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CONSTITUTIONAL LAW OUTLINE - Section I, Spring 2006, Professor Nowlin I.

THE ROLE OF THE SCT IN THE CONSTITUTIONAL ORDER a. The origins of the US Const. i. Declaration of Independence 1. Justification for Declaration of Ind. is that Bristish gov. was becoming despotic, ceasing securing natural rights, and violating those rights. 2. What is the relation of list of grievances to the preamble? List of grievances shows how the British gov. violated its power and became despotic, justifying for declaring independence. 3. How is it that list of grievances is like a Bill of Rights? it is the list of things that the gov. cannot do, so it was the foundation of the list of things in the Bill of Rights that the gov should do. 4. In what sense do the US Const and Declaration of Ind. Relate? Before creating a US Const., there should be US (as a nation), and Declaration creates the US as political community. Both documents also set out laws and basic values. The Const. constitutes the framework for federal government. 5. What kind of gov do you expect the drafters of the Declaration to create? democratic, representative, federalism, republic, no monarchy, rights and mechanisms for enforcement of those rights, separation of powers. 6. The Declaration sets out our ideals and values, and basic principles that are the heart of the Const. (according to Lincoln). ii. Scheme of government that the Const. creates: 1. Foundation people, people are the sovereign. 2. Purpose natural rights, human rights. 3. Form republican 4. limits on the government a. limits of structure, e.g. federalism, representative democracy, independence of the judiciary. Separation of powers insures checks and balances on the government, providing balance and diffuse of the government. Power is not concentrated on the few number of people, but is diffused among state and federal, different branches, two houses, etc. b. limits of individual rights, e.g. freedom of speech, freedom of religion, prohibition on cruel and unusual punishment 5. interrelation

a. limits on structure and individual rights may interrelate, e.g right to a jury trial, judiciary is here to protect the right to a jury trial 6. Ultimate guarantee of liberty is the people civic virtue iii. Toquevilles Democracy in America 1835 1. judicial supremacy. In the US there is a supreme court. 2. Tremendous political power of judges can refuse to apply the law if considers it to be unconstitutional. 3. Legislators and politicians pick up constitutional language when drafting laws. There is hardly a political question in US that does not become a judicial one. 4. Tremendous power of lawyers in the US, control the meaning of the Const., as well as most responsibility on lawyers be civically virtuous to secure rights. Lawyers are privilege intellectual class in America, almost like aristocracy. b. The basic framework i. Judicial Review power of the ct to declare the law unconstitutional. 1. Texas v. Johnson flag burning. Tremendous power of the judiciary in the US 5-4 decision. Five justices tell American people they cannot punish a person for burning a flag, even though most of the American people agree with dissenting justices. a. Brennan (majority): the flag was burnt as an expression of an idea, and 1A does not allow using a symbol in only one direction. b. Kennedy: we have to set aside our personal beliefs, free speech amendment protects everybody. c. Renquist in dissent: nobody is objecting against Johnson, but to the way he expressed his idea. d. Stevens: flag is a national asset, and can be protected by the statute. 2. Marbury v. Madison 1803 established judicial review if statute contradicts the Const. the statute is unconst. a. President Adams appointed a judge of peace (Marburry). Adams was outgoing president, losing election to Madison Republican party. In the last two days of Adams administration, he created judicial offices and filled them with Republicans. Jefferson would not allow Marbury to get his commission (proof that he was appointed as a judge of peace). Marshall was the secretary under Adams and the one who did not deliver the commission conflict of interests, b/c no he is writing the opinion

whether Marbury has a right to that commission. Marbury wants a writ of mandamus. b. Analysis: i. 1. Is there a right to the commission? Yes, b/c it was signed and sealed by the president. ii. 2. If there is a right to the commission, is there a remedy? Yes, b/c if there is a right, there should be a remedy, if that right has been violated. But there is be an executive discretion in vast areas, where executive is just responsible to the American people. However, rights are not within the disrection of the executive. iii. 3. If there is a remedy, can the ct provide it, is it a mandamus issuing from this court? 1. Nature of the writ S.Ct only has appellate jur. 2. Is it within the power of the ct to issue the writ of mandamus? No, b/c Sect. 13 is unconstitutional, b/c it tends to confer original jurisdictional on the Supreme Court whereas the art. III of the Const. does not give the Supreme Court that power. That is why the statute conflicts with the Constitution. Marshall declares the statute unconstitutional. iv. It is the first time the Court declares a statute passed the congress unconstitutional. v. What are the arguments Marshall makes arguing that the court has that power? Arguments for judicial review: 1. Supremacy of the Const. arguments: a. separation of powers argument constitution was created to limit the power of the branches, ct is the const-l check to balance and diffuse power b. supremacy clause argument what is the point of having the C as supreme, if it is not treated as such?

c. The fact that the C was created supports the intent of the framers that C was created to limit the gov, to the supreme law of the land, etc. d. Const. is the fundamental law of the land created by the people e. Popular sovereignty Const. was created by the people, should follow it as the ultimate law of the nation f. C limits the courts, so the cts cannot exceed their authority even if the executive confers the courts authority 2. the power of the ct arguments: a. oath, judges take says that they are supposed to follow the constitution b. it is the province of the court to say what the law is, so it is the power of the court to say whether a statute conflicts the constitution c. it is the province of the court to say what the law is, so it is the power of the court to say whether a statute conflicts the constitution i. The executive could argue that they also look at the C and can override the C. ii. with exceptions and regulation as the congress shall make another argument the executive can make about the C. 3. Wrinkles: a. by talking about the merits of the case first (before talking about the jur), Marshal is telling the public and the

Jefferson administration that the administration is violating the law. b. One could easily read appellate in section 13, but Marshall then could not have had a discussion about the constitutionality of the statute. 4. Marbury is closer to departmentalism view on judicial review. Some argue that it also declares judicial supremacy, but not clear. 3. Interpretation of the Const views as to which federal branch has authority: a. Judicial review could occur in coordinate/ departmental review. Departmentalism/ coordinate review all three branches share the power, other branches do not have to follow what the ct says. The main rival to the judicial supremacy review. i. Jeffersonian view b. Judicial supremacy could be viewed as supreme judicial review, under which the executive and the legislature have to defer. c. legislative supremacy some d. Executive supremacy not exercised in US, rejected even by Andrew Jackson ii. National Judicial Supremacy (federal ct v. state ct) interpretation of the Const. rests solely with the S. Ct. 1. McCulloch v. Maryland 1819 a. Marshall says that by this tribunal alone can this question be decided. Nowlin: here Marshall supports the judicial supremacy review. 2. Arguments for supreme judicial review Mcculloch/Marburry a. separation of powers supreme cts says what the law is and what C says most powerful argument. Other branches must defer. i. Counterargument for departmentalism view: 3 equal branches of government means that all three have authority to interpret the C. b. Arising under language art. III. i. Departmentalism still gives the court power for judicial review, but only departmentalism judicial review, not judicial supremacy.

ii. Breckenrigdge: why is it not in the constitution and who would check the ct if the court is wrong c. Take oath to uphold the C. i. Counterargument for departmentalism: everybody takes an oath. d. Constitution limits the ct and the ct should respect those limits. i. Counterargument for departmentalism: the ct has authority to say what they want, and it upsets the separation of powers. The constitution binds all branches of government. e. Ct can settle constitutional issues with authority if the authority of the ct is recognized - settlement function the court may resolve conflicts peacefully. The argument added by McCulloch i. Counterargument for departmentalism: judicial tyranny is what supreme judicial review is. The same argument could be made in reference to the executive the president can settle the disputes peacefully. 3. Cooper v. Aaron a. (one of the most recent statements about judicial supremacy) F: Arkansas refused to enforce Brown (desegragation). Ct: the judicial supremacy has been respected by the court and the country as a permanent and indispensable feature of our constitutional system. Nawlin: the ct exaggerates the respect for the judicial supremacy. Todays view is that the court cannot function w/o giving it the authority. 4. National Judicial supremacy as b/w state and federal cts - The authority is also divided b/w the national gov and the states. Views, arguments/ counterarguments as to federal/ state authority to interpret the Const. a. national judicial supremacy - Marshall i. Arising under the US Supreme Ct has authority to decide 1. Does not exclude states from having interpretative authority. The language does not explicitly say the authority is given to S.Ct would say specifically if S.Ct. was given such tremendous power.

ii. Blending together legislative and judicial powers separation of powers it cant be state legislatures who decide on the constitutionality. 1. Departmentalism states share authority, otherwise, national judicial supremacy creates imbalance. iii. Less competent tribunals state legislature is less competent than federal cts b/c they are less competent iv. Settlement function the Supreme Ct can peacefully settle 1. States may say that we will protect their own citizens. v. Federalism states are supreme in their interpretation of state constitution and federal cts are supreme in interpretation of U.S. Const. The most powerful argument. 1. The states ratified the U.S. Const. as creators they have to have some equal authority to determine whether the C they created has been violated, as parties to a K should have some authority what the K means b. state supremacy generally rejected. c. federal departmentalism national gov and state share Jefferson, Madison in Virginia and Ky Resolutions i. interposition states have the right under the Const. to which states are parties, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to the. (Va. Res. 1798) ii. nullification resolved that a nullification by the states of all aunauthorized at done by the US gov under the color of that instrument is the rightful remedy (KY Res. 1799) iii. Counterarguments by Rhode Island Resolution of 1798: 1. S.Ct was exclusively vested with authority to interpret the Const.

2. For state legislatures exercising such authority would be blending together legislative and judicial powers 3. Interruption of peace; 4. Less competent tribunals 5. Infraction on the Const. expressed in plain terms. c. The SOURCES of Judicial Decisions: Text, RepresentationReinforcement, and Natural Law i. Federalist 78 Hamiltons arguments 1. The ct and the congress are on the same level, but the const trumps the statute, so if there is a conflict the ct may invalidate the statute, b/c the const was created by the people and the congress was elected by the people. 2. Another argument congress has will power to create law, and the ct has judgment power to interpret and apply law. Supreme ct may only exercise the judicial power. ii. Major sources of constitutional interpretation. How do we know whether the law exercised judgment or will? What do we look at whether the judge uses his judgment? 1. legal materials text US Const. Best meaning of the Const is in the C. 2. original understanding intent a. will - politics b. judgment make sure that the cts exercise judicial power rather than legislative power 3. precedents stare decisis, predictability in the law. Cts can overrule precedents, but they are not entitled to ignore them, unlike legislature. 4. Evolving legal traditions how long have states have done this, how many states will of the people. 5. Consensus or contemporary values SCt sometimes melt legal traditions and contemporary values together. 6. Policy judgments - natural law, morality, judges own values. What is the difference b/w policy judgment and politics exercising the will? a. Imposing their judgments on society? iii. Natural Law its role in const-l interpretation 1. Calder v. Bull 1798 a. Justices Chase and Iredell disagreed on the role of natural law in the const-l interpretation. i. Justice Chase: Any legislature that goes against our values is wrong and it is up to the court to declare it void, even w/o constitutional provision that authorized the ct to do so. Goes directly to policy.

ii. Justice Iredell: the very fact that the C was written down, authorizing or prohibiting certain acts, means that the ct does not have authority to tell the legislature what to do. Also, natural law is abstract and people differ on natural justice. Goes to text to interpret the C. iii. Summary: since early history justices applied different tools to interpret the C. iv. Judicial Activism v. Judicial Restraint related debate to debate over the role of natural law in constitutional interpretation 1. Judicial Activism Justice Chase a. justice moral conception of justice, individual rights b. policy, contemporary values, recent legal traditions, text c. less deferential to elected officials d. exercise substantial amount of political discretion in determining the meaning of const-l provisions i. motivational force behind judicial activism concern with govl violations of individual rights and distrust of ordinary politics as a means of protecting those rights 2. Judicial Restraint Justice Iredell a. emphasis on stability, constitutional structures that limit courts, law b. precedent, text, original understanding, older legal traditions c. more deferential to elected officials d. minimize their political discretion i. conern with judicial govl actions in tension with constl values such as popular sovereignty, representative democracy, S/P, bicameralism, presentment to the executive, federalism. Distrust of the judiciary as a legitimate and competent institution for resolving important political decisions should be left to political process, where policy makers have greater accountability. v. Nature of the Constitution 1. Living Constitution a. emphasis on change, progress b. contemporary values c. judicial precedent i. overlap with judicial activism ii. chase

iii. liberals 2. Historical Constitution a. focus on the text, original understanding, legal traditions b. stability and constraint c. judicial precedent i. overlap with judicial restraint ii. iredell iii. conservatives d. The Power of Reprisal: POLITICAL CONTROL of the SCt - Ways to influence the court in case general public does not like the S.Cts decision. i. Amendment under art. 5 - 2/3 of both Houses propose Amendment, or 2/3 of state leg-res call for Const. convention. No am. Can be adopted until ratified by of the states. 1. Jeffersons vew const. should be rewritten every generation involve the masses in the political process. 2. Madison rejected such view b/c violent struggle b/w the parties should value stability and structure 3. Moderate view Cosnt. Should be amended to remedy serious defect ii. Power to appoint judges president appoints, with the senates advice and consent. How effective? It depends on who is the president, who is the majority in Congress, but the judge can change their voting patterns, e.g. Souter, appointed by George W. Bush big disappointment, Earl Warren appointed by Eisenhower becomes liberal. iii. Impeachment only one justice Samuel Chase was impeached, but the Senate did not vote to remove him from office. There is a very high standard for impeachment, something like bribery, that would suffice for impeachment, but otherwise there should be something serious. iv. Life tenure promote independence, but could impose age ceiling. v. Controlling sitting judges, informal mechanisms and self imposed limits cts respond to public opinion and political pressure do not want to depart too far from political consensus. vi. Scope of the exceptions clause S.Ct will have appellate jur with such such exceptions and under such regulations, as the congress shall make. Art. 3, sec. 2 1. Ex parte McCardle - 1869 a. F: D publishes articles in a newspaper in Miss. criticizing reconstruction and gets arrested for libel, disturbance of peace. D invokes habeas corpus procedure. Ct: looks whether it has jur. b. Where does the jur of the S.Ct comes from? i. Art. III

