different test
 Almost unrecognizably different
 Close and substantial
 Matter of degree
• Demonstrates change
 J&L not instrumentalities of interstate commerce
• In terms of Shreveport Rate Case
• Activities in one state at a time
o Regulating activities
 Activity that is regulated is not the shipment
of ore in the boats
 Labor Relations at J&L being regulated
  All worked in Pittsburgh, same state, same
location
 Realism v. Formalism
• Formalism not pejorative
• Realism
o Trying to get at what is actually going on
o Willing to look at messy realities
o Penetrating formulas
• Formalism
o Drawing strict lines
o Strict logic
• Rejecting Sutherland’s argument that the Court should
not get involved in evaluating matters on the ground, as
that would not be a judicial function
• Court says must asses actual impact
o Not just how many logical steps away are we
o Union insurgency
o Strikers repelling police
o Judges educated by strikers/political realities
o Taking a look at practical realities
o J&L large company with far-flung operations
 Huge impact on steel industry
 When automobile manufacturing core of US economy
o NRLA limited by its terms to apply to situations where interstate
commerce affected
 Jurisdictional requirement
 Attempt by Congress to reach of interstate Commerce power
o Court puts off judging the NRLA as a whole
 Have to determine case by case whether statute going too far
 Fact-sensitive analysis
• In Freeman, Harry, Marks AND Freuhoff Trailer
simultaneous cases, no reasoning, just cite J&L
o J&L turning point
 Carter v. Carter Coal last time struck down Commerce Clause
case until Lopez
• How critical is SC being of other governmental bodies?
o NRLA puts forth idea that disruptions to commerce caused by
employers’ resisting of unionism
 So workers need to strike
 Strikes caused by employer resistance of unionism
 So Congress needs to remove this cause
 Act declares right to strike
• Yet strikes often are counter to inter-state commerce
 Congressmen may have voted b/c their belief of a fundamental
right
• Not b/c impact on commerce
 o Best policy to stop strikes/facilitate interstate commerce a
LEGISLATIVE role
 Not that of SC
 Don’t want to discredit the court
• Did court have a Constitutional position to oppose unions?
o Court discredited by juxtaposition of various outcomes
o Court caught in inconsistencies
o But did justices even realize that their values were impacting their
rulings?
o Examples of failed attempts to come up with a principled doctrine
 Not a deliberate failure
• No doctrine to explain 2 cases alongside J&L
o Made a decision and waiting to see where to go rather than create a
rule-based system
o No perfect dichotomy/rule
o Why not a standard to determine?
• Dissent
o Slippery slope argument
o Everything can be commerce
o Need to have sharp dichotomy, no fuzzy line
o Look at what happens
 For many years, court fails to buck up and stand up to Congress
without this strong line
 Hard for Court to stand up to a political branch with a test where
there is a lot of give and take
• Exception of first amendment—free speech
• Aggregation Principle
o Wickard v. Fillburn
 Doctrine established
 Aggregation/cumulative effects principle
 Facts
• Limits of wheat growth
• Farmer growing it for personal use
• Can Congress reach this under interstate commerce
clause?
o Not even leaving my property!
 Substantial effects test
• Accepting J&L statement of matters of degree
• Substantial effect on interstate commerce
o Goal to limit total production
o Glut of wheat caused large fluctuations in prices
o Consuming his own wheat instead of buying it
o Would have to buy it or withhold other wheat he
would have put in the market
o And he’s not the only one who’s doing it
 If many people so do, then market will be
unstable
 o Supply/demand principles
 If you have a glut of things available, not
many who want to buy, then buyers market
 Wickard therefore not contributing to market
demand, so prices going down
 Would have been a buyer pushing up the
price
 Level of abstraction higher than just one farmer’s contribution
• Regulation applies to farmers similarly situated across the
board
o Wickard Standard highly deferential
 No questioning of theory
 Court defers to economic theory developed/relied on by
Congress
 SC not in business of evaluating economic theory
 Political process trusted
o Blows out commerce clause
• Hypo
o Omnibus Pollution Control Act
• Perez v. US
o Criminal statute
o Not an economic regulation
o Regulation of violent crime
o Court finds it irrelevant
 Interactions have an impact on interstate commerce
 Expansion out of economic regulation
• US v. Darby
o FLSA
 Prohibition of shipment of goods produced by workers under
substandard conditions
• Exersise of power over interstate commerce
• Crossing state lines
• Literally within the power
o But Hammer v. D, child labor products not
permitted
o Overturns Hammer
 Wage and hour requirements directly imposed
• Not prohibiting shipping
• Industries affecting commerce
• Employers must abide by federal standards
o 2 justifications
 Bootstrapping argument
• Bootstrapping on commerce-
prohibiting holding
• If you can prohibit interstate shipment
of something
 • Then you can also prohibit the
violation of standards as a means of
prohibiting goods from getting into
interstate commerce
• Means in the McCullough v. Maryland
sense
• Keeping those objects out of interstate
commerce
• Concerned about objects going across
state lines
o Going to go further and prohibit
their production
o Congress going farther than
commerce-prohibiting to
prevent objects
 Application of substantial effects test
• Wickard Standard
1/21/09

• Civil Rights Act of 1964

o Prohibited discrimination in public accommodations, employment
o Hugely more impact on race equality in the US than Brown v. BoE
o Initiated serious enforcement of civil rights in the US
o When Act proposed, debate in Congress
 Under what power should it be passes
• 14th A, Section 5 enforcement power
• Commerce Clause
 Left it open
• Main strategy chosen as Commerce Clause
• Defended as such by govt lawyers
o Can Congress get benefit of highly deferential cases where not passing
economic regulation, but a regulation that embodied a moral principle?
 Would the Court let Congress get away with this?
• Darby
o Doesn’t matter what Congress’s objective is
o As long as Congress exercising power under constraints in Constitution
o But Darby prohibited interstate shipment of goods produced by
workers violating Fair Standards Act
 Bootstrap defense
• Civil Rights Act 1964
o Upheld under Commerce Clause
o Heart of Atlanta Motel v. US (188)
 Public accommodation
 Within stream of commerce
o Ollie’s BBQ
 Not much interstate business
 Local business
 Food traveled to restaurant via interstate commerce
• Not argument used by court
 Abstract way of evaluating
• Discrimination in restaurants holding back persons of
color
• Restrictive effect on interstate travel of people of color
o Looks like Commerce Clause can enable many powers, even beyond
economic regulation after Ollie’s and Heart of Atlanta
 Highly deferential test
 Substantial effects test on interstate commerce
• Applying Rational Basis test
o Standard of Review
 Before Lopez, no real doctrine
• US v. Lopez
o First time the Court rejects Commerce Clause as power in recent
memory
 Since New Deal
 o Gun-Free School Zones Act of 1990
 Lopez convicted, argues statute unconstitutional
 Can’t be passed under Commerce Clause
o Statute statement of purpose
 If it says the purpose is connected to flow of interstate
commerce, more deferential analysis by the Court
 If it deems it unconstitutional, then a political quandary exists
 But are you really enacting it for Commerce Clause reasons, or
for moral reasons?
• Govt’s case
o In line with Breyer dissent
 Can’t use Darby b/c statute not a regulation of channels of
commerce
• Doesn’t prohibit interstate shipment
 Focus on Wickard
• Substantial effects
• Aggregate
• Rational basis review
o Congress needs a rational basis for believing guns
in school zones has a substantial effect on
interstate commerce
• Majority
o Not an economic activity being regulated
 Distinction advanced
• Commercial/economic activity v. Non-commercial, non-
economic activity
• Distinguishing from other cases
• Very tricky distinction
o Why did the Court do this after 6 decades of deference?
 Why did they reach out and strike down this statute?
• Politics/Composition of the Court
o Realistic point of view
• Creating a slippery-slope stopper
o Need to draw the line
o Protect State autonomy against the Federal power
o If we don’t, that’s it
o Constitutional argument
o Congress didn’t make findings
 But careful—because Congress can’t just put reasoning in and
justify accordingly
 Depends on whether it will tip the scales
o Court truncated Reconstruction Amendment powers
 In precedent, have rendered Commerce Clause only way to pass
federal legislation
• Making arguments
o Normally, make specific arguments
o In this case, very abstract question
 o Make it look like on our facts, a compelling case
• Is fornication impacting economics?
o Market for prostitution
o Market for courting gifts
o Pornography
o Birth control
Majority
• Slippery slope
o Everything you think of can
have an economic impact
• Traditional justifications for
Federalism
o States as laboratories
argument
o Happiness argument
 Some people value
carrying guns
immensely
• This is a crime problem, not a
commerce problem—commerce
clause being used as a pretext
o Absence of a federal police
power in Constitution (153)
o Nowhere granted in
Constitution
o 10 Ath
• Traditional for states to have
power over criminal law
• Distinguishing precedent
o Act does not address a
commercial or economic
activity
o Not part of economic
regulation
o Key component regulated
activity
o Shifts focus to statute to
see distinction with
Wickard, otherwise
aggregate activity/link can
almost always be proven
o Contrast with Wickard (AAA
to control market prices)
Dissent
• Changes in economy (OM)
o Dictionaries and popular
use of commerce in original
meaning
o Buying, selling, bartering
purposes; not
manufacturing (Thomas
concurring opinion)
o Definition of commerce has
shifted
 No longer limited to
trading, etc.
 Now inextricably
linked, velocity of
movement to rapid,
can’t regulate
without regulating
everything
 Must understand
commerce in a
broader way
• Leave it up to Congress
(Structure, OM)
o Trust the other branch
(Structure)
o Countermajoritarian to
strike down
o Congress has expertise
o Voting power of the people
will regulate tyranny
o 1A and other provisions
protect rights
o Madison said people can
pick and choose whether
they want Fed govt
(Federalist 51), state and
Fed govt; state v. fed
compete for affection of
people (OM)
• Precedent of last 60 years
(Precedent)
o US v. Darby, Heart of
 Atlanta show it doesn’t
matter what purpose is
o That it’s a crime v.
economic/commercial is
irrelevant
• Commerce power categories (150)
o Congress can regulate use of channels of interstate commerce (Darby,
Hearth of Atlanta, Hammer v. Daggenhart)
 Bootstrapping argument
• Not only shipping, but also regulating intrastate activity
necessary to keep them out of interstate commerce
o Instrumentalities of commerce
 Shreveport rate case
 RR, rivers, trucks, ships, etc.
o Substantial relation to interstate commerce
 In zone of economic/commerce activity
 Distinction b/w economic/commercial similar to direct/indirect
• Might lead to same conundrum
1/22/09
• Hypo
o Gun Free School Zones Act in Lopez
 No jurisdictional requirement
o Congress passed new, revised version
 Added jurisdictional requirement
• Gun must have traveled in interstate commerce
 Statute purports to limit itself to situations where there is a
sufficient nexus with interstate commerce
 Does it pass?
 Prior to act, almost all guns made in CT
• So new Act basically created a CT exemption
 Reflective of tussle justices engage in while wrestling with
Commerce Clause in a global economy
• Things routinely move across state lines
• Hook like this very effective
o Commerce clause hook created when something passes across state
lines
 Allows federal criminal statutes
 Looks kind of arbitrary in context of Lopez
o Legislators in Congress did an end-run against Lopez decision
 Bowed to constituents’ desires
• Commerce Clause problem
o Consider jurisdictional requirement
 Something in the statute designed to require connection to
interstate commerce
 If there is, it’s very likely the court will uphold the law
• Gun Free School Zones Act case, uphold new Act despite
Lopez
o Presence or absence of Congressional findings
o Then evaluate 3-step test
 Channels
 Instrumentalities
 Substantial effects test
• 2 types
• Constitutional Rights
o Amendments take a chunk out of Federal powers
o Cross-Cutting
• Morrison
o Facts
 Woman enrolled at private university raped by 2 male students
 Tort action under Violence Against Women Act
o Court applies Lopez
 Channels of interstate commerce? NO (Darby, Lottery Case)
 Instrumentalities of commerce? NO (Shreveport Rate Cases)
 Substantial Effects Test?
• 2 different tests (economic/uneconomic)
 o Rational basis test in aggregate (Wickard)
 If economic/commerce-based
o Govt bears burden of establishing substantial
impact (Lopez, Morrison)
 Non-economic, non-commercial activity
 Even a truckload of findings and evidence
doesn’t necessarily do the trick
 Justices want to avoid slippery slope
o Found to be non-economic, non-commercial activity
 Gender-motivated crime
• Not economic in any way
 But what about Ollie’s BBQ, Heart of Atlanta
• About race segregation, not commerce
• Keeping people of color out of commerce
• But they are commercial transactions
 Focus on definitional framework
• Language/conceptual modes
• Label it as something economic in its nature
• Operate definitionally, not on effects FIRST
o Ollie’s and HoA
 Regulated activity is rental of rooms, sale of
food in restaurant
 Defining activity not as discrimination but
CONTEXT of commercial transaction
 So activity being regulated is commercial
• Distinguished
 Gender-motivated crime
• Can be commercial, but doesn’t have to be
• Could be described as a substitute for
o Prostitution
o Courting
o Marriage
• Find a market for something
o Definitionally economic
o Item is commodified in a market
• Form of economic domination/warfare
• Reducing power of woman as an economic actor
 Violence Against Women Act
• Power theories under 13th and 14th A rejected
• Gonzales v. Raich
o Facts
 Monson—seriously ill Californian
 Raich using cannabis to function on a daily basis
 CA Compassionate Use Act permits use of marijuana for medical
purposes
 Controlled Substances Act
 CA and Federal cops have showdown
 • Federal cops destroy her marijuana plants and drugs
o Regulated Activity
 Economic or non-economic
• Possession, production, distribution, possession of a
controlled substance
• Intrastate possession and production of drugs for personal
consumption under a doctor’s care
 Majority adopts
• Possession, production, distribution, possession of a
controlled substance
o Can’t subdivide
o If Congress can reach one class, can reach entire
class
o Economic activity
 Say it’s a commodity
 Even though it’s not in a market
 In dictionary definition: Anything that’s
bought and sold
o Looks like statute regulates economic activity
• If they accepted challenger’s characterization of activity
as Intrastate possession and production of drugs for
personal consumption under a doctor’s care
o Has possibility of seeping into market for drugs
o Impacts the interstate market for the popular
substance
 Find a level b/w things covered by statute and individuals in
case
• Challenge not to statute as a whole but specific
context/application
• Contrast w/ Lopez and Morrison
o Those cases needed not pick a level of abstraction
o Challenge not to entire scope of statute
 Focus on context of case
• How and why would you choose a different level of abstraction?
o Is everyone choosing their level of abstraction b/c they want to win?
o Or is there a principled basis for carving out the sub-category?
 O’Connor argues that CA carves out this category
• Need to define a sub-category
• Otherwise all the way down the slippery-slope
• Too formalist to rely on entire statute
 Under a doctor’s care
• Easier to carve it out, not economic
 Even if difficult to pick out a category, must do so
• Otherwise slippery slope
• Congress can just pack in the regulation in a larger
regulation
o Congress can define the class of regulated activity
  If it includes things that are economic, it
would appear they can include things that
are non-economic and not be challenged
 Something else?
• Health and criminal law
• Traditionally under state control
• Affirmative substance to push back
the other way
• Economic/Non-economic?
o Focus on regulatory action
o Is it economic-based regulatory scheme?
 E.g., Wickard, then more easily qualified as economic
 But even in this instance, economic held as larger regulatory
scheme
• Laboratory function of state clear
1/26/09
• Cross-cutting Federalism limits on national powers
o National League of Cities
 Issue: Whether FLSA is constitutional as applied to states
• FLSA sets minimum wages and provides for overtime for
certain hours worked
 Commerce Clause evaluation
• Choose 1 category (Lopez test)
o Channels
 No, doesn’t regulate the interstate
movement of things
o Instrumentalities
 No, not RR or planes, etc.
o Other
 YES
 Be on the lookout for creative arguments
 Most regulations fall into this category
• Jurisdictional requirement
o We don’t know
• Economic/commercial activity?
o YES, clearly economic
 Wages, money changing hands
 Economic transaction
 Could come up with arguments against
• But don’t look for problems where
there aren’t any on an exam
 CLEARLY economic, unlike
• Possession of guns in schools
• Rape
• 4 test
th

o If yes on E/C activity

 Wickard applies
• Never enters intrastate commerce (let
alone interstate commerce)
• Substantial effects test
• Rational basis test
• Extremely deferential to Congress
o Substantial effects test left to
Congress
o Congress had to put forth a
plausible notion of the
substantial effects test
o Nothing has been overturned
using that test
• Aggregation principle
 Jones & Laughlin
 • Transitional, still retaining extinct
direct/indirect
 National League
• Seems like it will be Constitutional
• But now, apply new test:
o Does the regulation apply to the
“states as states?”
 State or local govt
 Regulation applies to
state as state employer
 STRUCK DOWN—
determination of pay of
employees of state govt
is a traditional govt
function
 Therefore, commerce
power
o Is the regulation
o If no on E/C activity
 Lopez applies
• Much more critical approach
• Cross-Cutting Test
o Cuts a piece of the commerce power off
 1) Does the regulation apply to “states as states?”
• Does the regulation apply to the states?
 2) Is the regulation a “generally applicable law” that applies
equally to private parties and the states?
 3) a) if “yes on #2: Garcia
• Have you been deprived of right to participate in the
political process?
• Has state been victim of political malfunction
• If state just a loser in the political process, just too bad
o That means other states not that worried
o Baker: SC just on the losing end
o Court doesn’t intervene unless they have a
principled way of doing it
• Congress can use commerce power to regulate states in
whatever manner it pleases, so long as the regulation is
o Clear and unequivocal statement of congressional
intent to regulate a state’s sovereign functions
o Not the product of a political process as
dramatically defective as Baker suggests
 3b) if no on #2: US v. NY & Printz apply
• Equal Employmnet Opportunities Commission v. Wyoming
o Court rules Congress could bar states from setting mandatory
retirement ages
o Inconsistency in rulings
• Garcia v. San Antonia Metropolitan Transit Authority
 o NLoC overruled
o Political process provides protection for state autonomy
 Political protections for Federalism
• Congress’s reps are elected from the states
• States participate in electoral congress
• States representing a small population can filibuster a
vote in the Senate
• States able to protect interest in Congress
o Courts should not intervene
o Attempt to limit Commerce Power cut off after 9 yrs
 Commerce Power re-ignited
 Court’s willingness to strike down legislation depends on its
perception on value of Federalism and fear of Federal power v/
states powers
• Getting limits on slippery slope
• Substantive immunity
o National League of Cities
 Tried to carve out a zone of issues (substantive zone) Congress
could not reach
• Procedural immunity
o Garcia
 Majority (Blackmun)
• Process test
o Any substantive restraint on exercise of Commerce
Clause powers must find justification in the
procedural nature of this basic limitation
o MUST be tailored to compensate for possible
failings in the national political process
• Objection that creating a test can’t happen b/c we can’t
come up with a principled standard
o Might just mean he doesn’t care that much about
coming up with a bright-line test
o What are you really worried about
 Not such a big deal to him
 In contrast w/ dissent
• Trusts the political process as slippery slope stopper
 Dissent
• O’Connor
o Put in state autonomy and balance it
 But is this a matter of degree/judgment
question
o Very important that there be a slippery slope
stopper
 From a Constitutional perspective
o US v. NY
  States given the choice of making an interstate compact with
other states about disposal of radioactive waste OR dispose of it
themselves
• Court held this was coercive
• Effectively forced the states to join compacts
o Might as well have passed such direct legislation
• Court held this was unconstitutional
o Federal govt would be commanding state to use its
legislation is a specific way
o Anti-commandeering principle
 Step 2 of analysis
• Is the regulation a “generally applicable law” that applies
equallt to private parties and states?
o Distinguishing Garcia
 FLSA applied to wide range of employers,
private and public/state
 Generally applicable law that regulated both
private parties and the states
 But US v. NY singles out the state
• Compelled it to be part of a regulatory
scheme
• Command overriding its functions as a
state
o Evaluating Step 2—rationales for this distinction
(not explicit)
 If a regulation can apply to both state and
private parties, clearly not exclusively just
the state
• State not regulated in a distinctive
way
 Generality protecting function
• Everyone has incentive to mobilize
• Political process less likely to backfire
• Printz v. US (1997)
o Brady Act
 When people purchase guns, store owner had to forward
information about person to Chief Law Enforcement Officer
• CLEO then would run a background check
o Pre-Heller
 2nd amendment hasn’t been revived
o CLEO says Congress can’t make us do this
 Congress commandeering the executive branch of the state
o Majority (Scalia)
 Text
• No Con text speaking directly to this
• Article 6 says specifically that state judges are bound by
Federal law
 o Testa held that Fed govt could require state courts
to hear Federal claims
 Anti-commandeering principle does not apply
to state judiciary
 Anti-commandeering principle does apply to
legislatures (per US v. NY)
o Question of whether it applies to executive in Printz
 Original Meaning
• Federalist argument b/w Majority and Dissent
o Indicates that Fed govt would have power to
employ magistracy of each state
 Yet Scalia says that this does not imply that
Congress could impose these responsibilities
w/o consent of States
• Assumption that States would consent
to allowing their officials to assist the
Federal Govt
o Are they offset arguments?
 Or are they arbitrary arguments to begin
with
• Absence of any necessity to pay
attemtion to specific question then
• Subsequent legislation enacted soon after constitutional
provision provides contemporaneous and weight evidence
of Constitution’s meaning
o Do you really agree with what Congress does
defines what it meant to be?
 Can you really assume that Congress was
complying with Framers’ intent?
 Tradition
• Fed govt hadn’t even tried to commandeer state
executives until recent history
• This is the way it’s always been done
o Tradition arguments can resonate
 But what tradition to break from and what to
maintain
o Our govt has worked, and things done over a ong
period of time become a part of our constitutional
order
 Become a part of our Constituational order
• How we function
• Part of the genius of our institutions
o How much do you value text/original meaning
 Tradition can be thrown out if text/OM
argument enough to carry the day
 But this challenges the hierarchical structure
Scalia establishes
 • Scalia very tuned into to different
kinds of arguments that make Con
Law distinct from other fields
 Conumberal argument
• Listing a number of justifications from a series of
provisions
• P. 216 C
 Cannot commandeer state executive branch (Printz)
• Printz and US v. NY
o What extent is anti-commandeering applicable?
o Consider facts of cases
• US v. NY
o Regulation would be a Big bite of state autonomy
o Less so Printz
• Accountability/Structural argument
o If Congress/Fed enacts program, but State enforcing it, who is
accountable?
o Looks like state to person who is impose
 Line of accountability broken
 State co-opted into mechanism Federal govt creates
• Separation of Powers analysis
o If powers of branches not separate, which branch do you blame?
o Blurred accountability lines in Separation of Powers and Accountability
arguments
• Hypo
o Gay marriage
 Is it economic or commercial?
1/27/09

