CON LAW OUTLINE 1 PART 1 THE STRUCTURAL CONSTITUTION..........................................................2 I. Core Questions of Constitutionalism: Judicial Review, Interpretation, and Democracy...............................................................................................................

II. Federal Legislative Power ...................................................................................9

A. Introduction: Creating a Constitution that Binds the Future...........................................2 1. Basic Concepts..............................................................................................................................................2 2. Cases..............................................................................................................................................................5 A. Necessary and Proper Clause...........................................................................................9 B. Power to Regulate Commerce........................................................................................12 1. Commerce Power History:.........................................................................................................................12 2. Late 19th 1937 [Pre-Jones & Laughlin] Cases.....................................................................................13 3. 1937 1995 [Post-Jones & Laughlin] Cases............................................................................................17 B. Taxing and Spending Power...........................................................................................24 C. Power to Enforce Equal Protection................................................................................25 A. Dormant Commerce Clause ..........................................................................................34 1. Basic Concepts............................................................................................................................................34 2. Dormant Commerce Clause Cases...........................................................................................................36 A. City of Phil v. New Jersey : Stewart 1978................................................................................................36 A. Foreign Affairs...............................................................................................................37

III. Limits on State Power: The National Common Market.................................34

IV. Separation of Powers........................................................................................37

Issue.......................................................................................................................38 Concurrence (Frankfurter)....................................................................................38 Concurrence (Jackson): Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. JACKSON PROVIDES FRAMEWORK THAT THE SUPREME COOURT HAS CONTINUED TO APPLY. ..................................................................................................................38 PART 2 FUNDAMENTAL RIGHTS..........................................................................43 V. Substantive Due Process....................................................................................44
2. Presidential Power and War on Terrorism..............................................................................................41

VI. Equal Protection...............................................................................................67

A. Rise and Fall of Economic Due Process .........................................................................44 1. The Lochner Era 1905-1934:.................................................................................................................44 2. End of Lochnerism: The New Deal .........................................................................................................47 Privileges or Immunities....................................................................................................52 Selective Incorporation under the Due Process Clause......................................................52 I. Family, Personhood, and Privacy....................................................................................53 1. Right to Privacy ..........................................................................................................................................53 3. Right to Contraceptives.............................................................................................................................54 4. Right of an unmarried natural father......................................................................................................55 5. Abortion......................................................................................................................................................56 A. The Old Regime..............................................................................................................67 B. Racial Justice: Desegregation to Multiculturalism.........................................................71 1. Race and Desegregation.............................................................................................................................71 2. Rational Basis Review................................................................................................................................77 3. Strict Scrutiny.............................................................................................................................................78 4. Subjective Intent: Facially neutral laws with discriminatory impact .................................................80 5. Affirmative Action, Benign Intent, and Diversity..................................................................................82 C. Gender Justice: Same Treatment and Different Treatment...........................................95 D. Suspect Classifications III : Poverty, Alienage, Disability, Sexuality : RATIONAL REVIEW PLUS...................................................................................................................99

6. Parents Involved in Community Schools v. Seattle School District No. 1...............90

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PART 1 THE STRUCTURAL CONSTITUTION I. Core Questions of Constitutionalism: Judicial Review, Interpretation, and Democracy A. Introduction: Creating a Constitution that Binds the Future 1. Basic Concepts Constitutions Functions: o Creates National Government and Separates Power among 3 branches o Federalism: Divides Power between the Federal and State Govts o Protects Individual Liberties 8 Fundamental Features of the Constitution 1) Constitutes major organs of Govt 2) Limits the powers of the Govt defines individual rights that the Govt cannot encroach on 3) Generally have a long duration 4) Canonical. Written documents, or unwritten texts or language that catalogue the basic powers of government 5) Superior law (to ordinary law) 6) Enforceable 7) Entrenched Amendments are more difficult than simply enacting ordinary law

8)

Has legitimacy Sufficiently consistent with commonly accepted ideology or value. People and legal individuals recognize force of Constitution.

Counter-Majoritarian Difficulty: Describes the argument that judicial review is illegitimate b/c it allows unelected judges to overrule the lawmaking of elected representatives, thus undermining the will of the majority. Problem stems from the understanding that a democracy's legitimacy arises from the fact that it implements the will of the majority (majoritarianism) o Constitution constrains current majorities from doing things that they may want to do. Congress generally responds to Majoritys will, while the purpose of Con. is to protect the rights of the Minority. o (strong answer to this) Process-Based Approach See, Marbury In answering questions of institutional design, need to look at 4 sets of concepts: o Concepts of Democracy o Concepts of Autonomy, Identity (freedom, etc.) o Concepts of Justice o Concepts about problem-solving (functional success of political organs that are constituted by the Constitution) 5 MODELS OF DEMOCRACY : Each has structure of accountability, and each has a certain mode of decision-making. o Individual Representation Simplest conceptual form of representative democracy Mode: Up to individuals preferences in society (preference-aggregation) o Interest Group Representation or Pluralism Adds new feature Intermediation between individuals and reps, and the intermediation takes the form of social/interest groups. Representatives compete for the support of these social groups, rather than competing in Model 1 simply for individual votes Representatives Now b/c groups are organized, decision-making process takes the form of deals along the various social groups. e.g. Group 2 says theyll give up their argument for policy Y if Group 1 will support their argument for policy B Reps can implement policies based on the intensity of social preferences. Groups most intense preferences will be implemented social groups, even if they are a minority, might be able to protect their most intensely felt interests. Classical Republicanism (Anti-Federalism/Participatory Democracy) Mode of decision-making: Takes the form of deliberation. Mode of decision-making that is distinguished from aggregating preferences. Not a good arg to say we should X b/c I want X. That raw assertion of self-interest typically doesnt have force in face-to-face decision-making. Deliberation is a form of giving reasons, that is not purely based on naked self-interest (reasons that take form of principle). Madisonian Republicanism

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Model that won when Constitution was framed and ratified. Madisonian democracy replaces principled deliberation. Hybrid of first three models. Structure of Accountability: Madison recognized that if have 13 big states, cannot have classical republicanism (town-mtg style democracy). Fact of human nature, ppl will act a lot on self-interest/passion. Interest groups will emerge based largely on social class (market economy). Wants to screen out self-interested factual politics. Rather than aggregating selfinterest in way first 2 models do. Various features built into Constitution to play screening function: o Structure: Horizontal screening of powers, vertical division of federalism (federal and state govts) Further divisions within these levels of govt Bicameralism (House/Senate); Voting Rules (e.g. president elected through indirect voting by ppl) o Classical Republicanism Factions may be able to sway citizenry. BUT system of checks and balances is a screen against any one faction winning control of the govt. Madison also believed could create a system of representation in which the representatives would deliberate based on notions of civic virtue. Experimentalist Decisions largely made at the local level in a decentralized way, but decisions are coordinated at the central level (looks a little like federalism). But crucial new feature is added, when local actors are problem-solving, they are required to compare their performance with other local actors. Central govt plays this clearinghouse role coordinates all the local govts. Local govts are required to justify why theyre not as doing as well as the better local actors in inclusiveness and democratic participation.

Alternative Conceptions of Autonomy & Freedom: o Liberalism: Autonomy: Individuals have their own conception of the good life (own preferences and interests), and Govt/Constitution should remain neutral and not try to shape these. Constitutional rights are negative rights (prevent actions by govt into private behavior) Public Sphere (Collective Action-Need to constrain to serve values of private sphere) vs. Private Spheres (Individual Action) o Communitarianism: Individual identities, preferences, interests are seen as inevitably shaped by social processes (inc. political & economic structure). Constitution enables individuals to choose or reshape their conception of the good life. Formation of group identity is inherently connected w/formation of individual identities. Need to reflect on what goals are as they converse with others about what the group identity should be. Rights are not simply negative constraints on govt power, may also be affirmative rights (call on govt to provide affirmative resources to help ppl live out their capacity of the good life) 5 Alternative Conceptions of Justice : o Libertarian: People deserve the income/wealth they get in the private sphere of individual action, and so Constitution shouldnt intervene to achieve some new pattern of distribution of resources. Constitution should protect market rights as fundamental rights against intervention. Govt SN interfere w/free market, but what if unfair practices emerge? Two Possibilities w/Libertarianism: o Pure non-intervention in the market o Qualified non-intervention in the market: Constitution should require govt to break up monopolies or concentrations of power in the name of individual freedom o Utilitarianism: Justice is served by maximizing social welfare/wealth/utility (utility can be defined in number of ways e.g. happiness, etc.). Strict View: Free market maximizes social wealth all resources will move toward their most productive use. o Egalitarian Utilitarianism: More interventionist. Maximizing total market value of goods/services DN necessarily maximize social well-being or happiness.

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Maximizing social-being should be achieved by strong equality principles, perhaps Constitutionally entrenched (Poor person v. Bill Gates) o Justice as Fairness: Associated w/Rawls. Some degree of equality is necessary as matter of fundamental fairness. People should not be systematically disadvantaged b/c of conditions of their birth (e.g. gender, wealth), so Constitution should enable a fairly high degree of equality. Constitution should affirm that every individual not only has rights on paper but the resources to exercise those rights. o Social Spheres Conception of Justice: Values of justice are contextual. Constitution assumes that govt coercion is a threat to liberty, so Constitution should restrain the govt, but private power may also threaten liberty. Conceptions of Functional/Practical Success (does Constitution work in meeting social needs or solving social problems?): o Pure Coordination: Idea that societies need certain rules to make things work in a relatively value-neutral way (e.g. should cars drive on left or right side?) o Collective Action Problem: Certain things ppl want/need in a society that wont be provided through private action. Some things people can consume and everyone can benefit (e.g. protection by army DN detract from others) Collective taxation can break free-rider problem o Decentralization vs. Centralization: Problem of Federalism in Con. terms Some decisions made more effectively at a local, decentralized level and others at a centralized level. Might be better to have local actors make decisions b/c want ppl to participate more directly. Might be better for central govt to make decisions where problems have spillover effects (e.g. environmental problems) o Institutional Capacity: Problem of Separation of Powers What is Executive/Judiciary/Congress good at doing? e.g. going to war o Innovation: Practical success of a Constitution turns on its capacity over time to become more successful, might want system that encourages innovation and problem-solving to meet new circumstances & respond to unforeseen problems. MODES OF INTERPRETATION: o Originalism: Judges deciding Con. issues should confine themselves to enforcing norms that are stated or clearly implicit in written Con. Amendment only legitimate means for con. evolution.

Textualist Approach : Based on plain meaning of text of Con.

Might need linguistic context, ideological context, philosophical context, etc. to understand text. Maybe comes from Structure of Text e.g. structure of Con. gives us Articles Con. through that structure sets up 3 dominant powers that are separated

Intent Approach: Intent of some group of people when they played a role in framing the Constitution. Intent of the Framers? Intent of people who ratified Constitution? Collective Intent (look to both framers and peoples intent)? Specific v. General Intent (should Court feel constrained by the specific intent or more general intent to safeguard equality for disadvantaged groups)? Dynamic Interpretation Forms: DN mean no longer constraint experienced by judge, but constraint is provided by something beyond text or original intent.

Traditions: Changes in dominant values/traditions over time. Imminent Critique Theory: Judges look at fractures w/in Con. where there seem to be tensions or contradictions. Judge might think should hold up Con. to its highest ideals by purging it of its lower commitments.

Punctuated Moments (Ackerman) : Judge has to discern when moments occurred and what new values announced during moments were. Judge needs to come up w/coherent historical narrative; task is to determine how new commitments best fit with pre-existing values and rights. Presentist Theories of Constraint

Objective Moral Philosophy: Judges sit as moral philosophers discovering/announcing objective moral truths. Conventionalism: In sense of conventional wisdom Court looks to existing values/consensus about Constitutional values.

CON LAW OUTLINE 5 Pragmatist Theory: Interpretation of the Constitution that works best is Court sitting as a
policy body. Inter-temporal Dialogue: Engages in conversation w/past. Think how to translate language/values of the past into the language/values of today. Constitution has to remain faithful in some sense to the past. Futurist Theories of Constraint: Look to transformative role court can play.

Inclusionary Doctrine: Con. should over time successively include more and more groups in Constitutional dialogue. By adding new voices to the dialogue, Constitution would include new values. Destabilization Strategy of Interpretation: Courts role to disrupt settled values in order to make ppl question their existing values and identities. To encourage people to seek new forms of experience and new identities.

2. Cases I. Northwest Ordinance After the Revolutionary War Americans started moving west across the Appalachian Mountains to land known as the Northwest Territory. This land was north of the Ohio River and east of the Mississippi River The Northwest Ordinance, approved on July 13, 1787, organized the "Territory of the United States Northwest of the River Ohio" into one district, delineated rules for its interim governance by Congress, and established the process for territories to enter the United States as states.

Arguably the single most important piece of legislation passed by members of the earlier Continental Congresses other than the Declaration of Independence, it established the precedent by which the United States would expand westward across North America by the admission of new states, rather than by the expansion of existing states. Further, the prohibition of slavery in the territory had the effect of establishing the Ohio River as the boundary between free and slave territory in the region between the Appalachian Mountains and the Mississippi River. This division helped set the stage for the balancing act between free and slave states that was the basis of a critical political question in American politics in the 19th century until the Civil War. Altogether, this landmark legislation, establishing the basic framework for U.S. territorial governments, eventually served in related forms in the establishment of thirty-two states, one common-wealth, and one republic. STRUCTURE AND POWERS OF THE FEDERAL GOVERNMENT

I. Judicial Review : What is the role of the court with relation to other branches? A. Marbury v. Madison: CASE ESTABLISHED AUTHORITY FOR JUDICIARY TO REVIEW THE CONSTITUTIONALITY OF EXECUTIVE AND LEGISLATIVE ACTS. Chief Justice Marshall held that Section 13 of the Judiciary Act of 1789 was unconstitutional because it sought to confer on the Supreme Court original jurisdiction over a type of dispute over which the Constitution gave it only appellate jurisdiction. (article 3) Where a statute violated the Constitution it was the duty of the courts to apply the Constitution as paramount law which superceded inconsistent statutes. Facts: Marbury appointed justice of peace by P. Adams. By the time P. Jefferson assumed office, Marburys commission had not been delivered and Jefferson refused to do so. Marbury sues for writ of mandamus. 2. Most Important Issues Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? Can Congress expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution? Does the Supreme Court have original jurisdiction to issue writs of mandamus? Holding and Rule (Marshall) 1. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. 2. NO. Constraint came largely from plain meaning of text (Art. 3, 2, Para. 2 has a clear meaning, judiciary act has clear textual meaning): No. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution which states that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.