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1. Original subject matter jur 2. Appellate exceptions clause c. If the statute confers appellate in state X, that means that under the exceptions clause there is not jur in state Y. Since there is no mention of habeas corpus in original jur, it is appellate jur, and there is a statute that expressly repealed appellate jur of habeas corpus. Ct says that there might be another statutory basis for habeas corpus appellate jur, such as 1789 statute that grants habeas corpus jur. McCurdle loses b/c he does not invoke the right statute. d. Why are we reading this case? The scope of exceptions clause. There are two views: i. plenary power view Congress has power to restrict SCts power in appellate jur cases. ii. essential function view (S/P view) Congress cannot destroy the essential functin of the S.C. in the constitutional plan to interpret the Const. Under essential function, how can congress still limit appellate jur? Can change the path that appeals process goes through. e. McCurdle is not clear which view it is leaning to. e. CASE OR CONTROVERSY Requirements and JUSTICIABILITY Art. 3, sec. 2 judicial power shall extend to enumerated Cases and Controversies. i. Advisory Opinions S.Ct. said it is up to the executive to make war decisions, no advisory opinions should be issued. ii. Standing 1. Policy behind requirement of standing a. conserve judicial resources in the name of judicial efficiency b. judicial restraint S/P, judgment (in a congress case) v. will c. soundness of decisions promote adversity b/w the parties d. fairness to the most interested/ affected parties people who are not really interested may settle, and those affected will not be treated fairly 2. Allen v. Wright 1984 a. F: Private schools discriminated on the basis of race and IRS gives those schools tax breaks. Parents of African-American parents bring a suit, arguing that white parents send their kids to private schools, and black kids stay in public schools, so private schools

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discouraged segregation and IRS helped those schools do that. b. Constitutional requirements of standing binding on the S.Ct: i. injury in fact distinct and palpable, not abstract or conjectural, or hypothetical ii. fairly traceable to the challenged action iii. relief likely to be redressed by the requested relief iv. Analysis: v. injury in fact distinct and palpable, not abstract or conjectural, or hypothetical, palpable, distinct, individualized, conrete. vi. Additional prudential requirements self imposed 1. Ps injury is within the zone of interests protected or regulated by the statutory or const-l provision at issue 2. Is not too generalized, particular and not shared by almost all the citizens vii. P: people have the right too government that does not violate the law. Ct: everybody is injured this way, so injury is not viii. P: stigmatic harm. Ct: there is no direct connection b/w IRS violating the law and violation of the law by the private schools. Ct: if Ps were directly injured, such as they would apply, and were denied admission based on race, then they would have a claim. ix. P: IRS encouraged desegregated schools, white kids would flee to private schools, therefore kids in public schools had a lesser chance of having desegregated schools. Ct: is willing to recognize this injury. x. fairly traceable to the challenged action xi. P: IRS created an incentive to leave the schools b/c they were not expensive. Ct: the injury is indirect. OConnor: these allegations are speculative, e.g. there is no proof that if IRS would not give tax breaks, white kids would not go to private schools, how many of those schools are there? In what communities? This is a proximate cause analysis.

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xii. OConnor: also tells that it is not up to judiciary to interfere with internal operations of executive and congress political question thought. xiii. Brennan dissenting: OConnor is just employing standing doctrine to avoid the merits of the case. xiv. Stevens: causation is established, b/c economically, if IRS makes something more expensive, there would be less of that behavior. Also attacks OConnors political question argument, b/c the purpose of the standing doctrine is to assess the state of the party in the outcome of the case, no whether the possible outcome would interfere with other branches of government. If the case is not resolved here, where else would the Ps go? xv. relief redressibility iii. Political Questions - constitutional questions not for judicial resolution, but typically by executive and/or legislature. 1. Baker v. Carr 1962 2. F: Voters of Tenn. Bring suit challenging the apportionment the number of elected officials assigned to each district. Why would the legislature be reluctant to redraw the districts? On racial grounds, or incumbent protections racket. 3. Factors that the case involves a political question: a. does the case involve making a policy that is not up to the ct to issue b. text of the constitution that grants particlar authority to the political branches c. no judicial standard for resolving d. unusual need for unquestioning adherence to a political decision already made e. multiple decisions possible embarrassment f. lack of respect to a political branch 4. Historically political questions: a. foreign policy, especially war, e.g. declaration of war b. internal operations of political branches, e.g. impeachment 5. Analysis: Brennan: if Ps cited guarantee clause, they would immediately lose.Dissent: whatever you call, essentially the claim is guarantee clause, dressed up as equal protection clause.

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6. Analysis in class applying Brennans factors: a. does the case involve making a policy that is not up to the ct to issue. Brennan: no, it is just interpretation of 14A. Frankfurter: ct should respect state political powers, by telling Tenn. To redraw the districts, it will get suck into the political question, and it wil damage federalism, b/c the ct does not respect the states. It is a judicial restraint argument. Overlap with OConnors argument of standing. 7. text of the constitution that grants particular authority to the political branches. Brennan: there is nothing in the 14A. But, section 5 says congress will pass legislature 8. no judicial standard for resolving. we already had a series of cases interpreting equal protection clause, e.g. protection of African-American. Dissent: what is equality? 9. unusual need for unquestioning adherence to a political decision already made, possible chaos? No, just tell Tenn. To redraw the apportionment. Dissent: ct should defer to political branches of Tenn. 10. multiple decisions possible embarrassment. Dissent: we will say that people elected are not legitimate 11. lack of respect to a political branch. ct is not telling political branches of the federal government what to do, it is the states political branches. 12. Luther v. Borden 1849 a. Precedent to Baker v. Carr: guarantee clause is a political question. Luther v. Borden (1849) two groups were claiming to the power of Rhode Island Donn Rebellion. The ct said it is a political question on the grounds: i. if a ct would rule in this case, it would produce chaos ii. guarantee clause gives power to political branches iii. no guarantee how to define what a republican form of government is iv. Ripeness - brought too soon, e.g. Texas v. Johnson, prosecution ripe, threatening prosecution - ? prosecution unlikely not ripe v. Mootness - brought too late, e.g. criminal case: D dies too late; civil cases D dies; parties settle; state repeals the law. II. EQUALITY AND THE CONSTITUTION a. Evolution of equal protection doctrine i. Slavery and the Documents: 1. What words are there in the Declaration of Independence?

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a. All men are created equal. b. George IIIs list of indictments: [17] he has constrained our fellow citizens taken captive on the high Seas to bear Arms against their Country, to become executioners of their friends and Brethren, or to fall themselves by their Hands. 2. Constitution - no words slave or slavery but: a. language i. Art. I, section 2, clause 3 - three fifths clause for purposes of taxation and representation three fifths of all other persons ii. Article IV, section 2 clause 3 fugitive slave clause requires states to deliver up any person to service or labor in one state who had escaped into their territory iii. Art I, section 9, clause 1 prohibiting outlawing such persons as any of the states now existing shall think proper prior to 1808. b. Is constitution i. neutral on the question of slavery? 1. Adopted as compromise to ratify the const. ii. pro slavery? 1. People writing the const. were slave owners 2. Mentioning of three fifths, deportation, prohibiting outlawing slavery 3. If it was not proslavery, why would it need 13A emphatically abolishing slavery iii. anti slavery? 1. Heart of the const. is the declaration of independence all men are created equal, there was just a compromise with evil, but it does not mean that the const. endorses evil based on natural rights (Lincolns view) a. Founders foresaw extinguishing of slavery with time 3. State v. Post (N.J. 1845) a. F: New Jersy legislature adopted gradual abolition of slavery statute. Post bought a husband and wife

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who were born before enactment of the statute. They had a son who was in servitude until 25 as the statute prescribed. Ct: i. all men are created equal language but only to the extent of what the law says ii. legislature meant to abolish slavery but if meant to abolish, why not saying it explicitly. The statute on the contrary, even more so than the Const. and Declaration recognize the relationship b/w a master and his slave. Judge exercises judicial restraint. 4. Dred Scott v. Sandford 1857 origin of Substantive Due Process doctrine a. About the case: i. Only the second time the law of Congress was struck down. ii. Ct tried to solve one the great issues in politics for the first time (?) iii. Everybody on the ct claims to be an origininalist intent of the framers iv. Emergence of substantive due process birth of due process doctrine in the US Supreme ct. (Later Lochner (1905) and Roe (1973) decisions) v. Overruled by const. amendment vi. Help start the Civil War b. F: Scot was moved from a slave state Missouri to Illinois free state, then federal territory in Minnesota territory, and then back to Missouri. Scott argues that by being in free territory, he could not be re-enslaved in Missouri. Scott brings a suit against his owner, a citizen of NY, for illegal imprisonment, based on a diversity jur, where Scott is a citizen of Missouri. c. Original ground for decision was that Missouri decides whether Scott is a citizen and Missouri says that he is not, so there is no jur. d. Taney (majority): e. first talks about Declaration of Independence Africans were not among the framers, and some of the framers were slave owners, so it Declaration was meant to be antislavery, the framers would not act consistently with the principles they advocated in the Declaration. f. even if Missouri said Scott was a citizen, there would still be no jur, b/c he is not a citizen, b/c all

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African Americans, even if they are free, are not citizens of the U.S. for the purposes of federal law. i. Counterargument: free person is a citizen, one of the definition of citizenship is being free, so free persons are free g. Arfican Americans have been freed, participated in the Revolution, participated in the ratification of the Const. so they are citizens just like anybody else. h. This is what the const. means, I cant be concerned with injustice, if you dont like it, amend the const. i. Constitutionality of the Missouri Compromise Congress cannot prohibit slavery substantive due process argument. No matter how much process Congress gives, it cannot prohibit slavery, b/c there is a constitutional right to own slaves in the Const. arguably dicta. i. Counterargument: Const. says Congress has the authority to issue rules concerning territories ii. Due process 5A says cannot deny life, liberty and ppty w/o due process, means can deny with due process, and due process is voting by both houses of congress and signed by the president, or 2/3s of both houses over the presidents veto. j. Why is Dred Scott wrong? i. Reaches the constitutionality issue, even though declared that no jur ii. Decision based on racism premise and immoral iii. Unwisely peacefully resolved the issue starting a civil war iv. Ct attempted to impose a wrong solution to the slavery problem ii. Reconstruction and Retreat 1. Historical context a. Before the Civil War - National gov was seen as a threat to the rights of citizens before the Civil Law. That is why the Bill of Rights was passed applied only to the national gov. i. Congress had only power to pass law delegated and enumerated powers 1. Within the scope of authority 2. Cannot violate the bill of rights constitutional limitations ii. State government

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1. General jur can pass any kind of law at all, b/c there is no list for the state gov 2. Limits of the const few iii. After the Civil War Civil Rights amendments - The thought that state is not a threat to individual rights flipped, with now federal government protecting individual rights 1. Whats new in the const? a. created new powers for Congress sections 2 b. new provisions of the Const. for cts to enforce iv. Civil Rights Amendments: 1. 13A abolishes involuntary servitude 2. 14A prohibitions on state governments a. privileges and immunities b. due process, was already in 5A + citizenship to people who were born or naturalized in the US c. equal protection d. section 5 authority of congress to enforce all provisions 3. 15A- right to vote on the basis of race a. Issues: i. Federalism and S/P 2. Judicial reaction to As a. Saughter-House Cases 1873 reassertion of federal constraints i. F: monopoly to a butcher co in New Orleans. Other butcher envoke the As. Ct: As were meant to protect from racial discrimination, also federalism argument (would subject sts to control of congress). b. Strauder v. West Virginia 1879 federalism and protection of newly freed slaves i. F: a black person convicted by an all white jury in a state where there was a statute prohibiting black persons to serve on the jury. Ct: WV is in violation of 14A,