• Express jurisdictional requirement (Lopez)

o Element in statute that specifices a connection to commerce/limits the
statute accordingly to make it a Commerce Clause power
o Provision in the statute
o J &L says therefore we must go to a case-by-case basis
o Jurisdictional requirement
 Put in a tag in a statute limiting its application to elements when
a component travels across state borders
• Eg, Gun Free Schools Act
o Statute applies only to the possession of guns that
traveled in interstate commerce
o Since almost all guns made in CT, illegal
everywhere except CT
 Lopez
• Rehnquist raising questions in our mind about
jurisdictional requirement
• Passes scrutiny, no matter how senseless the commerce
link might be?
o Eg Gun Free Schools Act
 o Not a matter of degree—slippery slope stopping
o Encountering a jurisdictional element
 Is it like J &L
 Or like re-done Gun Free Act
 Haven’t really read anything authoritative where Court
evaluates jurisdictional requirement
 Could make a slippery slope argument
• Congress could regulate anything when something travels
in interstate commerce
o Eg, hereby illegal for anyone in US to commit
fornication with anyone who ever crossed a state
line
o Key to identify if there is one
 Know that in general, statutes with jurisdictional requirements
have been upheld
 Effective technique for Congress to legislate and have it upheld
• Spending and Tax Powers
o If Congress has a separate, independent source of power to regulate,
the regulatory effect of a tax is irrelevant (same with spending)
 Eg, can tax on use of medical marijuana since Raich established
right to regulate
• Congress has power to regulate
o Tax power and spending power
 Scope of taxing and spending power has to do with use of those
powers to try and go farther than national govt allowed to go
under its regulatory powers
o Interesting b/c taxing and spending powers BROADER than regulatory
powers
 So Congress can try to indirectly regulate (get things done) via
those broader powers
• Tax or Spend Problem
o Tax generally unconstrained
 Court hasn’t been presented with extreme facts
o Step 1) Could Congress have directly regulated?
 If yes, Congress had regulatory power, then end of question.
They can clearly tax and spend
 If no, step 2
o 2) Appropriate analysis of taxing (Kahriger) or spending (Dole) power
o 3) Analagous concern of state autonomy to Printz or US v. NY?
o 4) Independent Constitutional Prohibition
 Eg First Amendment
 10th A
• State authority, Anti-Commandeering
• Bailey v. Drexel Furniture Co. (Child Labor Tax Case)
o Post Hammer v. Dagenhart overthrowing regulations of child labor
 Congress reacted by enacting Child Labor Tax Law
 Congress obviously trying to end-run
 o McCullough v. Maryland (Marshall’s comment on pretext)
 Brought up by majority
o Either/or
 NOT a matter of degree
 Exercise of classification
• Like commerce v. manufacture
 Either a tax OR a regulation
o Constitutional problem
 Constitutional power to tax
 Constitutional power to regulate
 If Congress can’t regulate, then they shouldn’t be able to
regulate simply by enacting a regulation and calling it a tax
• Must be an enforceable limit in this runaround
o Can look only at face of tax statute
 Won’t look any farther
 Everyone knows this is a regulation
• Everyone knows Congress is thumbing its nose at Court
after Hammer v. Dagenhart
• Court already struck down regulation
 “Apparent on the face of the statute”
• Not outright saying Congress is thumbing its nose at our
face
• Strategic move in pissing match w Congress already in
progress
• Constitutional concerns about judges’ roles
o Judges’ role is to look at regulations
 Not stepping into Congress’s realm
 Limiting themselves
 Makes it look like what they’re doing is legal
 NOT questioning Congress’s motive or
legislative history
• Full of contradictions
• Fact-sensitive can of worms
 Using legal reasoning, not legislative issues
of facts/motives
• Problem of other decisions
o Needing to distinguish other cases that had
permitted such regulations
o Yet does it really?
 Wouldn’t have trouble in determining
regulation in other cases
• Decisions
o Tax
 McCray (oleomargarine +)
• 40 times tax on oleomargarine than on butter
o Power of dairy industry
o Clear indirect regulation
  Doremus (opium +)
 Bailey (child labor -)
• Flash in the pan, ends up getting abandoned
 Sozinsky (1937, firearm sellers +)
• Tax on firearms dealers
o Doesn’t sound like a tax, since not per gun
o More like a penalty
• Same year as J &L, blowing out Commerce Clause limits,
eliminating distinction b/w manuf/commerce
• Rejected “disguised regulation” approach
• Relaxes tax limits
 Kahriger (gambling)
• Kahriger
o Requires bookies to register, taxes gambling
o Detailed registration process
 Public registration requirements allows states to enforce
gambling laws OR
 Registration enables tax collection
• What Court holds
o Remedy for excessive taxation in Congress, not the Courts
 Slippery-slope stoppers nominal
• If tax and use unrelated
o Very deferential to Congress
o Political controls—difficult doctrine to apply
• Hypo
o Congress says products produced within states that permit gay
marriage cannot cross state lines
 Clearly interstate commerce
 Yet slippery slope
 Extreme facts?
 Federalist values
 Core theories
• State autonomy v. clear Congressional commerce power
 Question where you can bring in all the theories b/c a true
conundrum
• Spending power
o Text doesn’t impose much of a limit (in Constitution)
o US v. Butler
 Spending or taxation issue?
 Challenger is a company being taxed under Agricultural
Adjustment Act
 Court looks through entire scheme
• Really a regulation, not an exercise of spending power
• 1) Could Congress have directly regulated?
o Now, yes, Wickard—could have regulated output
o Didn’t need to impose elaborate subsidy scheme
o Wouldn’t be an issue today
 o But this was before aggregation and rational basis
test as applied to substantial effects test
 So no here
• 2) Appropriate analysis of taxing (Kahringer) or spending
(Dole) power
o Hamiltonian position wins out
 Can spend for general welfare
 Not just for enumerated powers
 Its own power, stands on its own feet outside
enumerated
 Madisonian position rejected
o Court refuses to rule on general welfare
 Avoids so doing b/c views can be wildly
different
• Can’t come up with a principled rule
that won’t look like Court stealing
Legislature’s function
o Holding:
 Clear pretextual use of spending power
 Using spending power to get around its lack
of any regulatory power
 Coercion
• Coercion by economic pressure
• Fluke language (sport) only place such
language exists
 Even if voluntary, STILL unconsititutional
• Coercion isn’t reason to
overthrow/overturn the plan
o Analysis
 Attempt to distinguish b/w a payment
designed to secure compliance with a
regulation v. a decision to spend money on
some things but not others
• Either/or category
• Is it purchasing compliance with
regulation Congress doesn’t have a
right to enact, or simply deciding what
Congress is going to spend the money
on
o Majority
 Can decide to spend money on some kinds of
education, but not others
 Can’t decide to spend money to get farmers
to reduce output
 Court rejects national problem argument
• A particular kind of problem such that
only nat’l govt can solve it
 • Great argument to defend enactment
generally
• But Court rejects this argument
o Congress must still recognize its
Constitutional limits
• Bogus national problem argument in
this
o Simply to say a problem is
national does NOT say why only
national govt can solve that
problem
o Doesn’t explain why each state
can’t solve the problem by each
state operating in its own way
• Steward Machine Co. v. Davis (1937)
o Erosion of Butler
 Synthetic review—regime shift in Constitutional law
o Court adopts much more deferential approach
 Payroll tax w/ credit against tax for payments into state
unemployment funds
 Incentive to enact state unemployment funds
• If they don’t create system, $ to Fed
• If they do, flows into the systems
o National problem argument
 States held back from creating an unemployment fund, but
feared setting off a competition to attract industry
• Like child labor laws competition
• Outcompete
 Here a legitimate national problem argument
o Slippery-slope stopper
 Must have connection
 Cannot usurp state sovereignty
• South Dakota v. Dole
o Withholding 5% of highway funds federal for states that don’t adopt
21-year drinking age
o Components
 Must be w/in General welfare
• Deferential to Congress
 Condition unambiguous/clear
 Condition must have to do with federal interest in particular
national projects/programs
• Majority holds this is directly related to highway funding
(safety)
o Direct relation to safe interstate traffic
• Dissent in O’Connor says purpose of spending is highway
construction, not highway safety
 Other independent constitutional bars
1/28/09
• “Directly Related” Test in Dole
o Direct/Indirect relation to spending
o Conditions might be illegitimate if they are unrelated to the federal
interest in particular national projects or programs
• Hypo
o Feds say:
 Condition state receipt of federal money for all health and
medical purposes upon a state’s banning the use of fetal tissue
for medical research
o In Dole
 Ban alcohol to persons under 21 held to be directly related to
highway safety (Dole)
o How does state receipt of federal money for health/medical purposes
relate to fetal tissue?
 Proven connection v. unproven connection
 Positive relation v. negative relation
 Takes a leap to get from drinking to highway, no leap in medical
research?
o Is this a direct connection/relation?
 Does direct/indirect test place too much of an onus on the court?
 Framing problems—value judgment?
• Issue
o Is the test unrelated or related?
 Two different standards
• Should the only req be that it be related
• Or should it have to be directly related
 LEFT open by majority opinion
• Dissent (O’Connor)
o If purpose is to deter drunken driving, it is both too over-inclusive and
under-inclusive
 OVER—Stops teenagers from drinking even when not driving
 UNDER—teenagers only a small part of drunk driving problem
o Critical analysis
 Almost every law/regulation NOT perfectly tailored to its
objective
 Critical form of scrutiny
• People not applying a true rational basis test
• Actually a considerably more critical test than typical
rational basis test
o O’Connor seeking a more critical test than rational basis
o Condition can only specify how $ should be spent
 But this test can keep broadening out spending power
 Slippery slope?
 Congress can grammatically change sentence to link it on what
$ will be spent on
 o O’Connor’s use of over and under-inclusive provides of way of making
this more critical
 Renders more consistent with what court does in other areas
 But opens court up to line-drawing problems with test
 Indeterminate test can look for legislative (less legal)
• But some tests that are very practical, bright-line can be
more legislative in practice
• Concern with Federalism values determine level to which
justices commit to finding such a test
o Or willing to allow things to remain uncertain
• 3 competing approaches in Dole
o Majority test on related
o Majority reference to direct/indirect test (in footnote)
o O’Connor’s over and under-inclusive review standard
o Line not clearly drawn yet
• Dole
o 21st A is argued to give states exclusive right to regulate on alcohol
 Case does not address this issue
 Spending power, NOT regulation
o Step one of both spending and tax analysis
 If Congress can regulate directly, then can spend, no problem
• Taxing/spending power greater than regulatory power
 If can’t regulate directly, step 2 (economic/commercial or non-
economic/commercial)
• Spending/Tax Power
o Limits on Congress using those powers to accomplish things in spheres
they can’t regulate
o Since 1937, very deferential to Congress
 Dole is one string of limitation with driect/indirect
• Dormant Commerce Clause
o Constitutional Law using words of Marshall as Bible
 Even w/o holding
 Dicta itself is persuasive
o Gibbons v. Ogden
 Justice Marshall likes to think in terms of dichotomies
• States have their powers and Feds have their powers and
the powers are mutually exclusive
o Hypo
 Congress passed law that milk cannot be shipped in interstate
commerce unless in containers that meet certain standards
• Channels (moving something across state
lines)/instrumentalities/other
o Congress prohibiting interstate shipment—channels
 Clear channels
• CONSTITUTIONAL under commerce
power
 NJ passes law preventing milk from being shipped into NJ
 • Federal law prevails over NJ law
• Even though Congress hasn’t passed law about this,
dormant commerce clause voids NJ law
• State power and federal power distinct and exclusive
theory (Marshall in Gibbons)
o State—police and intrastate; Federal—interstate
commerce
o Suggests state cannot regulate anything in Federal
realm
o This idea no longer holds
• Cooley
o Took a small bite out of Dormant Commerce Clause power
o Congress regulated by specifically authorizing states to regulate the
use of pilots in port waters
o Every port has local pilots who know how to manage each port
o Congress passes law saying states authorized to create state law
unless we create a different law later on
 Cooley argues that Congress cannot give this power to states
• Would destroy the constitutional scheme
o Holding (Curtis)
 Rejects exclusive powers notion
• Rejects dichotomy
 Some subjects by nature/subject local, others by nature/subject
national
 PA law not unconstitutional unless Congress exercises it power
in a way that is inconsistent
o 2 categories
 Overlap of Fed and State powers
• In absence of Congressional legislation
• Anywhere in the sphere of interstate commerce, state law
is preempted
• If Congress hasn’t passed a law, state law may or may not
be unconstitutional
o Depends on if local or national subject of regulation
 Dormant commerce clause defines line where state power
cannot further encroach on Congress’s power
• Dormant Commerce Clause justification
o Historical justification
 Jackson comment
 Interesting doctrine
• Counterpoint to text coming first notion
• Here history overrides text
• Cooley divides into two categories
o Some states CAN legislate on and some states CAN’T legislate on
o Local v. national
o Breakdown
 Facial discrimination
 • Grossly discriminatory on its face
• Philadelphia v. NY
• Milk hypo: no outside milk can come into NJ
• Exception for quarantines
• Strict scrutiny
 Protectionist purpose (or effect)
• Not discriminatory on its face, but its impact is that
• Preventing apples from coming in that have specific labels
(like those used by WA)
• Purpose is protectionist—protecting interest of states at
expense of other states
• Mere existence of discriminatory effects doesn’t trigger
strict scrutiny
o Needs to be very discriminatory
• Usually strict scrutiny
 Neutral
• Pike balancing test
• Philadelphia v. NJ
o NJ prohibits importation of waste collected outside state
 Facially discriminatory
 Treats waste from outside the state differently from that
generated inside the state
 Counter-argument
• Really about state health and safety, NOT discriminating
against other states
• Quarantine argument
 UNCONSTITUTIONAL
• Not a quarantine law, doesn’t fall in exception
o NJ could ban all waste disposal in the state
o Ruling limits state sovereignty
• Key to analysis
o Is law protectionist or not?
 Facial Discrimination
 Protectionist purpose (or effect)
 Neutral
• Pike weighted balancing test in favor of state law
• Deferential
• State law is valid unless
o Residual issues
 Validity of doctrine itself
• Not textual Constitutional power, only historically
determined
• Principle case showing how to distinguish protectionist
law from non-protectionist law
1/29/09
• Youngstown (The Steel Seizure Case) 1952
o Key case in Con Law
 Along lines of McCullough v. Maryland
o Separation of Powers
o Up to now, class has been looking at vertical division of powers
 Federal v. state powers
 NOW, looking at horizontal dimension
• Have encountered it
• Exercise of power of judicial review
o Informing this power is the question of usurping
other branches
o Exercise of the executive power
 Does executive power support this presidential action
o Facts
 During Korean Conflict
 Union threatens strike
 Truman seized steel mills
• Order keeping them open
• Viewed by unions as pro-labor measure
o Wanted to force question onto political scene
• Mill owners unhappy—brought suit
o How do you determine if a given action violates separation of powers?
 What considerations do you keep in mind?
• 6 concurring justices to 1 majority
o Each justice has its own approach
• Look at provision to figure out how to approach it
o Come up with a bunch of possible approaches
o Multiple approaches
 Some die out, some live on
 Variety of ways to approach
• Case law puts limits on approaches
o Lopez, Morrison, Raich
 Frame approaches
• But still a lot of room to maneuver
• In a zone of uncertainty limited by cases that are modern
doctrine
• Separation of powers
o Cases are more likely to be all over the place
 Vs. Federalism
• Most cases under Commerce Power
• Looking at same piece of text
• Get a grip on how courts looking at facts
 Concentration of cases on appointing/discharging officials
• But we don’t do them
o What do you do in relatively open areas?
 No principle articulated in any case determining which to use
 So odds are that in any case, both/multiple approaches will be
used
 2 basic approaches
• Formalism
o 1) Classify exercise of power
 Executive, legislative, judicial
• In this case, Truman seizes steel mills
by executive order
o Black
 Court finds it legislative
power
 Legislative b/c Congress
hasn’t authorized it
 President executes the
laws, he is not a
lawmaker
 Constitution vests
legislative power in
Congress
 Rejects tradition
argument
 (Like Powell)—trumped
by structure, original
meaning, text
o Douglas
 Branch of govt that has
the power to pay
compensation for a
seizure is the only one
who can make a lawful
seizure
 5th Amendment
 Legislature/Congressional
role
o 2) Determine which branch is exercising power
o 3) Mismatch is Unconstitutional
 Note: use fear, slippery slope
• Like Lopez, Morrison
• Pragmatic/Flexible
o Frankfurter
 Rejects formalist approach
 Tradition-based opinion to the core
 Doesn’t determine whether legislative or not
—in another realm
 Jackson’s 3 zones of executive authority
• Congress authorized
• Twilight Zone
• Congress prohibited it
• Black (Formalism)
o Legislative
 Congress hasn’t authorized it
 Executive doesn’t have the power
o Scale of the decision
 Legislative
 Large magnitude b/c of taking over al steel mills
 Must be Congressionally approved
o Means/Ends
 President should be able to select means to the end of
Commander in Chief (per dissent)
• But majority argues this is not just any old means
• Bigger it is, more like policy in its own right, less it seems
like an execution of laws, more it seems like executive is
MAKING laws
• Magnitude of policy choice critical
o Is it just a means
o Or is it too big a means/an end in itself?
o Executive order LOOKS like a piece of legislation (preamble, on piece
of paper, etc.)
 If you rely on that, then what does President do next time?
 Well, he could do it without writing next time, so can’t rely on
this
o Formalism comes from first sentence in each of three articles (bang,
bang, bang)
 Legislative power Art I
 Art II—President
 Art III-Judiciary
 How to give these terms meaning?
• Generalities to interpret
o Legislation—prospective (looking forward) and
general
 Ban on bills of attainder
• Law that picks out one person for
particular person prohibited
 Ban on ex-post-facto laws
• Can’t create retroactive criminally
liability for an act
o Judicial (reverse)—retrospective (looking back at
things that have already happened) and particular
(specific parties that brought the case
o Commander-in-Chief argument
 “Theater of war” might be expanding, but need to limit those
powers
 Can’t circumvent normal constraints on power
• Pragmatic/Flexible
o Neither set of opinions exclusively P/F OR Formalist
 o Historical/traditional precedent
 Lincoln’s seizure of the RR
 Lincoln’s Emancipation Proclamation
 3 seizures by FDR
• Not authorized by Congress in 1941, before Dec 7th
 6 seizures by FDR
• Not authorized by Congress in 1941, after Dec 7th
 3 seizures by FDR
• Authorized by Congress
o Distinguishing precedent
 Lincoln—theater of war
 FDR—too recent and concentrated in time to be a tradition
• Also under Commander in Chief/Theater of War
o Arguments
 I (Congress); (Lincoln)
• Executive continues in same direction, carrying out
Legislative direction
 I (Congress)
• Congress established a strong line
• Go no further
o Argument for Taft’s execution of power
 Not a single example of President seizing something and it being
deemed legitimate
• Frankfurter (tradition, and pragmatic relative to real formalism) argues that 3
seizures by FDR not auth by Congress in 1941, before 12/7 only ones similar
to this situation
o Difference b/w declared and undeclared war
o Tradition-based argument
 Doesn’t reject tradition argument
 Says dissent’s tradition argument is not a valid tradition
argument
• Need systematic, unbroken, executive practice, long
pursued to knowledge of Congress and never before
questioned
• Frankfurter narrows it down to just 3 seizures, so that’s
not much of a tradition
o Must be not authorized by Congress, during time of
war w/o declaration of war
o Could counter that Presidents have used seizures
during times of armed conflict when they deemed it
necessary
 Done w/o authorization of Congress
 Framing tradition/point of argument very
important
 Dissent frames more abstractly, thereby
sweeping in more examples
 • Expanding formulation increases size
of universe

• Black (Formalistic)
o Theater of war only for Commander in Chief power
o Power cannot expand/contract in emergency w/o being in theater of
war
o Rejects tradition
• Tradition
o Defending tradition
 If it aint broke, don’t fix it
 If it’s worked, don’t muck around with it
 A tradition has arisen, no judicial precedent
 Expresses the true nature of the Constitution
• Constitution works in certain ways, gets a life of its own
• Jackson (demonstration of pragmatic/flexible approach)
o 3 zones of executive authority
 Congress authorized it
 Twilight Zone
 Congress prohibited it
o Black not interested in Twilight Zone
 Authorized or not authorized
 Two zones
• Congress power and executive power as unique
o Jackson suggests that Congress can increase Executive power
 Comfortable with assessing matters of degree
 Comfortable with having matters of indeterminacy
 Not big on determinacy of Constitutional text
• Practical manner of two branches working together in a
pragmatic function
• As a justice, willing to accept that concert
o Assuming they’re in agreement as opposed to in
conflict
o Jackson says we need to fear executive
 A lot of power in one person
 Executive’s access to the media makes him very powerful
 Concentration of power in a single head
 Uses Congress and Congress’s attitude to determine what is
going on
• But what has Congress said?
o Jackson says this is NOT a twilight zone case
o Rejects matters of degree
o Says Congress has prohibited this action
 But has it really?
• Congress never passed law saying
President cannot seize
2/2/09

• Executive Branch Action

o Think about Youngstown
• Congress Action
o What happens when Congress seems to be mucking around with issues
of allocation/separation of powers
• Mistretta
o Congress creating Sentencing Commission
 Promulgating mandatory sentencing guidelines
 Independent agency in the Judicial Branch per Act
 Members of commission members of Judiciary
 Removable by President for cause
o Congress established Commission
 Given it certain functions
• Promulgation of sentencing guidelines
• Applied in federal courts
• If Federal Ct doesn’t follow guidelines, will be reversed
o Separation of Powers problem
 Basic Analysis (Formalist Approach)
• Classify the exercise of power in issue
o What kind of function is this sentencing commission
performing?
 Executive
 Legislative
• Commission making general
rules/standards
 Judicial
• Subject matter of judiciary
• Judges sentence people—sentencing
guidelines
• Already a power judges possess
o But judges sentence in accord
with legislative standards…
• Accepted that judges make the law
already on sentencing
o But judges make decisions on a
case-by-case basis, so even if
they’re making law, it’s on a
case-by-case basis
 That makes it more
judiciary
• Judges also not bound by prior
decisions at same level
o Also can differentiate
  When you make an argument about
classifying, legislative v. judiciary (on
abstract level)
• General v. specific/particular
• Forward-looking v. retrospective
 In formalistic methodology, looks
LEGISLATIVE function
• Although might be judicial in some
senses, but not under formalistic
standard
• Exercised by something not Congress,
so issue
o Formalism says that is
unconstitutional
o But contrary to world of
Constitutional law
 Court hasn’t struck down
such a Congressional
enactment since 1935
(Schecter and Panama
Refinery)
 Everything since 1937
upheld
 Non-delagation doctrine
has not been upheld as
way to overthrow
Congressional delegation
 Does it mean much that it’s being executed
under judicial branch?
• On an org chart only
• Appointed/removed by President
• Majority says it’s independent
• Scalia says it’s legislative
• Non-delegation doctrine
o Legislation-type components can be delegated by Congress as long as
it is strictly circumscribed
 Intelligible principle
o If Congress delegating legislative function to another branch, MUST
make non-delegation argument
 Even though you probably won’t win
o Evolution of Federal Government
 Federal Agencies an unknown phenomenon until mid-19th
century
• Combining functions, promulgating rules, little judicial
branch of its own
• But still small in numbers
 Beginning in 1930s, agencies proliferated
• Alphabet Soup of law
 • Now many agencies with rule-making powers that look
like legislation/policy
o Examples
 Determine “excess profits”
 Prevent “unfair distribution of voting pwr” for
shareholders
 Determine “just and reasonable” utility rates
 Regulate broadcasting as “public interest,
convenience and necessity provide”
 Schecter—“unfair” methods of competition
• Last one struck down
• But could differentiate Schecter b/c
scope wasn’t limited like in the above
• System of economic regulation very
broad—for every industry in the US
(huge)
• Codemaking authorities made up of
private parties
o Congress can’t delegate
 But what about reality?
 Congress couldn’t possibly have enacted so many regulations
• Needs help with determining regulations with specificity
• Local variation
• Congress can’t do all that work
• Congress not technically capable
o Set up bodies that have access to technical
expertise
 Critics
• Taking responsibility for actions
• Under classical liberalism, government should be limited
o Explosion of agencies limits democratic
accountability
o Agency personnel can be a stepping stone to a job
with a regulated corporation
o Symbiotic relationship of catering to one another
o Iron triangles
 Congressional agency
 Judiciary branch in agency
 Entities being regulated
• Non-delegation doctrine
o Lots of justifications for discarding of non-delegation doctrine
 People spoke in 1936 after judges struck down FDR’s
implementation
 Congress delegates the power under intelligible principle
• More of an executive function of the law
o Scalia:
 Non-delegation not actively constricting anything
  So need to actively and strictly enforce limits of delegation
• Limits must be effectively applied
• Separation of powers
o Blackmun original meaning argument
 Found specific practices at time of framing
• Judges’ multiple roles didn’t threaten impartiality of
Judicial branch
o Functional and formalist approach
 Functional approach emphasized in majority evaluation of
separation of powers
• Flexible understanding
• Not hermetic division among branches
• Carefully crafted system
• Overlapping responsibility
• Interdependence
 Formalist metaphor of hydraulic pressure inherent within each
separate Branch to exceed the outer limits of its power
• Evocation of fear
• Need to draw a line
• But lip service, majority didn’t really think it was a real
fear/issue
o Majority didn’t go into fear frame of mind
 Stayed trustful
 Commission will rationalize
 Good faith belief
o Scalia’s slippery slope hypo p. 387
 Challenger
• But congress has access to experts
• Distinguish Mistretta
o Issue of life and death
o Commission less constrained by statutory
maximum sentence(relatively narrow constraints)—
this range of discretion is wider
o Commission dealt with sentencing, judges already
dealt with that issue
 Not a great change in traditional role of
judges
 Here doctors don’t already have that random
policy issue to a bunch of unelected
individuals
 Govt
• Experts
• Maintain Mistretta
o Prison is close to life and death
• Chadha
o Non-delegation doctrine has already failed from preventing Congress
from delegating authority
o So Congress (through statute) enabled a practical control over agency
 Congress created one-house veto to overrule
o Facts
 6 individuals who AG determined met requirements of statute to
be relieved from deportation
 Submitted regulation to Congress
 Statute permitted one-house veto
o Formalist analysis
 What kind of power is involved?
2/3/09