1.

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a.

3.

If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. NOT SHOWN BC JUDICAL ACT UNCONSTITUTIONAL.

*** Canon of constitutional avoidance: In reading a statute, we go with the interpretation thats in line with the constitution. Because we think congressman in creating statutes wont create statutes that are unconstitutional. B. Precedents for Judicial Review
1. 2. No provision of the constitution explicitly authorizes the federal judiciary to review the constitutionality of acts of congress. England provided no direct precedent for judicial review. Maybe natural law created an atmosphere in which judicial review could flourish. However, more credit owed to John Lockes Second Treatise of Civil Government (1690). a. Premise of Lockes social compact was that sovereignty did not reside in any agency of government but in the people themselves, who delegated limited authority to those agencies. Legislature was the direct voice of the people. In the years following the Revolutionary War, the possibility of legislative abuse, or tyranny of the majority, became apparent. a. One remedy to tyranny of the majority= bicameralism. b. Another remedy= Judicial Review i. If the people were sovereign and the legislature merely their agent, then where legislation (will of the legislature) and constitution (will of the people) conflict, judges should be governed by the constitution. 1. Remember in Madison v Marbury Justice marshall makes argument about why Constitition in Supreme, in the constitution itself the constitution is listed as supreme law of the land because acts of legislature General idea of judicial review was much in the air when the constitution was framed and ratifies 1. By 1787 several state courts had asserted the authority to nullify legislative enactments invoking the fundamental law of the written constitution

3.
4.

5.

C. Judicial Review in a Democratic Polity The Countermajoritarian Difficulty o Judicial Review= a countermajoritarian force in our society because its undemocratic, justices are not elected. Control by an unrepresented minority (the judiciary) by an elected majority (the legislature. Judges are not elected they are appointed, but the legislature is, yet judicial review can control the acts of the elected majority. Though Marshall defends the notion of judicial review by saying that the constitution gives the judiciary the power to invalidate legislation if it conflicts with the ultimate voice of the people: the constitution. Marshall followed Hamilton who denied that judicial review constituted control by an unrepresented minority of an elected majority. Hamilton states that: If the people were sovereign and the legislature merely their agent, then where legislation (will of the legislature) and constitution (will of the people) conflict, judges should be governed by the constitution. However, legislature is the elected will of the people, legislature represents the people. When the supreme court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of the representatives of the actual people. Democracy does not mean constant reconsideration of decisions once made, it DOES mean that a representative majority has the power to accomplish a reversal. Reverse something passed that it later decides was against the will of the people who elected them? o Repealing an existing law: in each instance, a member of Congress sponsors an entirely new bill. The new bill, through its wording, will either repeal an existing law upon passage or amend an existing bill. The amendment can remove sections of the original bill, add to the existing bill, or offer qualifications to the body of the initial bill in order to better define the purpose, language, or enforcement. The result of repeal, however, means that the act is no longer in force. If a political party controls either the House of Representatives and/or the Senate as a result of a general election, there may be an effort to repeal laws passed by the opposition party, particularly if those laws are deemed to be odious. Such would be the case with the March 2010 Affordable Care Act termed Obamacare by Republicans and Tea Party activists. o The same result can occur if an act is declared to be unconstitutional by the Supreme Court. In that case, Congress will have to prepare a new law that addresses the constitutional issues raised by the courts action. Justifications for Judicial Review o Note to the extent how each justification is Functionalist justifications: rooted in notions of how the Court effectively contributes to maintaining a certain kind of American system of government: seperation of powers. o Judicial Review supervises Inter-and Intra-governmental relations

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Two systems of governmental relations: Federal system, involving relations between the national and state governments and relations among the states themselves Internal national system, involving the allocation of powers among the legislative, executive, and judicial branches As a practical matter, the review by federal courts of state legislation is almost certainly more important than their invalidation of federal legislation. (Justices Holmes and Jackson) (though Constitution does not explicitly say the Supreme Court my review state court decisions) Why? Federal courts can have a greater confidence in Congress than in state legislatures. Martin v. Hunters Lessee: The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law (constitutional decisions).

Facts: Two conflicting claims to certain land within the state of Virginia. Hunter claimed the land pursuant to a grant from the State of Virginia which confiscated lands owned by British Subjects. Martin claimed that the attempted confiscation was ineffective under anti-confiscation clauses of treaties between US and England. Issue: Does the U.S. Supreme Court have appellate jurisdiction over state appellate court decisions involving federal law? (Does the Supreme court have appellate jurisdiction over constitutional decisions by state courts?) Holding/ Reasoning: Yes. The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law (constitutional decisions). o Art. III SC has appellate jurisdiction which extends to all cases as limited by Constitution but defined by Congress. All cases includes cases originating in State Courts. o Uniformity of Law: If have 50 diff SCs, state jealousies an interstate competition could lead to abuses. o Article VI: Constitution should be supreme law of land, and judges of each state should be bound thereby. o States cannot be fully interpreted as sovereigns: Argument that SC appellate jurisdiction over state courts is inconsistent with the spirit of our constitution because that power would materially alter the sovereignty of states. Story responds by saying that in the Constitution Article 1 section 10 imposes prohibitions on states meaning that the states cannot be interpreted as being fully sovereign since the constitution itself contains restraints on state sovereignty. Also judges have taken an out to uphold the constitution. . o In addition, Story states that the constitution has presumed that states interests or biases may sometimes obstruct or control the regular administration of justice. This is why Article 3 section 2 of the constitution exists that grants federal subject matter jurisdiction in various controversies including one in which includes cases arising under federal law. If a state makes an unconstitutional law the Supreme Court is the only place where this can be dealt with, since the State Court will likelyt only enforce state laws. o Another motive for having appellate power concerned the need for uniformity in federal law. Different state courts will interpret things differently. Federal court required to help smooth out differences in interpretation. You cant have asymmetrical interpretation of the law. o IF VA were correct, it would mean the PS could go forum shopping : P may always elect the sate court and the defendant may be deprives of all security which the constitution intended in aid of his rights.

Cohens v Virginia : was a United States Supreme Court decision most noted for John Marshall and the Court's assertion of its power to review state supreme court decisions in criminal law matters when they claim their Constitutional rights have been violated.

Facts: Apellants, convicted of selling lottery tickets in violation of Virginina state law, claimed immunity under a congressional enactment permitting the District of Columbia to establish a lottery.

Holding: Marshall rejected Virginias argument that Article II did not confer appellate jurisdiction over state criminal cases. o State courts could not be trusted to adequately protect federal rights because in many state the judges are dependent for office and for salary on the will of the legislature. o System of judicial review of state law meant to correct bad judgments :no government out to be so defective in its organization as not to contrain within itself the means of securing the execution of its own laws against other dangers than those which occure everyday Preserving fundamental values Protection of fundamental values was a primary justification for judicial review. Government should serve not only what we conceive from time to time to be our immediate material needs but also certain enduring values. Which institution of our government should be the pronouncer and guardian of such values?

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o o

Courts because they have certain capacitates for dealing with matters of principle that executives and legislatures do not posses, training and time to follow the ways of the scholar in pursing the ends of the government Legislature looks at abstract problems while courts are concerned with actual cases. Protecting the integrity of the democratic process This system devoted to policing the mechanisms by which the system seeks to ensure that our elected representatives will actually represent. Countermajoritarian difficlty Countermajoritarianism is not really a deviant institution in the American political system Electoral college Voting power of small states equal to bigger states in the senate Filibuster Courts policies generally mirror those of the political branches of the national government. o Courts may even compensate for defects in the system And anyways, courts policy views never out of step with dominant views of lawmaking majorities of the US because new justice appointed on average every 22 months or on average 2 per new term of presidency o Legitimacy is jeopardized if it opposes the major policies of the dominant alliance at the time

D. LIMITS ON JUDICIAL POWER 887-892 1. Jurisdiction Stripping a. Art. III recognizes important congressional power to define the shape and scope of the federal judiciary. Lower federal courts dont have to exist. Congress can possibly abolish these courts. i. Art. III: such inferior courts as the Congress may from time to time ordain and establish. The existence of one supreme court is mandated by the constitution but the constitution says nothing about the size and shape of that court. Now it has been statutorily fixed at 9 justices. iv. Congress has the power to make exceptions and regulations to the Supreme Courts appellate jurisdiction. Most debated questions about congressional power over federal jurisdiction are: i. To what extent can Congress use its powers in tandem to remove various cases entirely from the federal court? 1. Hart School: Congress may combine its powers over lower federal courts and over the Supreme courts appellate jurisdiction so as to leave the last word on certain cases in state courts. But such exceptions should not go so far as to intrude upon the essential functions of the supreme court. 2. Story School: in Martin v. Hunters Lesseee, story stressed the mandatory nature of federal jurisdiction. the Judicial power of the United States shall be vested in the federal judiciary and shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their authority. Although Congress can restrict both lower federal court jurisdiction and the Supreme Courts appellate jurisdiction, Congress may not do both at the same timeat least where federal question cases are concerned. State courts may hear federal question cases in the first instance, but may not stand as the last word: They must be subject to appellate review in some federal court. Story claimed that federal question cases were mandatory where as diversity suits were not. To defend his claim, Story highlighted the fact in cases of federal question the Constitution speaks of ALL cases where as in cases of diversity, it does not. Two tiered theory of Article III. (federal question and not diversity)

ii. iii.

Art. I 8: speaks of the power but not the duty of Congress to constitute Tribunals inferior to the Supreme Court.

b.

2.

3.

Standing a. Litigants who come to court in general must assert their own legal rights rather than seek to adjudicate and define the rights of others. i. Must show that he was injured. That the injury was caused by the d and the injury is capable of proper redress in the lawsuit he seeks to bring. ii. Article II can demand that the plaintiffs must in general assert their own rights, but only substantive law outside Article III can define what the rights are, to whom they attach, against whom they run, and when they vest. Political Questions: the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system has jurisdiction to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed to be justiciable, while political questions are nonjusticiable i. Baker v. Carr ii. Issue: What is the test for resolving whether a case presents a political question? 1. The factors to be considered by the court in determining whether a case presents a political question are: a. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)? b. Is there a lack of judicially discoverable and manageable standards for resolving the issue? c. The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion.

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d. e. f.

9
The impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government. Is there an unusual need for unquestioning adherence to a political decision already made? Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question?

II. Federal Legislative Power A. Necessary and Proper Clause A. The first and Second Banks of the US 1. Madisons View (then leader of the house , later secretary of state remember marbury v madison) a. Denounced the bank as beyond Congresss constitutional delegated authority. Especially because the power to grant charters of incorporation had been proposed and rejected at the Phildelphia Convention. b. Gave 4 ways to review the constitution, and using all of them it would not be possible to discover in the constitution the power to incorporate a bank. c. Only 3 clauses where it can possibly be construed as granting such a power to create a bank(see page 29) i. the power to lay and collect taxes 1. The bill doesnt lay taxes to pay the debts or provide for the general welfare 2. To understand these terms giving congress the power to create a bank would give Congress an unlimited power and would render useless the enumeration of particular powers in the Constitution, and would supersede all the powers reserved to the state governments. ii. The power to borrow money 1. The bill isnt meant to borrow money, but was this not what Hamilton intended it to be? iii. the power to pass all laws necessary and proper to carry into execution the forgoing powers and all other powers vested by this Constitution in the Govt of the US 1. strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. 2. Loose constructionists, on the other hand, interpret the Necessary and Proper Clause as expanding the authority of Congress to all areas tangentially-related to one of its enumerated powers. d. If congress meant to incorporate banks in its power to borrow money, the constitution would have explicitly said so. e. Essential characteristic of the constitution, its limited and enumerated powers. Would be destroyed if given the authority to establish a bank when the constitution doesnt give it this power. Slippery Slope Argument f. Proposed bank could not be called necessary to the Government at most it could be was convenient. g. House ultimately adopted the bill chartering the bank by a vote of 39 to 20. Attorney General and Secretary of State found it unconstitutional. 2. ATTORNEY GENERAL OPINION a. Some proponents of the bank relied on the Preamble of the Constitution i. AG said preamble cannot operate in itself as a constitution, otherwise it would render the body of the constitution useless. b. Some proponents used Article IV authority given to congress to dispose and make all needful rules and regulations respecting the territory or other property belonging to the United States. i. If enumerated powers give Congress power to act in a way that does not directly stem from the powers themselves but are only tangentially related, then the power of Congress will reach out beyond these enumerated powers will stretch the arm of Congress into the whole circle of state legislation. 3. Jeffersons Critique of the Bank

CON LAW OUTLINE 10 th a. Refers to the 10 amendment all powers not delegated to the United States by the Constitution
nor prohibited by the States are reserved to the States or to the People chartering a bank is not a power delegated to the federal government by the Constitution. To charter a bank would go beyond this boundary and enter into a boundless field of power. Under the necessary and proper class article I section 8, a bank is convenient but not necessary for effecting the enumerated powers. The power to charter a bank, as under the 10th amendment, is a right remaining exclusively with the states. If you arent sure, defer to Congress.

b.
c.