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particularly equal protection clause. Ct looks at history of the 14A. Dissent: if equal protection clause applies to political riots, then women could claim the right to serve in the jury, but women cannot serve on the jury. 14A does not apply to political rights. ii. What can we get out of these cases? 1. protected class are AfricanAmericans. Two-tier theory a. racial classifications get a taugher test b. other classifications do not c. Civil Rights Cases 1883 judicial invalidation of civil rights legislation i. Ct reflect not on who is being protected but on the scope of congressional power and state action doctrine ii. F: the Congress passes a public accommodations law Civil Rights Act of 1875. iii. Ct: the law is not within the power of Congress, violating the doctrine of delegated and enumerated powers. The 14A says no state, and congress here prohibits private discriminations, and private discriminations are not within the scope of Congress to cover. Discrimination is not the same as slavery, and congress cannot enforce a law enforcing prohibition of discrimination. iv. Dissent: we should a adopt a broader view, since we just had a Civil War, and if we adopt this view, Congress will have power to enforce such legislation. Since slavery was based on discrimination based on race, it is up to congress to adopt legislation prohibiting conduct of racial discrimination. Concentrates on citizenship basic right, so all private actors are involved, not excluding blacks. v. State Action doctrine congress can only act when states are discriminating, not when states failed to prevent private discrimination. Congress cannot pass broad legislation to involve all private acts. d. Plessy v. Ferguson 1896

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i. F: Lousiana statute separate but equal clause. ii. Brown for majority: this law in favor of segregation is constitutional. Simply b/c there is separation of races by law, it does not mean one race is superior and another is inferior. Social rights are outside the scope of equal protection clause. iii. Test: as long as it is reasonable look at our established usages, customs and traditions, (schools are still segregated). iv. Dissent Harlan: const. is colorblind. The reason for As was to prevent legislation based on race. This legislation is doing everything the 14A was meant to prohibit, therefore it is unconstitutional. This law is unreasonable, it is meant to oppress and is hostile. 3. What is going on in this cases? a. read narrowly, b/c other discriminated classes would claim discrimination b. federalism dont want congress to take over the general jur of the states c. S/P we dont want congress to read As broader than we do, b/c we are supreme and have the authority to review the laws d. State action majority does not view legislation as hostile, dissent it is hostile. e. Ct reflects national sentiment that just gave up on the racial progress. f. Judicial restraint deference to the state legislation 4. Cumming v. Board of Education 1899 equality of separate facilities a. F: black taxpayers challenged their tax assessment on the ground that the money was used to support a high school open only to white students. The black high school had been closed. b. Harlan for majority: rejected the challenge. The result would be taking from white students their privileges w/o giving black children additional opportunities furnished in high schools. Not clear. c. Federal authority cannot interfere with management of such schools unless there is violation of he const. 5. McCabe v. Atchison 1914 a. F: no sleeping facilities for blacks on RR. Oklahomas argument there is not enough demand

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for good facilities for blacks, b/c they do not travel as much as whites do. b. Ct: it makes the constl right to depend upon the number of persons who may be discriminated against. If facilities are provided, substantial equality cannot be refused. Equality does not depend on demand. Constl right is an individual one. iii. The road to Brown Attack on Jim Crow 1. Gaines v. Canada 1938 a. F: law school denies admission on the grounds that there is a black law school out of state. b. Ct: white students can stay in state, black have to go out of state that is not equal. The cts adopts a de novo determination of equality. 2. Sweatt v. Painter 1950 a. Sweatt was denied admission to Texas Law School on the ground that a parallel black law school was a substantially equal facility. b. Ct: even though two schools were equal in tangibles, there are other considerations such as reputation of faculty, influence of alumni, experience of administration, standing in the community, traditions and prestige etc, which are not equal. The school should also admit students who represent substantial part of the community. The ct is moving to saying that separate but equal can never be equal. 3. McLaurin ???? McClaurin??? (separate table for a black student in law school) a. F: black student denied admission to white graduate school. b. Ct: intangible consideration: his ability to study, to engage in discussion, and exchange his views with other students, and, in general, to learn his profession. 4. Brown v. Board of Education of Topeka (Brown I) 1954 a. F: segregation in public schools. b. Ct: inequality of tangibles connected to stigma even though tangibles are equal, there will be other intangibles flowing around such as inferiority. Once an institution decide to segregate two different institutions will never be equal, b/c decision to segregate has stigma in itself. c. ct wrestles with the decision on how to interpret 14A. The ct says status of public education has

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changed, that is why it is hard to interpret 14A the same way. Education is important to citizenship, as well as socio-economic status. d. hard to interpret 14A b/c not clear what the intent of those who ratified the A was. i. counterargument: it is always hard to define what the intent is e. Harm: damage to children in schools b/c of the connection to stigma narrow interpretation. 5. Broader what else is Brown about? Harm: a. race classification is wrong. Person are to be treated as individuals, not as group, b/c race characteristics are immutable b. segregation is about stigma, which is harmful, that is why it is unconstitutional c. oppression intent was to keep blacks inferior d. stimulant to race prejudice teach children early what racism is about 6. Bolling v. Sharpe 1954 applicability of Brown to DC. Reversed incorporation a. F: segregation in public schools. b. Ct: could not rely on EPC b/c applies only to sts. But although EP and DP are not interchangeable phrases, discrimination may be so unjustifiable as to violative of DP of 5A. It would be unthinkable that the same Const. Would impose a lesser duty on the federal gov. Segregation in public education is not reasonably related to any proper govl objective, and thus it imposes on Negro children a burden that constitutes an arbitrary deprivation of liberty. 7. Beyond education? S.Ct later held unconstitutional segregation in public parks, swimming pools, public access cases. a. In Brown, education is a necessity. b. Analysis of EP violations: i. Three tiered levels of scrutiny tests: 1. Strict Scrutiny a. ends compelling interest b. means narrow tailoring, captured by the word necessary i. applied to suspect classification: 1. race 2. ethnicity 3. national origin 2. Intermediate scrutiny

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a. substantial, important, significant, exceedingly persuasive justification (for gender) b. means tailoring camptured by the words substantially related i. applied to quazi suspect classifications: 1. gender 2. illegitimacy 3. Rational basis easiest to meet for the gov. a. legitimate b. means rationally related i. non-suspect classifications: 1. sexual orientation 2. age 3. disability 4. wealth ii. Same tests as applied to various racial classifications: 1. express racial classifications SS 2. No express racial classification a. purpose + effect to discriminate SS b. no purpose but effect RBR c. purpose but no effect RBR c. Equal Protection Methodology: Heightened Scrutiny and the Problem of RACE i. Race-specific Classifications that Expressly Disadvantage Racial Minorities 1. Korematsu v. United States 1944 articulation of SS test as applied to race classification a. F: war with Japan in 1942 President passes executive order and congress delegates authority to military commanders to exclude people of Japanese ancestry. P sues under 5A, equal protections under due process unusual. b. Black for majority: upheld order as constl. c. Racial classification strict scrutiny test i. goal of gov compelling state interest end part of test. 1. ct says US is at war national security 2. counterargument: use narrower language, e.g. prevent a handful of acts of espionage in the West Coast lowering the level of generality 3. counterargument: the real interest of the state is acting out race prejudice, and it is not a compelling state interest

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ii. has to be necessary to achieve the compelling state interest mean part 1. necessary b/c hard to say who is loyal and who is not 2. counterargument: there are more specific ways of investigating who is not loyal to US 3. counterargument: use alternatives 4. counterargument: action of the state is too broad d. Dissent by Murphy: i. there are other nationalities which are not confined in camps, even though they sympathize fascists ii. order based on racial prejudice iii. we can find out who is not loyal e. Dissent by Jackson: i. ct should not interfere with political branches, should not uphold b/c give legitimacy to military order w/o any proof the orders reasonableness 2. Policy behind SS. Strict scrutiny is the toughest test for the government to pass. Justifications for SS when classifying on the basis on race: a. history of the 14A nothing in it about race b. race is typically not relevant to govs decision making c. history of racism in America d. political process does not protect minorities as well as it protects majority (Carolene Products (1938) the most celebrated footnote 4 in con. Law arguing for higher std of review for classification based on religion/nationality/race. e. normative moral judgments overlap with broad harm defined in Brown. i. unfair to treat an individual on the basis of him belonging to a class ii. race classification is wrong. Persons are to be treated as individuals, not as group, b/c race characteristics are immutable. 1. segregation is about stigma, which is harmful, that is why it is unconstitutional 2. oppression intent was to keep blacks inferior

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3. stimulant to race prejudice teach children early what racism is about 4. re-enforce racial stereotypes ii. Facially nonracial Classifications that Disadvantage Racial Minorities (no purpose, but effect) 1. Washington v. Davis 1976 a. F: test administered to applicants for positions as police officers. Davis says that this test has a discriminatory effect on African-Americans, b/c AAs had lower scores and could not get the job. b. White for majority: There is effect here, but no purpose to discriminate, so RBR is applied. i. Ends - Maintain the level of competency of the job necessary to perform well. ii. Means conducting a test rationally related c. Policy for upholding would have to ivalidate a wide range of other laws. d. Stevens concurring: analysis is more complicated than just determining whether there is purpose and effect. When proportion is dramatic in terms of effect, we cannot be certain that there is no purpose, sometimes we may infer purpose from effect. Purpose sometimes creates effect, and a big effect may mean that there is a purpose. 2. McCleskey v. Kemp 1987 a. F: AA convicted in Georgia and sentenced to death. McCleskey shows that in criminal justice system if you an AA who murdered a white person, it is more likely that you will get a capital punishment (Baldus Study). This is the basis for McCleskeys argument that his conviction has a discriminatory effect. b. Powell for majority: we agree that AAs are sentence to death on a higher rate than white people, and there may be discriminatory purpose. Prosecutors and juries have wide discretion and thats the way the system works. We have to be careful in making decisions about such matters b/c we will have to rebuild our whole justice system. c. McCleskey does not show anything specific that someone was discriminatory, and they have to have broad discretion. d. Legislature? They enacted the statute upholding capital punishment with the purpose of punishing people who commit violent crimes. But McCleskey

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does not show that leg-re enacted the statute with the purpose of discriminating on the basis of race. e. Two policy arguments: i. cts would have to deal with other claims of similar kind ii. what would we do with convictions to death f. This argument is best presented to the legislature. g. Brennan dissenting: h. there is purpose and effect of racial discrimination, so it is an equal protection clause violation i. too much justice in Georgia j. S.Ct fulfills separation of powers by protecting minorities k. Nowlin: this case reaffirms Davis, by saying that if there is no purpose or no effect, the state is probably going to win under RBR. 3. Village of Arlington Heights v. Metropolitan housing Development Corp. 1977 a. F: Suburb of Chicago and there was an application to rezone the suburb into an apartment area, so that ethnic minorities could live the suburb. The village did not rezone the area. b. Ct: upheld denial of rezoning. Infer purpose from effect when the effect is large and no plausible explanation for the effect. c. Proof of purpose: Look at the historical background general and particular history. Administrative, legislative history. Departure from procedures may also mean purpose, e.g. closing the meeting to the public, even though the meetings are regularly held open. d. Purpose if it is a motivating factor (one of several), then go from RBR to SS and burden on gov to show that it would have taken exactly the same action footnote 21. If the gov can show that, then there is justicibility issue causation that govs action caused the harm complained of by the party. iii. Express racial classification neutral on its face 1. Loving v. Virginia 1967 a. F: Va statute prohibiting interracial marriages. b. S.Ct: the fact that the statute appears neutral on its face, the statute will get SS bc there is express racial classification. SS: i. ends white supremacy not a compelling state interest

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ii. means - prohibiting generally accepted conduct based on race c. The ct stops distinguishing b/w different express levels of classifications. As long as there is an express racial classification SS. iv. Race-Specific Classifications that Benefit Racial Minorities Affirmative Action 1. Adarand Constructors, Inc. v. Pena 1995 a. F: federal program financially rewarding general contractors who award their sub-bids to socially and economically disadvantaged individuals, who are presumed to be AAs, Hispanics, Native Americans, Asian Pacific Americans and other minorities. Adarand was denied the sub-bid even though his bid was the lowest. The sub-bid was awarded to Gonzalez instead. b. OConnor: three general proposotions with respect to govl racial classn: i. Skepticism all racial classifications get SS ii. Consistency the focus is on classification, not on the class (individuals and not groups), whether it advantages or disadvantages racial minorities. iii. Congruency 14A = 5A, there are not going to be state and federal standards. The 14A equal protection and 5A due process clause are the same. iv. Holding: all racial classifications, whether by local or fed gov, get SS. SS really needs to be strict. v. Arguments: vi. Sometimes it is not clear whether a program benefits or disadvantages a racial minority racial paternalism re-enforces racial stigma and SS would weed out those programs and leave affirmative actions in play which are really. vii. just b/c every affirmative action will get SS, does not mean that the ct would not uphold it, if it is narrowly tailored to the compelling govs interest. viii. application of affirmative action. 1. compelling state interest 2. is it narrowly tailored (are there any race-neutral alternatives, will it last only for the duration that the