• Chadha
o Legislative (I)
o Executive (II)
o Judicial (III)
o Note
 Just because location is in a branch, doesn’t make it
conceptually that kind of power
 Checks and balances do not respect the delimited boundaries
• INS v. Chadha
o Facts
 INS determination that Chadha and 5 others meet statute
requirements and therefore suspended from deportation
o What is the character of one-house veto of INS? (Formalist assessment)
 Legislative (Majority)
• General and Prospective
• Off-base to establish it as legislative
• But argument that legislative body delegated legislative
power and reserved power
 Executive
• Pardon power
o But pardon power is a judicial-type power in
executive branch
• Veto power
o Legislative-type power in the executive branch in
conceptual sense
o Only in its location is it an executive power
• Executing the law per Congress
o AG applying the law as stipulated by Congress
o Executive Branch can be particular and
retrospective
• Overruling AG is role of E
o E assigned AG, should be check on AG
 Judicial (Powell, CC)
• Particular and Retrospective
o Previously existing facts
o Applying
• Judicial review
o More a legislative-type power
o Ability to repeal a law strictly legislative
• Action looked like that which an appellate court might
take
 Obviously open to argument
• Opinion upholding law functional, opinion rejecting law formalist
o Youngstown, Mistretta, Chadha (formalist majority, White’s
functionalist dissent)
 o Avoid striking down law based on functionality
 Judges don’t want to strike down anything based on matter of
degree
 Avoid imposing own opinion
• Separation of Powers
o Use both formalist and functionalist approach
 But don’t know which to use, so use both
 Different cases use different approaches
o Functionalist approach
 Is one branch getting too powerful?
• Assessing the actual threats to separation of powers
values
• Mistretta opinion
• Is one branch getting too much power?
o Danger posed by executive branch getting broad
authority
• Assessing actual threats/dangers
 Is one branch losing power?
• Is there a chance a branch is being undermined in its
functions?
o Mistretta challengers asserted both
 Efficiency argument
• Was Iraq War unconstitutional?
o President launched full-scale invasion of Iraq
Challenger Government
1. TEXT: Congress has power to 1. AUMF (Oct 2002) was a
declare war, not president Congressional declaration of war
a. AUMF doesn’t declare war a. Specific to Iraq
2. OM: Framers’ intent—historical b. States clear standard
evidence in letters, notes that c. Gives Congress’s consent
framers feared entrusting one 2. Prize Cases
person to go to war (cannot a. National security at stake
impute meaning, must have b. Exception for sudden
concrete evidence, which this attacks
brief is filled with) 3. Commander in Chief Power
3. Iraq’s war IS a war a. CiC power when called into
a. Sovereign nation fighting duty
against a sovereign nation b. Doesn’t expressly state
—definitionally a war when war has been
b. Objective of effecting declared
regime change 4. Congress is applying the
c. Invasion of a sovereign Constitution and concluding that
nation w/o explicit action against Iraq is not a war
objectives or limitations in a. UN resolution takes it out of
zone war model
d. Full-scale invasion—if this 5. Separation of Powers analysis
isn’t war, then what is? f. Youngstown
e. Plenty of opportunity to i. Justice Jackson’s 3
 debate, authorize war zones test
expressly (concurring opinion)
1. First zone—
executive
branch acting
with express
authority of
Congress
6. Tradition—many uses of force by
US in history; can’t stop this from
happening; established practice
7. Vectors of History—surge of
popular opinion to allow executive
(like Tradition). For positive
judicial acceptance, frame like
OLD tradition.

• Tradition argument rebuttals (tradition has persuasive value)

o Just because they’ve been getting away with it/violating Constitution
doesn’t mean they keep getting to do it (Powell v. MacCormack)
o Define tradition more narrowly
 Govt defines tradition broadly
 Clinic—using force very circumscribed and narrow ways—
distinguishes past uses of force to construct a tradition of use of
force
• Structural argument
o How Constitutional structure works
o Accountability argument
 If you allow AUMF to constitute sufficient Congressional
authorization, no accountability
 Congress says I didn’t authorize this?
 President said, well, Congress gave me blank check
2/4/09

• Shift from structure

o Divisions of power
 Horizontal and Vertical
 Structural divisions were protections for liberty
• Debate
o Carve up government
 vertically
• National & state
 Horizontally
• Branches
o Carving up not enough
 Need Bill of Rights
 Clearly enumerated rights
• But what about rights you don’t list
• Could be better not to list rights,
because lots of rights that need
protection, even if not listed
o Result of debate
 Federalist-side prevailed, anti-bill of rights side won
• States ratified Con
o Many with the condition that BoR would occur
 James Madison started out Federalist, but switched sides on
some issues
• Started to want BoR
• First Congress, BoR was enacted
• Bill of Rights
o First 10 amendments to Constitution
 13, 14, 15 Reconstruction Amendments
• Very significant, almost equally so as BoR
o Problem of only enumerating certain rights
 Stuck in 9th A
• Due process
o 2 DP Clauses
 5th and 14th
o 2 doctrines (Total redundancy, Distinguish from substantive due
process)
 Procedural due process
• Challenger didn’t get sufficient procedures
• If gravamen of issue is lack of procedure (hearing before
fired, eg), then PROCEDURAL
 Substantive due process
• Identifying certain liberties or rights not specifically
mentioned in Constitution
• State passes law and law says can’t get an abortion
unless husband approves
 o Constitutional right to abortion being denied—
SUBSTANTIVE
o No amount of hearings could resolve this issue
 Incoherent distinction of procedure and substantive in academia
 But in 99% of cases, easy distinction
• What will remedy claim?
• Asking for procedures, or a right, no matter what
procedures?
• Substantive due process
o Oxymoron
o Due process says you can’t be deprived of life, liberty or property w/o
due process of law
o Yet doctrine of substantive due process has emerged
• Procedural due process
o 2-stage analysis
1. Has person been deprived of Life, liberty or property?
a. Life pretty clear—are you dead?
b. Property
i. State law or other “independent source”
ii. Weight or nature of interest?
c. Liberty
i. State law—“change in legal status”
ii. Importance of interest
2. If yes, to #1, is procedure adequate?
a. Private interest (L)
b. Risk of erroneous deprivation (P)
c. Burden on govt of additional procedures (B)

• Loudermill (1984) p. 434

o Facts
 Custodian lost job, as on application, he said he was never
convicted of felony
 Board found out he had been convicted of a felony
 Fired him
 He claims he thought it was a misdemeanor
o What is private interest?
 CLASS: Property interest in continuing employment/except for
cause (per state statute) subject to administrative review
 COURT says: property interest in continued employment
• Don’t include latter part
o Property interest determined in statute, but
procedures required a Constitutional question
o Can’t just slip in procedures as part of definition of
interest
• Public employer
• 5th and 14th A don’t generally apply to private employers
• State action requirement
  DISSENT (Rehnquist) says: property interest in continuing
employment except for cause (per state statute) subject to
administrative review
• Bitter with the sweet
o Loudermill took job w/ property interest AND
limitations
o Why does Con come in to review procedure?
• State statute defines both property interest and its
limitations/procedures
• Can’t bifurcate the statute
• Critical to understand both MAJORITY and DISSENT in Loudermill
o Bitter with sweet DISSENT
 Quandary
• Right/privilege distinction
o If govt not obligated to give you something, can take it
away without constraint
o Govt can take away right (Holmes)
 Consistent with framers/ratifiers
• Government benefits are entitlements
o Not common law property interest, but have grown
important over time
o Lack of due process protection, then govt can push
people around if they don’t have protections
 Govt so powerful, can control people
 But individuals depend on benefit, so won’t
speak out
o Different type of property emerges (welfare, govt jobs)
 Public employment has grown
• Govt employment a substantial
percentage of employment as a whole
(around 10%)
 Counter-argument that OM, only true property
• These new kinds of things shouldn’t be
included
• Most prop interest cases involve things govt not REQUIRED to give you
o Eg govt giving you a job
 Employment conditions
• Goldberg v. Kelly
o Welfare case
• Roth
o Independent source of law v. important
o Facts
 1-yr employment contract that expires
 Govt employer says we’re not renewing you
• Court says his only interest was a 1-yr interest, so not being
deprived
• Interest defined as one-yet
• Perry v. Sinderman
o 1-yr contract
o BUT college said it wanted instructors to feel like they had stable
employment as long as they did the job well
o Custom of renewal
o Created issue of fact
 Was there an entitlement to continue
• Loudermill
o Indefinite contract unless discharged for cause
o Significant property interest
• Arnett
o Bitter with the sweet
o Interest and procedures go hand in hand
o REJECTED DOCTRINE
• Per Mathews v. Eldridge
o Property interest in continuing employment except for cause
 RIGHT established by statute
 PROCEDURE established by Constitution
• Can’t encompass procedure in statute, subject to review
• Cannot allow state to define interest by procedures
o No way to maintain due process
o Definition of property interest would be constrained
o Couldn’t even get started on procedural due process
claim
• Castle Rock v. Gonzalez
o Property interest in enforcement of the restraining order per CO law
(according to 10th circuit)
 From CO state law mandated police enforcement
 BUT SC stated that police had discretion concerning how and when
to enforce restraining orders
o Public v. Private?
o What does a property interest in enforcement mean?
 What was Gonzalez’s right?
• Loudermill can be discharged except for cause
• But what is Gonzalez’s right?
o Can police determine enforcement standard?
o Lack of enforceable standard
o Gonzalez didn’t create a new form of property
 Unlike in Loudermill, a job was created
 Here police enforcement incidental in existing obligation to
police/enforce peace
o NEED for standard
 Eg
• For cause
• For good behavior
 Then you have something to litigate
• Specifies what obligation is
 • But in Gonzalez, this standard does not exist
o Tough to say what you have an actual property
interest in
o Police need to make all kinds of discretionary interests
 If you can’t integrate a standard in right, then difficult to enforce
the right—right too vague
• But is context/situation enough to trigger the property
interest?
• Not in this case, probably, since state law basis is weak for
property interest
o Police here acting in public function as criminal law
enforcers
o Making decisions about resources and how to fight
crime across the board
o Claim to enforce a protective order in a pot with all
their other obligations
 Court not comfortable imposing procedures in
this context
• Mode in which govt is functioning
• If functioning like a private party, maybe
court more open to regulating? (eg
Loudermill)
 Court didn’t want to impose procedural obligations on police when
they were acting in a discretionary role
• Liberty
o Less emphasis on the independent source of law
o More emphasis on importance of interest
o Paul v. Davis CONTRASTED with WI v. Constantineau
 Paul v. Davis
• Send list around with Davis’ picture
• Never convicted of crime of shoplifting
• Davis argues need process before you publish this
• Court says
o No liberty interest
o Legal status wasn’t changed
 Constantineau
• List of people unable to buy alcohol
• Challenger had a change in legal status
o Could not legally buy alcohol
o Looking for a bright-line distinction
o Didn’t want to get into actual damage suffered by
victims in each case
 Meachum v. Fano
• Prisoner to mental institution
• Allowed—no rights, no change in legal status
o Confined is confined
o Is that a change in legal status or just a change in
treatment
 • IMMEDIATELY overturned
• Focus on importance of INTEREST
 Vitek v. Jones
• Liberty interest
• EXAM
o Be able to frame property interest in best way we can
o If you don’t have facts, say you can’t
o Property interests defined by state BUT
 Definition of property interest does not define procedures
 Go to Mathews v. Eldridge to determine procedures required
o Property analysis
 Focus on law provision (or other indep. source granting right)
 But also consider weight/nature of interest
o Liberty
 Change in legal status—state law
 Importance of interest
o Balancing test
 Private interest (L—Loss)
 Risk of erroneous deprivation (P—Probability)
 Burden on govt of addl procedures (B—Burden)
 B<PxL
• Test not really applied correctly in M & E
o Test looks good on its face, but not applied correctly
2/9/09

Text
OM/History
Structure
Precedent
Tradition
Consensus
Natural Law
• Howard Zen--People’s History of the US

• Individual Rights
o Eg Heller
o Starting with a doctrine/case that no longer are good law
o Still linger on, exerting an influence over current law
o Current law
 Unstable
 Under pressure
 This court may cut back on substantive DP right of abortion
• Lochner
o State of NY forbids Bakers from working more than 10 hrs/day, 60
hrs/week
o SC overturns statute
o 1) Right (trigger)
 Heller—right to bear arms
• From 2nd amendment
 Lochner—Right to enter into contracts/right to contracts
• Triggers court to scrutinize state action
o Looks at police power of state
o In conflict with Fed right to K
o Bifurcation of two elements
 Mediate between them with a test
• Right to sell and buy labor
• From 14th Amendment (TEXT)
o No state can deprive any person of life, liberty or
property w/o due process
 Right to purchase or sell labor is part of the
liberty protected by 14th A
o Property and liberty protected ONLY if deprived of
them w/o due process of law
o Procedural due process guarantee
o Substantive due process a conceptual difficulty
 Hardy’s green pastel notion
 P’s complaint is one of an infringement of
fundamental right
• NY statute gave plenty of due
process/trial
 • This person wants to overturn statute
o Right to K Constitutionally
infringed
 But this is precedent
• Substantive due process incorporates
rights
o Eg 1st A—govt can’t interfere, no
matter how much process they
give you
o Where does the idea of right to K come?
 Opinion does not meticulously describe right
to K
• Doesn’t really explain why the right
exists
 Liberty
• Allgeyer precedent in Lochner
o Precedent
• Fundamental right
o Necessary/essential for
livelihood
o Right on which all other rights
are dependant (reasons for
incorporating 1st A)
 How important a right is?
• Important rights are protected, even
those unenumerated
• 9th A
• Enumerated rights
o 2nd A
o 1st A
• Affirmative v. Negative rights
o Conceptual distinction being
challenged
 Corfield v. Coriell sidebar (?)
• Police Power
o Does not include this law
• Potential alternatives
o Article I, Section 10 (Contracts Clause)
 Prohibits debtor relief
 Abrogation of pre-existing contracts
prohibited
• Applies only to retroactive Ks, not
prospective Ks
 Not a Contracts clause issue, because not
retroactive in this situation
o Privileges and Immunities clause
 Citizens of the US
  Slaughterhouse Cases precedent
• P&I clause protects very few rights of
US federal citizens
• US state citizens have the majority of
rights
• HAS NEVER BEEN OVERTURNED
• But not the main source of substantive
due process rights
• Due process clause protects all
PERSONS
• P&I protects only US citizens
o 2) Test (p. 464)
o 3) Means-Ends Fit
 Identify end
 Assess end
• Appropriate and legitimate
 Asses means-ends fit
• Direct relation
• One argument
o Statute underinclusive
o Applying the test
 Not all restrictions on right to K are unconstitutional
 State must exert police power
• Direct relation
• Appropriate and legitimate ends
 Ends/objectives
• Protect the bakers against inequality in market
o Flunks on appropriate and legitimate prong
assessing ends
 Ignores inequality in market issue
 Trying to make bright line issue
 Says you cannot consider this unless
protected class
o Are there Constitutional rights to combine in unions
 Federal labor statutes
 Unorganized workers
 Right to freedom of association
 Could make legal argument
o Not a class that needs to be protected
o Bakers do not need protecting arm of the state
o Ends
 Objective/govt interest
 Govt trying to protect bakers from
inequalities in the market
• Court: you can’t do that
• Bakers are not disabled, need not be
protected against themselves
 • Bakers have right to create their own
Ks
• No need for paternalistic NY state law
o But is it the role of the court to overrule legislature
on a policy question?
 Does the Constitution choose economic
theories?
 Should it be up to the legislature?
 Constitution does not determine/speak to it
(according to Holmes’ dissent)
o Contrary to Holden v. Hardy
 Miners employment hours limited by UT
statute
 Permitted as use of police power of state
legislature
 Mining industry ≠baking
• Inherently different
• But is it role of SC to make this
distinction
• Health Ends
o Workers
 Appropriate and legitimate end
• Health concerns within the legitimate
police power
o In contrast to rectifying
inequality in labor/bargaining
 But NOT direct
• Must be more than the mere fact of
the possible existence of some small
amount of unhealthiness
• Other professions are more unhealthy
o Not included in this law
o Underinclusive statute
 Extreme cases
• Slippery slope argument
2/10/09

• Lochner overturned
o Vehemently overturned
o “Lochnerizing” is deemed bad by the current court
o But some efforts that vary in reviving it
• Is Lochner wrong?
o Since modern court thinks it’s wrong
o Harlan dissent
 Defer to state legislature
• Policy judgments should be left to legislature
o Economics a subject about which people can
disagree (Holmes)
o Lochner enforcing an unenumerated right
 Right not in the text
o Court intervention
 Protection of minority interests
 No political malfunction
o Substantive due process—green pastel redness
 Pulling an unenumerated right out of thin air
o Economics/Non-economics
o Protecting K freedom
 Can affirmatively protect right to K via legislature
 What is liberty of K?
 Protected formal freedom of K instead of actual
 Application of critical scrutiny on fundamental right
• Pierce
o OR law requiring all children to attend public school overturned
• Escalation of level of scrutiny in Lochner
o Freedom of K being infringed triggers tough test (but not absolute
right)
• End of Lochner Era
o Great Depression
 American people rose up in 1934-37 when there was mass
discontent, widespread looting, demonstrations/strikes
 Popular pressure for economic regulation
• According to synthetic theory—third regime of
Constitutional law
o West Coast Hotel v. Parrish
 WA minimum wage law for women upheld
 But exception
 Legitimate public purpose
o US v. Carolene Products
 Filled Milk Act upheld
 Court moved to position of extreme deference
 Rational basis
• Griswold v. CT
 o CT bans use of contraceptives to prevent pregnancy
o Guilty as accessory as a counselor/advisor
o 1) Right (trigger)
 Right of privacy in the marital relationship
• Right from interference of the govt/state action
 Challenger arguments
• Right to Privacy
o Zones of privacy via (1, 3, 4, 5)
 1st A—right of association (NAACP v.
Alabama)
• Protecting NAACP membership lists—is
that “privacy?”
 3rd A—quartering troops
 4th A—search and seizure, need warrant
• But is it applicable to this situation?
o Penumbra formed by emanations from those
guarantees
o Framers implicitly put right of privacy into several
enumerated rights
o Natural Law
 Govt arguments
• Lochner
o No enumerated rights
o Policy matter for legislature
• Amendments specifically worded, and they don’t apply
here
o If it’s such an ancient right, why isn’t it enumerated
• Doctrine in Griswold
o After Lochner, test applicable to constitutional challenges brought on
basis of unenumerated rights is rational basis
 Totally deferential
 In Griswold, Court being far more critical
o Lochner Test applied (rational basis)—Lochner repudiated in no
uncertain terms
 Identify Interest—prevent extra-marital sex
 Assess Interest—prohibit all but marital sex OK
 Assess means-end fit—overinclusive b/c ban applies to marital
sex; underinclusive b/c doesn’t prohibit prophalctics/distribution
o Higher level of scrutiny
2/11/09
• Debate b/w Brennan & Scalia (p. 485)
o Tradition argument
• History
o Frame tradition arguments
o Frame OM arguments
• Palko (incorporation case) p. 458-9—determining fundamental rights
• Griswold
o Tradition at issue
 Fundamental tradition of use of contraceptives to prevent
pregnancy in American society?
• Is the asserted right so rooted in traditions and
consciousness of our people as to be deemed
fundamental? (Cardozo in Palko)
o Celebrated and viewed as fundamental?
o Not really—Victorian era, etc.; underground
o Must be socially valued/fundamental
 Privacy in marriage—marital bedroom, intimate relations in
marital bedroom
• More compelling/consistent with traditions
• Roe v. Wade
o TX law—crime to attain an abortion except when to save life of
pregnant woman
o Fundamental right? (trigger)
 If not fundamental right, rational basis test
• If under rational basis, then most likely the law will be
upheld
 Need a right to trigger higher level of scrutiny
 RIGHT:
• Right of woman to have autonomy over her body
o Sexual equality/equal protection
• Personal, marital, familial and sexual privacy rights
• Privacy right to decide whether to terminate a pregnancy
• Right to make decisions regarding procreation
o Right to liberty
• Justifying rights
o Text
 Same position as Griswold
• Emanations from penumbras—penumbral rights
o No real textual support
o Not a plausible way to generate a right via these
penumbras vs. retrofitting a right
o Very difficult to prove penumbral theory as in
Griswold
 Really a substantive due process proof of
right
 Substantive claim—no amount of due process can restrict
 • Liberty doesn’t help us figure out why this right is
protected vs. other restrictions on liberty (eg minimum
wage)
o OM/History (OM methodology not undermined when exact
situation/circumstance didn’t exist before)—how provision was
understood at the time (Scalia in Heller)
 Govt:
• At time of 14th A, 36 laws limiting abortion (1868)
o Given that there were 36 laws restricting abortion
when 14th A was enacted, not intending to inhibit
laws governing abortion. Would have been a legal
revolution.
• Laws became even stricter going forward—more of a
tradition argument
• Go to a higher level of abstraction to define principle
when protecting minority rights via text or OM/history
o Positive history
o Don’t need to jettison OM/history arguments
altogether
 Eg go to bodily autonomy
 Challenger
• In 19th century, prevailing legal abortion practices were
far freer than they are today
• Times have changed—laws of 1868 had no women’s
suffrage rights; women excluded from legislatures that
enacted these laws
o Framers might not have considered bodily
autonomy for women
• Skinner case
o Sterilization
• OM on Challenger side, need to negate an OM argument
o Neutralize argument
o Won’t get the right out of OM, but can try to diffuse
the Govt’s argument
o Not real positive support
o Precedent
 Challenger
• Personal, marital, familial and sexual privacy rights
o Griswold, Eisenstadt
o Tradition
 Govt
• Tradition of restricting abortion
o Not respecting right of abortion from mid-19th
century to today
• Right to an abortion not deeply rooted in traditions and
conscience of a people
 Challenger
• Tradition of protecting privacy rights
 • Tradition of protecting bodily autonomy rights
o Extending the tradition of bodily autonomy to
women
 Attacks, imprisonment
 Being forced to have a child you don’t want
challenges bodily autonomy right
 Fundamental right not to bear a child
• Esp not in case of rape
• 9th Amendment
o Doesn’t specify rights
o Role of 9th A not to disparage unenumerated rights simply because
they are not expressly stated in the Constitution
• Making arguments
o Tradition argument
 Can justify right by labeling it as bodily autonomy principle
 Expanding right to men and women
 Fram tradition in abstract way/right in abstract way
 Govt argument
• Narrow framework—right to get an abortion
• Can’t formulate a tradition
 Challenger argument
• Can make a broad tradition and broad right
• At least no formulated intent that precludes our
recognition now of that right
o Can’t make it right to abortion
o Need to make it more broad to have tradition
argument (and rebut tradition/OM arguments)
• Philosopher’s hypo
o Even if the fetus is a person, woman has a right to terminate
o Violinist attachment theory
 If you disconnect, they’re going to die
 Does the person have a right to disconnect the violinist
• Is it a violation of autonomy rights?
• Is there a consensual role of woman in consenting to sex?
2/12/09
• Philosopher’s Hypo of the violinist
o Attaching self to person to have done his/her best to avoid attachment
o Textual basis for right
 13th amendment—slavery, involuntary servitude shall exist in US
• Forced labor (literally)
o Conscripted womb/incubator by state to bear a
child it wants you to bear
• Historical purpose of amendment clear was to abolish
African slavery
o Does it go more broadly than that?
• Andrew Koppelman article
 Establishment clause—no establishment of religion
• Abortion prohibitions are religious points of view
• Enforcing a particular religious creed
o But many laws based upon religious bases
 As long as a secular defense/basis exists
• Personhood
o Who defines when a person is a person?
• Bodily autonomy
o Protected for men, but not women
• Planned Parenthood v. Casey (1992)—Casey
o Roe v. Wade under attack
o Feminists struggled with abortion rights being taken out of political
realm
 Being put into judicial realm
 Almost tyrannical imposition of abortion
o Right to Life movement
 Political activism of conservative women
 Undermined view that women united about this issue
o Huge political issue
 Casey moment it became clear that political movement not
going to get rid of abortion right
o Holding
 Attempt to shore up rights in Roe
• Doctor involved in the right
• Woman in consultation with her doctor making the
decision
o Anti-abortion laws as intrusion of medical
profession
o But doctor component disappears in Casey (as
opposed to Roe)
o Right
 No longer just framed as privacy right
• Privacy right as basis of right questionable since
Eisenstadt
o Ability of people to make decisions
 o Liberty issue
• Not about people seeing you/knowing about it
o About autonomous decision
 Basic decisions about family and parenthood
 Bodily integrity
• Refers back to Skinner
• Protecting people from unconsented intrusions on their
bodies
• Not as emphasized strand b/c O’Connor much more
concerned w/ family, parenthood, procreation
 Roe does not go into economics b/c then issue of Lochner (which
was vehemently overturned)
• Casey distinguishes economic rights
o b/c court has ruled it cannot intervene in economic
realms
 can’t tyrannically express
• Okay for courts to force unenumerated right when not
related to economics/labor
o Tradition argument
 Casey majority rejects traditions argument
 Up front defense of substantive due process
• Court has never prevented upholding unenumerated
rights
 Substantive due process right
• Sex equality
o Female suffering too intimate and personal (as
opposed to economic)
 Rejection of tradition argument (Justice Harlem argument)
• Rejecting tradition of confining women to domestic role
• Not 14th amendment
o Guduldick case—discrimination against pregnant
people not sex discrimination
o Doctrinal obstacle against using equal protection in
this instance
 Synthetic (3-regime) position
• Reason Lochner rejected but b/c American people
rejected economic rights being upheld by Supreme Court
—repudiated court role
• Every time a new amendment gets passed, changes field
of Constitutional investment
o 19th amendment changes role of women
o Women as equals of men
o Women no longer weaker sex
o But Court doesn’t bring in the 19th amendment
• How to reconcile Lochner being wrong and Roe being right?
o How can Court reject judicial interference in economics, but permit it
with abortion?
• Stare Decisis
o Broad view of reliance of decision
o Societal reliance on proposition that women can control whether they
can have children
o Stare decisis of Roe
 Upholding Roe on merits AND stare decisis
• Test has changed
o Roe v. Wade
 Strict scrutiny
• Compelling govt interest
• Means narrowly tailored to meet compelling sate interest
o Casey
 Throws out strict scrutiny
 Uses undue burden test
 Dissent says that backing away from strict scrutiny to create this
undue burden test in the case of a fundamental right will
degrade the right
o Tension
 Must tests be distinct?
 Is it okay to have “mushy” test?
• Strict scrutiny v. rational basis
o Is there any scrutiny ever occurring
o Or are you just expressing a forgone conclusion in
the establishment of test
o Abortion uniquely complicated b/c of balance of interests
 Govt interest in protecting potential life and mother’s health is
especially compelling
• But why not just keep it strict scrutiny and create
compelling interest and narrow tailoring
 O’Connor afraid to
o Undue burden
 Law’s purpose or effect substantial obstacle in path of woman
seeking an abortion
• Spousal notification
o Court strikes down spousal notification
 Provision is unconstitutional on its dace, but that is not how this
issue should be resolved
o Substantial obstacle for 1% of women
o Undue burden test (p. 505)
 Govt interest in restriction plays into undue burden test
 Really a balancing test, considering also govt interest (not just p.
505)
o Violence statistics
 Woman can be so dominated b/c it is totally pervasive
• No longer a rational agent maximizing freedom
• So may not evaluate own liberty to choose
• 24-hour waiting period
o Women who live far from clinic
 Time and money obstacles
 Yet upheld
o Key difference
2/16/09