4. Hamiltons Defense: a. The power of chartering a bank (erecting a corporation) is an implied power of a sovereign government. It is an implied power that may be used as a means of carrying into execution any of the specified powers. i. If an end is constitutional when it is comprehended within any of the specified powers than the means must be constitutional, here the end is aiding in collection of taxes and providing loans to govt (both enumerated powers in article I section 8) ThAN THE MEANS TO ACHIEVE SUCH ENDS MUST ALSO BE CONSTITUTIOANL so BANK must be constitutional too. BANK HAS TO BE DIRECTLY RELATED TO AN END listed within enumerated powers to be within the scope of CONGRESSIONAL Power. 1. Bank relates to collection of taxes by: a. Increasing the quantity of circulating medium and quickening circulation b. Creating a convenient species of medium in which thy are to be paid. b. Argument against the idea that general bank is unnecessary because of state banks ARGUES AGAINST RESTRICTIVE INTERPRETATION OF THE WORD NECESSARY FROM NECESSARY AND PROPER CLAUSE i. Necessary is of the necessary and proper clause is when the interests of the government will be promoted (liberal meaning) 1. Any other construction would be extreme 2. A degree in which a measure is necessary can NEVER be a test of the legal right to adopt it. 3. POWERS CONTAINED IN A CONSTITUTION OUT TO BE CONSTRUED LIBERALLY IN ADVANCEMENT OF A PUBLIC GOOD Necessary and Proper Clause 1. McCulloch v. Maryland: Defines scope of federal legislative power and its relationship to state government authority. Issue One: COngress has broad power under the Necessary and Proper clause to create a bank. Issue Two: Tax unconstitutional because states have no power by taxation or otherwise to retard, impede, or control the operations of the constitutional laws enacted by Congress. 1. Two Questions

First Question: Does Congress have the authority to create the Bank of the US? Marshall made FOUR arguments. o Historical Practice Argument: Historical experience justifies the constitutionality of a practice. Marshall invokes the history of the first bank of the United States as authority for the constitutionality of the second bank. Should respect law that was debated thoroughly by the first congress. A measure adopted under these circumstances must have had some validity. o But why should an unreviewed practice create a presumption of constitutionality? o Even if the law is natural and familier, our judgment of constitutionality of an act shouldnt depend on this. o Defferance: Legislative decision matters, last word is with the court. o Refuting the state as the ultimate sovereign. Structural Arguments. Implication is that if the states are truly sovereign then they would have the authority to veto a federal action, such as the creation of the Bank of the United States. Marshall rejects this contention by stating that it was the people who ratified the Constitution (Delegates chosen by the people to represent their voice at the convention) and not the states. Thus it is the people that are sovereign.

The constitution when thus adopted, was on complete obligation and bound the state sovereignties because it was the voice of the people who retain ultimate sovereignty. Popular sovereignty deprives states of any special claim to having their rights privileged over the national government.

CON LAW OUTLINE 11 o Structural Argument: Congress possesses the power. Though not expressly named, of
establishing a bank. Strategy of constitutional interpretation based on inferences from the structures and relationships created by the constitution. Look to the structural provisions of the constitution that appear to direct responsibility to a particular branch of the federal government or to the states. An example would be Enumerated Powers of Article I Section 8. Paragraph 16: Marshal admits that the constitution does not enumerate a power to create a Bank of the United States but said that this is not dispositive as to Congress power to establish such an institution.

The constitution will only give great outlines of what the government can do. If the constitution wasnt just an outline, the there would be no need for saying what it cant do in the 9th section of the first article. Means to Ends Argument: Dramatic Expansion of Scope of Congressional Authority: Even though the Constitution does not mention a power to create a bank of the United States, Congress can create one as a means to carrying out many of its other powers listed in article I section 8.

Problems of the 20th century, and the range of laws needed to deal with them, only can be dealt with under an 18th century Constitution because of the broad Construction of congressional powers found in McCollough. Basically: The constitution does not prohibit the creation of a bank if the existence of it is essential to exercise an enumerated power. Textual Argument: Interpretation of the Necessary and Proper Clause (only addresses this in response to MD saying the clause acts as a RESTRICTIVE FORCE)

Was it legitimate for federal govt to create the bank? Yes. Congress has broad power under necessary and proper clause. (Art. 1 Section 8) Need to find an enumerated power. If what Congress is doing is not in those enumerated powers, then have to ask if what Congress is doing is necessary and proper under article I Section 8 to carry out an enumerated power. Maryland has a strict view of the Necessary and Proper Clause in that it is a limit on Congresss powers where Congress can only adopt laws which are absolutely necessary or if the inability to do so would cripple its ability to apply its other LISTED enumerated powers. Marshall has a broader interpretation of the clause. Paragraph 27: To employ the means necessary to an end, is understood as employing any means to produce the legitimate end. Many degrees of the word necessary. Word necessary has many meanings. Article 1 section 10 uses absolutely necessary to convey its more strict meaning whereas in the necessary and proper clause, it wasnt included giving necessary a less strict sense.

Also, the provision was made in a constitution that was meant to endure for a very long time (P 28). Narrow reading of the clause would annihilate the useful and necessary right of the legislature to select its means for carrying out one of its enumerated powers. HOWEVER its not intended to be read in a narrow way because: o The necessary and proper clause is placed in Article I section 8 which expands Congresss powers and not in Article I section 9 which limits them. MEANS/ENDS Test: If the end is constitutional ( collecting taxes and providing loans to the government as listed in the enumerated powers of Article I section 8), than the means to achieve the end must also be constitutional. (Hamiltons argument.) o Court rejected any contention that this gives Congress limitless authority. If the end were not constitutional, than certainly the means would not be constitutional either. Marshall reaffirms Marbury v. Madison and the power of the judiciary to review the constitutionality of federal laws: Should Congress pass such unconstitutional laws, it would become the duty of the supreme court to say that such an act was not the law of the land.

CON LAW OUTLINE 12 Second Question: Did Maryland have the authority to tax the bank? NO. Power to tax=power
to destroy. States dont have the power to destroy a bank that Congress created. o Power of taxation is exercised concurrently by the states and the federal government. However, in Article I section 10 the states are expressly forbidden to lay any duties on imports or exports, except when they are absolutely necessary for executing their inspection laws. AND ALL SUCH LAWS SHALL BE SUBJECT TO THE REVISION AND CONTROL OF THE CONGRESS. If article 1 section 10 restrains states from its taxing power on imports and exports, it also would restrain states from taxing anything that is repugnant to the constitution (Taxing a federal bank). Expression of one thing is exclusion of the other o There is no express provision for the federal banks claim to be exempted from state taxing power, however, the claim is based on the principle that the constitution AND THE LAWS MADE IN PURSUANCE THEREOF (Congresss power to create national bank as a means to exercise its enumerated powers) are SUPREME (Article 6 Supremacy clause), that they control the laws of the states and cannot be controlled by them. From Supremecy Clause other principles are deduced: Power to create implies a power to preserve. Power to destroy (ie states taxing a national bank) is hostile and incompatible with the power to create and preserve (and would render useless the power to create). Where the power to create and power to destroy conflict, the authority which is supreme must control (ie constitution).

B. Power to Regulate Commerce Art. I 8: Congress shall have the power [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes 1. Commerce Power History:

1824 [Gibbons]: Adopted expansive view of scope of CC Late 19th (1887) 1937 [Pre-Jones & Laughlin]: Adopted much narrower construction of CC. Invalidated many Fed laws exceeding scope of authority. o Court controlled by conservative Justices deeply committed to laissez-faire economics and strongly opposed to govt economic regulation. SC aggressively used judicial review power to invalidate State & Fed laws. o Dual Federalism: Federal and State Govts were separate sovereigns. Narrowly defined meaning of commerce to leave zone of power to States Restrictively defined among the states as allowing Congress to regulate only when a substantial effect on IC. o 10th Amendment reserved zone of activities to the States 3 Aspects of Courts approach to CC during this era:

Narrow Definition of Commerce: Held Commerce was to be narrowly defined as one stage of business, separate and distinct from earlier phases such as mining, manufacturing, and production (e.g. EC Knight, Carter) Requirement that there be a direct effect on IC, but Ct. never formulated a clear way to distinguish between direct/indirect effects (e.g. Schechter) Use of State Sovereignty as Constraint on Congress Power: Even if activity was commerce and among the States, Congress still could not regulate if it was intruding into zone of activities reserved to states. (e.g. Hammer)

1937: Big break in constitutional jurisprudence w/NLRB v. Jones & Laughlin o Notions of Justice: Marked change from libertarian kind of justice (Ct. DN to worry about forming patterns, individuals can do what they want) to an egalitarian redistributive model of justice o Autonomy: Shift from liberal laissez-faire model of autonomy (neg. rights, govt cant interfere) to communitarian notion of autonomy (positive rights) o Functional Effects: Shift from Madisonian framework. Checks/balances that prevent action by Fed Govt begin to collapse into a more unified government. Greater centralization of government and federal power Collective action or coordination problem Need to centralize government to deal with unfair competition & redistribution issues o Democracy: Shift from Madisonian government (checks and balances to prevent redistribution power) to a more unified and centralized government

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Legitimate for Court to make big transformation through the Con.? Court acknowledges there is a deep Constitutional change finally Ackerman: Opens the door to Anti-Democratic transformation

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If you adopt a static process-based theory, Court is supposed to uphold the basic grounds of democracy. In dynamic process theory, look to occasions where people have mobilized and realize constitutional values are at stake Ely: Wants Court to be umpire and strike out anti-Democratic transformations in Constitutional law.

1937 1995 [Post-Jones & Laughlin]: Court backs down (enormous pressures for change in the direction of Constitutional Law) o Court reaches new interpretations, new Constitutional doctrine. o Not one Federal law was declared unconstitutional as exceeding the scope of Congress s commerce power in this period. Law of CC during this era: Congress could regulate any activity if there was a substantial effect on IC. Sometimes only rational basis 3 Cases overruled the earlier decisions and expansively defined the scope of Congress Commerce Power: NLRB, Wickard, and Darby No longer did Court distinguish b/w commerce & other stages of business No longer did Court distinguish b/w direct & indirect effects on IC Congress could regulate activity that taken cumulatively effected IC

No longer was 10th Amendment a limit on congressional power Courts broad definition of CC power helped facilitate expansion of number of federal administrative and regulatory agencies TWO ERAS (pre-1937 and post-1937) Views: o (1) Pre right and Post wrong. Means today living in an unconstitutional regime Congress has run away w/Constitution and Courts not doing anything about this. o (2) Pre wrong, & post right. Means Pre-1937 regime was unconstitutional. o (3) Could also say both right, or both wrong. o Ackerman View: Thinks Court right before and right after. When have an election, political branches start to do things dramatically different from what was done before. Court by striking down legislation, signals to public that representatives are trying to change Constitutional order. But Congress sticks to its guns and validated by public again, so Court backs down. Court has played its constitutional role Gives people the opportunity to mobilize as they did so in the election, through signaling role.
o

Post-1995 [Lopez and Morrison]: Court declared Federals unconstitutional as exceeding limits of the commerce power. 2. Late 19th 1937 [Pre-Jones & Laughlin] Cases Forms of Federalism: o Neither State nor nation may have power to act o National government may be given exclusive power to regulate in some area Art. I 10 gives number of activities in which states may not engage even though Congress is given power in Art. I 8 to do so. o State governments may have exclusive power to regulate in some area o State and natl. governments may have concurrent power to regulate in some area Supremacy clause, Art. VI, Para. 2 National legislation prevails over conflicting State legislation. A. Gibbons v. Ogden (1824, Marshall) (Pages 170-172): Definition of Commerce Power, Court adopts an expansive view of Commerce. Commerce includes all the phases of business, including navigation. Can see this from the history of the constitution. Marshall interpreted among the states in a more narrow sense: Basically, Congress can regulate when the commerce has interstate affects, even if the commerce occurs within a state, but not to those which are completely within a particular state and do not affect other states. II. Can a state regulate commerce with foreign nations and among the states while congress is regulating it? The power of regulating commerce that affects several states cant be concurrently exercised like the power of taxation because this power is exclusively granted to Congress in the Constitution. Dormant Commerce Clause: The Commerce Clause expressly grants Congress the power to regulate commerce "among the several states." The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is selfexecuting and applies even in the absence of a conflicting federal statute.

Facts: State of NY Legislature granted Livingston and Fulton exclusive license to operate steamships in waters between NYC and NJ. Livingston and Fulton assigned Ogden the right to operate a ferry these waters. Gibbons, a competitor, technically violated the NY license by entering these waters. Gibbons vessels were licensed as those which were "vessels in the coasting trade," pursuant to 1793 Act of Congress that entitled him to navigate between NEW York and New Jersey notwithstanding the state-granted monopoly.

CON LAW OUTLINE 14 Issue: Whether the NY law (regulating interstate commerce) granting exclusive use of the waterways to specific members of society is
unconstitutional? Yes.

Holding: Gibbons license under the 1793 federal statute entitled him to engage in interstate navigation and trade, not withstanding Ogdens claims to the exclusive franchise granted by the NY legislature. Reasoning: o First the court considered that commerce means. Counsel for Ogden argued that it should be limited to traffic, to buying and selling, or the interchange of commodities, and NOT to navigation in waters. Court responds: This would be a narrow interpretation of the word commerce which the court wants to stay away from. Commerce is something more than traffic; it is the commercial intercourse between nations and is regulated by prescribing rules for carrying on that intercourse. Commerce includes all the phases of business, including navigation. Can see this from the history of the constitution. Navigation was included in commerce when constitution was framed Next the court considered what among several states means? Is congress limited to regulating commerce only when it is interstate, or can it regulated intrastate commerce as well? Among= intermingled with. Marshall interpreted among the states in a more narrow sense, to mean commerce which concerns more states than one, and to those internal concerns which affect the states generally, but not to those which are completely within a particular state and do not affect other states. (Court could have had a broader interpretation of among to mean in the midst of where all commerce including intra state commerce would be regulated by the clause). Court makes it clear that it can regulate intrastate commerce if it had an impact on interstate activities. Basically, Congress can regulate when the commerce has interstate affects, even if the commerce occurs within a state. Next the court considered what is this power to regulate commerce?

The issue here is basically whether state sovereignty limits Congresss powers. No. Congress has complete authority to regulate all commerce among the states. Power of Congress then includes regulating navigation among the several states, including navigation within a state itself that affects its relations with another state. States make argument that their sovereignty allow them to exercise power of commerce within their jurisdictions which is secured by the 10 amendment (all powers not vested in the United by the constitution is reserved to the states or to the people). Appellant Grant argues that yes, this is true, however Congress has full power to regulate commerce among states (the whole) which is incompatible with the existence of a state right to any part of this power of commerce. Can a state regulate commerce with foreign nations and among the states while congress is regulating it? o Argument for Yes: (Grant): 1. Because Article 1 Section 10 which expressly prohibits states from laying duties on exports or imports, and DOES NOT expressly forbid a state to regulate commerce with foreign nations and among states, than this power can still be exercised by the state o NO.

The power of regulating commerce that affects several states cant be concurrently exercised like the power of taxation because this power is exclusively granted to Congress in the Constitution. Idea is the power to REGULATE commerce is also the authority to decide that states should not be able to act with regard to commerce (in this case regulate commerce among states) unless specifically authorized by Congress.