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discriminatory effects are eliminated) ix. Scalia concurring: gov can never have a compelling interest in discriminating based on race in order to make up for past racial discrimantion x. Thomas concurring: constitutional and moral equivalence b/w laws that disadvantage and benefit racial minorities re-enforce racial stigma and racial paternity xi. Stevens (dissenting): xii. if all affirmative actions get SS they will most certainly fail constitutionality, but the gov can indeed distinguish b/w programs benefiting and disadvantaging racial minority criticizing consistency xiii. racial discrimination that benefits racial minorities is not supposed to be suspicious skepticism criticism xiv. federal gov plays a role to protect individuals from state actions, Congress represents the entire nation and constitutionally designed to have more power than the states congruency criticism xv. Ginsburg (dissenting): majorities agrees that significant portion of affirmative action programs will pass SS 2. Reasons for affirmative actions a. purpose of 14A protect AAs and Congress has authority to pass legislation i. Aarand is wrong by saying that Congress now does not have authority to use affirmative action b. racism is wrong unclear how it goes i. individuals v. groups ii. stigma iii. hostility iv. stimulant to prejudice v. history of racism vi. OConnor heightened scrutiny vii. counterargument: we have moved beyond the era of segregation and slavery and say that we try to remedy past mistakes c. political process minorities are not sufficiently represented i. SS b/c whites are more represented,

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1. But: no SS b/c whites discriminate against themselves d. race irrelevant i. SS b/c irrelevant, should be suspicious ii. no SS b/c did not move away from racial discrimination yet 3. Big picture: it is a complicated issue, affirmative action is suspicious, but on the other hand, giving the importance of race issue in America, we will loosen up SS. OConnor says that may be in 25 years we will not affirmative action programs. 4. Applying SS: CIS a. remedial interest i. if we have proven violator and proven Vs, then there is a compelling state interest ii. proven violator, but no proven Vs, there is compelling state interest iii. no proven violator, but proven discrimination within an industry, there is probably not a compelling state interest iv. general societal discrimination not a compelling state interest b. diversity not about fixing past discrimination, it is about providing a diverse environment, e.g. Grutter v. Bollinger 5. Grutter v. Bollinger 2003 remedy as CSI is abandoned diversity is CSI a. F: a white applicant was denied admission to Michigan Law School, and argues that she was denied admission b/c the schools uses race as a factor. b. OConnor: c. CSI - diversity is a compelling state interest, at least in the context of higher education, we are going to the educators who say that it is a compelling state interest i. understanding other cultures ii. breakdown stereotypes iii. diverse viewpoints iv. in business diversity is important to the economic success v. in military diversity is essential, cannot function w/o breaking down stereotype vi. law schools lawyers are leaders in the country d. Narrowly tailored yes

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i. ii. iii. iv. v. vi. vii. viii.

ix. x. xi. xii. xiii. xiv. xv. xvi. xvii. xviii. xix. xx. xxi. xxii.

xxiii.

individual file review no quota and no set aside race is a plus factor 25 years end if possible time limit good faith consideration of race neutral alternatives Ginsburg dissenting: part of the reason why we take those race measures is b/c of history of race discrimination in the past public education is not provided equally to minorities on K-12 level, so race as a plus factor compensates for the injustice they got on high school level we cant firmly forecast that in 25 years racial problems will go away in America Renquist dissenting: we dont have diversity here, we have racial balance Kennedy dissenting: SS involves no deference to govs officials, and diversity is no compelling state interest if the program is not upheld, the state officials would come up with race neutral alternatives, that would be fairer Scalia dissenting: it is too late it is discriminating against whites this decision would bring more lawsuits Thomas dissenting: AAs would be better off if state did not implement race conscious measures CSI several states do not have public law schools and are doing just fine if there is CSI, it does not achieve the goal, b/c the program stigmatizes minoritys achievements we dont need to lower std of admission for minorities to maintain an elite law schools, minorities can just go to other, less elite law schools same gov that was oppressing blacks for so long, says we are changed now Thomas is suspicious of that

6. Gratz 2003 a. F: Undergraduate admission system, under which racial minorities would be automatically assigned

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20 points. Most would get no individualized review and race would be big plus factor. b. Renquist majority: i. program not narrowly tailored - big plus factor that operates in a mechanical fashion c. Souter dissenting: i. 20 points is not really different from race as a plus factor more applications to undergraduate programs ii. schools would do it anyway d. Summary diversity is recognized as a CSI, but the problem is narrow tailoring. The more it looks like Grutter the more chances it will be upheld, the more it looks like Gratz the more chances it will be held unconstitutional. d. Equal Protection Methodology: Rational Basis Review (RBR) i. Test 1. End - Legitimate state interest 2. Means rationally related to the legitimate state interest ii. Outcomes possible when applying law with classifications: 1. Perfect fit 2. Over-inclusion classification disadvantages a larger class than is needed to achieve the states purpose 3. Under-inclusion some people are not disadvantaged even though the failure to include them undermines achievements of the states interest 4. Both over-inclusion and under-inclusion 5. Non-fit. iii. Characteristics of application of RBR: 1. highly deferential to the legislature 2. particularly for economic purposes 3. the ct will likely hypothesize what the state interest is legitimate state interest 4. rational relation overinclusive is OK if efficient, underinclusive is OK b/c legislature is entitled to solve one problem at a time iv. New York City Transit Authority v. Beazer 1979 SI - safety 1. F: TA refused to employ people taking methadone (treatment for heroine addicts). 2. Stevens for majority: applies EPC of the 14A and apply RBR b/c non-suspect classification. a. CSI safety and efficiency b. Rational relation to the classification the gov presumptively wins deference to the state officials

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it is rational b/c interviewing screening every one individually is not efficient ii. dont want heroine addicts to drive 3. White dissenting: even though it is the most deferential test to the gov likelihood that you are employable is larger than that you are not classification is overinclusive, b/c banning a sufficient number of potential employees, who are safe 4. individual screening is efficient, therefore this is irrational 5. footnote: majority of heroine users are poor and minorities - contrast to Stevenss saying that the test is not characterized by unpopular trait or affiliation should apply tougher RBR v. Minnesota v. Clover Leaf Creamery Co. 1981 SI environment 1. F: law prohibiting selling milk in plastic containers, allows selling in cardboard containers. 2. TC: law violative of equal protection, b/c the law favors one industry over another. 3. AC: law furthers environmental protection, but does not ahchieve it, that is why equal protection violation. 4. S.Ct: Brennan: for a state interest to be legitimate, it is not enough that the statute is irrational. Reveiws legislative history law passed for environmental purposes. We will not invalidate a statute under IPC merely b/c some legislators sought to obtain votes for the measure on the basis of its beneficial side effects on state industry. 5. Summary: as long as there is a public policy behind a statute, it is a legitimate state interest. What about the argument that the state favors one industry over the other? Brennan would say that it is up to the state to regulate economic interests. Another response would be that the ct would not impute impure motive to the state legislature as long as there is rational explanation of the statute. vi. Railway Express Agency v. New York 1949 - economy 1. Note: ct is more likely to uphold a statute in the area of economic regulation. 2. F: ordinance prohiting vehicle ads, unless the vehicle belongs to the owner in the ordinary course of business. 3. S.Ct: the city does not have to get rid of all the distractions, if there is a big problem and a lesser problem, it is OK for the legislature to just get rid of the lesser problem. vii. Williamson v. Lee Optical 1955 health and safety 1. F: law prohibiting new frames on old glasses, or new lenses on old frames. 2. S.Ct: deferential. a. legitimate state interest health and safety

i.

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b. rationally related yes, b/c classification b/w optimologists and optologists viii. U.S. Department of Agriculture v. Moreno 1973 looking for actual purpose when harm to politically unpopular group 1. F: law prohibiting food stamps to people who live in a house hold but are not relatives. 2. Brennan for majority: legitimate state interest: preventing hippies from getting govs handouts. Why? Maybe b/c the ct thinks that the legislature was about hippies, so if the legislature is about an unpopular group, we get a closer scrutiny in terms of state interest 3. Rehnquist dissenting: legitimate state interest: prevent fraud, subsidizing traditional families ix. City of Cleburne v. Cleburne Living Center 1985 looking for actual purpose when statute based on irrational prejudice to mentally retarded 1. F: city ordinance prohibiting building homes for insane on a particular cite. 2. White for majority: 3. legitimate state interest not legitimate b/c based on prejudice. Regulation is based on the interests of a fraction of the community that do not actually reflect reality 4. city: across from junior high school, students would harass the patients. Ct: city can just stop the harassment 5. city: flood plain. Ct: other home could be built w/o any problem 6. Stevens concurring: regulation based on prejudice, should apply tighter rational basis review. x. Romer v. Evans 1996 looking for actual purpose when statute imposes broad disability on a group based on animus 1. F: Colorado amendment prohibiting local govs from enactment antidiscrimation measure protecting homosexuals. 2. Kennedy for majority: tate interest: sweeping nature and no actual purpose offered by the legislature. Ct should look for actual purpose, and the actual purpose is discrimination. 3. Scalia, Rehnquist, Thomas dissenting: legitimate state interest state trying to protect moral behavior e. Equal Protection Methodology: Heightened Scrutiny and the Problem of GENDER i. The Early Cases 1. Bradwell v. Ill. 1873 a. F: license to practice law denied to a woman. b. Ct: practicing law is not a legitimate state interest, therefore it is not protected by equal protection. c. Concurrence: womans place is at home.

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ii. The Road to Intermediate Scrutiny 1. Reed v. Reed 1971 a. F: Idaho law placing males higher in line of those people who claim to administer an estate. b. Burger for unanimous ct: applied RBR with teeth i. state interest reduce the workload for the cts ii. means not rationally related to gender discrimination 2. Frontiero v. Richardson 1973 a. F: federal law allowing male officers larger housing allowance and higher medical benefits. b. Brennan for plurality: applies SS b/c gender classifications as inherently suspect. Why? i. history of gender discrimination ii. gender like race is an immutable characteristics, should not impose a disability on a group based on an individual characteristic iii. congress was trying to pass an equal rights amendment iv. other thoughts: women are not politically as powerful as men v. other thoughts: gender is not relevant to the govs decision making c. Powells concurrence: the matter will be resolved by the equal rights amendment, should resolve just applying Reed v. Reed. The amendment would be more legitimate. d. Renquist: dissented w/o opinion. 3. Craig v. Boren 1976 articulation of intermediate scrutiny a. F: Oklahoma law prohibiting sail of beer to males younger than 21, and females younger than 18. Men are discriminated. b. Brennan: formulating IS: c. state interest important, substantial, significant, high stake i. reduce drunk driving is a legitimate state interest. Govs argument: males are more prone to drunk driving. Ct: there may be some truth to that, but we are talking about 2% of the people in that category, so it is not enough proxy over-inclusiveness d. substantially related classification does not justify 3 years difference and does not achieve objective b/c still can ask females to buy beer

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e. Powell concurring: stick with sharper focus RBR articulated in Reed v. Reed, and the law would still fail the test. f. Stevens concurring: there should be just ends/means analysis and drop three tiers of scrutiny. g. Renquist dissenting: h. men are discriminated, and we have a history of discrimination should focus on the nature of classification, and not the class that is burdened i. we should just have SS and RBR, and should not create IS b/c once we do that the justices will be very subjective in applying them. j. IS is not anywhere in previous cases, the ct just made it up. k. legitimate state interest safety, and it is rationally related 4. EPC and gender discrimination: a. text i. section 2 is gender discriminatory ii. but section 1, where equal protection clause is, applies to all persons b. purpose i. race AAs only withstanding, gender discrimination was a natural order of things c. analogy argument race is like gender, if have an amendment that says all persons is this purpose is about race, then gender discrimination is like gender discrimination. Why are they alike? i. history of discrimination ii. not relevant to ability to perform iii. relative political powerlessness iv. immutable, and we treat individuals as members of group, which is unfair v. stimulant to prejudice vi. stigma vii. contemporary values viii. stereotypes 5. Why does the ct move only to IS? a. history of discrimination is not the same as race b. differences b/w men and women c. women are not really minorities d. it is a political compromise e. avoid a lot of litigation, b/c there are really some difference b/w men and women and the ct is not sure what constitutes a real difference and what constitutes stereotyping