• “Any physician who, in or affecting interstate commerce, knowingly performs

a partial-birth abortion and thereby kills a human fetus shall be fined…or
imprisoned.”
o Commerce clause
 Commerce clause challenge not addressed by Court
 How is interstate commerce impacted?
• Children can impact interstate commerce
• Doctor used medical equipment that crossed state lines
o Like post- Lopez satisfaction Gun-Free School Zones
• What impacts interstate commerce? What does the
clause modify?
 Steps in Commerce Clause evaluation
• Jurisdictional requirement
o Element of crime that abortion be performed in
affecting interstate commerce
o All jurisdictional requirements have been upheld
that Pope can remember
o Once in the statute, the Court gets deferential as to
whether the action at issue affects interstate
commerce
o But there needs to be an outer realm/slippery slope
stopper?
o If Act were to come back up on Commerce Clause
challenge, what then?
 Need to establish a slippery slope?
• Effecting interstate commerce
≠requiring that something have
crossed state lines
• Magnitude relationship
 How far can you go with a jurisdictional
requirement?
 Will the Court have the will to try and stop
the cart from going down the slippery slope?
• Can you distinguish Lopez (Gun Free
School Zone Act case)?
• Would JR create a hole in the
Commerce Clause rendering it
irrelevant, and completely derogating
state rights?
o Legislative intent/interpretation may merge with
Constitutionality in evaluating JR
• Heart of Atlanta Motel
o Economic transaction (economic v. non-economic)
 3rd step in analysis
o Deferential Wicker test
 Substantial effects test flies
  No way to stop the cart from going down the slope
 Component of doctrine
• Here, JR in statute derails this analysis
o Since you have JR, short-circuits analysis
o By writing in JR, bypassing economic/noneconomic activity
o Protection for state autonomy
 As a proponent of state autonomy
• Upholding Lopez and Morrison
• JR games the Commerce Clause and upholds above cases
• Carhart
o Messiness and disturbing character out in the open
o Partial birth abortion
o Intact D&E=partial birth abortion
 Head of fetus or body through trunk out of womb while fetus still
alive
 Fetal life remains to be terminated
o Does ban on PBA of pre-viable fetuses create an undue burden?
 Post-viable PBA would be permitted, as regulation post-viability
permitted
• Per Casey and Roe
o Casey
 Reaffirms abortion right, sets for undue burden
o Mother’s health
 Intact (IDE) v. Standard D&E (SDE)
• IDE chosen b/c less risk per some MDs
o Facial challenge
 Before the problem specifically comes about
 Court says this does not survive facial challenge
 But what should an MD do if faced with a situation where IDE
safer from mother’s health
 Majority putting off to as-applied challenge this issue of
maternal health
• Carhart v. unusual case
o Fundamental rights trigger exists
o BUT very low scrutiny
 Rational basis
 Reasonable, not compelling state interest
o In line with Casey
 Which moved away from strict scrutiny to undue burden
o Morality issue
 Is morality alone sufficient to overcome precedent?
 But is this just morality? Also protecting fetal life
o Majority opinion doesn’t evaluate undue burden
 Focuses on govt interest
 No real analysis in majority opinion of what real undue burden
on woman might be
• Not until dissent that we learn of IDE benefits for women
Challenger Govt
• Need to reduce risk to mother • Interests
• The actual fetus is not protected o Protect medical integrity
• Glucksberg can be distinguished  Conflicts with
o MD protecting mother vs. medical duty to
fetus promote life
• Statute underinclusive  Public policy issue
o SDE not banned  Glucksberg
o Slippery slope—if you can o Promoting respect for life
eliminate IDE, you can  Protect society’s idea
eliminate SDE of life/killing
o Physician penalized, woman o Protect women from their
not criminal own choices
• Paternalistic to assume women
cannot make their own decisions
o Both to individuals and
women
• Public Funding and Abortion
o Right v. Privilege
 Holmes opinion distinguishing b/w privilege of job of policeman,
so govt can take it away
 Frames issue
o Maher v. Roe
 CT, State funds childbirth, but does not fund NON-therapeutic
abortions
 Challenger: must give equal treatment to both options
• Equal protection claim, NOT substantive due process
o But distinction difficult
o Not SDP b/c govt could solve problem by ceasing all
funding, even if challenger wins
 Premise you can’t fund childbirth if not
funding abortion
 Giving $ for medical expenses, but
conditioning it on not exercising
constitutional right to abortion
 Discriminating against those who exercise
that right
 Opinion
• CT statute places no obstacle to women seeking abortion
• CT providing funding for childbirth, but the situation has
not created an obstacle
• Women have no complaint, no obstacle placed in their
way
o No disadvantage as a consequence of childbirth
funding
 Dissent
 • Suggests that the woman is coerced into carrying her
baby to term by law
• State inhibiting fundamental right to make choice free
from state interference
• Targeting procedure that is fundamentally protected
o Harris v. McRae
 Procedures are medically necessary
 Federal govt barred use of funds for abortion except
• When rape or incest
• Or save life of pregnant woman
2/17/09
• Funding cases
o Right/privilege distinction
o Unconstitutional conditions doctrine
• Maher v. Roe
o Right/privilege distinction
 Baseline of no funding
 CT doesn’t place an obstacle in the path of woman seeking an
abortion by providing govt paid healthcare in childbirth
• But dissent says coercive
o Coercion
 Not a scientifically determinable reality
 Moral judgment
• There is always a judgment/choice
• Is the choice acceptable or not?
o Eg gun to you head, do this or die
unacceptable choice
o Involves ethical/moral judgment
along with facts of the case
o 6-3, not unconstitutionally coerced
• Harris v. McRae
o Federal govt
 Paying for all medically necessary healthcare EXCEPT medically
necessary healthcare of abortion
 Removing medically necessary treatment associated with abortions
 Punishment for choosing abortion
 5-4, not unconstitutional
• Rust v. Sullivan
o Condition imposed on any facility receiving federal funding
 Cannot provide information/counseling of abortion as method of
family planning
 Doctors forbidden to say anything about abortion as an option
o Holding
 Condition reasonable
 Fed govt not required to fund any healthcare, right/privilege
 Contrasts SHARPLY with free speech context
• Eg Holmes’ comments about firefighter not having right of
job, only privilege
o Overruled
o Right/privilege distinction does not prevail for govt
employee
 Govt cannot impose condition of giving up free
speech rights in exchange for a govt job
 That enables govt to control free speech rights
 Now being let go has to do with job performance
 Purpose of funding
• Convey message that govt wants to convey (majority)
 • What is the govt interest in withholding information on a
procedure woman has a constitutional right to select?
o Interest in ignorance in women?
o Interest in protecting fetal life
 But is the means of promoting end by ignorance
reasonable?
 Gag rules rulings go back and forth
• Obama rescinded such regulations on first day of office
o Bush I had regulations, Clinton eliminated, Bush II
reinstated, Obama eliminated
o Responsive to political process
o Woman is Rust situation may be worse off with govt funding
 Contrast w/ Maher v. Roe
• Condition doesn’t change—no funding either way for abortion
under Maher
 Situation in Rust different
• Going to doctor with expectation that Dr. will effectively
convey options
• Woman ends up with distorted perception of options
o Would think that MD is thinking of woman’s best
interest
o But distorted information from a relation of trust/seem
would be obligation
o How does this relate to torts requirement for informed
consent?
 Con Law deciding outcomes, but one not an
outcome
• Con challenge prevails, then outcome
determined
• If she loses, outcome not determined, just
left to political process—can go back and
forth, as with gag rules
 Con Law deciding who is going to decide
• Not necessarily a question on the merits
• Rust v. Sullivan on thin ground
o b/c of first amendment element
o discrimination in 1st A element in free speech generally viewed with VERY
strict scrutiny
 vs. notion that govt can spend on anything it wants outside free
speech/1st A realm
o Should govt be able to manipulate someone in a professional relationship?
• Funding and Abortion
o In the political realm—gag rule
o Method of federal or state control to regulate by spending
o Spending Power issue
 b/c in Federal realm, also have a spending power issue
 but this also adds an additional right not in spending power doctrine
• Palko: “Implicit in the concept of ordered liberty”
• Moore/Harlan in Roe v. Wade: “Deeply rooted in this nation’s history and
tradition”
• Casey: “Choices central to personal dignity and autonomy”
• TEXT: 2A, 1A, but implicit fundamental rights have no express text

• Evaluating fundamental right relative to each case’s definition

o Stating right specifically OR abstract
o Specific formulation of the right vs. abstract formulation of the right
o Govt wants specific formulation
 More specific, less likely able to find a deeply rooted tradition of
liberty
o Challenger wants abstract YET connected to the right
 Don’t want it to be TOO abstract, but abstract enough to protect
tradition
 Find a level of abstraction high enough for plausible arguments
• Sounds grand and important
• w/o being too abstract so it applies to everything and subject
to a slippery slope
o Reference point of debate b/w Brennan/Scalia on p. 485
 Being able to see and argue/state claims at different levels of
abstraction
 ON EXAM!!!!
o More specific, more rooted in past, more binding
o More general, more abstract, create a possibility of changing perception of
rights that might be more important to minorities/women

Griswold Roe/Casey Moore Michael H. Glucksberg

Right to Right to an
contracepti abortion/
on/ Procreative
Privacy in choice,
marriage Personal
autonomy
Palko Specific— S—N
“Implicit in NO A—(Y)
the concept Abstract—Y
of ordered
liberty”
Moore/Harla Specific— S—N
n in Roe v. NO
Wade Abstract—Y
“Deeply
rooted in
this nation’s
history and
tradition”
Casey Specific— S—Y
“Choices (YES)
central to Abstract—?
personal
dignity and
autonomy”
• Moore
o E. Cleveland housing ordinance
 People who can live together very narrow conception of family
 Grandmother prohibited from living together with son and
grandson and other grandson with different parents
o How to state the claim in this case?
 Right/interest of claimant
• Challenger
o Right of personal choice in family life
 Interesting in context of non-traditional living
arrangements
• Eg. Stanley v. Illinois
o Right to determine who is in your family
o Right of an owner of residential property to decide
who may reside on his property (Stevens)
 Takings clause
 Notching up the right from SDP to TEXT
actually in Constitution
 Downside of approach that it expands the
takings clause that might challenge
regulations
• Consequences of laws
o Right to determine living arrangements
 But goes against Village of Belle Terre
ordinance
o Right to decide which relatives can be called family
o Liberty interest in familial companionship
o POPE: Right to determine which relatives can be
called family in the determination of living
arrangements
• Govt
o Interest in residing with more than one set of
grandchildren (White)
o Interest in permanently sharing a kitchen and suite
of contiguous rooms with some relatives (Stewart)
 o Tradition
 Slippery slope stopper of tradition
 Tradition can be ascertained via historical research
 Can restrain court
• Otherwise court can be invited to make moral judgments
 Framing tradition
• Same way as right
• Frame tradition to fit right
• Stating right predetermines tradition
• Tradition
o Use a broad formulation of tradition or narrow form
o Majority/Plurality (BROAD tradition to match abstract/broad right)
 Tradition of families living together and sticking together
 Included in that is the tradition of extended families
• Reference to immigrant extended families
• Esp. in times of adversity and economic need
o Does this challenge Lochner?
o Dissent (NARROW tradition to match specific right)
 Tradition of living with one set of grandchildren, hard to find a
tradition
 Going up one level of abstraction makes it easier to find
tradition
• 3 steps for SDP
o So far, everything at fundamental rights stage
o 1) right (trigger), 2) test (strict/rational scrutiny), 3) apply test a)
identify govt interest, then b) over/underinclusive
o Moore
 Both over AND underinclusive
 Identify govt interest
• Traffic and parking
• OVER: This ordinance prohibits those living together, even
if none has license
• UNDER: a bunch of family members with 12 licenses can
live together
• Fails to hit some and prohibits those to whom it has no
impact
• CRITICAL analysis
o Most legislative enactments either, many both
o Under/over argument KEY
 Identifying the cases in either zone
 Making argument persuasive is finding an
example in each case of OVER and UNDER
 Find a family that illustrates it is OVER or
UNDER inclusive
 Need examples that drive the argument
 1) found fundamental right
 2) test
 • No clear what test, but theoretically strict scrutiny
• Once you have a fundamental right, SHOULD be strict
scrutiny
• But here they don’t use specific compelling interest
standard
• Structure of different evaluations strict v. rational v. intermediate scrutiny
o Substantial relation=intermediate scrutiny
o World of tests2 worlds
 Theory
• Judges say they are applying a certain test
o Rational, strict, intermediate
 Real world
• Critical v. deferential
o What are judges actually doing?
o What are theoretically they supposed to be doing
 RATIONAL does not have OVER and
UNDERinclusive technique
• Should be only rational, reasonable
govt interest
 UNDER or OVER just for intermediate or strict
scrutiny
• Washington v. Glucksberg
o WA prohibits assisted suicide
 Unanimous decision, with many concurrences
o MDs challenge saying they would be assisting suicide
 In position of claiming right of patients
o What is right?

Challenger Govt
• Right to decide how to end your
life
• Right to determine the course of
your life (“last chapter”)
• Right to a dignified death
2/19/09
• Levels
o Polygamy
o Incest
o Prostitution
o Masturbation
o Adultery
o Fornication
o Bestiality
o Obscenity
o Sado-Masochism
• Glucksberg
o WA statute banning assisted suicide
o Narrow approach to original meaning
o Narrow approach to framing tradition
o Rehnquist
 Majority for narrow approach to tradition
 Test/Analysis but not methodology of Moore adopted
• Fundamental rights and liberties deeply rooted in nation’s
history and tradition
• Unenumerated fundamental right standard
 Moore
• Broad view of right of families to live together including
extended family
o Here very specific right highlighted
 No deeply rooted tradition highlighting that right
o Assisting suicide
 History/OM argument on p. 534
• But rejected such an argument in Roe v. Wade
o Dissenting opinion talked about restriction of
abortion on 14th Amendment
• Casey more explicit rejection of history
o Both OM and tradition
o What is the actual holding of the case?
 Received wisdom taken from case varies from case to case in
terms of how it is used/fits in with other cases
o Unanimous decision on merits
 Everyone votes to uphold law
 But many opinions
• Freedom from pain clear element
• Justices indicate would be willing to strike down law that
would prohibit dosages of painkillers that would hasten
death
o But no difference in OM analysis
o What in their minds is it from a legal point of view
that would make a difference?
 Right to pursue happiness
 • Declaration of Independence
o Part of corpus of authorities, but
hasn’t been adopted by courts
o Popular movements do track
Decl of Indep.
 Social movements
 Women’s rights
 Labor movement
• 14th A incorporates the BoR against states
o Most of them are incorporated
o Applying BoR guarantee to state
• 2 Circuit Ct of Appeals case about 2nd A just decided
nd

o Should 2nd A be incorporated into 14th A?

• Consensual sexual choices
Challenger Govt
Fundamental right has been Bowers: No right to engage in
infringed: homosexual activity
Adult persons have right to decide
freely, without coercion, how to
conduct their private lives in matters
pertaining to consensual sex
Tradition: ancient tradition of same- Glucksberg: Narrow approach to
sex relationships despite regulation original meaning, Narrow approach to
(sort of a natural law argument) framing tradition
Casey (drawing on Roe): intimate No tradition of homosexual sodomy
personal relationships approval in our nation US constitution
Casey: rejecting male traditions as —does not incorporate deep ancient
gender equality—protect all rights, traditions
both those important to women and Usurping the political process—we
men have not embraced this tradition
Equal Protection (O’Connor): Law
discriminates against people of same-
sex orientation
But EPC has resisted saying that
homosexuality is a suspect class
Romer v. Evans: Strikes down a
classification based on sexual
orientation on a rational basis test
Structure: people of same-sex
orientation have been discriminated
against
Forced underground by
overwhelming societal disapproval—
gay rights advocacy criminalized
Overly narrow tradition resulting from
non-access to political process

• SDP steps
o Fundamental right (trigger)
 o Name test
o Applying test (STRICT SCRUTINY)
 Identify Govt interest
• No legitimate govt interest in Lawrence
o If govt interest, health reasons?
o Protecting traditional heterosexual family
 Sex as supposed to be limited to marriage
principle erodes
 Assess Govt interest
 Assess Means-Ends fit
• Underinclusive b/c risks for anal for all sexualities
• Overinclusive b/c oral sex not risky for healthy
• Rational basis scrutiny
o Whether a legislature had a reasonable and not an arbitrary basis for
enacting a particular statute
 Legitimate state interest is rational basis language
 Court can hypothesize govt interests in rational basis tests
• Govt need not come up with interests
• Can be farr-reaching, as long as not unreasonable or
arbitrary
o When a court employs the rational basis test, it usually upholds the
constitutionality of the law, because the test gives great deference to the
legislative branch
o But under rational basis, under- and over-inclusive tests/arguments don’t
kill the legislation
 Legislature doesn’t need to legislate with precision
o Don’t get into facts
 Just has to not be ridiculous to be able to legislate about it
• Is structure of tiers of review crumbling around us?
o Tiered scrutiny still exists
o Supreme courts can depart, but others don’t
o Is Lawrence an outlier, does it represent decline of tiers, or is it just a
mistake, and will be reviewed/overturned
2/23/09
• BMW
o Damage to P: $4,000
o Punitive Damages: 1,000 x $4,000 =$4M
o Ala S. Ct. Remit: $2M
• Phillip Morris
o Damage to P: 0.82M
o Punitive Damages
• Gay marriage
o Does Lawrence dictate a holding that a refusal to grant marriage to
same-sex couples on same-sex couples
o 3-step process
 Is there a fundamental right?
 Test
 Apply test
• Strict scrutiny
o Govt interest
 Marriage as related to procreation?
• But lots of reasons people get married
that has nothing to do with children
• AND in same-sex couple, may still be
seeking to procreate
• Over and under-inclusive
o Where does the word marriage come from?
 Tri-partite contract b/w man, woman and state
• Breaks out of natural law, tradition, religious relationship
o Substantive due process
 Could be dictum from Loving v. VA
• Statutes prohibiting interracial marriage struck down
• Equal protection/suspect class doctrine
• Strict Scrutiny
• Separate line of reasoning
 Prohibition of same-sex marriage similar
• BMW
o See above math
o Suing in AL state court
 BMW repaired scratch w/o telling consumer
• Detriment of $4,000 MV of car
• 982 times—round up to 1,000
• $4M in punitive damages
o Appellate court
 Formula unlawful b/c all but 14 cases outside AL
 Could punish D based on multitude of factors
• $2M lawful
o SC
 No, unconstitutional
Challenger Govt
Right not to have property taken without Right to be free from a grossly excessive
due process of law reward
Right to fair notice of Substantive right
sanction/punishment