But states already regulate commerce through inspection laws thus the power to regulate commerce was NOT exclusive to Congress. Reply: Such laws do not exist because of a power to regulate commerce. These laws are COMPLETELY INTERNAL. The object of such laws is to improve the quality of articles produced by the labor of a country. These laws form a portion of the mass legislation arising from the 10th Amendment. B. Cooley v. Board of Wardens 1852: States may regulate matters which, because of their number and diversity, may never be adequately dealt with by Congress under the Commerce Clause. While the Constitution grants Congress the power to regulate interstate commerce including the regulation of pilots, it does not deprive the States of all power to regulate them. Congress has manifested legislative intent not to regulate in this area, and leaves such regulation to the States. Complaint:The Board of Wardens (P) brought an action against Cooley for violating the Pennsylvania law. Cooley asserted that the Pennsylvania law was unconstitutional in light of the Commerce Clause (Article I, Section 8, Clause 3). He argued that Congress commerce power gave it exclusive jurisdiction over interstate commerce and Congress could not delegate or confer that authority to the States (Congress had passed a statute that said pilots of shis would be regulated in conformity with the existing laws of the states.) Issues

CON LAW OUTLINE o Does the Commerce Clause deprive the States of all power to regulate interstate commerce such that Congress may not confer such o

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power on the States through legislation? NO. In what ways may the states regulate interstate commerce notwithstanding Congress exclusive authority to regulate it under the Constitution? When Congress has delegated some of its power to the states. Reasoning: Justice Curtis States may regulate matters which, because of their number and diversity, may never be adequately dealt with by Congress under the Commerce Clause. While the Constitution grants Congress the power to regulate interstate commerce including the regulation of pilots, it does not deprive the States of all power to regulate them. Congress has manifested legislative intent not to regulate in this area, and leaves such regulation to the States. The Lochner Era: Federal Commerce Cases

Before the civil war, the focus of adjudication under the commerce clause was the validity of state regulation of commerce when Congress was silent. In Lochner era, focus of adjudication under commerce clause is whether a particular instance of congressional regulation of interstate commerce runs in opposition to the reservation of powers to the states recognized by the Tenth Amendment.
during Lochner era we framed everything in terms of internal v. external questions regarding the commerce clause. o Internal: Is this commerce? If it is, is it consistent with the commerce clause? o External: Does this conflict with the 10th amendment?

Commerce Cases o Three recurring issues: Subject of regulation is it interstate commerce? Purpose: Is this within Congresss power to prohibit anything in interstate commerce Are statutes that punish an act made to prohibit or to regulate? (Commerce can ONLY regulate)

Does it violate 10th amendment?

A. Champion v. Ames: 1903 The carrying from one state to another by independent carriers of things or commodities that are ordinary subjects of traffic, and which in themselves a recognized value in money, constitutes interstate commerce. Lottery tickets are valuable in money. Power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. This power is PLENARYthe power is complete in and of itself. Tenth amendment (that reserves to the states the powers not delegated to the Fed government) argument rejected because power to regulate commerce among the states has been expressly delegated to Congress. Facts: Defendant was indicted under an 1895 act criminalizing the interstate shipment of lottery tickets and similar instruments. Defendant argues that the act overreaches Congresss commerce powers, as the mere transport of the tickets is not interstate commerce. Issue. May Congress regulate shipment of lottery tickets from one state to another? Holding: Yes. Congress is not prohibiting the sale of lottery tickets, only their shipment across state lines. Reasoning: What is commerce? o Commerce is not defined by that instrument being carried across state lines. o The carrying from one state to another by independent carriers of things or commodities that are ordinary subjects of traffic, and which in themselves a recognized value in money, constitutes interstate commerce. o Lottery tickets are valuable in money. Are statutes that punish an act made to prohibit or to regulate? (Commerce can ONLY regulate) o Look to legislative intent: Power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. This power is PLENARYthe power is complete in and of itself. This wide discretion allowed Congress to regulate traffic as it sees fit, within Constitutional limits, even to the extent of prohibiting goods, as here. Are there constitutional limits here? Are there limitations on commerce regulation that can be found in the constitution? Tenth amendment (that reserves to the states the powers not delegated to the Fed government) argument rejected because power to regulate commerce among the states has been expressly delegated to Congress. o Thus, It was within Congresss commerce clause power to stop lottery tickets from being a part of interstate commerce. Court also rejected the argument that according Congress such a power would give Congress limitless authority and would endanger the constitutional structure (Court didnt reject this argument in Hammer and actually used it to make its holding)

Dissent:

Suppression of lotteries as a harmful business falls within a states POLICE POWER this is a power belonging to the states that Congress cannot interfere with

CON LAW OUTLINE 16 Power to suppress lotteries is not an enumerated Congressional powerTo hold that Congress has general police power would be
to hold that it may accomplish objects not entrusted to the General Government and to defeat the operation of the 10 th amendment. Lottery ticket is NOT commerce Interferes with K rights Argument of necessary and proper clause: page 439: Congress has power to make all laws necessary proper to regulate commerce. But the Congress doesnt have the power to suppress lotteries , so Congress doesnt have power to achieve the means (Regulating commerce) to suppress lotteries.

B. Hammer v. Dagenhart: (prohibiting shipment in interstate commerce of goods produced from factories that employed child labor) Even if an activity was commerce and was among the states, Congress still could not regulate if it was intruding into the zone of activities reserved to the states. Tenth Amendment reserved control of activities such as mining, manufacturing, and production to the states. Even federal laws regulating commerce among the states were unconstitutional if they sought to control mining, manufacturing and production. Although the law only regulated goods in interstate commerce, the Court declared it unconstitutional because it controlled production (reserved to the states under 10th amendment) not regulate commerce. Facts: A Federal Law prohibited the shipment in interstate commerce of goods produced in factories that employed children under age 14 or employed children between the ages of 14 and 16 for more than 8 hours per day or 6 days per week. Held: Although the law only regulated goods in interstate commerce, the Court declared it unconstitutional because it controlled production (reserved to the states under 10th amendment) not regulate commerce. Reasoning:

Court differentiates this case from Champion: o In that case, interstate transportation was used for evil or harmful purposes, Congress can prohibit such interstate transportation to eliminate that harm. This element is deficient in the present case. The goods shipped in this case are of themselves harmless. Even if an activity was commerce and was among the states, Congress still could not regulate if it was intruding into the zone of activities reserved to the states. Tenth Amendment reserved control of activities such as mining, manufacturing, and production to the states. Even federal laws regulating commerce among the states were unconstitutional if they sought to control mining, manufacturing and production. o Here production is not subject to federal control under the commerce power.

Congress CANNOT control states exercise of police power: The grant of power to congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the states in their exercise of the police power over local trade and manufacture Court rejected the argument that federal legislation was necessary to prevent unfair competition: states that wanted to outlaw child labor would find it difficult to do so as long as other states allowed child labor. o Congress does not have this power. The commerce clause was not intended to give to Congress a general authority to equalize such conditions. If court allowed this power of states over local matters may be eliminated, and thus our system of government be practically destroyed DISSENT Power to regulate such an activity is enumerated and unqualified (power to regulate commerce) and statute itself confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Disfavors line drawing between morals: Immoral liquors but not ruined lives (child labor) C. Comparing Hammer and Champion

In both cases, the federal law prohibited the shipment of a specified itemgoods made by child labor or lottery ticketsin interstate commerce. In both Congress was trying to regulate INTRASTE activitiesthe use of child labor and gambling in lotteries. Why the difference? Moral Conservatism? Not wanting to impede on business in the child labor cases?

4. Binary Oppositions

These binary oppositions characterize this period. Manufacture v. Commerce Direct v. Indirect Effects Manufacture is not part of commerce and cannot be regulated by Congress under the Commerce Clause.

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3. 1937 1995 [Post-Jones & Laughlin] Cases

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Case decisions during the New Deal illustrate the breadth of the commerce power between 1937 and 1995. Is this a desirable recognition of the need for federal legislation or is it an undesirable abandonment of basic constitutional principles? On the one hand the complex problems facing American society in the 20th century necessitate that Congress have the authority to act beyond the narrow confines created by the Court in the pre-1937 era. Three decisionsLaughlin, Darby, and Wickard overruled the earlier decisions and expansively defined the scope of Congresss commerce power. o No Longer did the Court distinguish between commerce and other stages of business such as mining, manufacturing, and production; instead, Congress could exercise control over all phases of business. o No Longer did the court distinguish between direct and indirect effects on interstate commerce; rather Congress could regulate any activity that taken cumulatively had an effect on interstate commerce. See NRLB o No longer was the 10th amendment a limit on congressional power, instead, a federal law would be upheld so long as it was within the scope of Congresss power, and the commerce clause was interpreted so broadly that seemingly any law would meet this requirement.

A.NLRB v. Jones & Laughlin Steel Corp. (1937, Hughes) (Pages 201-204) : Court departs from direct/indirect test and adopts substantial effects test. Court says its about degree, if it has a close and substantial relation to IC, can be regulated. Finds that strikes and employee discontent have substantial impacts on IC: Though activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential to protect that commerce from burdens and obstructions, then Congress cannot be denied the power to exercise that control. Natiol labor relations act established NRLB administrative body for resolving certain disputes, it addressed massive violations by employers. This Company was charged with unfair labor practices for firing employees who tried to form a union.

How would the Hammer court have said about this case? Hammer court (child labor act Lochner court) : IS this commerce? Would have said its not. Is it consistent with commerce power? No. This is not about interstate regulation of sale, its regulating labor relations, its using police power. Does it infringe upon the 10th amendment? Yes because infringes upon state sovereignty. Court in this case says NRLA is constitutional because: o Close and Substantial relation to interstate commerce: Though activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential to protect that commerce from burdens and obstructions, then Congress cannot be denied the power to exercise that control.

Question of degree: The act itself has a close and substantial relation to interstate commerce. Effects: The stoppage of respondants manufacturing operations by industrial strife would have a most serious effect upon interstate commerce. The effect would be immediate and catastrophic.

10th amendment is here implicitly: state being able to use its police power.

B. United States v. Darby STONE: This is where it is clear that things have changed. 1941. : The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate endthe exercise of the granted power of Congress to regulate interstate commerce. The court rejected the view that production was left entirely to state regulation. The Court explained that Congress may control production by regulating shipments in interstate commerce. While manufacture (production) is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce

Facts: Darby involved a challenge to the constitutionality of the Fair Labor Standards Act of 1938. This Act prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. In upholding the act, the Court departed from all aspects of the pre1937 commerce clause doctrines. Question: Does Congress have constitutional power to prohibit these shipments? Held: Yes Reasoning: o Shipment of manufactured goods=commerce: The court rejected the view that production was left entirely to state regulation. The Court explained that Congress may control production by regulating shipments in interstate commerce. While manufacture (production) is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce

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o

Manufacture/commerce distinction: This is about shipment of goods we all know thats commerce. The Co. argues theres pretext here: They arent trying to regulate commerce they are trying to regulate wages. Company is obviously right.

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Courts power is plenary: Court responds: Doesnt matter. We dont care about pretext. WE are still regulating interstate commerce. This power is plenary: its complete in itself. IT doesnt matter that it has same incidents as the police power, the point is this is commerce regulating within its sphere. Employees engaged in the production of goods for interstate commerce is so related to the commerce and so affects it as to be within the reach of the power of Congress to regulate it.

Judicial Deference: The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control Court overruled Hammer: Power to prohibit interstate commerce only when the articles which in themselves have some harmful or deleterious property has been abandoned. Motive of the prohibition doesnt matter.

Court emphatically rejected the notion that the 10th amendment limits Congresss powers already enumerated powers (commerce clause). The amendment states but a truism that all is retained which has not been surrendered

This means: By its terms, the Amendment does not purport to limit the commerce power or any other enumerated power of Congress.

Second Part: Congress can regulate shipment of goods and it can regulate hours directly. o Question for second part? Related/Relationship/Effect. o The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate endthe exercise of the granted power of Congress to regulate interstate commerce.

C. Wickard Case, 1942 Justice Jackson Wheat Case: Court rejected the limits on the commerce power that were enforced in the Lochner era. The distinctions that were crucial in the earlier era, between commerce and production, and between direct and indirect effects on commerce, no longer were followed. Questions of federal power cannot be decided simply by finding the activity in question to be production nor can consideration of its economic effect be foreclosed by calling them indirect. Court here looks at substantial economic effects.: Even if an activity is local, and though it may not be regarded as commerce, it may still be, whatever its nature, reached by Congress if it exerts a substantial effect on interstate commerce. Aggregation principle: when you aggregate lots of little effects, if they together affect interstate commerce, congress can get at them. Broad understanding of commerce power. Congress can prevent him from NOT buying bread on market that congress is trying to regulate Still the object of live debate. Act set a quota for wheat production and each farmer was given an allotment. o Act set quotas on growing of wheat that could be deemed available of marketing and upholds penalties for exceeding those quotas. Here D grew wheat and produced dairy. He grew wheat primarily for home consumption and to fees his livestock. He was penalized for growing more wheat than statue allows. Sues because he doesnt want to pay. D claims that the federal law could not constitutionally be applied to him because the wheat he grew for home consumption was not part of interstate commerce. Reasoning o Court rejected the limits on the commerce power that were enforced in the Lochner era. The distinctions which were crucial in the earlier era, between commerce and production, and between direct and indirect effects on commerce, no longer were followed. Questions of federal power cannot be decided simply by finding the activity in question to be production nor can consideration of its economic effect be foreclosed by calling them indirect. o Court here looks at substantial economic effects.: Even if an activity is local, and though it may not be regarded as commerce, it may still be, whatever its nature, reached by Congress if it exerts a substantial effect on interstate commerce. How does his wheat consumption affect interstate commerce? Broad understanding of commerce power. Congress can prevent him from NOT buying bread on market that congress is trying to regulate. It can hardly be

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denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. o Aggregation principle: when you aggregate lots of little effects, if they together affect interstate commerce, congress can get at them. This idea that some tiny thing that itself doesnt substantially effect interstate commerce is known o Wickard is most salient example of turn of events during new deal era. Dissenters: 4 horsemen: What is this? Congress can do anything. Congress can regulate prices and therefore make you buy stuff and enter into that market. This idea that some tiny thing that itself doesnt substantially effect interstate commerce is known

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D. The 1960s Civil Rights Legislation: Commerce Power or Reconstruction Power? COMMERCE POWERPUT UNDER FEDERAL POWER OVER COMMERCE.