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iii. Archaic and Overbroad Generalizations v. Real Differences 1. United States v. Virginia 1996 sharper focus of IS a. F: Virginia Military College using adversative method for men only and Mary Baldwin College using cooperative method for women. b. S.Ct: VMI is violating equal protection clause. After this case VMI has to admit women. Ginsburg: new language of state having to have an exceedingly persuasive justification. It looks like sharper focus of IS. Burden of justification rests entirely with the state. i. Ends important govl objective ii. Means substantially related to achievement of those objectives c. VMIs arguments: d. state interest diversity. Ct: we dont believe VMI excludes women to promote diversity. e. would have to change the character of boot camp b/c women are different from men. Ct: there are men who would not be able to comply with VMIs requirements, but there are women who would be able to comply, even though they are few, so we are not going to deny women opportunity. VMI recruits students by not saying they are boot camp, but they are producing citizen soldiers. f. the fact that Va. created program for women also does not justify the exclusion of women, b/c they are not equal in alumni network, number of courses, highly qualified faculty members etc. g. Renquist concurring: h. does not like exceedingly persuasive justifications and says lets not do tighter version of IS and create more confusion. i. if parallel program was created that would be of the same overall general caliber, Va. would pass the test. j. Scalia dissenting: if there is an equal protection violation, it should be remedied by an alternative institution. This ct has these elite values it is trying to impose on the whole society. Education is an important state interest and creation of the boot camp education is rationally related to the state objective. k. Summary: Is it possible to have single sex education schools? Part of the opinion seems to suggest that it is, part is not. The ct stresses real

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difference, but condemns overall generalizations and stereotypes. So emphasis on boot camp for men, and cooperative model for women, is it a real difference or generalizations? Some stereotypes are created by real differences, where is the dividing line? 2. Michael M. v. Sonoma County Superior Court 1981 statutory rape a. F: statutory rape statute punishing men for having sex with females under 18. b. Ct: the purpose of the statute was to prevent teen pregnancy and means are rationally related. Issues behind the scenes: male aggression, protecting female chastity c. Summary: If you dont have express gender classification, look for purpose and effect to get a heightened scrutiny, if not, get a RBR. i. Express gender classification IS ii. Facially non-gender class. - RBR iv. Sexual orientation classification RBR+ 1. Romer v. Evans 1996 2. Complications with sexual orientation classification: a. conduct v. status b. prejudice - moral disapproval i. reactionary sex is about procreation ii. conservative sex is about marriage iii. liberal emotional intimacy - meaningful iv. libertine sex is about recreation 3. F: Colorado passed amendment to the state constitution prohibiting passing by the municipalities any regulation prohibiting discrimination based on sexual orientation. 4. Kennedy for majority: 5. RBR for sexual orientation does this pass? Nowlin: if we applied traditional RBR, Colorado would win. But the ct here applies RBR+, even though the ct never says that it is a RBR+ a. state interest animosity, even though the state says it is freedom of association, conserving resources, (in dissent) protect traditional sexual morality. 6. What leads the ct to conclude this case is based on animosity? a. This case is about basic civil rights. b. Another thought is that this law makes it harder for one group of people to get protection from the gov than for another group. c. Scalia dissenting:

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d. should apply traditional RBR does not want to sharpen e. it was still constitutional for states to criminalize sodomy, that is why Scalia wants the law upheld f. Criticizing Kennedys opinion: i. all civil rights are special, therefore there is nothing suspicious ii. the group is not politically powerless 46% of citizens of Colorado opposed the amendment, even though gays are in minority 7. Why would the ct use RBR? a. sexual orientation is like race, i. prejudice ii. history of discrimination iii. immutable characteristics? iv. political representation v. not relevant to political decision making vi. analogy to Reed v. Reed in gender discrimination cases b. what should be the level of scrutiny for sexual orientation? Under RBR the ct can hypothesize about legitimate state interest, so when the ct says there is animus, it looks like the ct is applying sharper focus of RBR 8. Same sex marriage issue does EP prohibits states from restricting marriages b/w same sexes? a. analogy to Loving prohibiting interracial marriages being gay is like being of particular race Goodrichs argument b. judicial power question c. identifies person by a single trait and denies EP (Romer) d. civil unions that are just like marriage, but are not called marriage, no sexual relationship is implied III. IMPLIED FUNDAMENTAL RIGHTS a. Introduction b. The Privileges or Immunities Clause i. The Slaughter-House Cases 1873 1. F: butchers were charged a fee for engaging in butchery. Butchers sue alleging violation of 13A (involuntary servitude), privileges and immunities (14A), equal protection, due process. 2. Majority Miller: 3. distinction b/w state and federal individual rights 14A talks only about privileges and immunities of citizens of

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US and does not talk about the right of citizens of the states. Art. 4, section 2 the citizens of each state shall be entitled to all the P&I of citizens of several states means that citizens of other states will enjoy the same P&I as other citizens within each states jur. 4. federal rights that every citizen enjoys: a. habeas corpus b. petition and redress of grievances c. protection from the gov in the high seas, or abroad d. peaceable assembly e. all rights secured under treaties f. rights under 13A and 15A use navigable waters 5. This reading of the constitution is very narrow b/c broad reading would open the road to Congress and Court to interfere with the states. 6. Dissent by Field: 7. this reading is so narrow as to make the amendments unnecessary read the debates, in which those who passed it thought it pretty important 8. looks at the natural and inalienable rights would be the source he would look at to find what substantive rights are 9. Dissent by Bradley: wants to look to tradition (English). 10. Nowlin: tradition often reflects natural rights, so even though these are analytically different concepts, both dissents come to the same results. c. The Incorporation Controversy i. Introduction: 1. Substantive Due Process substitutes the concept of privileges and immunities clause 2. Bill of Rights as originally written applied only to the national government. The 14A only applies to the states. 3. Concept of incorporation applying the BR to the states by virtue of the 14A. a. Scope of opinion on incorporation: i. total incorporation all the provision of the BR to the states (Black) 1. arg for: supported by history/ lang. 2. arg for: supports judl discretion in interpreting BR ii. pseudo incorporation (Cardozo, Harlan II, Frankfurt) 1. fundamentality like natural rights 2. tradition 3. not really incorporation, sometimes is the creation of similar rights to the right of the BR. e.g. right to a trial by

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jury consisting of 12 members jury of 9 members would suffice. iii. Selective Incorporation (compromise) Duncan 1. fundamentality and 2. tradition analysis b. Most provisions of the BR were incorporated except: 2A, 3A, grand jury indictment, 7A c. Why do we still have the arguments about incorporation? Right to have an abortion. 4. Reverse incorporation - Bolling case dealt with segregation, created reversed incorporation. Ct said that 5A due process clause has equal protection component. The ct found substantive content in the due process clause, saying that equal protection norm is part of those norms included in the 5A due process clause. ii. Barron v. Mayor & City Council of Baltimore 1833 1. F: P argues taking w/o just compensation. Citys construction diverted the flow of water making Ps wharf shallow for most vessels. 2. Ct: BR only applies to the national gov, so you lose. (14A was not passed yet at the time) If BR was applied to the states, the framers would have stated it explicitly. Also, BR was pushed by states that were afraid the abuse of power by the federal gov iii. Murray v. Hoboken Land & Improvement Co. pre Civil Rights Amendments construction of due process procedural due process 1. What is procedural DP? 2. the law of the land states can argue that they can change it 3. certain traditional procedures are in fact required by the notion of procedural process harder for states to argue they can change it (settled usages and modes of proceedings existing in England and acted upon after the settlement of this country). 4. Note that procedural due process merges with substantive due process. iv. Duncan v. Louisiana 1968 selective incorporation 1. F: whether 6A right to a jury trial is appliacable to the states 2. White for majority: is the right among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. a. Is the right fundamental b. Look to legal tradition 3. Modern approach

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d. Substantive Due Process: The Protection of Economic Interests and the Problem of Redistribution i. Lochner v. New York 1905 constl right to K 1. F: NY passed a regulation about how long bakers can work in the bakery. 2. I: due process under 14A life, liberty to make K. 3. Peckam for majority: strikes down the statute b/c police power of the state is less important than individual liberty to enter K. States can do anything if: a. it is within the police power (regulate welfare, health) i. the state is trying to regulate the labor market, so it is an impermissible special interest legislation, therefore this regulation violates 14A liberty to make a K ii. Peckham fears that we are all at the power of the legislation iii. meddlesome interference with the right b. the exercise of police power is fairly reasonable 4. Dissent by Harlan: 5. it is the will of the people of NY 6. it is also dangerous for the bakers to work long hours health and safety measure. It is reasonable for the state to interfere, and within the police power of the state 7. Dissent by Holmes: 8. should not read economic policy into the constitution laisezz faire 9. would strike down only if a rational and fair man would say that the regulation infringes fundamental principles as they have been understood by the traditions of our people and our law 10. How is Lochner consistent or inconsistent with Slaughter House cases? a. Inconsistent i. in Lochner ct comes up with substantive due process to strike down the law ii. no deference to state legislature in Lochner ct found liberty of K in the constitution b. Consistent i. applying the same test among the other rights of 14A there is a right to enter into K 11. What made the ct in 1873 from the Slaughter House cases to Lochner in 1905 Liberty of K. Justices in Lochner are sympathetic to free market ideas. later American Industrial Revolution and the Revolution in Russia affect the ct. Cases after Lochner consistently uphold the state

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legislature. In 1930s during Great Depression demise of the laise faire ii. West Coast Hotel Co. v. Parrish 1937 1. F: minimum wage for women regulation. 2. Ct: the const. does not speak of freedom of K a. women have unequal bargaining power not really liberty of K right b. regulation is reasonable in light of public interest c. if no minimum wage regulation women would not have enough and would have to go to the gov for subsidy, so the community ends up paying to those women instead of employers. iii. Williamson v. Lee Optical of Oklahoma 1955 1. F: law prohibiting for optician to fill in new glasses w/o prescription. 2. Ct: the law needs not be logically consistent in order to constitutional. It is enough that there is an evil at hand of correction, and that it might be thought that the particular legislative measure was a rational way to correct it. iv. Ferguson v. Skrupa 1963 1. F: prohibiting debt injusting 2. Ct: no violation of due process, b/c not the cts business to decide whether a law is wise. v. Summary: full circle back to Slaughter House cases with deference to the state legislatures, but now the ct comes up with RBR test. Since economic substantive due process in is no longer protected, but there is social substantive due process. e. Modern Substantive Due Process: Privacy, Personhood, and Family i. Modern Analysis: 1. liberty interest 2. infringement 3. fundamental a. no rights b. specific tradition c. living tradition d. justice based on natural rights 4. if yes, fundamental SS 5. if not fundamental RBR ii. The Right of Privacy 1. Griswold v. Connecticut 1965 a. Precedents: i. Meyer v. Nebraska 1923 violation of substantive due process (prohibiting teaching of foreign languages) ii. Pierce v. Society of Sisters 1925 violation of due process susbstantive right of parents

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b. c. d.

e. f. g. h.

i.

j. k.

l. m.

to decide the future of their children (requiring all children to go to public schools) F: law prohibiting use of contraceptions by married couples. Douglas for majority: distances from Lochner and from 14A, so that rather than using substantive due process doctrine, he rather uses incorporation. BR guarantees have penumbras, formed by emanations from those guarantees that help give them life and substance. Those guarantees create a zone of privacy. Goldberg (concurring): liberty interest infringement on the liberty interest? is this a fundamental right? (this is the analysis used now) i. if yes, we would apply SS 1. Goldberg looks at traditions intimacy is a tradition in marriage ii. if no, we would apply RBR 1. law is too broad should narrow tailor to discourage sexual behavior Approaches to questions whether the right is fundamental spectral: i. no fundamental rights ii. specific tradition approach looks for specific legal tradition in support of the right, and in absence of that specific legal tradition (Scalia) iii. living tradition (Harlan, Souter) iv. justice approach/ natural rights approach loose analogies to text or precedents (Douglas in Griswold) Harlan (concurring): prophetic the way the ct will go lets use substantive due process, even if Dredd Scott and Lochner were a mistake does not mean that the doctrine of substantive due process of 14A was a mistake looks whether the right is fundamental looks at traditions living tradition i. if fundamental SS, state fails Harlan does not want to join Goldberg b/c does not like 9A analysis

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n. Harlans view on judicial activism does not like it. Judicial restraint is about: i. tradition and history ii. federalism and S/P o. Black (dissenting): i. no right to privacy in constitution ii. rights not enumerated in the BR is up to the political process and not up to the ct p. Stewart (dissenting): silly law, but not up to the ct to decide whether the law is wise, should just look whether it violates specific provision in the constitution 2. Eisenstadt 1972 a. F: law prohibiting distribution of contraceptives to non-married couples. b. Ct: uses equal protection clause analysis b/c different treatment to married and non-married couples strange. It is not about married couples, it is about individuals fundamental right to decide whether to bear or beget a child. 3. Carey 1977 a. F: law prohibiting non-licensed pharmacist distribution of contraceptives. b. Ct: applies SS b/c infringement on individual fundamental right to have a child. iii. Abortion 1. Roe v. Wade 1973 (broad view) 2. F: Texas statute prohibiting abortion unless for the purpose of saving the life of the mother. 3. Blackmun for majority: 4. looks at history a. ancients did not condemn abortion b. c/l no crime of abortion until quickening 5. 3 historical reasons for criminalizing abortion a. prevent illicit sexual conduct b. concern for the health of the mother c. protecting prenatal life 6. is there a fundamental right to abortion? Black is somewhere in the area of either living tradition right or natural right 7. ct talks about balancing of the state interest to protect the right of the mother and her baby and womans right to have an abortion, which grows inversely in relation of each other 8. pushing away Griswolds opinion and just applies traditional SDP analysis