• Substantive v. procedural due process

o Court sounds like they are addressing a substantive due process issue
 But don’t evaluate a substantive right under Glucksberg (or any
o Do you have right to procedure or fundamental right?
o Majority didn’t say there was anything wrong with the procedure
 Procedures seemed to be just fine
 Fact of size of the award itself was problematic
o Substantive due process has questionable legitimacy
 Well-established, but treading on controversial ground
o Substantive due process test
 Is it a fundamental right?
• Deeply rooted in the traditions and conscience of the
people (Glucksberg—assisted suicide/right to die)
• Abortion (Casey—frames right more broadly to grant
fundamental right)
o Can have substantive due process right even
though no tradition in narrow sense (only broad
sense)
o Rejected negative tradition of white men not
protecting women’s rights
 So can’t go back to OM/tradition
• BUT Casey is about PERSONAL dignity and autonomy
o Theme of modern substantive due process
o Coming out of Griswold
 Important to self-definition
 Figuring out who someone is in relation to
universe
• Economic rights NOT protected after Lochner’s rejection
o Lochner’s strong rejection in New Deal era
o Distinction b/w personal dignity and economic rights
• Procedure
o Fair notice
o Don’t have to deal with creating rights out of nowhere
• Cases on punitive damages
o All deal with corporations
o Consistently defrauding consumers
 How hard/easy is it to bring these cases
o Juries decide that it is unacceptable to deliberately continue these
policies
 Corporations made a risk assessment and decided to continue
• BMW
 o Cannot consider harm to people in other states in calculating
compensatory damages
 But why not?
 Can’t be punished for what you did to people not under court’s
jurisdiction (esp if activities were legal in other state)
 BUT can determine how wicked you are to establish magnitude
of malice for punitive
o What is the Constitutional concern?
 What value does award interfere with
• State sovereignty/autonomy
o Taking away policy-making capability of states
o States benefit b/c corporations go to states that are
lenient (i.e., not Alabama)
• Phillip Morris
o Harm not just economic (like in BMW)
o Harm is DEATH
 Wrongful death
o Charge:
 Co. knew that cigarettes were lethal, and systematically
withheld that information
o Punitive damages
 $79.5M in OR trial jury
 Trial judge reduces to $32M
 Appellate court goes back to jury award
o US SC says jury instruction issue
o Burden of proof issue
 Govt has burden to establish govt interest
o Outcome
 Jury instruction flawed
 Reinstated full damage award that jury instruction had to be
clear
• Erroneous trial judge ruling
2/24/09
• BMW, Phillip Morris
o Revival of economic due process?
 Interest of corporations v. individual
 Constitutional considerations play a major role in what’s going
on
• Constitutional politics?
o Liberals limit punitive corporate damages
o Conservatives want to permit high punitive damages
o How long will these cases survive?
 National League
• What is a grossly excessive punitive damage award?
o No real standard
o How reprehensible is the conduct?
 Should justices or jury be deciding?
1. Identify classification
2. Trigger
a. Suspect Classification?
b. Fundamental Interest?
3. State test
a. If either a or b, go above rational basis
i. Either strict or intermediate
b. Suspect classification
i. Strict scrutiny
ii. Quasi-suspect class
1. Intermediate scrutiny of 2 major kinds of classification
a. Legitimacy of children
b. Sex
4. Apply test
a. Identify govt interest—can come from anywhere
i. Even if lawyers for govt don’t come up with one
ii. In MRB, has no actual relationship
iii. Can even hypothesize a govt interest
b. Assess govt interest—legitimate
c. Assess fit of classification and purpose (means to ends)—rational
i. Overinclusive—OK
ii. Underinclusive—OK to take one step at a time in regulation
iii. Consider evidence—NO
iv. Last discriminatory means—NO

• Equal Protection
o Every statute treats some people differently from others
 Distinctions in virtually every statute
 Classification
• Have to decide how classification is going to be reviewed
if challenged on equal protection grounds
o Game for challenger
 Get level of scrutiny up above rational basis (like due process)
• Rights at specific and abstract level
 • Inconsistent doctrine, room to maneuver
• Rosetta Stone of different levels of scrutiny (tiered level of judicial review)
o Carolene Products Footnote 4
 Starting point
 New Deal Era
• During era of judge packing plan by FDR
o 3 types of legislative classification suitable for heightened scrutiny
 Facial conflict with specific rights guaranteed by Constitution
• Speech
 Those that inhibit democratic process
• Right to vote
• Restricting channels of political change
• Leg is screwing with the democratic process
• Skewing the rules and making political process unfair and
not functioning properly
o Putting obstacles in the way of political change
• Judges can serve as referee even though not politically
accountable
 Classify on basis of race, religion or membership in other
discrete and insular minority
• African-Americans
• Groups that have been prejudiced against—no one wants
to ally with them
• Vulnerable in political process
o Size is not key
o All kinds of minorities exist
 Minority identities can group together to
pass legislation
• Unless you are barred from grouping,
then not a discrete and insular
minority
• Rational basis test
o Minimum rational basis test
 Very lowest on the spectrum from Minimum RB to SS
o Even though very rarely (if ever) will something be rejected on rational
basis test, still need to know the
• Railway Express Agency
o NYC traffic regulation prohibits advertising truck signage unless it
advertises business of truck owner
o REA challenges regulation
 Wants to sell space to advertisers
o Rational basis test
 Legitimate purpose or interest
 Rational relation between classification and purpose
o RB test applied
 Govt Interest
• Purpose—traffic safety
 o Avoid distractions to drivers
o Clear legitimate purpose
 Almost everything is legitimate unless it’s
out to harm someone
 Fit
•Evaluate classification and purpose relationship
•Rational b/c limits overall advertising quantity and type
•Minimum rationality
o Politics is politics
 Ok to have NYT lobby to have the difference
b/w owning and not owning truck
 For democratic process to determine
• People can mobilize
• Nothing about this makes us
suspicious
• Govt may proceed one step at a time is OK
• Jackson concurrence
o Difference b/w people who advertise own business v. sell ads on truck
 Making value judgment
 Doesn’t really elaborate on difference, though
• More like a philosophical statement
o Functions of underinclusive analysis
 Possibility that vulnerable minority is getting singled out
• REA more vulnerable that NYT
• But Jackson not worried b/c real difference
o But this not in line with actual rational basis test
o Consider what real legislature would do
• Willamson v. Lee Optical
o Opticians barred from making glasses w/o a prescription
 Manuf of ready to wear glasses challenge this
 Look at hypothetical legislative body
 But look at leg history and see strong ophthalmologist lobby
• True minimum RB
o Rarely struck down
• Beazer
o Excluding methodone users from all jobs
 Not just driving
 75% of methodone users pose no risk, and are still excluded
 No suspect classification
• Fritz
o Classification
 RR workers who weren’t there in 1974 AND hadn’t been there
for 25 years
• Burdened group
• Group burdened by law
o No connection to RR in 1974 AND
o Hadn’t completed 25 years of RR service by 1974
 o Eliminate double-dip pension
 Social Security and RR entitlement plan
 BUT there are some vested pensions
• Even though they were double-dipping, they didn’t know
they were double-dipping
o Taking $ away from people and giving it to others
 Dues-paying union members in 1974
 Economic need
o Majority says purpose of classification is equity
 But not really identified w/ research
 Dissent looks at actual motivations, what actually happens
• But then that test wouldn’t be MRB
• What if Congress stated outright its purpose was to favor current union
members at expense of other workers?
o How would we evaluate government interest
 Tie to public purpose of pro-unions
2/25/09
• Moreno
o Food stamps by household
 Classification (burdened class)
• Households containing nonrelated members
 Trigger
• No Fund’l Interest
o Welfare for unrelated households not a
fundamental interest
 Affirmative assistance by govt
 But if they’re going to give out food stamps
to anyone, should they discriminate?
o Economic right
 Non-textual economic rights defied by
Lochner
• Not a suspect classification
o Is there a history of prejudice against the group?
 Test
• Rational basis
 Govt interest
• Minimizing fraud
• Maintaining the traditional family
• Court says:
o Outright hostility to a group
 Application
• Means-end fit
o Rational?
 But legislative history being examined here
• Not in line with official rational basis
test
• Often assumed to be a problematic
endeavor
o Offensive to legislative process
o Challenges democratic structure
o Opens a can of worms
 People can have all kinds
of motives
• Romer
o CO Amendment 2
 Cannot make sexual orientation a protected class
• Immediate effect of eliminating ordinances in liberal cities
in CO
• Purported to merely deny special rights to homosexuals
o Removed gays from anti-discrimination laws
 But may have done more
• Laws prohibiting protection from arbitrary government
action no longer protected homosexuals
 • But Court does not rely on that as reason for the opinion
 Homosexuals now actually have a more difficult process
• Can’t pass ordinances or state statutes without
amendment
o Suspect classification
 Homosexuality as immutable
• But Bowers v. Hardwick still good law
o Allowed sodomy to be criminalized b/w same-sex
o Govt interest
 Protect freedom of association of people who want to
discriminate against homosexuals
• Court says it is not a legitimate government interest
 Court says
• Hostility to a group
o As combined with the relevance of the interest
o Means-Ends fit
• Both cases involve situations where even though Court does not say there is
a SC or FI, applies techniques not part of rational basis test
o Plausible, not prevailing arguments insufficient like other RB cases
o Court does not adopt a critical test
 Make suspect class and fundamental interest claims with
vehemence
 Might not with suspect class, but might ratchet up scrutiny
• Ct looked for illegitimate purpose, which they don’t
usually do in RB
• Amendment 2 powerful symbolic effect
o May account for lengthy discussion despite lack of immediate hard
legal effect
o Identification of a class of people of same-sex orientation and
discriminating against it
o Court taking a side in culture war, per Scalia
• Cleburne
o Group home composed of mentally challenged subject to permit req’t
that many others are not subject to
o Equal protection challenge
o Suspect classification
 Real differences between mentally retarded and mainstream
 Discrete and insular
 History/negative tradition of discrimination and maltreatment of
people with disabilities
o Secondary Trigger
 In addition to SC and FI
 Institutional concerns about whether courts should be
intervening in this area
• Difficult and technical matter
• Govt policy and discretion should be for legislative branch
• Judiciary should be making clean-cut decisions
 o Avoid matters of degree, leave to Govt
o Govt interest
 Fear of the neighbors
• Illegitimate—unsubstantiated by proper factors
o But what about property rights
 Students might harass occupants
• Illegitimate
 Concern with possibility of flood
• Illegitimate
 Size of the home
• Illegitimate
2/26/09
• Rational Bases cases
o Implicit theory in CB
 3 categories of cases
• Real minimum rationality
o REA, Lee Optical, Fritz
• Piercing RB, govt intent
o Moreno, Romer
• RB with bite
o Cleburn
o Pope
 All 3 cases RB with bite cases
• Ct says it is applying RB scrutiny, but not same as REA,
etc.
o More critical version in which you can do things
o Probe legislative purpoise
• Effect as a litigant
o Representing challenger
o Raise arguments for FI and SC
 Even if don’t get RB, losing at symbolic level
 But RB with bite, so in practice can win
• Argue as strongly as possible to get
across case, even though no new SC in
more than 30 years
• No FI in about same time period
• Still might get heightened RB scrutiny
operationally
o RB with bite
 Undermines judicial branch
• Becomes increasingly political
• Less predictable
• No true test that can be followed
• Lack of doctrine that is followed vs. stated
 Question of Realpolitick
• Stevens objection to levels of scrutiny
o Do a common law enterprise
 o Tough to get him on any effort to recognize SC or FI
 Distinguish doctrine from hard kernel holdings
• Strict scrutiny and suspect classifications
o Race and ethnicity
 Bowling v. Sharpe
• No equal protection clause applicable to govt in
constitution
• 14th A has equal protection clause
o No state shall…
• 5 A contains due process clause but no equal protection
th

clause
o Fed govt
o States bound by EP guarantee, Fed govt not bound
• Case determines unthinkable that same Con would
impose a lesser duty on Fed govt
o In 14th, not 5th
o Nodal point in view that Con must evolve
 Doctrine must smooth over edges
o Interpretive view of Con
 Challenged by textualists
• Liberals trying to expand discrimination against race
protection
o Trying to expand Con
o But contrary to affirmative action
 But now can’t do affirmative action in Fed
govt
o Goal to empower Fed govt to act
 Contrary to intention of Bowling v. Sharpe
• Context
o Civil Rights in 1954, Brown v. Board just decided
o Court trying to simplify political struggle
• Good prime example of case in which court throws out
text and throws in something else
• Equal protection analysis in 5th A same as 14th
• Race classifications
o What is race
 Social construction view of race
• Race is made up, created, has no objective existence
• Once race category is determined by criteria
o Then can use objective criteria to place into
categories
• Some classifications of mixed-race depending on
countries/context
 Factors
• Appearance
• Self-identification
• Descent/Formal Race
 o Legal classifications (1/8-1/32)
o African blood as really powerful
o Biology
 Genetic differences not a race unless you
make it as such
• Culture
o Context/Experience
• Historical race/tradition
o Treatment of blacks in the South
o Core experiences to which others are being
analogized
 Which criteria are key, which are not?
o Think about dimensions
 Descent/Formal race
• Appearance and descent recognized as suspect
classifications
• What about other factors of race?
 Self-identification counters idea of immutability
• Idea of “passing” as another race
• Hernandez
o Mexican-Americans in TX brought a race discrimination case
 Being excluded from juries
o Holding
 This is not race classification
 Mexicans can be any race
 Inquiry by Court
• Looked at how the people of Mexican descent were
treated in TX county
o 2 restrooms
 Colored in Spanish and English
o Mexican was a race in this county
• Why is race a suspect classification
o Race the quintessential example of suspect classification
 Look at Con Law arguments
• Text
o No mention in Con of race
• OM/history
o Purpose of 14th A was to protect the freed men and
women
o Civil/Political Rights
 EP Clause may not have intended to permit
right to vote with 14th A
 May not have intended to create rights of
equality in social sphere
• Miscegenation was intended to remain
a crime
o Scope of intent of protection intended to be narrow
 • Structure
o Black people in South were quintessential discrete
and insular minority
o Could not defend interests in ordinary politics
o Carolene Products FN 4
 White elites mobilized together
o History/level of discrimination can’t ally with
groups
• Precedent
o Evolves, changes
• Tradition
o Negative tradition of discrimination
• Consensus
• Natural Law
o Immutability
o Not chosen
 Criteria irrelevant argument (Consensus)
• Pope doesn’t like this
• Misdescribes what is going on
• Criteria are highly relevant in culture
o Used in culture all the time
o Unconsciously used
• Aspiration
o Mean it SHOULD be irrelevant
• Race is a stand-in for many things
o Systematic denial of education for generations
o Systematic discrimination
 No land
o Odds of poverty high
 Race as stand-in for economic status
• Race not irrational or irrelevant
• Proving intentional discrimination difficult now
o Often not an express component
• Intentional discrimination (647)
o Facially discriminatory classifications
 Strauder v. WV
• Only white men on jury
o Neutral classifications applied in discriminatory fashion
 Discriminatory application
 Yick Wo v. Hopkins
• Wooden laundry
 Facially neutral classification applied on a suspect basis
 Party challenging classification has burden of proving
 Need statistics
o Neutral classifications motivated by discrimination that produce a
discriminatory effect
 Discriminatory impact
  Gomillion v. Lightfoot
• Redrawing Tuskegee boundaries to exclude only black
voters
• 28-sided uncouth figure
• Impact shows intent
• Disparate impact
o Washington v. Davis
 PO test
• Failure rate 4 times greater for black than high
 No prima facie demonstration by P
• Failure rate 4 times greater
• BUT court doesn’t want to require govt to bear burden
o Doesn’t want to shift burden
 Impact alone not sufficient
• Invidious quality of law claimed to be racially
discriminatory must ultimately be traced to a racially
discriminatory purpose
• Could result, even if govt has best of intentions
• OK for govt to want to require communicative skills on
part of police officers
o Test measures those skills
o Legitimate interest
o Rational basis test
 Not irrational way of pursuing that end
 But wait, which communicative skills are being tested
• That would be strict scrutiny
• This is RB
• Is it relevant to particular job at hand
o Brennan and Marshall dissent
 On statutory issue
 Did not reach the constitutional questions
 Slippery slope problem
• Many laws discriminate
• Also, race being a stand-in for poverty/economic status
• Any law that disproportionately burdens poor will
disproportionately burdens blacks
• What is the trigger for Title VII?
o No such thing as RB with bite at time of Washington v. Davis
3/2/09
• Proving Discriminatory Intent (if not de jure, not on the face of the policy; if
facial, go straight to strict scrutiny)
o Arlington Heights
o Impact
 “Unexplainable on grounds other than race”
• Arlington Heights
• Unusual b/c race a stand-in for some many other things
o Person of color more likely to have less education,
less money, etc.
 Eg Gomillion (28-sided uncouth figure); Yick Wo (Asian-owned
vs. white-owned laundries enforcement differed)
 After Washington v. Davis, impact alone unlikely to be enough
• Even though black applicants’ failure rate was 4x whites,
not enough for intentional discrimination
• Courts were not relying on mitigating facts
• Even where no mitigating facts, courts demand more than
impact evidence
• Impact not enough
o Historical background
 Rogers v. Lodge
• Although usually need more than in that case
o Departures from normal procedural sequence
 Washington v. Davis
• Suppose they didn’t have test in place until black
applicants began in number (hypo—not reality)
• And then put in test with grossly disparate impact
• Would that be enough?
o Good argument to make
o May or may not be enough to represent a
departure from the normal procedural sequence
o Wouldn’t just be coincidence to match with time
that large # of black apps started coming in
o Legislative & Administrative history
 Eg statements from legislators
• Two playgrounds hypo
o Park A (north), Park B (south)
o Black pop in south
o Fights with alleged racial overtones in Park B
o Close park B, only north park A with easy access to whites, not blacks
o Is this discriminatory?
 Good reason to close park b/c of fights
 Is closing park discriminatory action?
o Discriminatory effect
 Fewer black kids
 Impact easy to show
 But easy to explain on grounds other than race
• Burden on P to prove
o Impact enough insufficient per Washington v. Davis
o Is there a departure from normal procedural sequence?
 Maybe in history of fights, normal procedure not to close parks
 Just b/c there is a violent situation doesn’t mean we shut down a
property
 If in history, closely analogous decisions didn’t happen this way,
may be departure
o Legislative and Admin History?
 What if 3 members out of 5 say black kids are bad, we need to
close park b/c they can’t get along
• Smoking gun—strict scrutiny!
 Hypo 2: we need to do something about the violence, feel bad
about the disparate impact, but don’t have $ to police/improve
• Interracial fights causing violence and problem
• No smoking gun under Feeney
• Reasonable, non-racial explanation
• Feeney case
o Worst case for challengers trying to escalate
problems
o Feeney test
 Decisionmaker has to have selected course
of action because of, not merely in spite of
adverse effects upon and identifiable group
 Courts don’t always honor that, but Ds argue
Feeney
 Hypo 3: White kids are intolerant, can’t put up with black kids,
but there’s nothing we can do about it, too much of a problem,
kids aren’t going to get along, b/c white kids can’t put up with it,
so we’re shutting down the park
• Placing blame on majority white group
• Conceding fact that black kids not causing the problem,
but they still have to suffer
• Palmore—court says cannot make policy based on
avoiding racism
o Child custody case
o Willing to impute private discrimination to govt
o Similar to Cleburne
 Just b/c people going to be hostile to mental
group home, not legitimate reason for
prohibiting it
• Palmer—town closes municipal pool
o Uneconomical to run after desegregation
o Court permits such closure
• 2 contradict each other
o Stand as poles opposite one another
o Palmer
 Departure from procedure
  But still no intentional discrimination
 Court might have been afraid of slippery
slope
• If go other way, courts might be
involved in facially neutral situations
countless in number
• Rogers v. Lodge
o Outlier
o About right to vote
 Indicates/evidence they will in some cases ratchet up scrutiny
with right to vote
o Combination of a suspicion of discriminatory intent plus inability to
vote
o Past history of racial discrimination pervasive in county
 But applies throughout the country
o Court fears political process
 About channels of change as well as the element of suspect
classification
 Analagous to rational basis with bite
• Possibility of varying approach with additional triggers
• Might raise the level of scrutiny up
• Even though not enough proof of intentional
discrimination
o Enough to get court to say race discrimination
• Fundamental Interest or Outer Periphery of Fundamental Interest
o Rogers v. Lodge
o Upped scrutiny
 Sort of like RB with bite
• Intentional Discrimination
o Need not be shown by preponderance of the evidence
o Lots of ways to combine impact with something else to meet standard
• Official racial segregation
o Cases in early phase involved de jure race classification
 Odd type of de jure segregation
• Exclusion of blacks from juries
o Disadvantaged subjugated group defined by race
 Segregation laws apply formalistically the same way to
members of different races
• If blacks can’t enter white car, whites can’t enter blacks
• Hence the idea that separation when equal, then
Constitutional
o Plessy v. Ferguson
• Plessy
o Majority denies that there is any implication of white supremacy in law
preventing whites and non-whites from riding in same car
 No badge of inferiority
 Only b/c colored race chooses to put that construction upon it
 o Majority not considering context
o Harlan dissent
 Constitution neither knows nor tolerates classes among citizens
 How to tell if there is discrimination unless you look at it and
identify it, which means you can’t be color-blind
• A little contradictory
 Also says that everyone knows that this segregation law is part
of system of white supremacy
• Answers court’s rejection of inferiority
o Statement of colorblindness used
• Loving
o Not EP ruling, but
o Anti-miscegenation laws
o White supremacy intent not legitimate state interest
• NAACP strategy
o Attack equal prong of separate but equal
o Used higher education
 Facts of cases are relatively clean
 Less focus on funding, etc, that would apply to public
elementary schools
o Move Court toward Brown v. Board of Ed
o Missouri ex rel. Gaines v. Canada
o Sweatt v. Painter
o McLaurin v. Oklahoma
• Brown v. Board of Ed
o Challenge of segregated school systems
o Grouping of cases
o D asserts precedent of Plessy v.Ferguson
 Court not impressed by that line of argument
o History of adoption of 14th A
 Inconclusive sources
 Historical research revealed that racially segregated schools
very common in 1868
 Even audience watching Congressional debate was segregated
 Using historical/OM methodology
• Dissent in Roe v. Wade
• Majority in Glucksberg
 Hard to prove that intent was to ban segregated schools
• Not basis upon which to overturn Plessy
o Overturning Plessy
 Inferiority complexes results from state-sanctioned segregation
• Famous doll studies, white and black dolls
 Education
• Is education a fundamental interest?
• Where public education is provided, education is a right
which must be made available to all on equal terms
• Separate education facilities are inherently unequal
 • Application of EP to public schooling specifically
o Narrowly applied
• Education context stiffens their resolve and girds their
loins
o Segregated education perpetuating white
supremacy in the south
o US as beacon of democracy in the world
 US looks bad b/c of de jure segregation
 Looks like not a democracy
 But after Brown, challenges come up to other segregation,
deemed unconstitutional by citing Brown
• Even public golf courses
o Clearly not an essential/fundamental interest to
have, in contrast with education
 Education plays a role in stiffening court’s resolve in defense of
decision
• When time comes, the court extends the assumption that
separate cannot be equal as applied to everything
• Nothing segregated survives after Brown
• What is Brown about?
o Is the prob with segregation that race classifications are in the open,
being treated differently based upon race OR is it that segregation is a
party of supremacy/subjugation?
o Color blindness?
 Is the problem with segregation that laws identify people by
race?
 View of majority of the SC
 People’s future depends on race
• School classification, etc.
 Although word never appears in Con until 13th A, is Con really
not color-blind?
• 3/5ths clause, fugitive slave clause
• Harlan dissent argued in Plessy that 13, 14, 15A made
Con color-blind
o OR subjugation?
 Forbidding subjugation of one race relative to another
 Language of disparity, inequality points to subjugation
• Separate is inherently unequal
• Focus on effect on people of color
• Achieving Unitary Status
o In past discrimination
 Discriminatory elements purged?
• System fully integrated, then unitary system
• Then, federal court loses jurisdiction of its case
• Then resegregation is no longer de jure and intentionally
discriminatory
3/4/09
• Sources of Con Law
o Text
o OM/history
o Structure
o Precedent
o Tradition
o Consensus
o Natural Law
• Series of steps for EP
o Trigger
 2 change the test
• Suspect class
• Fund’l Interest
 (Secondary Trigger)
• No strict scrutiny test, but straight to a little more
flexible/tough application of RB
• Anything to help explain why court is or isn’t applying
critical techniques
• Usually has to do with character of issue or govt
body/institution
o Cleburn
 Mental health home
 Say they’re not applying SS, but RB with bite
strong
o Korematsu
 Not wanting to intervene in military affairs
o Test
o Application
 Identify Govt Interest
 Assess Govt Interest
 M-E fit
• Overinclusive
• Underinclusive
• Demand evidence
• Less discriminatory alternative
• Cases following Brown
o Southern Manifesto
 Resisting Brown with all lawful means
o Following Brown, prolonged period of struggle
o Brown I
 Put off remedial questions
o Brown II
 Deal with variety of remedies
 With all deliberate speed
• Interpreted in south as with all deliberate resistance
  Southern school districts tested commitment of Courts to
enforce Brown
 Left all kinds of loopholes
• Extended delay occurred and segregation continued to
exist on the ground
 Court begins to move after Congress moves
• Raises question of whether Courts are effective in
changing reality on the ground
o Balance of power on the ground
• May have derailed political movements that may have
done more
 Weak remedial decision
• As time went on, opinions got stronger on their face
• Unclear doctrine
• Have to be able to fight a prolonged battle
o Green
 De jure segregation
 School choice plan
 Little residential racial segregation
 Even after school choice plan
• Black school remained all black
• White school 85% white
 Freedom of choice plain invalidated
• Achieve racially non-discriminatory school program before
you can go back to non-distriminatory
• Need to root out racism root and branch
 What is the right in Brown
• Education important
• Segregation inherently unequal
• But no real right to completely integrated school system
o Just one without racial discriminatory policies
• How do you get back to point zero of nonracial system
o Point zero
o Only considering school board’s policies
o Goal of racially nondiscriminatory school system
 Reasoning of Green
• Entitled to get school system back to some point
• Where you would have been if what?
o If school had never been discriminatory?
o If county?
o If state?
• How to determine if end is achieved
o Say they’re not looking at numbers, but they really
are
o Swann v. Charlotte
 Upholds busing, school assignment formulas based on race
 Necessary to root out the racial discrimination
  Absent constitutional violation, there would be no justification to
redress
• Temporary right
o Keyes v. School District 1 (Denver)
 If you can find a smoking gun in one part of the district, then can
remedy entire district
 Even though intentional discrimination can be found in only one
part
 Integration objective being carried farther
 Burden of proof
• Strict scrutiny after P proving intentional discrimination
o Milliken
 American politics on race moving rightward
 What about interdistrict discrimination
 Stops at district line
 White flight to suburbs in Detroit
 Potential to fuel integration cut off at that point of beyond the
district
• End of Judicial Supervision
o Achieving Unitary Status
 Dowell
 Freeman v. Pitts
o Judicial branch stops interjecting
o Other forces should exert sway
• Southern Districts embarrassing Courts
o Putting in facially neutral plans
o Preventing black schoolchildren from having an integrated school
system
o Epochal decision, but system still prevents integrated schools
o Also happens under Civil Rights Act of 1964
• Courts start issuing tough rulings
o But real practices don’t really change until Congress restricted funding
of segregated schools
o Christian Academy movement in South to continue segregated
• Bakke (664)
o What level of scrutiny will be applied to race classifications that burden
dominant, not subjugated groups
o Past efforts politically benefited dominant (white majority)
o Strouter
 Race classifications that disadvantage minority groups not
permitted
o Text
 Equal protection
• Extends to everyone
• If use race as a classification, must treat all persons
equally
• No preferred class—all entitled to same kind of protection
 • Powell argues there is no establishment of special wards
of the state entitled to higher degree of protection
 Word protection suggests affirmative state action?
• Is there meant to be affirmative action to assist those
classified
o Brennan opinion
 Everyone DOES get same treatment under Brennan opinion
 If classification stigmatizes you, you get the benefit
 Remedying stigma
 White people probably don’t get strict scrutiny, but might in a
particular political situation if another group becomes dominant
and oppresses whites
 Whites get less protection b/c they tend to be dominant group
• So tends not to come up
o Determination of discrimination
 Secondary trigger
 Findings of statutory or constitutional violation
o History
 Purpose of 14th was to prevent racial domination and classes
 But can find plenty of statements indicating that people of all
colors would benefit
• Not meant to be limited to people of color
 Congress following amendment implemented race-conscious
measures
• Congressional enactments directly after amendment
provide evidence of what framers meant
• Not really discussed in cases
• Scholars have come out with race-conscious measures
o Suggests that they didn’t contemplate rejecting
o Structure
 Enabling Blacks to participate in the democratic system
 Discrete and insular minorities
• Carolene Products FN4
 Whites are dominant racial group not a discrete and insular
minority
• Don’t need protection of the courts
• Take concerns to the legislature
• Why should court take it upon themselves to protect the
majority race?
 End of inability to participate in political process
• Should minorities still be protected
• Has political process become more receptive to improving
the plight
 Other discrete and insular minority
• Poor whites
 Brennan argues for intermediate scrutiny
• White working class resist
 • White upper class not being impacted, unlike white
working class community
o Government Interest
 Remedying societal discrimination
• Avoiding perpetuating effects of discrimination
• If race-neutral, then only rubber stamping past
discrimination
o But Powell argues that this is overinclusive
 Not just victims benefited
o Overinclusive on burdened side
 Affects innocent people who didn’t do the
discriminating themselves
• If economic-based affirmative action
o What level of scrutiny would that fall under?
 Rational basis
 Lochnerizing to make economic elements subject to strict
scrutiny
3/5/09
• Bakke
Challenger Government
Text Standard is same for
all
History Meant to eliminate
OM/Purpose race distinctions for
Af-Ams
Structure Judicial Legislation Discrete/Insular
Minority
(Carolene Products)