When Congress considered prohibiting race discrimination in employment, hotels, restaurants, and the like in the early 1960s, it faced a choice of whether it should rely on its Commerce Powers, or whether it should relay instead on its explicit authority under 2 of the 13th Amendment and 5 of the 14th Amendment to enforce the values of these amendments? Reliance on its Amendment authority would require the SC to confront and overrule large chunks of its decision in the 1883 Civil Rights Cases, in particular questions about Congresss ability under these Amendments to reach and prohibit various forms of race discrimination practiced by PRIVATE persons. Reliance on Congressional Powers over interstate commerce seemed like the path of least judicial resistance, going with the grain of Darby and Wickard rather than against the grain of the civil rights cases, but there were problems with the commerce approach too see page 558-559. In the end, Congress chose to place primary emphasis on the Interstate Commerce Clause in enacting Title II of the Civil Rights Act of 1964 that prohibited discrimination and segregation in various places of public accommodation if their operations affect commerce. Statute Gave rise to two cases that challenged Congresss power to legislate: SC upheld the statute in both cases. 1. Heart of Atlanta Motel v. US o Activity being regulated has substantial interstate effect despite moral motivations behind regulation. o Having observed that 75% of the Heart of Atlanta Motel's clientele came from out-of-state, and that it was strategically located near Interstates 75 and 85 as well as two major U.S. Highways, the Court found that the business clearly affected interstate commerce. 2. Katzenbach v. McClung In section 4 of the opinion the Court held that racial discrimination in restaurants had a significant impact on interstate commerce, and therefore Congress has the power to regulate this conduct under the Commerce Clause. The Court's conclusion was based on extensive Congressional hearings on the issue In Section 5 of the decision the Court affirmed previous decisions that Congress has the authority to regulate local intrastate activities if the activities significantly affect interstate commerce in the aggregate, citing United States v. Wrightwood Dairy Co., Wickard v. Filburn, Gibbons v. Ogden, and United States v. Darby. The appellees objected to Congress' approach in determining what affects commerce, the court held, Where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

4. Post-1995 [Lopez and Morrison] Cases: Below is the Rhenquist Court: Finding Limits on Federal Power after the New Deal Era A.United States v. Lopez 1995

Facts: Lopez a 12th grade student was arrested for carrying a concealed handgun. He was charged with violating the Gun Free School Zones Act which made it a federal crime to for any individual to knowingly possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone. School zone=within 1,000 feet of a school. o Defendant: Law is an unconstitutional exercise of Congresss commerce power. Under both costs of crime and national productivity reasoning is difficult to see any limits on federal power. o Federal Govt: regulation was justified under the commerce clause because possession of a gun near a school may result in violent crime that can adversely affect the economy in such ways: Cost of Crime 1. Costs of violent crime are substantial which are spread throughout the population 2. Violent crimes reduce the willingness of individuals to travel to areas within the country that are perceived to be unsafe. National Productivity Presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process in turn will result in a less productive citizenry. Issue: Does the act fall within Congresss Commerce Power?

CON LAW OUTLINE 20 Holding: By 5-4 margin, the SC declared unconstitutional the Gun-Free School Zones Act of 1990 which made it a federal crime to
have a gun within 1,000 feet of a school. Reasoning: Majority: Rehnquist o Overall: The court concluded that the law was unconstitutional because it was not substantially related to interstate commerce. o Court Starts with first principles Enumerated powers Vertical federalism: federal/state powers Court returned to the notion that Article I limits Congresss legislative powers to those that are express or implied in the constitution (In its Enumerated Powers). Constitution creates a national government of enumerated powers. Lopez Framework: After reviewing the history of decisions under the commerce clause, the Court identified three types of activities that Congress can regulate under the commerce power.

1. Congress can regulate the use of the channels of interstate commerce. Court cited Darby and Heart of Atlanta which upheld the federal law prohibiting discrimination by hotels and restaurants as an example of protecting the channels of interstate commerce. Statute is not a regulation of the use of the channels of interstate commerce. 2. Court said that Congress may legislate to regulate and protect the instrumentalities of interstate commerce. This includes the power to regulate persons and things in interstate commerce. Court cited several cases which upheld congressional power to regulate the railroads under its commerce power. Statute here is not protecting any instrumentality in interstate commerce. 3. Court said that Congress may regulate those activities having a substantial relation to interstate commerce Substantial relation=substantial effects. See Jones. Question: IS it part of a larger regulatory framework which viewed in the aggregate substantially affects interstate commerce? o Substantial Effects Significant Effect on Commerce Legislative findings may help but are not dispositive Jurisdictional hooks will help: which would ensure through a case-by-case inquiry that the conduct in question affects interstate commerce. Where economic activity substantially affects interstate commerce, legislation regulating the activity will be sustained. Economic/Commercial activity can be sustained when viewed in the AGGREGATE, they substantially affect interstate commerce. Not the same for noneconomic activity. See Morrison. Is the regulated activity economic? (a) Activity being regulated itself be properly characterized as being economic in nature or See Raich. (b) Regulation of the activity an essential part of a larger regulation of economic activity Lopez suggests that when regulation is part of a larger regulation of econ activity, it could be sustained under cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Also, in Raich, the court defined the activity as what was being regulated by Congress rather than the particular activity as issue in the case (consumption of MJ for medical purposes). Thus a non-economic activity could be defined as economic if what congress is regulated can be defined as economic and the non-economic activity falls within that regulatory scheme. Conclusion/ Overall Problems with Statute: Presence of a gun near a school did not substantially affect interstate commerce and that therefore the federal law was unconstitutional.

Not economic: Its a criminal statute Under our federal system, the states possess primary authority for defining and enforcing the criminal law. Not part of a larger regulatory framework: Its not an essential part of a larger regulation of economic activity which viewed in the aggregate substantially affects interstate commerce. Contains no jurisdictional element which would ensure that the firearm possession in question affects interstate commerce. Congressional Research/Findings are not required but would be helpful o If Courts is taking upon itself to find or not economic activity then why does it matter if congress has findings or not? This is exactly what the dissenters are concerned about. Under the theories the govt presents, it is difficult to perceive any limitation on federal power.

Concurrence Kennedy and Justice OConnor: o 1. This DOES NOT overrule the New Deal Cases Kennedy wants to make clear that this is ALL consistent with the new deal cases. o 2. thinks about courts role in policing federalism line. Political process is the ordinary way but there is a role for the court: His argument gestures in direction of external constraints on Congress like Police Power

CON LAW OUTLINE 21 o Whats kennedys answer to Bryer and the political process limit? Hes not with Bryer, he acknowledges political process is
the main check on federal power, but in same way you can get a sense of whether its rational or not, can look at see if its contrary to federalism; looks like its obliterating state sovereignty to me. We have a role in policing the line between the states and the federal government: Were the federal government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory Concurrence: Thomas o Goes back to beginning. o Urged a much narrower view of congressional power than adopted by the majority. o This approach would have returned the court to the limits on the commerce authority that the Court followed between 1887 and 1937. o Kennedy and Oconnor stressed federalism and the relationship between limiting Congresss authority and protecting state prerogatives. They also emphasized the lack of necessity for the federal law because the vast majority of states already had laws prohibiting guns near schools. Dissent: Stevens, Souter, and Breyer o Souter: RESTRAINT, Deference to Congress! o Criticized the majority for engaging in undue judicial activism; for abandoning almost 60 years of precedent and for invalidating an important federal statute. o Breyer: the judiciary should uphold a federal law as a valid exercise of the commerce power so long as there is a rational basis that an activity affects interstate commerce. Guns near schools DO have an economic impact that justifies federal regulation under the commerce power. o Breyer Dissent: Breyer Also emphasizes deference: could congress have had a rational basis for concluding that it did? Then he piles on a ton of evidence that he collected. Uses evidence to stress that court has to judge the matter independently and show a rational basis. All of this stuff doesnt have to be in there, message is just that there are excellent reasons. Obviously rational on his reasoning.

Majority concern: Congress could prescribe down to the last detail the curriculum for kindergarten. Whats the limit then??? BRYER RELIES ON THE POLITICAL PROCESS AS THE LIMIT. we the people, the people (represented in the house), the states (represented in the senate) Outside of footnote four, leave it up to the political process.

B. United States v. Morrison 2000, Rheinquist : in regulating noneconomic activities, substantial effects cannot be based on aggregated impacts./But for Causal Test to find Economic Activity

Facts: Student was allegedly raped by football players at a university. She filed suit against her assailants and the university under the civil damages provision of the VAWA act. The provision authorizes victims of gender-motivated violence to sue for money damages. Congress had found that gender violence cost the American Economy billions of dollars each year and is a substantial constraint on freedom of travel by women throughout the country. US Government: Defended the law by saying that it had to do with activities that have a substantial effect on interstate commerce. (Third Category of Lopez Framework). Issue: Whether the civil damages provision of the federal VAWA act is constitutional. Holding: 5-4 decision, Court held that Congress lacked the authority to adopt the provision under either of those powers. Reasoning: o The court reaffirms the 3-part test for Congresss commerce clause authority that was articulated in United States v. Lopez. Congress may regulate: A. the channels of interstate commerce B. the instrumentalities of interstate commerce and persons or things in interstate commerce C. activities that have a substantial effect on interstate commerce. o US Government: Defended the law by saying that it had to do with activities that have a substantial effect on interstate commerce. (Third part of test). VAWA act has a substantial effect on the national economy.

Argument Rejected. Congress here was regulating noneconomic activity that has traditionally been dealt with by state laws. Gender-motivated crimes are not economic activity. Congresss findings on impact on the economy are inadequate (neither necessary nor sufficient) to sustain the law under the commerce clause simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. Why isnt this economic? Court said Congress was relying on a but-for causal chain from the initial occurrence of violence crime, to every attenuated effect upon interstate commerce. With Congresss reasoning, it would be allowed to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. By this reasoning, Congress could regulate all violent crimes in the US. in regulating noneconomic activities, substantial effects cannot be based on aggregated impacts.

Court will not adopt a categorical rule: we accordingly reject the argument that Congress may regulate noneconomic violent criminal conduct based solely on that conducts aggregated effect on

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o interstate commerce. The constitution requires a distinction between what is truly national and what is truly local. (I guess crimes against women are a local not national problem) Concurrence: Thomas:

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Objected to substantial effects test just as he did in Lopez. By continuing to apply this standard, the Court has encouraged the Fed Govt to persist in its view that the Commerce Clause has virtually no limits. With such a standard, Congress will continue to appropriate state police powers under the guise of regulating commerce. Majority in Morrison would allow Congress to regulate economic activities based on their cumulative impact on the economy, but not Justice Thomas. Dissent: Souter Stevens Ginsburg: stressed the need for judicial deference to congressional fact finding, we are only evaluating the rationality of the Act; its rational to have concluded that this activity falls within the power of Congress.: congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. The fact of such a substantial effect is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. The business of the courts is to review the congressional assessment, not for soundness, but simply for the rationality of concluding that a jurisdictional basis exists in fact.

Congress had conducted much research and found that violence against women has an enormous effect on the American economy. This is a rational basis that should have been upheld. So what should be the limit? Again, the political process. Just like Lopez.

C. Gonzalez v. Raich 2005 : The activities being regulated are economic in natureproduction, distribution and consumption. When they are economic in nature, defer to Congress under rational basis review. if its an economic activity, Court doesnt need to

determine whether respondents activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding. Congress has a rational basis for believing that the local supply of marijuana has a
substantial effect (on the aggregate) on the supply and demand in the national market.

Facts: Angel Raich of Oakland, California, Diane Monson of Oroville, California, and two anonymous caregivers sued the government for injunctive and declaratory relief on October 9, 2002 to stop the government from interfering with their right to produce and use medical marijuana claiming that the Controlled Substances Act was not constitutional as applied to their conduct. RAICH (D argument): Argues that the Acts categorical prohibition of the manufacture and possession of MJ as applied to the INTRASTATE manufacture and possession of MJ for medical purposes pursuant to CA law EXCEEDS Congresss authority under the Commerce Clause. GOVERNMENT ARGUMENT 1. The Controlled Substances Act does not recognize the medical use of marijuana. Agents from the federal Drug Enforcement Administration (DEA) were assigned to break up California's medical marijuana co-ops and seize their assets. This activity was the result of the belief that federal law preempted that of California. 2. Commerce Clause argument: The government argued that if a single exception were made to the Controlled Substances Act, it would become unenforceable in practice. The government also contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana, and hence that the federal government may regulateand prohibitsuch consumption. This argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops (wont go buy that product somewhere else if you grow it yourself), due to the effect of that consumption on interstate commerce, however minute it may be. Legal Background: The United States has a federal structure, with power divided between the states and the federal government. The state governments can act in any sphere not prohibited to them (10th Amendment, U.S. Constitution) but the federal government can pass laws only in areas specifically delegated to it (Art. I, U.S. Constitution). The state governments have general police power. The federal government does not have general police power and is a government body of limited, enumerated powers granted by the Constitution. Consequently, a substantial amount of U.S. federal law regulating numerous areas, including economic legislation and criminal law, are legally premised on an exercise of the Commerce Clause. The Commerce Clause, along with the Fourteenth Amendment and the spending power, allows Congress to do things that affect states. For more information, see States' rights and the Rehnquist Court. Issue: Whether Congresss commerce power encompasses markets that are supplied with drugs produced and consumed locally? Not disputed that Congress could pass the act, but could it apply the act to intrastate activity? Holding: Stevens: The activities being regulated are economic in natureproduction, distribution and consumption. When they are economic in nature, defer to Congress under rational basis review. Congress has a rational basis for believing that the local supply of marijuana has a substantial effect (on the aggregate) on the supply and demand in the national market. Reasoning:

Under Wickard , Congress has the power to regulate purely local economic activities that have a substantial effect on intersate commerce.

CON LAW OUTLINE o Court says it doesnt matter that with MJ as opposed to wheat in WIckard Congress wasnt trying to regulate price and
market conditions: this doesnt matter because Congresss power to regulate commerce includes the power to prohibit commerce in a particular activity.