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9. analyzing states prenatal life argument is fetus a person? Const. does not imply person. What about Texass argument that life begins at conception? Ct says that it will not address the question b/c even scholars cannot agree as to the answer. This argument cannot override womans right to abortion. 10. Ct articulates trimester scheme: - fuzziness of the analysis a. First trimester no regulation of the right to abortion b. Second trimester state can regulate based on reasonable relation to health of the mother c. Third trimester state can regulate, and even ban abortion as long as there is an exception to the life and health of the mother. Viability baby can survive outside of the womb 28 weeks. 11. White dissenting: 12. ct makes stuff up, no basis for cts decision 13. would have applied RBR b/c not a fundamental right 14. Rehnquist dissenting: 15. it is not a privacy issue, this is just Lochner, which was a bad idea. We should apply RBR and this passed rationality 16. right to abortion is not as universally accepted as the ct wants everybody to believe he is in the camp of specific tradition, which was criminalizing abortion. He says there is no legal precedent for the right to abortion as being fundamental. 17. Criticism: liberty is defined broadly, and then person is defined narrowly 18. Reversed Roe write an opinion that killing of fetuses should be criminalized under homicide law a. determining the level of scrutiny strict scrutiny for fetuses b/c they are politically powerless. b. Definition of person broad, b/c black persons were not included as whole persons into the const, so fetuses are also persons as a matter of law c. History of discrimination 19. Roe suggest about the constitutional law: a. it is highly subjective b. judicial activism/ restraint gets more complicated, e.g. judicial activism can be used to protect fetuses 20. Planned Parenthood of Southeastern Pennsylvania v. Casey 1992 modern approach, undue burden test (broad statement) a. F: PA statute b. 3 justice plurality OConnor, Kennedy, Souter

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c. throws out trimester scheme. New test undue burden that has a purpose or effect of substantial obstacle to the womans right to abortion. State cannot prohibit any woman from terminating her pregnancy before viability (Roe). After viability state may regulate/ prescribe abortion with health exceptions for preservation of health of mother. d. informed consent + 24 hour waiting period upheld i. st has an interest in womans health and abortion alternatives e. spousal notification struck down b/c undue burden 5-4 vote i. Battering women ii. marriage is a unit of two different people iii. Husband may engage in reprisal: publicize, divorce, cut off financially f. parental notification - upheld g. records upheld h. Substantive Due Process Analysis i. reject no rights approach ii. reject specific tradition approach iii. establishes living trend iv. establishes justice of natural right approach i. Stare Decisis Analysis i. even if we assume Roe was wrongly decided, still cannot overrule 1. e.g. the facts are still the same, unlike Plessy and Lochner, understanding of the facts are still the same ii. Roe is not unworkable j. Reliance people have built their lives around the right to have an abortion k. Doctrinal erosion there has not been any l. Price of overruling the precedent i. Respect to the ct would erode if frequent overrulings ii. National importance would subdue to political pressure m. Blackmun concurring in part, dissenting in part: n. would strike down every provision in PAs o. should be talking about Equal Protection clause and heightened scrutiny of gender classifications. p. Nowlin: is the law about gender classification? i. yes, b/c only women can be pregnant

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ii. no, it is a pregnancy classification, not a gender classification, b/c not all women can get pregnant. Geduldig 1970s pregnancy classification is not a gender classification q. Rehnquist dissenting: r. Roe should be overturned, b/c no specific tradition of the right to abortion. Upheld applying RBR. s. Stare decisis plurality is not really upholding precedent b/c the plurality changes the test, throws out trimester classification, etc. t. Scalia dissenting: u. Casey does not calm the waters at all, we would be better of by turning it to the states v. Scope of Life and health exception: i. Dow v. Bolton (1973) the exception is very broad 21. Stenberg v. Carhart 2000 a. F: 1.2 mln abortions each year. 90% - previability abortions. The rest 10% - D&E or D&X. b. Breyer for majority:Arguments that Nebraska prohibiting D&X abortions (partial birth aboritions) is unconstitutional: c. definition of partial birth abortion may include D&E procedure under burden on the woman b/c she cannot get D&E procedure i. counterargument: legislative intent is defined by the legislature itself, cannons of construction should be read narrowly. Ct should give it a constitutional construction when possible (Kennedy and Thomas) d. no health exception undue burden i. counterargument: since you have a D&E option there is an alternative for a woman. There is no medical proof that D&E is less safe for a woman than D&X. e. Stevens concurring: distinction b/w D&E and D&X are equally gruesome, and therefore the states distinction is irrational i. Counterargument: It is a legitimate state interest to preserve life of the fetus who is substantially out of the womans body ii. Legitimate state interest in preserving ethics of medical profession D&X procedure promotes insensitivity of doctors to human life

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f. OConnor concurring: not narrowly tailored, possibility that if the statute says D&X and has a health exception would be upheld g. Dissents by Scalia, Rehnquist, Thomas, Kennedy: h. All three dissents say that there is nothing about partial birth abortions in the constitution. i. Scalia would leave it to the states, b/c no lang. in the const. j. Kennedy (above counterarguments) 22. Gonzalez v. Carhart (future case) a. F: Federal partial birth abortion ban in 2003 b. had Congressional fact findings i. D&X abortions are never safer than D&E, routinely less safe. Argument: S.Ct. in 2000 defered to the district ct fact findings c. more precise definition of partial birth abortion What about judicial supremacy? i. consistent with judicial supremacy b/c Congress tries to distinguish Carhart by providing new plausible legal arguments ii. not consistent b/c the purpose is to push the ct to overrule Stenberg 23. Ayotte a. F: 2006 statute on parental consent i. judicial bypass ii. 48 writing iii. life of the mother iv. no medical emergency b. S.Ct: OConnor remand c. facial challenges v. as-applied challenges (certain applications of the statute are unconstitutional ct will strike down unconstitutional applications). Ct can say the statute is consitutional, but unconstitutional in medical emergency situations d. Ct cited three interrelated principles: i. ct should nullify as little legislation as possible ii. on the other hand, ct should not rewrite statutes iii. reconcile the two principles: legislative intent as to remedy is the key would legislature prefer the ct to rewrite or strike down as unconstitutional. Ct would probably just apply common sense to legislative construction.

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iv. Sex and Sodomy 1. Bowers v. Hardwick 1986 precedent to Lawrence a. Ct: same sex sodomy was not a fundamental right specific tradition approach by J. White. The ban is rational b/c it is rational to outlaw moral disapproval on gay sex RBR. 2. Lawrence v. Texas 2003 (broad view) a. S.Ct: overrules Bowers. b. Kennedy for majority: c. violate substantive Due Process, b/c constitutional liberty is broad enough to include the right to engage in sodomy whether heterosexual or homosexual d. applies living tradition approach i. 13 states ban sodomy ii. not enforced iii. trend of repeal from all 50 to 13 left iv. substitutes the word sodomy used on Bowers by personal relationships intimate conduct e. analysis of stare decisis i. Bowers is widely criticized ii. Casey and Romer doctrinely eroded Bowers mistery passage about liberty protected by the 14A at the right of the liberty is the right to define ones own concept of existence, of meaning, of universe, and of the mystery of human life. iii. Romer (1996) also doctrinely eroded Bowers (Colo. Statute struck down on equal protection grounds) f. Caveat opinion the case does not apply to minors, prostitutes, rape, etc. g. Nowlin: if we take specific tradition Bowers is still right, but the methodology rightly applied does not mean the case is rightly decided. The focus of the opinion whether specific tradition or living tradition is right. h. OConnor concurring: i. Bowers should not be overruled j. This should be though of as Equal Protection clause case, so that Bowers is not overruled, but simply superceded by Lawrence k. RBR Texas uses the sodomy law just to stigmatize the group of homosexuals l. Scalia dissenting:

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m. criticizes stare decisis analysis i. the ct does not use Casey stare decisis factors ii. erosion analysis - if the ct truly applied Caseys analysis, even Roe could be overruled b/c Bowers should have eroded Roe n. RBR analysis i. Moral disapproval is a rational basis for enacting a law o. Given what the language of Lawrence says, gay marriage is not far above the horizon 3. Wrinkles: a. Roe 1973 broad statement of due process b. Bowers 1986 narrow statement c. Casey 1992 broad d. Glucksberg 1997 narrow e. Lawrence 2003 broad i. Did Bowers erode Roe? This is zigzag relationship b/w cases. Some judges sometimes apply narrow and sometimes broad definition of due process. f. The ct in Lawrence talks about no legitimate state interest (suggesting RBR analysis), but the ct also talks about living tradition approach, as though it was a fundamental right. Since most of the analysis is more like raising fundamentality of the right. It is possible, they Justice Kennedy makes his opinion ambiguous to hold on on 5 votes. Sometimes the ct just wants to balance state interest and liberty interest by not articulating either analysis. g. Why didnt the court follow equal protection analysis of OConnor. B/c this decision strikes down not just homosexual sodomy laws, but also heterosexual sodomy laws applies broader doctrine. v. The Right to Die/ Medical automomy 1. Cruzan 1990 a. F: womans family who was in a vegetative state, whose family wanted to take her off artificial hydration and neutrition. State required proof by clear and convincing evidence that there are several members of the family to take the woman off artificial life support. b. S.Ct: c/l tradition unwanted medical treatment is a battery. Ct presumed that competent person has the

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right to refuse medical treatment. Ct talks about balancing b/w state interest and personal interest, that is likely to be ad hoc. In this case, the state permissibly sought to advance states interest in life of its citizens. c. Acc. To Cruzan, is there a right to die or commit suicide? The issue is competence. 2. Washington v. Glucksberg 1997 a. F: state law ban on assisted physician suicide, but removing a life sustaining device at the request of the patient does not constitute suicide. b. Rehnquist for the majority: c. looks at the specific tradition the right to suicide is not deeply rooted in the nations tradition, in fact prohibition on assisted suicide is deeply rooted tradition d. applies RBR i. legitimate state interest 1. human life 2. integrity of medical profession line b/w healing and killing will be blurred 3. some incompetent persons may commit suicide 4. vulnerable groups pressure from family members, insurance companies to commit suicide to save medical costs ii. legislation is rationally related e. OConnor concurring: f. doctor who gives painkillers to a patient that would hasten the persons death, that would violate the constitution, but that is not the issue in this case g. there is no right to doctor assisted suicide, but there is right to pain treatment that hasten death highly depends on medical judgment. If the doctor wants to relieve pain than it is constitutional, even if this treatment may kill the patient. But when the doctor gives pain treatment to kill the patient who wants to die then it is unconstitutional. h. Souter concurring in judgment: i. wants to do living tradition analysis he is more open to the idea of some right to physician assisted suicide and right to commit suicide j. but he concurs b/c the state has a special argument concern that if we allow physician assisted suicide,

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that right will flow to involuntary euthanasia, incompetent persons committing suicide. k. Legislature is better equipped to deal with such questions vi. Family and Other Privacy Interests 1. Meyer v. Nebraska 1923 a. F: law prohibiting learning German. b. S.Ct: family has a right to decide what education their children would get. 2. Pierce v. Society of Sisters 1925 a. F: law prohibiting going to public schools. b. Ct: parents have the right to send their children to private schools. 3. Moore v. City of East Cleveland 1977 a. F: city ordinance prohibiting more than two children in a single dwelling. b. S.Ct: having children is fundamental right deeply rooted in history and tradition heightened scrutiny. Strikes down on the RBR. c. Dissent: right of a grandmother to live with her grandsons who are cousins do not seem to us to be deeply rooted in our history and tradition. 4. Michael H 1999 a. F: a man wants to establish paternity to a child, whose legal father is another man, even though the man is the biological father of the child. Californian law did not allow establishment of paternity only when one of the parents disavows marriage. b. Ct: plurality by Scalia looks at specific tradition and says there is no right to establish paternity. c. Brennan dissenting: living tradition or justice of a natural right approach. The interest of the state is to preserve the family, but it is not enough to overcome the right to be a father. 5. Troxel 2000 a. F: a woman has to daughters, and her husband died. The husband has parents. The woman does not want her in-laws to visit her children. The law says the judge can grant visitation right whenever it is in the best interest of the child. The woman sues. b. Plurality by OConnor the mother wins. The law is unconstitutional b/c it violates SDP family autonomy right. State interest is not legitimate enough.