Leave this to the

political process
• Is race politics
something
people can
reasonably
disagree about?
• Sociology and
history
Natural Law Distinction b/w Dominant majority v.
benign/invidious exploited minority
discrimination
• White
subgroups (eg
poor whites,
ethnic groups
bearing
burden)
• Stigma REMEDYING GROUP
attached to INJURIES
• Cultural capital
Individual v. group
rights
• UPHOLDING
INDIVIDUAL
RIGHTS
• About
individuals, not
groups
• Need tight fit

Should not be able to

discriminate on race,
period
Govt Interests #1 Illegitimate #1 Integration
#2 Benefited class #2 Remedying
over-inclusive societal discrimination
 (includes non- #3 Increase
victims) proportion of drs
Burdened class serving in minority
overinclusive communities
(includes innocent #4 Diversity
whites)
#3 No proof
#4 Legitimate govt
interest

• Croson
o If you’re going to demonstrate past discrimination by numbers, need to
determine relevant baseline numbers
 0.67% MBE award of construction contracts
 50% of Richmond people of color
 30% of contracts should go to MBEs
 Can’t use 50% as baseline
• Baseline has to be qualified MBEs
• To which branch of government should the determinations be left
• Only compelling govt interests
o Remedying discrimination
 Must be tightly circumscribed
 Tightly scrutinized
 Judicial determination
o Diversity
3/9/09
• Board Notes
1.Trigger
a. Suspect Class
b. Secondary triggers
2.State Test
3. Apply Test
a. Identify govt interest
b. Assess govt interest
c. Means-Ends Fit
• Higher Education Cases
• Grutter
o UMich Law School
 Diversity govt interest
 Critical mass
• So individuals don’t feel isolated
• Diversity among and between groups
 Admissions season
• Totaling up numbers to move toward critical mass
• Can consider types of diversity considered more strongly
• Trigger
o Suspect class
o Challenger (Grutter)
 Policy of racial/ethnic diversity
 Race as a factor
 Factor decisive in case of Grutter
• Did not get her place b/c of race
o Triggers strict scrutiny
 Adarand
• Case determined strict scrutiny
o Secondary trigger
 Court should defer to the university to determine what is
educationally beneficial
 Govt interest in education benefits gets university its deference
 In this case, doesn’t come first in the analysis, but belongs there
b/c it triggers the level of scrutiny
• Test
o Strict scrutiny
• Apply Test
o Identify govt interest
 What is the govt trying to accomplish?
• Quote isn’t a value, just a way to get to the thing you
value
 Govt
• Educational benefits of diverse student body
o Be careful not to say Diverse student body
o Cannot just be means=ends
  Challenger
• Maintain elite status of university while obtaining diversity
(Thomas)
o Not a compelling governmental interest
• Integration
o Bakke—racial balance for its own sake patently
unconstitutional per Powell
o Assess govt interest
 Must be compelling
• Yet does diversity have to do with law?
o Socialization
o Are law students tested on diversity
 Structure
• Political process
• Legitimacy of public order
o Constitution/equality
o Challenger/dissent
 Angering white people
 Delegitimizes constitution to individuals who
are burdened
 Defers to University perspective
• Unheard of in SS
o Means-ends fit
 Narrowly tailored
• Underinclusive
o Why not address other forms of diversity?
o Only underrepresented minorities
 Applied only to groups where critical mass is
not being achieved
 Not a quota, only a plus factor
• Distinguishes from Bakke
 Individual consideration
• What if there were a 1-20 spread in Gratz?
o Pope says no difference
o As long as it is quantified, hard-edge, conspicuous,
would flunk
o Less discriminatory alternative
 Thomas—should have considered a race-neutral system
• Grutter
o Only recognized interest
 Ed interest of Diverse student body
 Othersstructural
• National security
• Access to leadership
• Legitimacy of leadership
o No fundamental interest identified
 Although allusion to education as fundamental interest
 o Group v. individual analysis
o Secondary trigger
 First amendment
• Freedom of speech
o Function of university in freedom of speech
o Why diversity important
o Why important to defer to university
o Doctrinally, no suspect classification or
fundamental interest
 Integration
• Forming a society contemplated by reconstruction
amendments
• Is it more compelling than having educational benefits of
diversity
o Fount of tokenism
 Critical race theory
o Means-ends fit


Invidious Benign
Race Strict Strict
[Rational Basis (Brennan
in Bakke—Intermediate) ]
Sex Intermed Intermed
Nonsuspect (e.g., Rational Basis RB
wealth)
• Suspect class
o All created equal
 Races
o Reasons why women are treated differently?
 Significance of sex differences
• Are they “real” differences
o Wealth
 Not worried about groups defending themselves in the political
process
• Feeney standard
o Intentional discrimination
o Effect insufficient
o Has to be BECAUSE of, not in spite of
3/10/09
• Grutter
o P. 692-3 factors
 Use if confronted with a problem confronting affirmative action
 Esp if higher education applications
 Factors/Requirements
• No quotas allowed—factors only
• Individualized examination only
o No fixed weight
o All factors jumbled together
o No one being cut out
o Bakke example opposite extreme
o Gratz looks individualized, unique point totals, but
not enough individualized consideration
 Point total fixed at 20 for all racially
disadvantaged minorities
 Numerical
 Not hidden
• Diversity factors other than race must be considered
o Other factors besides race
o Need a background of pure meritocracy
o Look at everyone, everyone has a chance of
obtaining diversity factors
• Consider less discriminatory alternatives
o But loose examination of race-neutral alternatives
• Time limit
o Cannot go on forever
o Aspirationally want to think that we don’t have to
do this forever
o Social psychologists
 Aversive racism
• Phenomenon that race stands in for a
lot of factors
• Triggers a lot of reactions that people
don’t even realize
• People often prefer to live with people
like them
o How can you tell when the new day dawns?
 Sins of the past must one day be erased
 Have to be culpable parties before you can
have policy on race
o Retribution for culpability vs. social policy
• Affirmative Action
o Lack of fit in some cases b/c reliance on national studies
o Croson
 Aleuts…
o UC Davis
  Aleuts…
o UMichigan
 Af Am, Hispanics
o Seattle
 White/Nonwhite
o Louisville
 Black/Nonblack
• African Americans being sui generis
o Case of their own b/c of slavery, segregation
o Kinds of injuries inflicted by slavery
o Level of racism that developed in the post-slavery period
 Difficulty of integration
 In south until great migration until early 20th century migration
to northeastern cities
 Boycotts against blacks
 Regime of not even being able to look a black person in the eye
 Black youths saying something to a white woman and being
lynched
• Focus on individuals v. groups
• Seattle and Jefferson County (Louisville)
o Plans rely on race as a factor in distributing people among schools in
order to result in a racial balance that falls within a pre-set range
Challenger (Majority/Plurality) Govt
Suggests not a legitimate state interest Integration of public schools
to direct plans at racial balance • Reduce racial concentration
• Same as racial balancing • Public school integration—less
• Integration = race balancing stigmatization
• Unconstitutional unless court o Less burden—burdened
ordered? people not being burdened
all that much
o Limited difference in
quality/level of schools
No segregation/violation to remedy Remedying past discrimination
• Seattle—no allegation of • Never put up as a govt interest
segregation • Croson suggests it doesn’t have to
• Louisville—unitary be a judicially determined
• Has to be an actual legal violation violation
to remedy o Suggests violation doesn’t
o Not effects tracing back actually need to be
o Direct legal violation committed by the body
o No past Constitutional remedying it
violation • Even if private individuals, govt
 Court seems to be can avoid passively violating
suggesting there
needs to be a Con
violation to remedy—
period
• No identifiable culpable party for
 the violation
o Has to have been a govt
actor under 14th A per this
case
• What about under the radar
discrimination?
o Seems to be not allowable
Plans are race only Diversity
• Underinclusive
• Binary categorizations
• Grutter factor suggests you need
multiple forms of diversity besides
race
No secondary trigger Secondary trigger
• Not University
• Not “free speech”
• South more successful at achieving integration
o South has key of intentional, facial discrimination
• Groups v. individuals
o EP access protects individuals, not groups
o But how are groups legitimately excluded in the political process
 Only judges can make decisions regarding race
 No zone in which the political process can operate
• Grutter
o Distinguished b/c higher education
o Unique niche in Constitutional tradition
• Brown
o Govt making same arguments in this case as segregationists in Brown
o Focus on local politics/context
o Look at EP in terms of abstract principle
o Cannot get into particulars
 Excl v. incl
 Using race as a factor is bad
 Promotes stigma, etc.
 Says judges can’t tell the difference b/w benign and invidious,
but can tell that the stigma predominates in affirmative action
• Swann
o Dicta
o Perfectly fine for school boards to use policy of integration
• EXAM
o Tightness of fit matters
o Govt will make it look like the fit is as tight as you can get it
o Challenger will argue that the fit is too close
o Croson is best source of determining means-ends fit
 Language suggesting things you can do to back up something
better
o Do problem on p. 117
  Drawing districts with the express goal of racial and ethnic
distribution
• Majority
o General plan, not impacting individuals
o Just racial balancing—illegitimate
o No deference—no secondary trigger
o Go through steps
• Kennedy?
3/12/09
• Real differences?
o Women
 Less likely to drive drunk
 Can become pregnant
 Ineligible for combat
 Less likely to sympathize with a deadbeat Dad
 Have fewer opportunities to advance military career
 Less likely to contribute more than 50% of support
• Sex classifications
o Why heightened scrutiny?
o Most of the game getting out of minimum rationality
 Challenge legislation
 If real RB, practically nothing you can do
• Eg Lee Optical, REA
• Even RB with bite better
 Can call into question real interest
o Intermediate Scrutiny
 Important govt interest
 Can do almost everything that strict scrutiny can do
 But not supposed to do an intrusive less discriminatory
alternative analysis
• Proponents of heightened scrutiny
o 14th A doesn’t look like a great source of support for equal rights for
women
 Section 2 speaks about male voters only
 Before 14th A, no distinction b/w men and women
 Insertion of sex distinction into con
o Where does this come from?
 Text
• 14th A, Section 2
 OM/History (Synthesis)
• During marriage, man and woman are one, and that’s the
man
• Many sex-specific laws in place at the time
o Women not able to vote, serve on juries, etc.
• Synthetic point of view
o When changes occur in Constitution, shift in
interpretation of many provisions
 o Main variant is Ackerman’s 3 regime
 Reconstruction and New Deal big sweeping
changes in Con Law, look at whole system in
a new way
o Change in the Constitution of 19th A
 Women’s right to vote
 Argument that goal of 19th A only sought
political equality
• Lochner era case that suggested that
 Structure
• Discrete and insular minority
o But women aren’t a minority
o Not discrete and insular
o Spread out, dealing with men frequently
• Systematic underrepresentation in the political process
o Due to paternalism
 Ties into negative tradition
 Tradition persisted after 1920 passing of 19th
A
o Women locked in relationships with men in which
they are dominated from day to day
 Casey statistics
• Abused by families and partners
• Staggering rates of abuse
• Systematic disadvantaging women in
the home paralleled with the political
process
 Precedent
• Raising of Tradition and Nat Law arguments to level of
Precedent since they’ve been used in the past
 Tradition
• Negative tradition of discrimination against women
• Changing trend/emerging consensus
o Can have arguments on both sides
 Need protection but also that there is no
need for protection b/c it can be
accomplished via the political process, don’t
need protection
 Consensus
• Test: So many important people agree…
 Natural Law
• Immutable trait
o Wrong to hold people responsible for things they
can’t change
o Can’t choose it in the first place
o Biological/formal sex
• Sex as a semi-suspect classification
 o There are some real differences b/w men and women
o Vs no real differences b/w races
 Differences due to social construction
 But not due to objective fact
 Defined in highly contestable ways
o Unlike race area, sex area
 Laws that disadvantage men reflect paternalistic assumptions
about women
 Concern with women’s rights issues
• Pushing for protective legislation
o Vulnerable, protection, etc.
o Lochner era idea
o While men (bakers) had full liberty of contract,
women could be protected
 Muller v. Oregon
• Proving how weak women were
• Factory law upheld
 Concern with continuing stereotypes
• Laws appearing to disadvantage men disadvantage
women too
• Parallel to race stigma affirmative action issue
• Craig v. Boren
o OK says women less likely to drive drunk
 Statistical evidence
o De jure sex classification
 Males are treated differently from females on face
 Triggers intermediate scrutiny
• Important governmental objectives/interest
• Substantially related to achievement of objectives
o Govt objective
 Important interest
o Substantial relationship
 Majority says no substantial relationship
• Attacking statistics
o .18% female, 2% male
 10 times as likely, but still only 2 men out of
100
• Punishing all for crimes of few
 Women chivalrously escorted
o Intermediate scrutiny pretty strict
 Govt has plausible argument that there is a real difference
 Court not saying it’s not true that women less likely to drive
drunk
• Women 10 times less likely to drive drunk, but fit not
sufficient
 Perpetration of the stereotype that young men are wild, will go
out and drive drunk
 • Young women proper and pliable
 Level of scrutiny pretty high
 Drawing conclusions from statistics
• Michael M.
o CA statutory rape law such that only men can be found guilty
o Light form of scrutiny by majority
 Benign form of discrimination
 Feminists saw it as a chivalrous decision
• Women can make up mind just as well as men
Challenger Govt
Prevent young women from having Prevent Teenage pregnancy
sex • Burden on women and state
• Paternalistic protection of
young women
• Chastity
• No evidence
Both parties should be criminally But then woman won’t report on
liable to prevent the man
No evidence women are reporting
on the man, esp if consensual
Ridiculous to think pregnancy is a Pregnancy a deterrent enough for
deterrent women
• Real differences
o Terminology confusing
 Whether or not something is real may be less important than
whether means-ends fit is appropriate
 Are they just socially constructed differences
 Is behavior the product of a stereotype or physical/chemical
differences
 Nuanced definitions OR real differences, but fit may or may not
be tight enough
• Rostker v. Goldberg
o Women excluded from combat
 Challengers did not attack that statute
 Sits in case as a fact
o Women not registered for draft
o What is the govt interest
 Raising and supporting armies
Challenger Govt
Raising and supporting armies
• Congress determined military
needed flexibility
• Too much burden to process
women’s registrations
o Administrative ease of using sex as a proxy
 But many men are ineligible for combat
 Use sex classification as a stand-in
  Administrative convenience not a justification in general to use
sex as a stand-in
• Govt tries to sustain classification with administrative
ease
• Not an important enough reason
o Dissent argues that administrative convenience insufficient
 Burden on govt that additional people to draft weakens ability to
fulfill interest
 Plus even military officials want to draft women
o Congress has great deference in military and foreign affairs
 Classic secondary trigger
 Language of intermediate scrutiny
• Important interest
• Substantial
• Lessened intermediate scrutiny
3/23/09
• On board
o Real difference?
 Likelihood of drinking and driving? N
 Danger of pregnancy gives incentive to avoid premarital sex? Y
 Exclusion from combat duty? Y
 Likelihood of sympathizing with deadbeat Dad? N
 Desire/suitability for adversative method? N
 Opportunity to develop relationship with child? Y
• US v. VA
o VMI not connected to armed services
o But adopts a military-style system of instruction
o Goal of producing citizen-soldiers
o Method of instruction
 Adversative method
 Boot camp experience
 Ritualized harassment
 Tight discipline
 Intended to produce
• Strict adherence to a moral code
• Self-confidence
o Ability to deal with stressful situations
o Testing abilities in this environment
o Since 1839 founding, had not admitted women
o Female HS student sued
o Scrutiny
 Intermediate
• De jure sex discrimination
o No problem of proof of sex exclusion
o On the face of the issue
o Trigger
 Sex classification
o Intermediate scrutiny
 Test
• Important governmental interest
• Means substantially related
• Exceedingly persuasive justification
o Quotation from an earlier case
 What is the court actually doing?
• Is it really strict?
• Not because of the words “exceedingly persuasive
justification”
• But seems to acknowledge that it’s stricter that just
intermediate scrutiny
o Apply test
 Identify the govt interest
Challenger Govt
Why is there no similar option for Obtain educational benefits uniquely
women? served by single-sex education
 Doesn’t seem to be the legitimate
govt interest
 Historical arguments
o VMI was not established to
create/further the purpose
 Actual purpose
o Afford a unique educational
benefit for males
Policy of excluding women not Interest in preserving adversative
substantially related to such interest education for its educational benefits
 Overinclusive: Some women can  Studies determine not good for
benefit/want it women
o What about the difference  Preserve the school financially—
in number of individuals not financially feasible
who want/would benefit? o Administrative convenience
 Underinclusive: Not all men want a sufficient reason in draft
it case
 Administrative convenience not a
legitimate govt interest
o There was a secondary
trigger in draft case—
military interests of US not
interfered upon by court
 Creating an alternate institution
more expensive than just
accommodating females at VMI
Remedial Issue
Remedy insufficient VWIL
• Separate but equal
• Not equal
• No alumni network
• Not unifying
• Less caliber
 Assess govt interest
o Once at the level of IS, probably difficult to determine that
diversity of options is sufficiently important governmental
interest
o Seem to almost dismiss this component of the test
o Govt doesn’t directly challenge governmental interest of
adversative education
 Do US military institutions play a role in wanted to
maintain their systems?
o Assess burden of those disadvantaged by sex
classification
 Women being excluded from educational
opportunity
  Vs. Ngyuen case
• Man just needs to go through additional
steps
• Not an outright exclusion, just increased
administrative burdens
 Means-ends fit
o Evaluate relative to burden
 Is the burden over/underinclusive
o Actual governmental interest
 May question the interest as a whole if the means-
ends doesn’t seem to fit
o Underinclusive
 Females do not have a legitimate alternative
o Biological interpretations
 Unable to prove anything conclusively
• Would women be able to adapt or not?
 Rat-line culture
• Tough to integrate women into it?
 Why a slightly higher scrutiny?
o Seems to be a little higher than IS?
o Impact of this case on societal impressions of what
women can or can’t do
 Socialization factor
o Even if very few women wanted to
 Impact of societal expectations may limit women’s
interest in applying
• Why women want it might stem from
socialization
 Low numbers of women interested a self-fulfilling
result of exclusionary policies
 If policy broken down, perhaps more women would
be interested in aspiring to such an education
o Why no secondary trigger?
 Affirmative action had deference to educational
institution like in affirmative action cases
 Hypo
o VA institution
 Just as formidable, etc
 PhDs, SATs, compares favorably with VMI
 Stresses the cooperative method
 Demonstrates that women are very successful
o Governmental interest
 There’s an alternative male single-sex education
 Plus the historical evidence suggests not actual
purpose
 But case doesn’t say that the govt interest isn’t
legitimate
 Bathroom hypo
o If race-segregated bathrooms are unconstitutional, why
aren’t sex-segregated bathrooms
o Protecting privacy
3/24/09
• Bathroom hypo
o Sex-segregated constitutional
o Race-segregated unconstitutional
o Privacy issues
 May go back to preferences, deemed unacceptable in race case
o Biological differences
o How harmful are symbols/messages sent by classification
 Men can’t control themselves
 Women dainty and in need of protection
 Classifications in line with stereotypes
o Compare with what makes segregation bad in terms of race
 Are sex-segregated bathrooms a part of larger system of gender
subjugation
o Separate but equal
 Line at women’s bathroom
 Brown v. Bd of Ed
• Separation inherently unequal?
• Distinguishing between the groups
o Different definitions/standards of equality
 Same number of stalls/mechanisms in both male/female
 Functional equality
• Same basic/functional components
• 10 heads on both sides, same floor space, etc.
 Effective equality
• Women disadvantaged as always having to wait
o Pregnancy/breast feeding
 Is accommodation special treatment?
• Hypo
o No indecent exposure
 In case of breastfeeding, then are women getting special
treatment?
o Pregnancy issues
 Can employer exclude women from job if too dangerous for
pregnant individuals
 ADA requires reasonable accommodation
• Religious discrimination
• Should it also be applicable for sex discrimination
 Paternity leave
• Guduldick
o Not sex discrimination to disadvantage pregnant people
 Discrimination against pregnant people
o Feeney standard
 Can’t just be foreseeable, has to be because of discrimination
that impact occurs
• Scrutiny
o Strict
  Classification on a suspect basis
 Classification that limits a fundamental right/interest
• Fundamental right
o Cannot be taken away, no matter what
o Although generally attacked based on actual Con
protection clause
o Equal protection clause doesn’t necessarily change
things
o More of application to equal protection clause
specific
 EP source of heightened scrutiny that is not
specifically mandated by test
 Like Due Process
• Fundamental interest under EP
o Can be taken away
o Just needs to be equally applied
o Objection is to differential treatment
 Remedy to equalize
 Can remedy either by giving right to all or
denying right to all
 Can take right away
o Complaints to relative rights especially asserted
 Value of vote
• Particularly relevant application of EP
o Strict scrutiny
• Right to vote
o Quintessential equal protection fundamental interest
o In state elections
 NOT federal right to vote
 Not in Constitution
o Republican govt clause
 Courts shy away
 Courts felt this was a political question better left to alternate
branches
o Discrimination in voting
 Provisions regarding elections, but none give a right to vote
 What about the flagrant violation in federal system
• Con not meant to prohibit that kind of arrangement
o Effect of greatly increasing white voting strength
 Couldn’t prove intent of racial discrimination, though
o Relative deprivation
 Even though not absolute deprivation, still violation
o Text
 Ideological speech
o OM (History)
 14th A OM
 • Explicitly suggests the intent was not to grant political
equality
o Structure
 Representational democracy
 Right to vote protects all other rights
 Carolene Products FN 4
• Structure argument for protected class
• Preventing blockages in channels of political change
• Voting thereby essential
• Rational basis is permitted in the assumption that
democratic process is operating effectively
o Precedent
 Yick Wo v. Hopkins
 Baker v. Carr
• San Antonio v. Rodriguez
o Secondary triggers
 Deference b/c of education and taxations
3/25/09
• Crawford
o Right to vote as EP right
o Impingement on right nominal in relation to govt interest
 Fewer than 1% impacted
o Yet no provable voter fraud in this case
 Even though historical, not one proof in IN
o Anderson balancing approach
 State interests vs. impingement on rights
 Not true strict scrutiny
o More heavily impacts the poor
• Trigger analysis provides a test
o Secondary triggers
o Strength of argument for/against particular scrutiny, may get
increased treatment b/c of factors that don’t quite raise the level of
scrutiny
• REA ----------- Harper/Loving
o Most to Least Deferential
o RB
 Williamson v. Lee Optical
• Deferential
 City of E Cleveland
• A little less deferential
• Bit of tighter fit
 Cleburne
• Middle zone
• Disadvantaged, victim of prejudice group
• No control over whether or not in the group
 Romer v. Evans
• Middle zone
o Strict
 Grutter
• Benign race classification
• But not that strict
o Intermediate
 VMI
• But very strict
o Why?
 Is Marshall right?
 Is there really a spectrum/sliding scale as opposed to 3 different
levels?
 Can different factors impact level of scrutiny?
 Actual level ≠ stated level
• Doctrinal fact
o Education NOT a fundamental interest
o Wealth classifications NOT suspect or quasi-suspect classes
• Plyler v. Doe
 o TX must provide public education to all, even undocumented
o Total denial of education
o Immutable trait—children cannot change their stance
• Hypo
o Instituting tuition for all students
 Wealth classification might bump
 Importance of education might bump
 Total elimination might bump
 Paying for things plus fundamental/quasi-fundamental, tends to
get struck down
o Adoption
 Must have certain household income
 May also be quasi-suspect
• Free speech
o Textually implicit right in 1st A
 If right is textually specified, increased scrutiny
 Somewhat recently enforced right
• Only after 1920s courts began to strike down laws
• Since 1930s, huge amount of doctrine has emerged
around 1st
 2nd A in Heller
• First USC decision recognizing individual right to bear
arms
• Not sure what basis
o 1) Trigger
 Focus on speech
 Focus on restriction
• Content-based?
o Strict
o Viewpoint
 V. protected
o Subject matter
 Protected, but less so
o But may be
 Unprotected
 Low-value
 High value
o Labor as historical anamoly
 Cases in law before doctrinal structure
 Have operated as principle
• Content-neutral
o Intermediate
 Time, place and manner
o 2) State Test
o 3) Apply Test
 ID govt interest
 Assess govt interest
  Means-ends fit
• US v. Playboy
o Time channeling approach
 Blocking channels 2/3 of the day
 Or full block if technology doesn’t allow
o Triggers
 Restriction
• Content-based
o Restricting programming of sexual-oriented nature
o Strict scrutiny
 Speech
• Types
o Unprotected
o Low value
o High value
• Self-realization/actualization of sexuality
• Expansion of tolerance
• Controversy
o Content-based restrictions highly scrutinized
o Yet Courts evaluate level of speech based on
content
• Self-government?
o Era of counter-culture
 Slogan of make love, not war
• O’Brien
o Burning draft card
o Willfully mutilating and destroying draft card certificate
o Involvement of 1st A
 O’Brien argues that burning of card is a method of expression
• Burning card has symbolic communicative component
o Raises 1st A issues
o Content-based v. content-neutral
 Facially content-neutral
• Not a restriction of speech directly
• Yet there was another law prohibiting not having card in
personal possession
• And legislators had said this was to contravene defiant
destruction
o Beatniks and campus cults demonstrate US
• Actual purpose
o Court argues cannot investigate motive
o Terrible thing to scrutinize
 Doesn’t work
 Unreliable
 Not enough statements/etc.
o Yet use it in race and sex classifications
 To scrutinize actual purpose in strict scrutiny
• Hypo
o Prohibiting destroying draft cards as method of criticizing US policy
 Strict scrutiny
• Content-based
• O’Brien test to determine if content-based
o Furthers an important or substantial governmental interest
o Govt interest is unrelated to the suppression of free expression
 If so, then prob content-based
o Incidental restriction of alleged 1st A freedoms is no greater than is
essential to the furtherance
 Substantial relationship
 Intermediate (NOT strict) scrutiny test