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Doesnt matter that Congress did not make a specific findingthat the intrastate cultivation and possession of MJ for medical purposes would substantially affect the large intersate MJ market. Court has never required Congress to make particularized findings in order to legislate absent a special concern such as the protection of free speech. Court doesnt need to determine whether respondents activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding. o Given the enforcement difficulties that attend distinguishing between MJ cultivated locally and MJ grown elsewhere, and concerns about illicit channels, court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufactore and possession of MJ would leave a gaping hole in the CSA. This is important because of larger regulatory framework that Congress has power over under the statute. is it regulating something essential for congress to regulate in order for congresss larger regulatory framework to work?

Court differentiates this case form Lopez and Morrison: Here it is argued that the application of a statute is invalid, whereas in Lopez and Morrison it was argued that the statutes themselves were invalid. Also, activities in Lopez and Morrison were not economic, where as here they are economics refers to the production, distribution, and consumption of commodities. Concurrence: Scalia Agrees with the majority the regulation of use of medical MJ in an intrastate way that is necessary to Congresss effective regulation of the National Drug Market. Emphasized that Congress pursuant to the necessary and proper clause, has the authority to control intrastate production of goods that are of a type that end up in interstate commerce. Two General Circumstances: o Once you take into account work that necessary and proper clause congress can regulate activity w/out substantial effect on commerce and it can regulate non-economic activity if in either case regulation of that activity is ESSENTIAL to a larger regulation of interstate commerce. Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce ( this would be used for Const. of Health Law under Necessary and Proper Clause) o So what are the limits?

You cant regulate non-economic activity based solely on affect it would have on remote chain of inferences (on the aggregate).

OConners Dissent: She says the court announced a rule the gives Congress a perverse incentive to LEGISLATE BROADLY.

How would the majority respond to that? Who can save us THE POLITICAL PROCESS. Why doesnt the political process (which she believes in) satisfy OConnor? Political process is good until your one state, youre CA and nobody wants you to test out. From her perspective, the court has to be there to help some little state that wants to be a laboratory bc CA ultimately disagreed so whats the line? She offers some objective markers of the legitimacy of the law that state should be able to make these distinctions. o Federal and state law recognize that medical and non medical uses are realistically distinct o CA drew on its reserved powers. SUMMARY FOR COMMERCE CLAUSE CASES

Framework for analyzing Commerce Clause Cases. 1. Does if fall under one of the three categories from Lopez? 2. Analyze it under that category, here would be Substantial Effect. 3. Is it even an activity? 4. If its an activity, is it an economic activity? from Raich, if its an economic activity, Court doesnt need to determine whether respondents activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding. 5. Does it have a substantial effect on interstate commerce? (only use this analysis when its NOT an economic activity)

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B. Taxing and Spending Power Art. I 8: Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States

1. Constitutionality of the Health Law Section 1501(b) of the ACA (Affordable Care Act) imposes an individual mandate for health insurance. It requires that individuals MUST purchase health insurance from a qualified plan or pay a penalty with their tax returns. Those too

poor to afford insurance would have their health coverage provided by the state.
o Penalty goes into effect in 2014, is a flat dollar amount for each month without health insurance. Is the individual mandate constitutional? Two Theories: o Commerce Power Uninsured persons are engaged in economic activity within the meaning of Lopez, Morrison, and Raich OR THAT Congress may regulate uninsured persons under the Necessary and Proper Clause o Congresss power to tax and spend for the general welfare. Commerce power: o Economic Activity First analyze for one of 3 categories in Lopez: here would be substantial effects. What activities?: Individuals make an economic decision about whether to purchase health insurance, and engage in economic activities that substitute for the purchase of insurance like borrowing money from families to pay for medical bills, purchasing over the counter remedies, going to emergency rooms for treatment. The combination of these activities has a substantial effect on interstate commerce under Wickard and Raich. But are these activities even ECONOMIC under Lopez, Morrison, and Raich? Slippery Slope Argument: Are decisions about budgeting for health insurance and substitutes for health insurance economic in a way that budgeting decisions about other goods and services are not? Would probably analyze under 3rd category from Lopez: So if these activities ARE economic, do they have a substantial effect on interstate commerce? o Necessary and Proper Clause Bringing uninsured persons into the national risk pool is necessary and proper in order to make its regulation of insurance markets in the ACA effective. Taxing Power o Individual mandate is a TAX and promotes the general welfare. Congress could reasonably conclude that the tax will help secure universal health insurance coverage and help make its comprehensive regulation of health insurance effective.

The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid

2. South Dakota v. Dole 1987 Rheinquist Facts: The United States Congress passed legislation, the National Minimum Drinking Age Act, designed to discourage state from lowering the legal drinking age in 1984 to under 21. It did so by withholding 5% of state taxes. In 1988, that amount changed to 10%. South Dakota, which had allowed 19-year-olds to purchase beer containing up to 3.2% alcohol, sued to challenge the law, naming Secretary of Transportation Elizabeth Dole as the defendant because her office was responsible for enforcing the legislation. Court said that under spending power Congress can do indirectly what it cant do directly: means that it can do things under spending power that it cant do under commerce power because states have a choice with spending. Limits on Spending power:

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o o o 1. The condition has promote the general welfare (art I section 8), 2. the condition (What congress requires) has to be embodied in a CLEAR statement, 3. the condition has to be related to interest in a coherent national program and 4. The condition cant violate some other part of the constitution.

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The first three restrictions, Rehnquist noted, are uncontested. This leaves the fourth restriction. The Tenth Amendment bars federal regulation of the States, and it has been suggested that the Twenty-First Amendment might prohibit federal regulation of the drinking age. Nevertheless, the Congressional condition of highway funds is merely a "pressure" on the State to comply, not a "compulsion" to do so, because the State's failure to meet the condition deprives it of only 5% of the highway funds it may obtain. Therefore, Congress has not run afoul of the Tenth or Twenty-First Amendments.

The Court also suggests a fifth requirement: that the financial inducement offered by Congress may not be so coercive that it no longer amounts to just pressure to accept the funding, but amounts to compulsion so that the states no longer have a real choice to reject the federal funds

Though doctrine may not account for states that need the money no matter what (which could be construed as compulsion) OConnor Dissent: Says Condition being attached is not sufficiently related to taxing and spending. OConnor
C. Power to Enforce Equal Protection

13th, 14th, and 15th Amendments, passed following Civil War, each contained a separate section providing Congress shall have power to enforce article by appropriate legislation o 13th Amendment: Prohibits slavery and involuntary servitude, except as punishment for a crime.

14th Amendment : Says States are bound by equal protection and fundamental rights in Bill of Rights. Before Civil War, Bill of Rights had only applied to the Federal Govt. After Civil War, all those protections are read into 14th Amendment, so you have rights against the State.

5 cannot be used to regulate private activity (Garrett) 15th Amendment: Right of citizens to vote shall not be denied or abridged by the US or any State on account of race, color, or previous condition of servitude.

1. The Civil Rights Cases 1883 : Congress lacked the constitutional authority under the enforcement provisions of the Fourteenth Amendment to outlaw racial discrimination by private individuals and organizations (which is what Civil Rights Act of 1875 is interpreted to do by the court), rather than state and local governments under both 13th and 14th amendment.

These cases arose out of the exclusion of Blacks from inns, theaters, and a railroad on account of their race. See Civil Rights Act of 1875 all persons within the US shall be entitled to the full and equal enjoyment of innsapplicable to citizens of every race and color and regardless of any pervious condition of servitude. Makes violation of this a misdemeanor and permits an aggrieved party to recover a civil fine. Issue: Does Congress have the constitutional power to make a law that declares that colored citizens shall have the same accommodations and privileges in all inns etc? Holding: Congress lacked the constitutional authority under the enforcement provisions of the Fourteenth Amendment to outlaw racial discrimination by private individuals and organizations (which is what Civil Rights Act of 1875 is interpreted to do by the court), rather than state and local governments. Reasoning: So the court looks at two possible sources of Congresss power to pass Civil Rights Act of 1875: 13th and 14th amendments. o 14th Amendment: First possible source of congressional power. Why is civil rights act of 1875 not ok under 14th amendment?

Court says: 14th amendment empowers Congress to take CORRECTIVE ACTION addressing STATE ACTION (as opposed to private action). Congress cannot prohibit individual action and cant create a code of municipal law (ie police power). Congress cant prohibit private action because this is the power of state legislature; Congresss legislation cannot cover the whole domain of rights appertaining to life, liberty and property, this would be to make Congress take the place of the State legislatures and to supersede them. What can congress do if it cant get involved in private action? Has to wait until state actors have done something repugnant to the 13th or 14th amendment. But can take corrective or PREVENTIVE action where can take action when it anticipates a state will act repugnant to amendments. (check this last part).

CON LAW OUTLINE How was the section that was upheld in Ex Party Virginia different? o

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Because in the VA case, the State through its officer enforced a rule of disqualification that the law was intended to abrogate and counteractthis was a corrective measure. 13h Amendment: Second possible source of congressional power.

No state action requirement. Doesnt have to be corrective action. Whats the problem? Why is civil rights act of 1875 not ok under the 13th amendment? Because 13th amendment applies only to slavery. Social Rights Argument: The Court also acknowledged that the 13th Amendment does apply to private actors, but only to the extent that it prohibits people from owning slaves, not exhibiting discriminatory behavior which would fall under the social rights of men and races in the community. How does the court distinguish between the 13th and 14th amendment?

13th amendment abolish slavery, allows direct and primary legislation applying to individuals but its about slavery whereas 14th amendment, addressing a broader set of rights, does not allow direct and primary legislation but only CORRECTIVE/PREVENTIVE legislation in STATE ACTION.

Final passage on 379: Congrats your free gl. Harlans Dissent:

13th amendment changed everything. But he does not contend that 13th amendment gives police power to Congress. Justice John Harlan (J. Harlan) thinks the holding is too narrow and does not take into the account the full effect that the 13th and Fourteenth Amendment was supposed to have. Three Basic Rationales: o 1. Top of 381: Railroads performing function that is that of the state. o 2. Inns are quasi public functions o 3. Places of Public Amusement 14th amendment: Have to protect these rights or else they are not citizens. Congress can get at anything that gets in the way of your full citizenship. Section Five then grants the power to protect the citizenship of every person, to enforce the citizenship clause and theres nothing in there that says it has to be about state action.

1. South Carolina v. Katzenbach About voting rights act States had had discriminatory application of voting tests Discrimnatory application of voting tests were the principal metgod used to bar balacks from voting Act had 3 main provisions at issue: o 1. Suspension of literacy tests o 2. Regulation to be reviewed by a federal judge o 3. List qualified voters o Coverage Exception

Issue: This is a 15th amendment case : Has Congress exercised its powers under the 15th amendment in a an appropriate manner in relation to States? South Carolina says: Congress doesnt have this power to fashion specific remedies or apply them to particular localities o Court response: No! Congress has found that case by case litigation inadequate to combat discrimination Specific Remedies: This is a permissible way of dealing with the problem, has findings of the problem Lacitter upheld literacy tests, court responds: o Tests here are employed in discriminatory fashion o Purpose here is to disenfranchise blacks

2. Katzenback v. Morgan Facts: Section 4e of the 1965 Voting Rights Act provided that no person who had completed sixth grade in school in Puerto Rico in which the language was other than English could be denied the right to vote on account of inability to read or write English. This provision was aimed primarily at stopping NY state literacy test to prevent many of its citizens of Puerto Rican dissent from voting. Issue: Did Congress have the power to prohibit the enforcement of NY state law requiring an English language requirement by legislating under 5 of the 14th amendment without regard to whether the judiciary would find that the EPC itself nullifies it? In other words, is this legislation appropriate to enforce the Equal Protection Clause? Holding: Yes. Court's Rationale/Reasoning: NY Argument: Before the legislature as the power to implement section 4(e), NY state law itself has to be invalidated by the equal protection clause by the courts. Its up to courts to rule on the constitutionality of our law.

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The court says NO. Congress doesnt have to wait for a court decision. Section 5 grants Congress BROAD powers. Deference to congress though we really dont even need much findings to convince us. Court is very deferential with respect to congressional findings, there arent really specific findings but court says we perceive a factual basis upon which congress could have decided that there is a danger of discrimination

Section 5 of 14th amendment: Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. o This is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the 14th amendment. Court then proceeds to the consideration whether 4d is appropriate legislation to enforce the EP clause uses McCulloch Standard: Whether 4e may be regarded as an enactment to enforce the Equal Protection clause, whether it is plainly adapted to that end and whether it is not prohibited by but is consistent with the letter and spirit of the constitution. o ENDS GOOD: There can be no doubt that Section:4(e) of the Act may be regarded as an enactment to enforce equal protection. Section 4(e) of the Act may be viewed as a measure to secure for the Puerto Rican community residing in New York, nondiscriminatory treatment by the government, both in the imposition of voting qualifications and the administration of governmental services. Section 4(e) of the Act can be readily seen as plainly adapted to furthering these claims of equal protection. The practical effect of 4e is to prohibit NY from denying the right to vote to large segments of its Puerto Rican community. Defer to Congres: Congress made this judgment and weighed considerations. Its not for the court to review congresssion resoltuon of these factors. o Means Good: Argument is that Congress violated the Constitution by not extending the relief effected in 4e to those education in nonAmericanflag schools (this would be invidious discrimination)

Court Response: The Court seemed to see Section 5 as giving Congress the power to add to--but not subtract from--protections that the Court finds contained in the 14th Amendment o Section 4(e) of the Act does not restrict or deny the franchise, but in effect extends the franchise to persons who would be denied it by state law. The limitation on relief effected in Section:4(e) of the Act does not constitute a forbidden discrimination since these factors may have been the basis for the decision of Congress to go no farther than it did.

Dissenting: (Justice Harlan, Stewart) This is more or less Congress trying to stop a NY law, not the constitutional power of the Court to end behavior which pervades the limits in Voting Rights or Equal Protection.