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c. Scalia dissenting: there should not be any federal family law. We dont want to create a complicated body of federal family law. 6. Summary: no definite articulation what analysis the ct is taking. The outcomes are generally ad hoc and inconsistent. 7. Loving v. Virginia f. Fundamental Interest strand of EPC i. Analysis: 1. Interest fundamental (may be, sounds like DPC) 2. Classification (there is some of some kind) suspect? Equal protection ii. Voting 1. Harper v. VA State Board of Elections 1966 a. F: poll tax for a voting in state elections b. Douglass for majority: c. there is no clear federal right to vote in the state election no SDP d. but the ct strikes down the tax law on the grounds of EPC i. de facto wealth classification typically non-suspect ii. rights and liberties asserted under the EPC e. why not just strike down on the classification grounds as irrational? The ct actually applies some form of SS. The ct says that there is no SDP right to vote in the state elections, but once the state grants that right, there is a fundamental interest to vote in the state elections therefore the ct should be suspicious of the wealth classification. f. The ct says that although there is no SDP to vote in the state elections, the fundamentality of interest in that right makes the classification on the basis of wealth a suspect, making the ct to apply SS to an ordinarily non-suspect classification. g. Why is the interest in voting fundamental? Voting is preservative of other rights. Therefore classifications that affect that interest is more suspect for the ct. h. Dissent Black and Harlan: i. tax is part of American tradition j. legitimate way to raise revenue k. get rid of people who dont really want to vote iii. Access to the Judicial Process 1. Griffin v. Illinois 1956 a. Black (grant free trial transcript to criminal D): do not apply SS, but they are tightening up RBR. There

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is no SDP right to appeal, but once people are granted that right, states should not classify Ds on the base of their wealth. 2. Douglas v. California 1963 a. Douglas (grant counsel to a criminal D): right to go to ct is preservative of other rights, so we either raise the level of scrutiny or tighten up RBR. 3. Summary: Sometime the ct would run this analysis even though there is SDP fundamental right, running both analysis together just to show the unconstitutionality of the law applying two doctrines. In these cases, the lack of fundamental right actually makes a difference, b/c the ct is able to strike down the law. IV. THE POWERS OF CONGRESS a. Values of federalism and some techniques for implementing them i. The system in the US that is of dual sovereignty. The issue what is the balance of power b/w the state and federal gov. Three possibilities: 1. mostly fed gov and little state gov 2. equally devided b/w state and federal gov 3. mostly state gov and little fed gov ii. Policies behind federalism 1. History a. prevent tyranny diffusion of power is a good idea b. efficiency local conditions demand local solutions c. democracy easier for a person to participate in local governments bigger voice d. promoting individual choice maximizing people who are happy with the local governments e. experimentation states can experiment and see whether it works, which other states may copy if they work well iii. How is federalism enforced? judicial v. political enforcement of federalism 1. cts? judicial review a. efficient b/c ct is comprised of fewer level b. cts apply constitution which created the federal government judicial supremacy, const. law is to be enforced by cts c. federal congress cannot enforce federalism on states w/o encroaching on state power 2. legislatures Congress voting a. break from judicial supremacy b. federalism is an exception to judicial supremacy people who decide and there is unclear line b/w fed

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and st gov. so why not let the people decide where that line is c. federalism is not a right state right is really a state power, so there are not individual rights of minorities which cts are typically protecting. 3. How is federalism expressed in the Constitution? a. Congress - Art. I Section 8 list of delegated and enumerated powers of Congress i. Congress gov of delegated and enumerated powers 1. Is the right on the list? 2. If it is, do they violate 1A (freedom of speech and no establishment of religion clause) ii. Most important commerce clause 1. Power to regulate interstate commerce/ commerce among the states b. States - Mirror image of the above art. I sec. 8 = 10A not delegated, retained by the states i. States under 10A are general jurisdiction ii. States have inherent authority to legislate iii. Commerce clause means that 1. states can regulate intrastate commerce b. Scope of Congresss Power under the Commerce Clause i. History of Commerce Clause; Federalism and judicial review 1. Gibbons v. Ogden 1824 early republic 1790s 1880s a. F: NY statute giving exclusive right to 1 to run ferry business. Congress gives the same license to 2. b. Marshall: c. under the supremacy clause Congress wins. The only way for guy 1 to win is to prove that the congresss law is unconstitutional. Is navigation through the water way interstate commerce? All America understands commerce to include navigation. d. It is commerce b/c: i. Narrow definition of commerce exchanging goods across state line buying, selling, and trading. Ct says that is too narrow ii. Extend this to include process that leads up to the buying, selling and trading 1. Channel of interstate commerce is included in commerce

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e. Nowlin: early period the ct accepts broad view of interstate commerce. But the ct says that there are some areas the congress does not have authority f. Also, sometimes the congress, even though havig authority to regulate, can refuse to exercise that authority possible argument to convince congress to not regulate. 2. A.L.A. Schechter Poultry Corp. V. United States industrial period 1880 1937 a. F: statute prescribing minimum number of hours in interstate poultry business. b. Ct: As long as people transferring chickens to other states, Congress can regulate. In this case, when chickens are killed in state 3 and sold to butchers in that state, then it is not within the Congresss power to regulate. The flow of interstate commerce is estopped and now it is intrastate commerce, not interstate commerce. c. Direct v. indirect effect on interstate commerce. i. congress can regulate what has direct effect on interstate commerce ii. congress cannot regulate what has indirect effect on interstate commerce 1. policy the power of congress would go too far. d. Direct v. indirect analysis does not really have any effect on the flow of commerce analysis in this case. e. Constitution places limits on Congress, and even though there are bad conditions throughout the nation, Congresss powers do not increase. 3. Carter v. Carter Coal Co. 1936 a. F: Act allowing coal boards to bargain collectively. The act provided that inefficient practices created direct effect on interstate commerce. b. Ct: mining activities that occur in state A do not constitute interstate commerce, b/c it is production and not commerce. Even if it is commerce, it is intrastate commerce. c. This case is about the beginning of the interstate commerce, that may be intrastate (compare to Schechner that talks about ending of interstate commerce). d. What can Congress regulate in this case? i. transportation from state A to state C (Stafford 1922 opinion about cattle in Chicago) narrow interpretation

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ii. as well as channels, instrumentation iii. things in the flow of interstate commerce 4. Wickard v. Filburn 1942 New Deal Period 1937-1995 a. F: regulation on production of wheat by Congress. Filburn produces more wheat than Congress allowed by quota. b. Applying Schechner and Coal Carter the law would be struck down b/c not commerce but production, or having indirect effect on interstate commerce Formalist approach. c. Ct: new test Substantial Effect i. Is there a substantial effect on interstate commerce? 1. aggregation principle if every farmer in America decided to grow his own wheat, would that effect the price in the national market? Yes. This is the Realist approach. d. Once we have a Wickard rule, channels, flow, instrumentation rules are not necessary. e. Why does the ct apply Wickard rule? B/c there was not real national economy in early republic era, while now the country has real national economy, and the country is in the middle of depression and WWII. ii. Contemporary Period 1995-2006 1. United States v. Lopez 1995 5-4 decision, doctrinely surprising, new federalism movement, economic v. noneconomic activity a. F: Gun-Free School Zones Act b. Rehnquist c. Test or categorization of what Congress can regulate: i. channels of IC (waterways, interstate) ii. persons or things of IC and instrumentalities of IC (RR cars) iii. activities that have substantial effect on IC (in the aggregate) 1. if economic activity - apply RBR determine whether in the aggregate would affect IC (Wickard) realist approach 2. if non-economic no test, but congress cannot regulate d. What does this Act falls under? Probably on the substantial effect on IC. Here is where the twist in

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the doctrine occurs. Too much crime affects tourism, violence at schools affects in the aggregate will affect education which will effect national economy over time. e. Twist: We need to differentiate substantial effect b/w economic and non-economic activities. i. Wickard rules applies only to economic activities, where we apply RBR if there is substantial effect in the aggregate. ii. This Act is about crime and education, not economic activities, therefore Congress exceeded its power. f. Interesting: the ct does not provide an alternative approach except that Congress cannot regulate in this area. The regulation exceeds the scope of commerce authority but that is the only light in the sea of darkness. g. Why does Rehnquist to move to the distinguishing b/w economic and non-economic activities? To restore balance in federalism and give some powers to the states. h. Kennedy concurring: i. policy justifications for giving powers to the states, such as experimentation j. family law + crime and education = traditional state interests, should be especially suspicious of Congress taking the power from the states in such areas k. Thomas concurring: l. commerce is buying and selling, it does not include production, should be understood very narrowly m. Stevens dissenting: n. gun is an article of commerce, can be used for violence that affect economic activities, therefore Congress should have power to regulate o. Souter dissenting: p. distinction b/w economic and non-economic activities is formalistic q. the real concern is national economy and whether crimes at schools affect national economy in the aggregate therefore should be upheld r. Breyer dissenting: s. the decision does not follow precedents t. distinction about economic and non-economic activities is unclear and created legal uncertainty 2. United States v. Morrison 2000

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a. F: violence against women act creating civil remedy b. Ct: non an economic activity c. Souter dissenting: formalism distinction d. Breyer dissenting: ad hoc approach 3. Ralch (2005) a. F: controlled substances act. Federal agent confiscated Ralchs marijana and convicted him under the act. Cal. Statute allowed medical marijana exception. b. Majority: is growing marijana within the Congresss power to regulate medical marijana usage. Analysis: the case is like Wickard, where production and use of marijana in the aggregate would have a substantial effect on IC b/c it is an economic activity. c. Dissent: d. it is not really an economic activity (OConnor), so may be it should go to non-economic activity e. there is no rational basis this activity would affect IC in the aggregate b/c there are so few people growing marijana another argument f. Ralch suggests that if Congress regulates more broadly, the act would be upheld perverse incentive to Congress g. Biggest thoughts: h. Lopez and Morrison dont really protect federalism, they just tell congress to be careful at how it drafts its statutes and put them within the categories of economic activity and interstate jurisdiction, or simply by providing broader regulatory schemes. i. On the other hand, even though it is constitutionally conceivable to pass a broader act it is harder for the Congress politically to pass a broader act. iii. Other federal limits on Congresss power under Commerce Clause traditional state funtions? 1. National League of Cities vs. Usury 1976 (overruled by Garcia) traditional state functions a. F: limited wage and overtime provisions of the Fair Labor Standard Act b. Ct: congress cannot apply the act to the state employees. There are certain areas of traditional state concerns, and states cannot be regulated as some state areas. 2. Hodel v. Virginia Surface Mining Association 1981 upheld fed. statute regulating strip mines operation a. Questions

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i. are we regulated states as states? b. Are we regulating areas of sovereignty that are traditional i. Police department ii. sanitation c. Impairing functioning of states 3. Garcia v. San Antonio Metropolitan Transit Authority 1985 overruled Usury b/c test unworkable a. Blackmun majority: b. traditional state function test unworkable c. provides no real protection to federalism b/c federal ct decides what authority states have d. federalism is best protected not in judicial enforcement, but through political process closest to people who can influence congress to leave states alone e. Walmart and Arkinsas can be regulated equally congress can regulate individuals and states under IC clause. f. Dissent Powell: g. political process will not protect the powers of the states b/c there are interest groups lobbying congress h. best government is the government closes to people i. the cts should protect sovereignty j. Dissent (OConnor) k. leaving to Congress to exercise self-restraint is dangerous to federalism l. ct should step in and protect the powers of the states 4. How is Garcia not consistent with Lopez a. different views on the role of cts in protection of federalism b. Garcia: federalism should be left to the political process, c. Lopez ct should step in and protect federalism about the scope of Congresss power 5. Consistent: a. different doctrines of federalism b. Garcia is about what are the limits of Congresss power once we are within the Congresss power c. Lopez is about whether Congress has power to begin with. iv. Implied Limits on Congresss Power: No Commandeering under Commerce Clause 1. commandeering principle constitutional limit. Congress cannot compel state govs to enact or administer a federal

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program. E.g. telling Miss. to enact 55 mile/hour speed limit unconstitutional a. But Congress can use carrots conditional spending, e.g. here is the money if you pass 55 mile/hour speed limit. i. S.D. v. Dole (1987) requirements on conditional spending 1. Clear condition 2. Reasonable relationship b/w the condition and the spending 3. Dicta? Condition cant be too coercive b. Congress also can use sticks conditional preemption i. You enact a program, or we enact the program you chose 2. New York v. US 1992 commandeering limit state legislatures a. F: disposal of low-level radioactive waste. State governors achieved compromise that each state would develop its own waste dump. Congress passed an act requiring the states to honor the agreement. New York broke the agreement b/c of the political opposition in the state, and then said the law is unconstitutional. b. Ct: struck down provision compelling states to develop their waste dumps. c. OConnor: d. its OK to use carrots give money e. its OK to use stick if dont develop your won cite, we will not allow you to move the waste out of state f. take title provision commandeering (if you dont develop your own site, you will take title for all the waste owned by private entities) not OK g. what about the fact that the states came up with the law? States cannot consent to a federalism violation, since it is the cts duty to enforce federalism provisions, the ct strikes down the commandeering provision of the law. h. Policy behind anti-commandeering principle? i. Protect state sovereignty ii. Blurring the lines of political accountability people would blame the states for enacting the law, even though the state was compelled to enact the law.