3/30/09
• Pre-Miller
o Obscenity
 I know it when I see it
• Miller
o Test for obscenity
o 3 prongs
 Average person, applying contemporary community standards
would find the work appeals to the prurient interest
 Whether work depicts or describes, in a patently offensive way,
sexual conduct, specifically defined by the applicable state law
 Whether work lacks serious literary, artistic, political or scientific
value
• National, reasonable person standard
• High culture attitudes
• Why is obscenity unprotected?
o Obscenity prohibited
o Restriction content-based
 Concern about what speech is saying
• Censorship-type judgment
• Is it offensive
• Does it appeal to prurient interest
• Does it describe sexual conduct
 Normally would be strict scrutiny
 But in the case of obscenity, unprotected
• Rational basis test
• First amendment still continues to be relevant
• First amendment does not protect obscenity
• Text
o Nothing in the text
• OM/History
o Purpose of 1st A
 Political/self-govt
 Search for truth
 Bit part of marketplace of ideas
 No responding
o Existing laws
 Morality laws
• Structure
o Self-government purpose
 Doesn’t seem implicated in obscenity
o Government censorship
 Slippery slope of govt content-based restriction
• Precedent
• Tradition
o Strong tradition of preventing censorship pervasive
 Judges yielding to reality
  Speech regulated for so long
 Did not want to waste capital of court on such an issue
o Does the thrill come from violating moral regulations?
• Consensus
• Cohen v. California
o Fuck the Draft coat
o Obscene language
o Yet his sentiment was effectively communicated via the use of an
obscenity
 Sexually-related word
 Used in political propaganda
• Sexually Explicit material not included in the First Amendment’s Free Speech
Protection
o Avoiding offense
 Miller test has built-in component
• Must be patently offensive depiction of sex
 Yet seems opposite to 1st A purpose
o Incitement of crime
 Notion that sexually explicit material triggers crime
 Anecdotal evidence, but does it really happen?
• Justification under rational basis, not strict scrutiny, so not
as much concrete evidence is necessary
 Yet no Brandenburg test
o Preservation of morals
 What about Lawrence v. Texas?
• Case struck down TX same-sex sodomy law
o Suggested can’t just be protecting morality
o Must be something more
o Remote connection to the core purposes of free speech
 Self govt
 Search for truth
• Applying test with obscenity
o No identification of govt interest
o No assessment of govt interest
o No means-ends fit analysis
• Sexually explicit but NOT obscene
o Low-value, NOT unprotected
• Incitement
o Of imminent and serious criminal action
o Also unprotected speech
o Brandenburg test
• Hudnut
o Indianapolis ordinance defining pornography as a practice that
discriminates against women
 6-prong test
 Pornography ≠ obscenity or sexually explicit content
 Graphic, explicit subordination of women
 o Ordinance does not refer to Miller test
Challenger Govt
Marketplace of ideas Eliminate discrimination against women
• Remedy for bad speech is more • Bad, false ideas perpetuate
speech • Unanswerable speech
o Marketplace of ideas
doesn’t work
o Subjected to images that
have a powerful effect

• Ordinance limited to sexually explicit speech

o Low-value speech
o Court agrees with causation theory
• Doctrine
o Fatal to ordinance
o Ordinance one-sided
 Puts forth an explicit viewpoint
 That it is low-value insufficient to protect ordinance
 Cannot discriminate on the basis of viewpoint
o Not Miller test
 No exception for literary works
 Sexually explicit material that is offensive but consensual is not
prohibited
• Fighting words
o Impulsive, speedy action
 Before a response can be provided
3/31/09
• Fighting words
o Categorical exemption from 1st amendment
• Each categorical exclusion requires a test
o Obscenity
 Miller test
o Within categorical exception
 Bottom of the line rational basis scrutiny
• Chaplinsky v. NH
o State Supreme Court’s interpretation of statute is the authoritative
interpretation
 US Constitutional challenge is based on that interpretation
 NH statute
• Words likely to cause an average addressee to fight
• Face to face words plainly likely to cause a breach of the
peace by the addressee
• Words whose speaking constitutes a breach of the peace
by the speaker
o Facts
 Jehovah’s witness calls City Marshall a “damned fascist”
o Fighting words
 Very utterance inflict injury or tend to incite an immediate
breach of the peace
• Cantwell v. Connecticut
o Facts
 Asked and received permission to play a phonograph record
which attacked the religion and church of two Catholic men
 When asked to leave, he left
o Distinguished from Chaplinsky
 Words against big social phenomenon
 Less person to person impact
 Message about public issues
o Focus on speech step
 Fighting words?
 Matter of public concern
o Narrows definition of fighting words
• Fighting words
o Invite an unambiguous invitation to a brawl
o Face-to-face, individual
o Court requiring a tight, person-to-person interaction
 Cannot be overbroad
 Gooding v. Wilson
• Direct tendency to cause acts of violence by the person to
whom, individually, the remark is addressed
• Doesn’t want to be on a slippery slope
o Narrow fighting words category
• Actual words/facts could be prohibited
 o But gets off b/c overbroad, so can’t convict
o Govt must frame laws with precision to avoid
chilling free speech
o Doctrine began before structure
 No good analytic framework
 Originally dealt with in an ad-hoc manner
• Exceptions for certain categories of free speech
• Relatively new right, court doesn’t waste political capital
on unpopular speech
o Instead of eliminating exception, have reduced to small category
• Brandenburg test
o Imminent danger of a specific, serious harm
• Beauharnais v. Illinois
o Illinois criminal statute
o Libel as an excluded category of speech/exception to 1st A protection
 Although no longer true
 Libel doctrine shaped by 1st A doctrine
 Only difference that libel is directed to a group in this instance,
not an individual
o Legislature afraid of violence and disruption resulting from race riots
 Could conclude that eliminating such speech
 Highly deferential standard
o Dissent
 Not libel
• Group libel not actionable
• Different
 Punishing discussions of public concern
• Not a matter of purely private concern/fueds
• Collin v. Smith
o Ordinances preventing Nazi marches in Skokie, home to many Jews
 Invalidated
o Issue of opinion
 Assessment of groups
 May be painful speech, but part of public discourse
o People of Skokie would be harmed psychologically by march
 Town had compelling interest in preventing
• RAV v. City of St. Paul
o St. Paul ordinance
 Symbol, object, etc.
 Standard only applies within the category of fighting words
• Arouses anger, alarm or resentment
o Category of unprotected speech
o Trigger
 Fighting words
• Unprotected speech
• Should be rational basis evaluation
 Content-based restriction within fighting words
 • Cannot make content-based restriction within
o Content-based discrimination within unprotected speech
 But is content-based restriction based on same evil/reason why
speech is unprotected
• If so, no strict scrutiny
 In this case, subject matter discrimination
• Based on symbols of discrimination
• Has no relation to fighting words component
o But isn’t race an incendiary issue?
 ALSO viewpoint discrimination
o Censorship
• Wisconsin v. Mitchell
o Penalty-enhancement for hate crimes
o Activity that makes up the crime isn’t expression
 Physical assault/attack
 So not protected under 1st A
• Even if carrying out your crime as matter of expression
• Criminalization is act, not expression
4/1/09
• RAV hypos p. 864-5
o A) town that has experienced severe racially motivated violence
culminating in a race riot enacts and ordinance that prohibits
addressing another person with a racial epithet
 Brandenburg standard
• Overinclusive?
o Situations that wouldn’t pose an imminent danger
• Incitement to violence
 Content-based regulation
• Directed at hate language
• Selecting some speech for repression based on content of
speech
 Cantwell
• Addressing someone face-to-face
 Fighting words
 Hate speech
• Only certain kind of epithets
o Only racial epithets
o Not all that can incite violence
o Under RAV, this would be overturned
 Singles out only epithets based on race
 Not other epithets
• VA v. Black
o Law prohibits cross burning with an intent to intimidate a person or
group of persons
o Only fundamental opposition to law is prima facie idea as interpreted
by state court
 Cross burning itself cannot be the evidence of intent
 Majority seems to indicate that if you had to prove intent, would
be constitutional
o How to distinguish from RAV
 Intimidation
 No content-based discrimination like in RAV
• In RAV, only particular kinds of speech
o Race, sex, creed
• In Black, cross burnings, no matter what purpose
o Nothing content-based about restriction
o Not viewpoint-based
 But is a burning cross not viewpoint-based
• Aren’t crosses burned to convey certain kinds of
messages?
o Restriction aimed at expressive nature of burning cross
 Content-based?
• Dissent
o Could argue this is not about fighting words, but instead “true threats”
 Court definition of intimidation
 • Threat with intent to place the victim in fear of bodily
harm or death
 Fear that intimidates
• Govt interest in preventing fear
• Govt interest in preventing threat from being realized
 Cross burning a particularly effective way of conveying a true
threat
• Picking out the very worst kind of true threat
• Cohen v. CA
o Fuck the Draft
o CA penal law that prohibits maliciously and willfully disturbing the
peace or quiet of any neighborhood or person by offensive conduct
o Cannot use courthouse location
 Statute does not discriminate between location
o Not obscene
 Word not used in a erotic sense
o Not fighting words
 Not direct personal insult
 Not face to face
 Undifferentiated fear or apprehension of disturbance
o Captive audience
 Averting eyes
 But can’t get away from a bullhorn
o Merely protecting people from offense insufficient
o Value of the speech
 Political speech
• But restriction directed at the “fuck” not the draft
• Offensive not b/c of political message
 Value not only in the message but the way it was conveyed
• Word used important
• Value in the offensive word comes from its use in a
political message
• Emotional intensity of the word a good thing
 Intense expression mobilizing
• Likely to promote response
• Using a provocative word puts issue on agenda in an
integral way
o Trigger
 Focus on speech
• Offensive speech
o Failure to carve out a new category of unprotected
speech
 Regulation
• Content-based
o But not viewpoint based
• Commercial Speech
o Standard of Review
  Intermediate scrutiny
 Central Hudson
o Valentine v. Chrestensen
 Commercial speech used to be unprotected
o Bigelow v. VA
 Advertisement of legal abortions could not be banned
• VA Board of Pharmacy v. VA Citizens Consumer Council
o VA Board
o Pharmacies cannon advertise prices
o Constitutional protection of commercial speech
Challenger Govt
Economic information is highly important Lochner
• Indispensible to allocation of • Free market philosophy lecture
resources • Why does VA need to follow
• Especially important to the young teachings of Adam Smith?
and old
Self-realization purpose limited
• Economic motivations to make a
buck
• Not literary/artistic value
4/2/09
• VA Board of Pharmacy
o Govt interest
 Preserving the profession’s integrity
 If price advertising is allowed, people purchase cheapest drugs
 Pharmacies will no longer be able to provide services
o Evaluate govt interest
 May be perverse
• Prices vary by large amounts
• Sick and elderly can’t achieve price comparisons easily
o Less restrictive analysis
 Can have high standards for pharmaceutical profession in
licensing requirements
 Direct regulation of quality of profession
 Go directly after the problem
o Ethic of professional care
 Contrary to advertise based on low price
 Professions unable to self-police/provide open information
• Central Hudson test
o Intermediate scrutiny for commercial speech
o Govt may regulate truthful, non-misleading advertising of lawful
activities if the regulation directly advances a substantial government
objective by means that are not more extensive than necessary
• Lorillard Tobacco Co.
o MA law prohibiting smokeless tobacco or cigar advertising within 1,000
feet of a school or playground
 Problem with underage use of smokeless tobacco and cigars
 Limiting such tobacco advertising would decrease minors’ use of
these tobacco products
o More extensive than necessary
 Exceedingly broad
• Knocks out huge swaths of entire state
 Purchase and use by adults permitted
o 5-foot rule prohibited
 Not all children are less than 5 ft. tall, those who are can look up
 Related to expression
• Content-neutral regulations of speech
o Ward v. Rock Against Racism
 NYC regulations for bandshell
• Must use NYC sound equipment and technician
• Volume controls and mixing controls
• No fixed decibel limit
 Limit noise for nearby areas
• Residential areas
• Nearby areas of the park
 Content -neutral
• Somewhat uncontroversial under current doctrine
  Restriction on time, place, manner
• Intermediate scrutiny
o Justified without reference to the content of the
protected speech
o Provided they are narrowly tailored to serve a
significant governmental interest
o Leave open ample alternative channels for
communication of the information
 Govt interest
• Protecting citizens from unwelcome noise
• Limiting sound level
• Legitimate government interest
 No need to evaluate under less restrictive means
• Not that strict
• Intermediate scrutiny
 Narrow tailoring test
• So long as the regulation promotes a substantial
government interest that would be achieved less
effectively absent the regulation
• Govt may not regulate expression in such a manner that a
substantial portion of the burden on speech does not
serve to advance its goals
• Cannot hypothesize limitless alternative restrictions
o But regulation may not burden substantially more
speech that is necessary to further the
government’s legitimate interests
• Increased deference if govt considered and rejected less
alternative requirements
o Eg, decibel limit deemed not to be appropriate
• Total media bans
o Voided
 Martin v. Stuthers
• Distribution of literature by ringing doorbells ban voided
 Schneider v. State
• Total ban on distribution of handbills invalidated
 City of Ladue v. Gilleo
• Court voided near-total ban on signs displayed on or in
residences
o Discriminatory effect
o Permitted regulation
 Kovacs v. Cooper
• Total ban on soundtrucks upheld
• Only loud and raucous soundtrucks
o Blanket prohibitions on whole methods of communication
 Must have open ample alternative channels of communication
• Hypos
o P. 928-929
  Time, place, manner
• Auto-bumper stickers critical of govt
o Restricts viewpoint critical to government
 If praising govt, then not subject to
restriction
o Worst of worst content-based
o Strict scrutiny
• Auto-bumper stickers containing political messages
o Content-based restriction
 Only cutting off one way to express political
expression
• Highest value expression
• All auto-bumper stickers
o Content-neutral
• Auto bumper stickers visible to other drivers
o Content-neutral
• All auto bumper stickers for 60-day period prior to any
general election
o Content-neutral
 But impact will be political
• Hill v. Colorado
o CO law prevented approaching people/protest within 100 feet of
healthcare facility
 Prevent harassment
o Deemed content-neutral
 Yet clearly to prevent people from being exposed to disturbing
messages
 People with one viewpoint being impacted
o Suggests that Court ignores what a person can clearly see
 Suppressing speech based on viewpoint
• Bartnicki v. Vopper
o Stricter version of intermediate scrutiny test
o Interception of private phone calls illegally
 Gives the recording to someone else not guilty of intercepting
the communication
 Broadcasts illegally obtained tape
o Laws content-neutral
 Application an unjustified means of accomplishing the
government’s objectives
o Press involved
 Mass communication
o Matter of public concern
• Symbolic conduct
o Texas v. Johnson
 Public burning of the flag
• Intentionally desecrates flag regulation
• Restriction doesn’t on its face restrict expression
  Consider government interest
 Highly offensive speech
• Per Cohen v. CA, not unprotected or even low-value
 Strict scrutiny
• Govt addresses communicative impact
o Only applies to desecrating the flag
o If you burn it in privacy of basement, not violation
of statute
o If you burn it b/c soiled, not violation
o Conveying an offensive message
• Preventing breach of peace
o Brandenburg test
 Danger not immediate enough
o Not fighting words
 Not a direct personal insult
 Preserving a flag as a symbol
• Remedy for this speech is more speech
• Not banning speech
• Symbolic speech
o How to tell if symbolic speech is involved and not just pure conduct
 Intent to convey a particularized message
 Whether the likelihood was great that the message would be
understood by those who viewed it
4/6/09
• Buckley v. Valeo
o Federal Election Campaign Act
 Restrictions on contributions
 Restrictions on expenditures
o Restrictions on expenditures
 Relative to a clearly identified candidate
• Trigger
o Focus on speech
 Contributions
• Contribution as an indirect form of expression
o Not direct speech
o Focus on restriction
 Content-discrimination
• Communicative impact
 How much of a burden is it?
• Contributions
o Individuals can still engage in free communication
in political speech

Challenger
Focus on speech
• Spending necessary for speech
in political arena
• Political speech at the highest
rung of 1st A values
Govt interest related to
communication impact
• Drowning out of the opposition
voice
• This goal opposed to concept
of 1st A
• Should not restrict speech—
doesn’t matter who it comes
from
• Govt can’t regulate the speech
of the wealthy
Govt
Restriction on conduct, NOT speech
• Speech not involved—conduct
• Economic transaction
regulation unlikely to be
overturned (Lochner
invalidation)
Govt interest in preventing speech by
the wealthy from drowning out
speech of others
• Carolene Products FN 4
• Other people’s free speech
rights
• 1 person, 1 vote
Govt interest in preventing corruption
Keeping costs of elections down