3. Boerne REREAD PAGES 640-643 great counterarguments Facts: The Archbishop of San Antonio sued in federal court challenging the permit denial to build and expand his church citing the Religious Freedom Reformation Act of 1993 (RFRA). [Specifically, the RFRA prohibits government from substantially burdening the exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates (1) a compelling government interest and (2) is the least restrictive means of achieving the interest. The act also provides a claim of defense to persons whose religious exercise is substantially burdened by the government. Congress relied on its 14th amendment Section 5 powers to pass this legislation] Basically this legislation is determining Freedom of Religion rights. Issue. Is the RFRA a proper exercise of Congress Section 5 Power to enforce by appropriate legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property without due process of law nor deny any person equal protection of the laws? Held: NO Reasoning: Antithesis of the Voting Rights Act Case of City of Rome.

CON LAW OUTLINE 28 o The key difference between these two cases is that there is no evidence of discrimination presented in this case; while in City of Rome there was evidence of disenfranchisement of African-American voters in the state of Georgia. o If there was evidence similar to City of Rome, it is likely that the Court would have reached a different result in this case.
Congress may not create a substantive constitutional right. o The Supreme Court holds that Congress has authority to enforce provisions of the 14th amendment by passing legislation affecting otherwise constitutional state statutes, it may do so in a remedial or preventative manner, NOT in a way that makes a substantive change in the governing law (by determining what constitutes a constitutional violation) TEST TO DETERMINE THE LINE BETWEEN REMEDIAL/PREVENTIVE POWERS AND SUBSTANTIVE CHANGE: There must be congruence between the means and the ends to be achieved and proportionality to a remedial or preventative objective. Lacking such a connection, legislation may become substantive in operation and effect which is an unconstitutional expansion of legislative power. While Congress has the first instance to determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment, including the right to free exercise of religion, and its conclusions are entitled much deference, this deference is not unlimited. o Structural Argument: Separation of Powers: Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance because it would be creating a substantive change this would intrude on judiciary ( power to interpret the constitution in a case or controversy remains in the judiciary) and state power. o Different from KAtzenbach v. Morgan CONGRESS DID NOT EXPAND RIGHTS HERE Court perceived in Katzebnach a factual basis on which Congress could have concluded that NY literacy requirement was an invidiuous discrimnation in violation of EP clause. THIS IS NOT A PROPER EXERCISE OF CONGRESSS REMEDIAL POWER TEST: While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends achieved. The appropriateness of remedial measures must be considered in light of the evil presented. Whats congruent and proportional? o 1. Congruence: No evidence of religious discrimination: Unlike the Voting Rights Act, there is no detailed example of religious bigotry in this country in the past forty years necessitating the legislation under the appropriate legislation power of Congress provided for in Section:5 of the Fourteenth Amendment. Not congruent to SOME harm to be addressed. (not getting on some unconstitutional act of the state) Suggests that if you have findings, it would be congruent o 2. Proportionality: RFRA cannot be considered remedial legislation, because it is so out of proportion to a supposed remedial or preventative object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. For these reasons RFRA intrudes on the power of the judiciary and the rights of the states, and is an unconstitutional exercise of Congressional power.

1. RFRA has such a sweeping coverage that it intrudes at every level of government, and has no termination date nor any termination mechanism. o Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.

RFRA Distinguished from other measures passed under Congresss power: WHERE a congressional enactment prohibits constitutional state action in an effort to remedy or prevent unconstitutional state action, limitations set forth below ensure Congresss means are proportionate to ends legitimate under Section 5 though it doesnt have to have these things.

1. Confined: challenged provisions were confined to those regions of the country where voting discrimination have been most flagrant, and affected a discrete set of state lawsstate voting laws 2. Sunset ProvisionCoverage under the act would terminate at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the preceding five years.

3. Attacked a Particular Practice with history of discrimination: Katzenbach attacked literacy tests with a long history as a notorious means to deny and abridge voting rights on racial grounds The stringent test RFRA demands of state laws reflect a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. o Claims that a law substantially burdens someones exercise of religion will often be difficult to contest. o Demanding Test for states to show a compelling state interest and that the law is the least restrictive means of furthering its interest. MANY LAWS WOULD FAIL without regard to whether they had the object of stifling or punishing free exercise o This is a considerable intrusion into the states traditional prerogatives and general authority to regulate for the health and welfare of their citizens. When the exercise of religions has been burdened in an invidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.

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DISSENT:

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Didnt take issue with courts section 5 analysis, dissents didnt like Smith. And then the court starts striking stuff down under section 5:

4. US. v. Morrison: Holding: For these reasons, we conclude that Congress power under 5 does not extend to the enactment of 13981. Synthesis of Congressional Power under Section Five:

The principles governing an analysis of congressional legislation under 5 are well settled. Section 5 states that Congress may enforce by appropriate legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property, without due process of law, nor deny any person equal protection of the laws. Boerne. Section 5 is a positive grant of legislative power, Katzenbach v. Morgan, that includes authority to prohibit conduct which is not itself unconstitutional and [to] intrud[e] into legislative spheres of autonomy previously reserved to the States. Boerne. However, [a]s broad as the congressional enforcement power is, it is not unlimited. In fact, as we discuss in detail below, several limitations inherent in 5s text and constitutional context have been recognized since the Fourteenth Amendment was adopted.

Petitioner: Petitioners 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gendermotivated violence. Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States bias and deter future instances of discrimination in the state courts. Court Response: the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.

Petitioner: This is State Action: Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action.

Court Response: Even if this is state action: Remedy is not congruent or proportional between the injury to be prevented or remedies and means because its not state action (it is aimed not at a State or state actor, but at individuals who have committed criminal acts motivated by gender bias) o But even if that distinction were valid, we do not believe it would save 13981s civil remedy. For the remedy is simply not corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers. Civil Rights Cases. Or, as we have phrased it in more recent cases, prophylactic legislation under 5 must have a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. [Citing, inter alia, Boerne.] Section 13981 is not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias. 13981 visits no consequence whatever on any Virginia public official involved o The section is, therefore, unlike any of the 5 remedies that we have previously upheld. For example, in Katzenbach v. Morgan, Congress prohibited New York from imposing literacy tests as a prerequisite for voting because it found that such a requirement disenfranchised thousands of Puerto Rican immigrants who had been educated in the Spanish language of their home territory. That law, which we upheld, was directed at New York officials who administered the States election law and prohibited them from using a provision of that law. In South Carolina v. Katzenbach, Congress imposed voting rights requirements on States that, Congress found, had a history of discriminating against blacks in voting. The remedy was also directed at state officials in those States. Similarly, in Ex parte Virginia, Congress criminally punished state officials who intentionally discriminated in jury selection; again, the remedy was directed to the culpable state official.

Section 13981 is also different from these previously upheld remedies in that it applies uniformly throughout the Nation. o Congress findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the 5 remedy upheld in Katzenbach v. Morgan, supra, was directed only to the State where the evil found by Congress existed, and in South Carolina v. Katzenbach, supra, the remedy was directed only to those States in which Congress found that there had been discrimination.

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5. Board of Trustees v. Garrett : Facts:

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Section I

City of Boerne Court Confirmed the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. Reaffirms Congruence/Proportion Test. o Section 5 legislation reaching beyond the scope of section 1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."

Section II First Step Identify the scope of the constitutional right at issue o Identify with some precision the scope of the constitutional right at issue. o The Inquiry requires us to examine the limitations 1 of the Fourteenth Amendment places upon States' treatment of the disabled. Look to prior decisions under the Equal Protection Clause dealing with this issue. o In Cleburne v. Cleburne Living Center, Inc., (Rational-basis) Concluding that such legislation that treats people with disabilities differently from people without disabilities must satisfy only the minimum rational-basis review applicable to general social and economic legislation. Thus states not required to make accommodations, If actions are rational

Law Challenged: American Disabilities Act, Title I of the Act Why not just do all this stuff through Commerce power and get around congruence and proportionality stuff? o Commerce Power is plenary (w/in limits though) and o get at private action but o Congress cannot abrogate sovereign immunity via its use of the commerce power Abrogating sovereign immunity= allowing for suits against states for money damages Section 5 Power o Not Plenary, has to be o Congruent and Proportional o Cant read private conduct but you o Can abrogate sovereign immunity (provides for suits against states and localities) [Boerne involves a city and yet there was no argument there that RIFRA could just have been passed under the Commerce Power ] Clayburne is cited saying used rational basis review so not a prima facie discriminated against class, matters when deciding about congruent and proportional o With rational basis review evidence about discrimination or extra vulnerable class is low so it would be very difficult for legislation that allows for suits against states to be congruent and proportional o If level of scrutiny is low congress will have hard time justifying doing what it wants

Section III

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Step 2 Examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled Court Fails to show a pattern Garret Contends Inquiry should extend to cities and counties All of these are "state actors" for purposes of the Fourteenth Amendment.

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Court Response: Court Eleventh Amendment o The Eleventh Amendment does not extend its immunity to units of local government. o Court Entities are subject to private claims for damages under the ADA without Congress' ever having to rely on 5 of the Fourteenth Amendment to render them so. Board of Trustees Cite disability cases of discrimination that did not involve State Activities

Court Even if true that instances of discrimination that did involve states, it still falls short of a pattern of unconstitutional discrimination based upon section 5 legislation. o Congress found that "some 43,000,000 Americans have one or more physical or mental disabilities." o States alone employed more than 4.5 million people. o Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled Court The rights and remedies created by the ADA against the States would raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne. For example, o It would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "make existing facilities used by employees readily accessible to and usable by individuals with disabilities." Court Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recovery money damages against States 1. There must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and 2. The remedy imposed by Congress must be congruent and proportional to the targeted violation. DISSENT Breyer Section 5, however, grants Congress the "power to enforce, by appropriate legislation" the Fourteenth Amendment's equal protection guarantee. o In my view, Congress reasonably could have concluded that the remedy before us constitutes an "appropriate" way

6. Nevada Department of Human Resources v. Hibbs Facts: Hibbs sued the Nevada Department of Human Resources, alleging that they violated the Family and Medical Leave Act. FMLA entitles eligible employees to take up to 12 work weeks of unpaid leave annually for any of several reasons, including the onset of a serious health condition in an employees spouse, child, or parent. Issue: Is the FMLA a constitutional use of congressional power under the Eleventh Amendment and 5 of the Fourteenth Amendment? YES. Analysis/Rule:

Congress may enact remedial legislation when it is congruent and proportional to the constitutional violation it is attempting to remedy. Congress may enact prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct. o Congresss authority under 14th amendment includes the authority both to remedy and to deter violation of rights guaranteed by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendments text. o The remedies which Congress enacts to enforce the Amendment must not constitute "an attempt to substantively redefine the States' legal obligations To prevent Congress from doing this, the Court said, its case law required Section 5 legislation to "exhibit 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. CONGRUENCE/ PROPORTIONALITY TEST 1. Injury Prevented/Remedied o The Court acknowledged that Congress, by enacting the FMLA, had sought "to protect the right to be free from gender-based discrimination in the workplace. The FMLA was meant to protect that right by guaranteeing to working women, who Congress found usually bear the primary responsibility for family caretaking, the right to take unpaid leave to deal with this responsibility while still retaining employment.

CON LAW OUTLINE o Long History of Discrimination: Whether the FMLA was constitutional depended on whether Congress had evidence that

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o o

the states were systematically violating women's workplace rights. Citing Bradwell v. Illinois and Goesaert v. Cleary, the majority acknowledged that there was a long history of legally sanctioned discrimination against women in employment opportunities. The Court noted that "the persistence of such unconstitutional discrimination by the States justifie[d]" the passage of the FMLA, which was designed to prevent further discrimination Evidence of Discrimination by looking at Parental Leave: ( lack of parental leave based on pervasive sex role stereotypes) "[t]his and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work. Even in states where the laws were supposed to offer parental leave for fathers, such laws "were applied in discriminatory ways

Distinguished from other cases that struck down legislation as overstepping its bounds under the 14th amendment section 5 Garrett, Kimel, City of Boerne o Those cases not subject to heightened scrutiny: Those cases concerned legislation which Congress had enacted in order to combat what it considered discrimination on the basis of age and disability. The Court stated that because such discrimination is not subjected to heightened scrutiny under the Constitution, and because the laws invalidated in Kimel and Garrett prohibited almost all such discrimination, the previous cases struck down laws which bore little "congruence and proportionality" to the wrongs they sought to remedy. Gender-based discrimination, by contrast, is subjected to intermediate scrutiny under the Constitution, and so in enacting the FMLA "it was easier for Congress to show a pattern of state constitutional violations. In addition, the majority noted, the FMLA placed certain limitations on the right of employees to take leave and limited the amount of damages which aggrieved plaintiffs could recover for violations. For those reasons, the Court said, "we conclude that [the FMLA's private remedy] is congruent and proportional to its remedial object, and can 'be understood as responsive to, or designed to prevent, unconstitutional behavior.

o o

7. Tennessee v. Lane Holding: State governments may be sued for discriminating against people with disabilities, pursuant to Title II of the Americans with Disabilities Act, with regard to the fundamental rights of access to the courts. There is a well established fundamental right of access to the courts and Congress may enforce it by authorizing suits against state governments. Congress has more authority to act under section 5 of 14th amendment and thus to authorize suits against state governments, when it is dealing with claims of discrimination or violations of rights which receive heightened scrutiny. FUTURE IMPLICATIONS OF THESE CASES: PRINCIPLE OF LANE and HIBBS: Congress has more authority to act under section 5 of 14th amendment and thus to authorize suits against state governments, when it is dealing with claims of discrimination or violations of rights which receive heightened scrutiny. But if it is a type of discrimination or a claim that receives only rational basis review, Congresss ability to legislate under Section 5 is very narrow (probably wont pass congruence and proportionality)/ Based on Hibbs, there is no need for a congressional finding of pervasive constitutional violations when Congress is dealing with areas that receive heightened judicial scrutiny. On the other hand, if it is a claim that receives only rational basis review, then even an elaborate legislative record, as in Garrett is unlikely to be enough to allows suits against state governments. (11th amendment sovereign immunity)

D. States Rights as a Limit on Federal Power: With expansive definition of commerce the Court has struggled to define what limits, if any, the 10th amendment imposes on congressional regulation of state and local governments. The starting point in the courts effort was National League of Cities v. Usery.