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i. White dissenting: j. this is formalism, if we are concerned about the states, these are the states that want this provisions and now NY wants to step out of that agreement. Federalism should be protected through the political process, cts involvement should be minimal. k. Stevens dissenting: l. there is no anti-commandeering principle in the Const. Original confederation constitution gave the congress power to order the states to enact the laws. 3. Printz v. United States 1997 commandeering to state executives a. F: Brady Act requiring background check on persons buying guns. The act required state executive law enforcement to make reasonable effort to find out whether the gun purchaser was a convicted felon. b. Ct: strike down the law b/c national government is commandeering c. Scalia for majority: d. Commandeering to state executive branches is unconstitutional, national gov take credit for states bearing financial burden of enforcing federal reg e. S/P - federal policy should be enforced by the executive branch, would shatter the unity of the national executive branch. f. Stevens dissenting: g. congress can compel the states h. political accountability voters can figure it out, just make it clear i. it would be more damaging to federalism if congress enacted 55 m/h speed limit, but it cannot compel state law enforcement to enforce the law, unless the congress creates federal highway patrol. j. State voters elect their congressmen political accountability to protect sts sovereignty 4. Testa v. Katt 1947 commandeering to state cts OK a. No political accountability b. Supremacy clause state judges are bound by federal laws 5. Reno v. Condon 2000- somewhere in b/w Garcia and NY v. US, Printz a. F: drivers privacy protection act forbids state from disclosure of certain personal info of drivers, but requires disclosure of such info in matters of motto

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vehichles etc States made money selling info to private entities. b. Rehnquist for unanimous ct: c. the act is constitutional b/c falls under Garcia. The act did not regulate the states exclusively, even though it mostly regulated states. So it was a generally applicable Garcia type case. d. The act does not compel states do something, instead it prohibits them to do something (compelled action v. compelled inaction). c. Scope of Congresss Power under section 5 of 14A i. Congresss power to enact Civil Rights legislation: 1. Commerce clause, OR a. Heart of Atlanta Motel v. US 1964 b. F: act prohibiting racial discrimination by private parties and state actors in public accommodations (restaurants, hotels, motels). Congress is using commerce power to reach private parties. Why not EPC of 14A? B/c not possible to reach private parties under 14A. c. Ct: we agree, there is a real burden on the interstate commerce when persons are discouraged form traveling and using public accommodations. What about the fact that racial discrimination is morally wrong and that is the primary concern? Does it matter in the analysis? The fact that Congress has civil rights purposes does not negate the end of the inquiry that congress is within the scope of its power RBR. d. Katzenbach v. McClung 1964 e. F: restaurant that served substantial portion of its food to interstate black challenged applicability of civil rights legislation to it. f. Ct: congress had a rational basis for finding a chosen regulatory scheme necessary for protection of commerce. g. Lopez suggests easier argument this is economic activity, we think in aggregation under Wickard. We just apply RB and see whether activity substantially affects IC. This is the way we would do the analysis today, even though Lopez puts more limits on the commerce power. 2. Section 5 of 14A ii. Scope of Congress power within the 14A 1. Section 1 of 14A a. EPC

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Can congress regulate private parties? Yes under the commerce power No, under state action in 14A (no state shall)

b. Privileges and immunities not valid any more c. DPC incorporation of the BR (speech and religion) 2. Section 5 of 14A - congress can enforce through appropriate legislation Morgan, Boenne Can congress Abrogation of sovereign immunity may regulate states? congress abrogate states sovereign immunity? Yes * but not commandeer Yes, under 14A No under commerce power Yes under section 5 (even when regulating under commerce power, if congress wants to allow a citizen to sue the state, it should also make a provision under section 1 through section 5).

iii. Scope of section 5 1. Views a. pure remedial view all congress cannot do what is prohibited i. congress can enact legislation that exactly coincides with the prohibition ii. ct says the law is . All congress can do is authorize a lawsuit. b. in b/w remedial plus congress can i. congress can go a little bit further than what ct has said is prohibited c. opposite of pure remediate substantive view congress can do its own substantive interpretation of what is prohibited i. congress can enact a completely new law 2. Underlying policies: a. what drives justices views? i. Substantive view 1. Judicial supremacy ii. Remedial plus view 1. Judicial protection of federalism iii. Pure remedial view 1. Judicial supremacy extreme by Scalia 3. Katzenbach v. Morgan 1966 rejection of pure remedial view a. F: NY state law requiring literacy test for voting. Congress passed the law that as long as a person 64

completed 6th grade education, the law cannot be denied based on the lack of literacy in English. That meant that all the Puerto Ricans who spoke Spanish and completed 6th grade education could vote. b. Brennan for majority: literacy requirements are OK. Congress is using section 5 to enforce section 1. The ct says that literacy requirement does not violate section 1, so how can the congress cannot exercise section 5 to enforce section 1? c. the ct rejects the view that congress can only exercise its power under pure remedial view, b/c it does not give congress enough authority to protect civil rights. d. So how much broader is the congresss power than pure remedial view? Two arguments: i. Is Congress smoking out a hidden violation via its fact finding power? If in fact the purpose and effect of the statute is to disenfranchise Puerto Ricans, is it constitutional? Congress could engage in the fact finding that would lead it to conclude that the law was inspired by prejudice. ii. Potentially preventing future discrimination that would result from Puerto Ricans inability to vote e. Both views fall within the remedial plus view. f. Brennan says there should be some basis for congresss belief to pass its law prohibiting literacy requirement. g. Harlan dissenting: h. the more differential the ct is to congress on remedial plus view, the more the ct is moving toward substantive view on congresss power. i. Federalism and federal balance would be disturbed b/c congress has more power and states would have less power j. Judicial supremacy thought if we think that judicial supremacy is the right view on the S/P, then substantive view undercuts judicial supremacy in light of the S/P 4. Sherbert v. Verner 1963 a. Balancing test - free exercise of religion claim requires strict scrutiny balancing burden on religion would be outbalanced by the congresss compelling interest i. state has to show compelling state interest

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5. Smith 1990 a. F: native Americans used drug prohibited by state statute for church purposes. b. Ct: no targeting test cannot single out religion and target it for unfavorable treatment, but if you have generally applicable law that tends to burden religion thats OK i. state does not have to show anything 6. City of Boerne v. Flores 1997 congruent and proportional test a. F: Religious Freedom Restoration Act federal statute. By statute the congress restores Shubert balancing test under Section 5, 14A. b. Kennedy for majority: c. the statute is unconstitutional b/c it exceeds the scope of congressional authority under the scope of section 5 to enforce section 1. d. federalism argument e. S/P argument f. Ct rejects pure remedial view. Congress is somewhere in the area of remedial pure. g. Test: Congruence and proportionality is the test language to describe the remedial plus view i. The statute built around the S.Cts interpretation of the constitution should be congruent with the cts interpretation ii. The statute should also be proportional to the cts interpretation. In practice. h. Congress is allowed to think about remedies in the past and remedies in the future as long as the statute is congruent and proportional to the cts interpretation i. Shifting legislative majorities - ct rejects the substantive view, b/c it is inconsistent with judicial supremacy view which the ct now considers valid. j. Analysis applying the test to the statute: k. what the section 1 right? Is the statute proportional and congruent to the Smith test? l. Step 1: No, the statute is not proportional and congruent to Smith no targeting test, b/c the statutes test is much tougher for the government to pass, therefore it is not proportional or congruent m. Step 2: If there is a historical pattern of violating the constitution the buffer can be bigger and the powers of congress can be broader. But there is no major pattern of states violation of religion.

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Therefore there is no justification for past or future remedy and congresss statute is not proportional n. NB: The statute was struck down as applied by states, but it is still good law in federal government - Sherbert balancing test is still applied. 7. How to analyze applying C&P test: a. Identify the right under section 1 which the congress wants to enforce through section 5 whats the constitutional right in issue either under EPC, or substantive DP define which test applies: RBR, IS, or SS, e.g. right to free exercise of religion, and what is the constitutional standard for that right b. Identify if there is a pattern of constitutional violation c. Compare the statute to section 1 constitutional right in light of pattern of discrimination is the statute proportional and congruent to the constitutional right? iv. Sovereign Immunity 1. What is SI? a. Why would we care if the law is passed under the commerce clause, why would we care whether it is OK under section 5? B/c of the abrogation of sovereign immunity. What is sovereign immunity? i. P v. State cannot sue state unless the gives consent to be sued. Most effective, particularly for money damages. b. What would be consistent with SI? i. US v. State on behalf of the P-citizen. Not effective, b/c US is busy ii. P-citizen v. State officials. P gets: 1. Declaratory relief 2. Injunctive relief 3. Money damages, but a. Statutory qualified immunity typically requires showing fault b. May be judgment proof (dont have money) c. But, section 5 of 14A give Congress power to abrogate SI when it develops remedies for violations of rights protected by section 1. 2. Garrett 2001

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a. F: Garrett is a nurse with cancer, and her employer tells her to take a lower paying job. She sues under American with Disabilities Act. b. It is not the issue before the ct whether the Act is unconstitutional. The act is constitutional b/c congress can regulate private parties under the commerce clause. c. Rehnquist for majority: on abrogation of sovereign immunity does not stand, therefore a private suit cannot bring suit against the state. The citizen has to resort to alternatives, such as US v. State, or Citizen v. State Officials. d. Analysis on the scope of section 5 i. scope of the right Section 1 (disability), EPQ, RBR ii. pattern of violation only 6 specific examples of discrimination. Nowlin: what do we do to show a pattern of violation? Rehnquist is strict. Sovereign immunity applies to states but not to municipalities, so only a handful state violations. iii. Is the statutes remedy proportional and congruent 1. The statute says reasonable accommodation so this is a buffer zone to prevent future discrimination. The statute is not congruent and proportional. We are outside the scope of section 5, therefore sovereign immunity cannot be abrogated. This kind of lawsuit is not permissible, unless the state consents to being suit. P has to resort to alternative ways of suing. The ct says the plus on remedial plus view is too much around the cts prohibition. Five justices of the majority have a narrower view on the buffer zone congress is entitled to put around the prohibition under remedial plus view. e. Breyer concurring: f. we are within Section 5 and within the scope of commerce power: i. pattern of violation has been demonstrated by congress congressional hearings

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attended by more than 13,000 people. There should be more deference to the congressional fact findings. ii. Step one (section 1 EPC and RBR) relates to step three (proportionality and congruence). iii. Reason the ct adopted RBR in step 1 (Clairborn) is judicial restraint, b/c there would be too much judicial interference with the legislation. The whole point of RBR was deference to legislature, including congress, and now the ct is not deferential to congress. Using BRR to declare the statute unconstitutional under proportionality and congruence test is to flip judicial restraint on its head. Breyers and other 3 justices have broader view on how big the buffer zone should be under the remedial plus view. 3. Hibbs 2000 a. F: Family and Medical Leave Act get 12 weeks unpaid medical leave if have a sick relative. Act created private damages remedy against any employer if he interferes with the Acts rights. Const. b/c under the commerce power regulates employment. b. Rehnquist for majority: c. step 1 scope of the right under EPC gender, so intermediate scrutiny. d. Step 2 pattern of violation the fact that ct uses intermediate scrutiny already shows that there is a history of discrimination. Rehnquist also looks at congressional fact findings maternity leave granted twice as often as paternity leave this is gender discrimination. How does this impact women negatively? Reinforces gender stereotypes women first and foremost should take care of the family. Another problem that hurts women employers have incentive to hire men rather than women if there is a maternity leave. e. Is the statute P&C to the scope of the constitutional right? The box of the prohibition is large, therefore the bigger the box, the more proportional and congruent the buffer will be to the box. Rehnquist response to the dissents view 12 weeks of unpaid leave is OK b/c states may under requirement to treat men and women equally just say grant no leave at all that would hurt many women who

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dont have a leave to take care of the child, thus women would not be able to have children. f. Kennedy dissenting takes a much more narrow view: congress should not be discriminatory to men should treat men and women equally. 4. There are some significant splits on the remedial plus view as they think about P&C with various degree of different to congress. What would be a doctrinal explanation to justices different views? Intermediate scrutiny gives more deference to congress than occurs under RBR. 5. Lane 2004 a. F: title 2 of the ADA access to public accommodation. Const. b/c under the commerce power. Paraplegic using wheel chair refused to go to the ct room b/c it was not accommodate. b. Stevens for majority: i. Scope of right DP access to cts, 6A be present at own trial - complex of fundamental rights at a heightened scrutiny level therefore more deference to the legislature. ii. Pattern of violation b/c heightened scrutiny means there is a history of violation. Ct agrees with congress b/c history of violation. iii. Is the statute P&C? Yes, big box of constitutional behavior, therefore congress is entitled to regulate the buffer zone on a larger scale. This case is more like Hipps, rather than more like Garrett. c. Doctrinally, again there is more deference to congress if there is some kind of heightened scrutiny. d. Rehnquist dissenting: e. P&C is not a good test b/c allows the ct to come up with their own judgments applying the same test in different situations. Enforcing section 1 through section 5 is criminalizing undue behavior. I would defer to congress on the matters of race b/c out of respect to precedent. 6. Policy behind sovereign immunity: emphasis on money damages protecting the state treasury. States exist for reasons. There should be a narrow exception to this, such as constitutional violations when SI may be abrogated.

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