• Test
o Contributions
 Closest scrutiny
• Sufficiently important interest
• Means closely drawn to avoid unnecessary abridgment of
associational freedoms
o Expenditures
  No test explicitly established
 Seems to be more strict than contributions
 Esp on means-ends
• Application
o Identify govt interest
 Govt interest in preventing corruption
• Actuality and appearance of corruption
 Govt interest in preventing speech by the wealthy from downing
out the speech of others
o Assess govt interest
o Means-ends fit
 Govt interest in preventing corruption
• Underinclusive
o Groups can get around the law
 Contributions
• More of an impact on the preventing corruption issue
• Quid-pro-quo relationship between donor and politician
may result in increased access
• Conduct v. Speech
o Court doesn’t care that much about whether it’s speech or conduct
 Look at governmental interest
• Is it directed at speech or conduct component?
• White
o Fear of the consequences of political speech
 Consequences that flow from listeners hearing the speech
 No fear that people will do something wrong after hearing the
messages
o Broadening of the normal concept of communicative impact
• Court attempting to equalize
o Lochner
 Labor law of trying to equalize bakers’ rights
• No evidence the bakers are like women or disabled or
children
o Do not need protection
o Should not treat paternalistically
• Illegitimate govt interest to try and equalize
• Poor sending communication
o Generally in person
 Bodies present
 Regulations present related to bodies
 Can be regulated on grounds that seem unrelated to speech
• Eg, leaflets littering street, sound truck, etc.
• Govt interest in preventing corruption
o Seems to be strongest interest expressed
• Corporations as persons
o First National Bank of Boston v. Bellotti
  Court struck down MA law barring corporations from spending
money to influence the outcome of ballot measures other than
those “materially affecting the property, business or assets of
the corporation”
 Heart of the 1st A
 Corporations as persons under 14th A
 Singling out a particular kind of speaker will trigger
• Akin to a content-based restriction
• Playing favorites amongst speakers
o Expenditures v. Contributions
 Seem to be distinguished
o Non-profit corporation seems to have more protection than
corporations for expenditures, but not contributions
• Freedom of association
o Implied freedom
o Penumbral rights
 Close enough to guarantee that gives rise to it
 Has survived criticism
• As opposed to privacy rights
o NAACP v. Alabama
 Court held Alabama could not compel NAACP to disclose its
membership list
 Forced disclosure would produce substantial restraint upon
NAACP members of their right to freedom of association
• First amendment
o Possibile vulnerability to retaliation
o Buckley
o Litigation as an Associational Right
 NAACP v. Button
• NAACP putting out publicity to reach out to Af-Ams in
segregated situations
• Post Brown v. Board
• Trying to reach out and find plaintiffs in cases to
uphold/enforce Brown
• KY said illegal solicitation of business
• Court held that NAACP actions were protected modes of
expression and association
• Political Boycotts as an Associational Right
o NAACP v. Claiborne Hardware
 Boycott intended to express political views
 Boycott necessarily involved association to achieve its ends
o Unions do not have same right
 Law prevents unions from boycotts/demonstrations impacting
commercial transactions
 Labor speech
• Economically motivated
• Commenting on issues of public concern
 International Longshoremen’s Association v. Allied International
• Refusal to handle cargoes coming from or going to the
USSR
• Not a form of protected expression
• Conduct designed not to communicate but to coerce
4/7/09
• Longshoreman’s Union
o Coercion
o Run in a dictatorial fashion
 Mob influence
 President of union ordered the boycott
 US SC opinion didn’t mention this
o Can distinguish case if focus on ILA dictatorial organization, but that’s
not what Court did
o Court said that when workers/labor unions boycott, going out of their
standard scope, unprotected
 Coercion
 Labor speech as unprotected
o Foreign vs. domestic issue
 Not a part of our political process
• Hostile Audiences
o Focus on speech
 What did person do?
 What exactly did the restriction say?
• Conviction for conduct
• What was the legal definition of that conduct?
 What is the actual evidence that there was an imminent danger?
• Breach of the peace, violence, etc.
o Cohen v. CA
 Fuck the Draft
 Cohen could not be prohibited from wearing jacket
 Substantial degree of positive value in emotional speech that
riles people up
o Terminiello v. Chicago
 Violent, unruly crowd outside
• Shouting, yelling, breaking things
• Immediate real danger argument pretty strong
 Court takes issue with definition of disorderly conduct
• Focus on definition, not facts
• Possible police could have restrained Terminello if it had
been under a properly tailored law
• Misbehavior
o Breach of the peace
o Stirs public to anger, invites dispute, brings about a
condition of unrest or creates a disturbance
o Unconstitutional definition
 Function of free speech is to invite dispute
• Highest purpose is to stir people
o Feiner v. NY
 Feiner soapbox address
• Blacks and whites in crowd
• Speaking in a loud high-pitched voice
 • Gives the impression he was endeavoring to arouse Negro
people against the whites, urging they raise up in arms
and fight for civil rights
o Incitement?
 Doesn’t sound immediate
 But need to consider context
• What if the context was a white
supremist location?
 Only evidence of threat to public order
• One onlooker
• Virtually no evidence of illegal conduct
 No evidence of police attempt to control the crowd
• Go straight to attempting to silencing the speaker
• Cop became agent of heckler’s veto
 Police ordered Feiner to stop talking, but he continued
 Secondary trigger
• Deference to the police, trained in these matters
• Not wanting to second-guess police on the scene
• They are the experts on the matter
o Brandenburg not yet decided
 Both cases using clear and present danger
 But much mushier standard
 Not as defined as after Brandenburg
• Subsequent Hostile Audience cases
o Reversal of judicial attitudes about speech and race
 Role of free speech in creating change becomes clear
 In line with SC views—Brown v. Board
o Edwards v. SC
o Cox v. LA
o Gregory v. Chicago
 Rocks, eggs and racial insults hurled
 Gregory ignored police requests to leave
 Gregory not convicted of disobeying the police
• Convicted of making an improper noise, riot, disturbance,
breach of the peace, or diversion tending to a breach of
the peace
 Limitation of hostile audience/disorderly conduct
• Imminent threat of violence
• Police had made all reasonable efforts to protect the
demonstrators
• Have requested that the demonstration be stopped have
explained the request
o If time permits
• Refusal of the police request
• Appears to be more strict than Feiner
• Captive Audiences
o FCC v. Pacifica Foundation
  “Filthy Words” Carlin monologue
 FCC issued reprimand to station
 Confined patently offensive but non-obscene material to times
of day when children would not be exposed
 Court held this restriction allowable
• Constitutional
o Captive audience
 Vulnerable audience
• Children will incorporate language in their speech
Challenger Govt
Cohen Captive Audience
• Avert your eyes • Can’t unspill the milk
• Radio waves come into the home
Cohen Vulnerable audience (children)
• In public, kids can read
Warnings insufficient
Value of monologue is in its offensive Low-value speech
language • Not afforded same 1st A
protections

 Offensive speech doctrinally NOT low-value speech

• A majority has not found this
 Offensive speech still held to strict scrutiny
• Offensive speech
o FCC defines
 Describes or depicts sexual or excretory activities or organs in a
patently offensive manner as measured by contemporary
community standards
• Obscene speech
o Miller test
• Consolidated Edison v. Public Service Commission
o Mailings in bills about political matters
 State of NY prohibits it
o SC struck down law
 Escape exposure by transferring bill insert from envelope to
wastebasket
4/9/09
• Exam prep
o Outlines on BB
 Separation of Powers
 Commerce Clause
 Substantive Due Process
 Equal Protection
 First Amendment
o Practices
 Determine standards and examples
 At each stage of the outlines, understand significance of each
step
• Defamation
o Libel, slander
 Factual Falsehoods
• Factual assertions that are provably false
• Hustler v. Falwell
o Intentional infliction of emotional distress
o By means of speech/publication
o Mock Campari ad
 Jerry Falwelll, evangelist pictured in a drunken orgy
o Not factual
 Not factual falsehood
 Not under libel/slander
o Public figure
 Speech about matters of concern
 Ethics and morals of a nationally known representative of a faith
tradition asserting claims to moral purity
o Offensive and intended to inflict emotional injury
 Yet protected by 1st A
o Importance of comedy and satire
 Historical
• Cartoons
 Means of public and political debate
 Value of riling people up
 Popular participation in politics
 Participation in politics need not be polite
o Tort of intentional infliction of emotional distress
 Outrageousness
• Not an appropriate standard
o Actual malice standard
• John Kerry
o John Kerry parody website
 Deliberate falsehoods
• Can be distinguished from Falwell
 Emotional distress remedy?
• Not if definition is outrageousness
 o Per Falwell, too subjective
• Actual malice
o Falsehood would have to be an element
 New York Times standard
o Focus BOTH on facts AND restriction
 A properly crafted law could probably reach this
 If you could prove falsehood and actual malice
• Public forum
o Government property
 Right/privilege distinction historically
• Might have a right to engage in free speech, but not on its
property
• Public and private equated
 Public forum doctrine
• Hague v. CIO (1939)
• Public forum categories
o Unlimited public forum
 Applying standard 1st A law
 Content-discriminatory speech
• Strict scrutiny
 Content-neutral speech
• Intermediate scrutiny
o Limited public forum
 As long as open, bound by same standards as apply in
traditional public forum
• Reasonable time, place, manner
• Content-based prohibition must be narrowly drawn to
effectuate a compelling state interest
 Focus on what subject matters are excluded
• What Is the purpose of the limited open forum
• Is the speech consistent with the purpose of the limited
open forum
o Nonpublic forum
 Wide discretion of school
 Time, place, manner restrictions
 State may reserve forum for its intended purposes
• As long as regulation is reasonable
• Not an attempt to suppress expression on viewpoint
o Perry Education Association v. Perry Local Educators’ Asscociation
o Union access to mailboxes
o Selective access to some organizations
o NOT a public forum
 To be public forum, need somewhat nondiscriminate access
 Selective access only
o Even if it is a public forum
 Constitutional right of access only extends to other entities of
similar character
  PLEA not an educationally relevant organization for students
 But doesn’t PEA have access, and PLEA is an entity of similar
character?
o No indication that restriction discourages one viewpoint and advances
another
 Not viewpoint discriminatory
 Access based on status of respective unions, not on their
viewpoints
 What is the harm govt is seeking to prevent?
• Does it relate to the viewpoint?
o Means of ensuring labor peace within the schools
o Serves a govt purpose in way that is unrelated to
the speech
• Makes it more difficult for minority union to challenge
exclusive union
o Competition between the two unions prevented
o Preventing criticism of exclusive bargaining
representative
• Classification of public forum IRRELEVANT if regulation is viewpoint based
• Limited public fora
o Limiting criteria cannot be viewpoint-based
• Krishna Consciousness cases
o Airports not a public fora
 Not established as public for a because a new, modern
phenomenon
 Airports have not generally been intentionally opened
 “time immemorial” from Hague v. CIO
• Public streets and parks
• US v. American Library Association
o Denial of federal money for internet access to public libraries unless
they install software to block obscene or pornographic images
o Access not a traditional nor designated public forum
• Grayned v. Rockford
o Court sustained ordinance to willfully make any noise that disturbs or
tends to disturb peace or good order of such school session
 Stone suggests this is the new question
• Appears not to be the case
• Focus on property rights
• US v. Kokinda
o Postal regulation barring solicitations on sidewalk
• School cases
o Tinker
 Political speech
 Ban on armbands
• Viewpoint neutral discrimination
• But restriction hastily enacted after they heard armband
protest
 o Generally do not consider motivations under
O’Brien
o Nevertheless, established in the facts, although
they don’t rely on it being viewpoint discriminatory
 Focus on disruption of school function
• In accord with Stone’s proposal
o Looks at armbands to consider whether
inconsistent with school’s purpose
 Black dissent
• Distraction
• Important to enforce school discipline
o Slippery slope
o Bethel
 Lewd, obscene speech case
 Question of appropriateness
o Hazelwood
 Censorship of two articles in school newspaper addressing
sensitive subjects
 Distinction between school affirmatively promoting speech
• Makes it the message of school board
• Unlike Tinker
o School not affirmatively promoting speech
 School can disassociate itself from speech
 So long as actions are reasonably related to legitimate
pedagogical concerns
4/13/09
• Exam
o Make arguments on both sides
 Few issues will be open and shut
o Don’t hypothesize facts
 Enough facts presented in the question
 Stick to facts as established in the prompt
o Know principal cases
 Knowing name of the case
 Refer to key facts
 No need to know who wrote opinions/Justice
 Be able to analogize to leading cases
 Important note cases
• Did we talk about them in class?
o Eg, Powell v. McCormick
o Using old/overruled cases
 Negative precedent
 When arguments to be made on both sides
o Not issue-spotter
 Will most likely give the constitutional issues
o Use/go through the chart
 Will deal with all the central/major issues
 Memorize the charts
 Have them in our head
• Focus on state activity or practice
o Is the activity or practice a constitutional violation?
o Who decides whether it is a violation?
• Focus on federal law
o Is the means sufficiently related to the end?
o How critical is the court?
• Civil Rights Powers
o Civil Rights Cases
 Civil Rights Act of 1875
• Prohibited private racial discrimination in public
accommodations
 Court fails to protect minority rights
 Congress attempted to protect civil rights of all people of color
 Act challenged on ground that Congress lacked any source of
authority to enact such legislation
• In present, would fall under commerce clause
o Economic transactions
o Statutory scheme as a whole an economic
regulation
o Easy reach for commerce power
 Ollie’s BBQ, Heart of Atlanta Hotel
 Congress operating under civil rights powers
• Court struggles to find state action
 o Act addresses private individuals
o 14th A addresses STATE action
 Congress shall have power to enforce
provisions of this article (Section 5)
 No state shall… (Section 1)
• Equal protection guarantee focuses on
state action
 Harlan dissent
• Being a citizen of US gives you rights enforceable under
US Constitution
o Dred Scott
 Court decided that Blacks were not citizens
 Blacks didn’t have a large list of rights
• Therefore, at time of framing, framers
did not contemplate that Blacks could
be citizens, even if they were free
 14th Amendment first sentence meant to
overrule Dred Scott
• Therefore, per Harlan, every citizen
has explicit rights
• Enforce ability of people to function
 Civil rights guaranteed by Constitution cannot be impaired by
wrongful acts of individuals, unsupported by State authority in
the shape of laws, customs or judicial or executive proceedings
 Act not tailored to any supposed violation of 14th A on the part of
the States
• Hypos p. 1184
o Angry mob of private persons forcibly prevents public officials from
implementing a school desegregation order
 Constitutional violation
• Segregation in school
• School failing to carry
• No issue of fault
o Constitutional right to attend desegregated school
• Remedying a state violation
o Group of skinheads intimidate black children sufficiently to deter them
from entering a public park
 Difficult to establish a state action
• th
13 Amendment
o Congress can pass all laws to abolish badges and incidents of slavery
 Private racial discrimination in public accommodation has
nothing to do with slavery or involuntary servitude
o No state action requirement
 Neither slavery no involuntary servitude shall exist
o Civil Rights Cases overruled re: 13th Amendment
 Jones v. Alfred H. Mayer
 • Congress given deference to rationally determine what
are the badges and the incidents of slavery
• Rational for Congress to conclude that private racial
discrimination in the sale or rental of property was such a
badge or incident
• When a man has emerged from slavery, and by the aid of beneficient
legislation has shaken off the inseparable concomitants of that state, there
must be some stage in the progress of his elevation when he takes the rank
of a mere citizen, and ceases to be the special favorite of the laws
• US v. Guest
o Six justices subscribed in dicta to some version of the view that section
5. 14th A empowered Congress to regulate purely private behavior
o Court did not directly address the point
o Found that state action was alleged
• US v. Morrison
o Firmly entrenches 14th amendment
o Congressional power under section 5 of 14th A
 Limited to regulation of government behavior
 NOT private behavior
o Rejects that Guest reverses Civil Rights Cases
 Reaffirms holding of Civil Rights Cases
• Congressional power under 14th A, Section 5 limited to
regulation of govt behavior
• Scope of enforcement power—remedial or substantive
o SC v. Katzenbach
 Court upheld validity of Voting Act of 1965
• Act forbade certain state practices
o Literacy tests
• Applied only to counties that used a test for voter ability
and in which less than 50% of eligible persons voted in
the 1964 presidential election
• Literacy test racially discriminatory
o Intent to discriminate
 Washington v. Davis
• Need to prove purposeful
discrimination
o Congress could rationally infer discriminatory intent
from the effects
 Focus on state activity
• Literacy test
• Constitutional violation
o Purposive discrimination
• Who decides whether it is a violation?
o Congress applying the Supreme Court’s standard to
the facts
o Congress determining Con rights/violation
 Court gives more deference to Congress b/c
race
  Focus on federal law
• Means-ends
• How critical is the court
o Very deferential
o “Rationally related”
 Secondary trigger
• Voting right
o Not only race element triggering a looser degree of
scrutiny
• Voting context
o More deferential level of scrutiny
th
 15 Amendment
• Judiciary’s job to determine substance of 15th amendment
rights
• Congress free to ascertain facts that establish substantive
violations and then act to remedy those violations
• th th
14 and 15 A
o Congress power to enforce rights is remedial
o Remedial power broad
 Encompasses legislation designed to prevent future violations
• Katzenbach v. Morgan
o 2 prongs of justification
 Congress can define the violation differently than the Supreme
Court
• Supreme Court had held that literacy tests in general
were constitutional
• Congress
4/14/09
• Finals
o Synthetic argument
 14th A alters the interpretation of 1st A
 19th A changes women’s rights
o First Amendment
 Multiple tests
• Commercial speech
• Clear and present danger
• Etc.
 Means-Ends test
• Pay attention to language of tests
• Whether there are adequate alternative means of
communication
• Focus on state activity/practice
o Violates Constitution?
o Who determines?
 Standard
 Application
• Focus on Congressional Law
o Remedial or Preventative
o Congruence
o Proportionality
• Hypos p. 1184
o A group of skinheads intimidate black children sufficiently to deter
them from entering a public park
 13th amendment
 Race
 No state action requirement
 Prob cannot reach under 14th A
• Katzenbach v. Morgan
o Voting Rights Act
 Persons who had completed 6th grade in PR could not be
required to demonstrate English literacy in order to vote
o Focus on state activity/practice
 Violation of Constitution
• Literacy test for people who completed 6th grade in PR
• Discriminatory denial of public services due to PR origins
• Lassiter
o US Supreme Court decision
o Literacy tests do not violate Constitution
• Evidence suggesting prejudice played a prominent role
o Intent requirement
• Court granted Congress leeway to determine the violation
o FN1—Congress cannot cut back on judicial holdings
 Can only extend further outward
 One-way ratchet
 • Court grants Congress deference in determining when
Congressional action is needed
• City of Boerne v. Flores
o Supreme Court had applied a test having a negative impact of the
freedom of exercise of religion
 Employment Division v. Smith
• Peyote use in a religious practice
• OR found to be able to discharge the drug counselors for
their use of peyote
• Sherbert test not applied
o Would have been strict scrutiny
o Court declined to apply Sherbert
o Congress passed RFRA
 Requiring strict scrutiny of govt substantially burdening person’s
exercise of religion
o Congress power under Section 5, 14th Amendment extends only to
enforcing provisions of 14th Amendment
 Legislation which alters the meaning of the Free Exercise Clause
cannot be said to be enforcing the Clause
• Power to enforce, not power to determine what
constitutes a constitutional violation
 Action must be remedy or prevention of explicit violation
• Congruence and proportionality
o Supreme Court and Congress takes different positions
 Supreme Court states that THEY determine whether there is a
constitutional violation
o Congress cannot define its own powers by altering the 14th A meaning
 Con is the superior paramount law
o Federalism
 Congress cannot expand Con outward with big latitude
 Power of the states to establish policy choices
 States rights
o Original meaning
 14th A only grants authority to enforce
o Court imposing restrictions on Congress
 Presumption of Constitutionality
• Countermajoritarian notion of Supreme Court
 Minimum rationality
 Court shouldn’t be making policy
• Unelected branch of government
 If Congress alters meaning of Free Exercise clause, not under
14th A, Sec 5
o Focus on Congressional Law
 Congruence and Proportionality
• Excessively broad reach and scope
• No time limit
• No geographic limitations
• Congress attempting to rid social traditions
o Attempt to do things that go beyond what Court would permit
o Root out a social practice
• Legislation vs. Adjudication
o Is legislation fundamentally different than court decisions?
 Leg as forward-looking
• General
• Accomplish aims on the ground
• Not address a past violation
o Should Congress be able to balance/policy making to accomplish aims
in 14th A?
 Equal protection guarantees
 Forward-looking laws
o Courts applying laws
 Countermajoritarian entity
• Hypos p. 1196
o Findings of fact that govts have refused to employ homosexuals
o Congress prohibits state or local governments from discrimination on
basis of sexual orientation
 Govt activity
• Discriminating against people of same-sex orientation
4/15/09
• Exam
o Tax v. Regulation
 Is it a tax or regulation masquerading as a tax
 Current standard VERY deferential to Congress
• Tax must at least bring in some revenue
• Child Labor interstate commerce ban voided
o Punitive tax also voided
o Strict Scrutiny v. Undue Burden
 Undue burden mainly in abortion context
• More deferential
o Only bring up development of law if makes sense in the context of the
question
o Functionalist zone
 Want categorical analysis
• Test
o Focus on state activity or practice
 Is it a violation?
• Standard—from court decisions
• Findings of Fact
o Inference from fact
• Policy choices
o Focus on congressional enactment
 Must be remedial or preventative, not a change in the law
 Congruence
 Proportionality
• Key examples
o Voting Rights Act of 1965
o RFRA
o ADEA
o ADA
o FMLA
o ADA Title II
• Hypo p. 1196
o State/local govts refused to employ homosexuals, Congress prohibits
discrimination in hiring, contracting or provision of public service
 State action
• Discrimination in hiring of homosexuals
• Standard—rational basis
o But with a little bite
 Romer v. Evans
 Can argue higher standard
o Congress shouldn’t ratchet up standard
o Finds such refusal to be utterly irrational
• Finding of fact
o Inferences from facts
  Eg, literacy tests inferred to be intentionally
discriminating against peoples of PR origin
 Congressional enactment
• Remedial/preventative
o Remedial
• Congruence/proportionality
o Remedy goes beyond facts found
o Inferences from facts in discrimination in hiring
 If discriminating in hiring, then doing so in
other realms as well
o Congruence
 Look and see what is covered in the remedy
• Goes beyond specifics of what is found
in violation
• Congress can go farther than simply
prohibiting violations themselves
• Remedy AND prevention
o Both within the Congress power
• Race vs. Sexual Orientation
o Is there more deference when Race or Sexual
Orientation?
• Board of Trustees of the University of Alabama v. Garrett
o State activity or practice
 Failing to provide an accommodation to people with disabilities
 Standard: Cleburne
• Rational basis
o With bite
o Although not officially acknowledged by Court
 Findings of fact
• 300 anecdotal incidents not enough to establish that
discrimination is a pervasive problem
 Policy choices
o Focus on congressional enactment
 Congruence/Proportionality
• Rational for a govt to opt against accommodations
• ADA accommodation duty exceeds what is constitutionally
required
• Makes unlawful a range of alternate responses what
would be reasonable
• But fall short of imposing an undue burden on the
employer
o 11th Amendment
 Why Congress not using Commerce Power
 Congress using 14th Amendment to get around 11th Amendment
• Nevada Dept of HR v. Hibbs
o Family and Medical Leave Act
  Gives everyone right of up to 12 weeks of leave to care for
family member
 Response to sex discrimination
o State activity
 Violation
• Discrimination based on sex stereotypes
 Standard
• Intermediate scrutiny
 Facts
• Evidence of state laws and policies applied discriminatory
 Policy choice
• Equal protection can be remedied in 2 ways
• Congress making policy choice to give right to all
o AND define what the right is
 12 weeks of leave
o Congressional enactment
 Remedial or preventative
 Congruent/Proportional
• Difficult and intractable problem
• Previous legislative attempts had failed
o Distinguishes Garrett
 Intermediate scrutiny
• Court more critical, therefore Congress can be more
critical
o Dissent
 Entitlement policy
 Lack of guilt
• Limit to states where there is a proven violation
• The more critical the scrutiny Court would undertake, more critical Congress
can be AND more deferential Court will be in allowing Congress to create law
• Tennessee v. Lane
o ADA
 Access to courts
 Plaintiff brought suit when he had to crawl up court steps to
hearing
o Title II
 Court looks only at the Court Access provision
 Congruence and Proportionality test
• Picking out only the one issue and assessing that
• Achieving a much higher level of congruence and
proportionality