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. o Meaning of 10th Amendment concerns 2 interrelated issues of Con. policy: First, how important is protection of State sovereignty and federalism? Second, should it be the role of the judiciary to protect prerogatives or should this be left to the political process? o Values of Federalism (3 benefits of protecting State Govts): Decreasing the likelihood of Federal tyranny Enhancing democratic rule by providing Govt that is closer to the ppl

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This value could be inconsistent with first value, since there is a greater danger of special interests capturing Govt at local levels

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Allowing States to be laboratories for new ideas Any Federal legislation preempting State or local laws limits experimentation 1. National League of Cities v. Usery 1976 Facts: The Appellants, National League of Cities (Appellants), brought suit challenging the constitutionality of the 1974 amendments to the Fair Labor Standards Act (the Act), specifically the requirement that state governments pay their employees the new minimum wage and overtime. (In 1974, Congress amended the Act to, among other things, apply the Acts provisions to public employers.) Issue. May Congress regulate the employment practices of state governments? Holding: No. No. Commerce clause did not empower Congress to enforce the minimum wage and overtime provisions of the Fair Labor Standards Act against the states in areas of traditional government functions. o Justice William Rehnquist (J. Rehnquist) states that the Act would require states to substantially restructure traditional ways in which they have operated. o He argues that this is a power reserved to the States and that to force States to comply with Congress view of how they should operate their traditional affairs destroys the States separate and independent existences. 2. Garcia v. Metro Housing Authority : Justice Blackmun: 1985: Protection of State prerogatives should be through the political process and not from the judiciary. Court rejected as unsound the rule from National on state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is integral or traditional/ Facts: Federal Labor Standards ActImposes minimum wage. Overrules National League of Cities. Garcia justice Blackman decides he cant deal with traditional government tests anymore and says its unworkable, the national league of cities holding had not said you cant apply this to ANY public employee just certain ones. Majority is saying in these cases we struck down federal legislation bc it infringed on traditional govt function Blackman says we arent going to protect the states from this stuff, the political process is going to protect them that being the states own representation in Congress. !!!Dissenters make the point that the political process is not enough that we can just see from all the federal legislation that interferes with state sovereignty in range of ways that political process is not enough; The court has a role in policing this line o Majority argues dont have to protect state government if they dont want to have minimum wages imposed on them, can get Congress to stop imposing this on States. Powell says that arg Doesnt work because there are powerful interests groups at national level that will prevent States from having their say. This could be applied to Scalias argument about the political process too. 3. New York v. United States OConner 1992: NO COMMANDEERING OF STATE LEGISLATURES: CONGRESS CANNOT DIRECTLY COMPEL A STATE TO ENACT AND ENFORCE A FEDERAL REGULATORY PROGRAM. How according to the majority can Congress make states do things? By giving states a CHOICE. o 1. It can incentivize states to do things via the spending power and this is ok because states have a choice here. o 2. Cooperative federalism part (access incentives) Facts: Congress passed Low-Level Radioactive Waste Policy Amendments Act of 1985. This basically required states to provide for disposal of waste generated within their borders and it had 3 incentives that are under dispute in this case. o 1.Monetary Incentives: States with disposal sites can impose surcharge on radioactive waste from other states. o 2. Access Incentives: States were allowed to gradually increase the cost of access to their disposal sites and eventually deny access to states that have no complied with the statute. o 3. Take Title Provision: States that failed to dispose all of their waste by a certain date will become liable for all damages suffered by the wastes generator or owner as a result of the states failure to promptly take possession. The state of New York claims that this statute is unconstitutional. o New York does not contend that the Congress doesnt have the power to regulate the disposal of radioactive waste. o But New York claims that the method the statute has used is unconstitutional as against the 10th amendment and guaranty clause because it directly orders the states to follow the will of the Congress. Issue: Do the incentives provided in the statue cross the Constitutional limits? Holding: Incentives 1 & 2= No; Incentive 3: Yes Holding: For Number Three: External limit on Congress power: Take title is commandeering on state legislatures which the 10th amendment puts an external limit on. Rationale: In the structure of our Constitution, it is clear that the Congress is designed to have direct legislative power over the people and not the states. Congress may encourage states to regulate an activity in a certain way by providing incentives. o This is what the 1st and 2nd provisions of the statute are doing. But Congress cannot compel states to act in a certain way.

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o

In the 3rd provision, Congress has given the states the choice of either accepting ownership of waste or regulating according to the instructions of Congress. o This is coercion and not encouragement. According to the court, Federalism model of government is necessary to keep accountability in our system. o Where Congress encourages state regulation rather than compelling it, state governments remain accountable to the people. o By contrast, where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished. How according to the majority can Congress make states do things? By giving states a CHOICE. o 1. It can incentivize states to do things via the spending power and this is ok because states have a choice here. o 2. Cooperative federalism part (access incentives)

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o
4. Prinz v. US 1997, SCALIA: NO COMMANDEERING OF STATE OFFICIALS: CONGRESS CANNOT COMPEL STATE/LOCAL OFFCIALS TO PERFORM FEDERALLY SPECIFIED ADMINISTRATIVE TASKS. Issue: Brady Handgun Violence Act: Issue is a provision requiring state officials to conduct background checks on prospective gun buyers. Question: Does this scheme violate the anti-commandeering scheme from New York v. US? o Basic NY Prinz distinction is legislatures(NY)/state officials (PRINZ) Justice Stevens: Can congress commandeer executive officials? o This is found under the commerce power. o Oath Clause: State officials are bound to take an oath which is why you can commandeer state officials. Justice Scalia: o History: pg 693 no precedent for commandeering state executive officials. Commandeering state judges is NOT the same. Why not? Because of Article 3 Section 1 Congress can commandeer state judges : Its optional to create lower federal courts and so of course state judges will be enforcing federal law and can be COMMANDED to do so. Article 6: Supreme Law o Structure: Dual Sovereignty argument How does Scalia respond to evidence to the contrary? o He says its is true that in some parts of federalist sounds like you can commandeer state federal officials, but no evidence on 694 that congress can impose these responsibilities without the consent of the states. Justice Souter: Dissents but says this is a closer case than he expected. Structural Arguments: o Dual Sovereignty argument Stevens relies on the political process.

ON RELATIONSHIP OF THESE 10TH AMENDMENT CASES TO COMMERCE CASES: o Those are about internal limits they try to define scope of congressional power and thats why we see all the stuff about how you define commerce which then gives way to substantial effects and aggregate effects ides o Here we look at these separately bc these come around EXTERNALLY congress can otherwise do this except that it infringes on state sovereignty

III. Limits on State Power: The National Common Market A. Dormant Commerce Clause 1. Basic Concepts

Dormant Commerce Clause: State and local laws are unconstitutional if they place an undue burden on IC. Even if Congress has not acted even if its commerce power lies dormant State and local laws still can be challenged as unduly impeding IC. o No constitutional provision that expressly declares that States may not burden IC. SC has inferred this from the grant of power to Congress in Art. I, 8 to regulate commerce among the States (P.419) o CC has 2 distinct functions: Authorization for Congressional actions Limiting State & Local regulation = Dormant or Negative CC o Exceptions to DCC: Congress approves the State or Local action. Law could still be challenged under other Constitutional provisions. Market Participant Exception: State or Local Govt may favor its own citizens in receiving benefits from State or Local Govts or in dealing with Govt-owned businesses

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o

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If State is literally a participant in the market, such as with a state-owned business, and not a regulator, the DCC doesnt apply. Dormant CC indicates Court thinks there is a baseline. Baseline is a free national market w/o States messing around. Congress can decide it DN want a free national market, and Congress can tell the States they can be protectionist. Since Congress has not passed a law of that kind, in the face of the SC enforcing DCC doctrine, seems like Congress has acquiesced in the baseline of the free market (implicitly Congress has passed a law saying that there should be no protectionism w/the States). Various measures that could be used: Tit-For-Tat, Bilateral Trade Agreements, Multilateral Agreements, World Government Should there be a DCC? Justifications for DCC: History: Framers intended to prevent State laws interfering w/IC Economic: Economy is better off if State and Local laws impeding IC are invalidated Political: States and their citizens should not be harmed by laws in other States where they lack political representation Arguments against DCC: Textual: Drafters of Con. could have included a provision prohibiting States from interfering with IC, but they did not. Con. gives Congress power to regulate commerce and invalidate State laws that unduly burden IC. Not task for Federal Judiciary. Courts have chosen an intermediate position: Balance State interest in regulating local affairs against burdens placed on commerce and governmental interest in national unity (national interests in uniformity and an integrated national economy). Courts Approach to DCC: Is the State discriminating against out-of-staters? If Court concludes that a State is discriminating against out-of-staters , then there is a strong presumption against the law. o Facially Discriminatory Laws: Statute expressly draws a distinction b/w instaters and out-of-staters (See, Philadelphia, Deans Milk) o Facially Neutral Laws: Terms treat in-staters and out-of-staters alike, but purpose and/or effect of the law is to discriminate. Proof of either a protectionist purpose for the law or a substantial discriminatory impact is sufficient to establish that a law is discriminatory (See, Hunt, Carbone) If the Court concludes that the law is nondiscriminatory, then the presumption is in favor of upholding the law. When a State is NOT discriminating against out-of-staters: Balancing Test: Court balances laws burdens on IC against its benefits. Law will be found unconstitutional if Court decides that the burdens from the law exceeds its benefits (Pike). o Court generally includes a least restrictive alternative component in this test When State is discriminating against out-of-staters: Strict Scrutiny Test: Court will uphold only if its proved that the law is necessary to achieve a legitimate local purpose AND if the purpose could not be served as well by available less discriminatory means

Various types of laws that discriminate against out-of-staters: Laws that limit access by out-of-staters to in-state resources (Philadelphia); Laws that limit access to local markets by out-of-state businesses (Hunt, Maine); Laws that require use of local businesses Dean Milk, Carbone) DORMAT COMMERCE CLAUSE CASES Basically two kinds of cases with different rules: o You can have a state law that burdens interstate commerce incidentally -> if you have that, you do PIKE balancing. (more of a rational basis review) Where you are trying to figure out the burdens on interstate commerce are clearly excessive in relation to local benefits. In this case, burden on interstate commerce is incidental, is it burdening commerce too much? o If state law affirmatively discriminates against interstate commerce whether on its face or in effect, then you go to HUGHES which is more demanding scrutiny (higher level of scrutiny) you look at whether the law serves a legitimate purpose and whether it was the least burdensome means of achieving that purpose. o *** One way to think about DCC is that you shouldnt have burdens imposed on you without representation. Process problem with laws that have a disproportionate effect on out-of- state actors. If burden imposed on them, have no one to represent them and no virtual representation either.

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2. Dormant Commerce Clause Cases A. City of Phil v. New Jersey : Stewart 1978 Facts: NJ law prohibits the import of most solid or liquid waste which originated or was collected outside the territorial limits of the State. (state having a problem with landfill space) Private landfill operators challenged the statues on preemption and constitutional grounds. Issue: Whether this statutory prohibition violates the Commerce clause. Holding: NO. Judgment reversed. Reasoning: All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset.

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Congress places high value to block Evils of economic isolation when using its commerce power: Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. o I.E. legislation that overtly blocks the flow of interstate commerce at a states borders.

Pike test: Flexible approach with legislative goals that dont have to do with economic protectionism: where other legislative objectives are credibly advanced and there is no discrimination against interstate trade, the Court has adopted a much more flexible approach. See Pike. o When end is legitimate, question is degree of Burden: Pike: If a statute has a legitimate local purpose, and its effects on interstate commerce are only incidental, the question becomes one of degree of how much that statute imposes a burden on commerce. The extent of the burden that will be tolerated will depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. The statute will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Court cites pike, but it does not apply the Pike balancing test because the case is more about a statute that affirmatively discriminates, so it goes to a higher degree of scrutiny. o Strict Test: To be constitutional, a state or local law must advance a legitimate state or local interest and there must be no reasonable nondiscriminatory alternative means available to advance that interest o Doesnt matter if the end is legitimate when the means is not: NJ law is unconstitutional under the commerce clause. The means of the statutes is protectionist because it discriminates against articles of commerce from outside of the states. o Other protectionist laws have to do with movement of articles that endangers health, such laws are constitutional but this NJ is not such a law. The harms caused by this waste arise AFTER its disposal in landfill sites. o You can have legitimate purpose and still statute can fall because the means were not the LEAST RETRICTIVE ONES AVAILABLE which is the standard when you are in one of these facial or otherwise protectionist statutes. In Mainve v. Taylor why can Maine keep out of state fish out of Maine? How can we distinguish this from Phil case? o There has to be some reason apart from their origin: Because of origin: Fish from outside of MAINE arent the same as the fish from MAINE where trash in Phil is same from trash outside of Phil. B. Kassel v. Consolidated Freightways : Plurality Powell 1981 : Pike Balancing: This case involves an apparently facially neutral statute with out-of-state effects that may exceed in-state benefits. As such, much emphasis is placed on the cost/benefit factors resulting from the regulation. The less well served the states interest are by statute the harder it is going to be for it to survive Pike balancing. If states benefit is pretty minimal will be harder to show that benefits to state outweigh the burdens on commerce. Although the Supreme Court of the United States usually (Supreme Court) defers to the judgment of the State legislatures as to the justification of its laws concerning local concerns, less deference is due them in cases such as these: where the States safety justifications appear illusory; and where local regulation places a disproportionate burden of its statutory scheme on out-of-state interests. Facts:

Iowa prohibits the use of 65 foot doubles (a certain type of truck) within its borders, but makes certain exceptions for the same trucks used for the benefit of Iowa residents. Plaintiff sued Defendant claiming that this law violated the commerce clause by unduly burdening commerce. Iowa Argument: 65 foot doubles are more dangerous than 55 foot singles, and the law promotes safety an reduces road wear within the State by diverting much traffic to other states. Was Iowas statute scheme a reasonable safety measure enacted pursuant to its police powers or did it violate the commerce clause?

Issue:

Holding: No. Yes, Violated Commerce Clause, there is no valid safety reason for barring twins form Iowas highways. Court of Appeals Affirmed. Reasoning:

Does the court look at legitimacy of states interest under Pike balancing? o Yes sort of though they use a higher level of scrutiny that could be close to Hughes scrutiny; doesnt go so far as to saying its pretext but saying its just a ridiculous way to pursue safety that interests dont outweigh burdens on interstate commerce.

CON LAW OUTLINE Pike Balancing: This case involves an apparently facially neutral statute with out-of-state effects that may exceed in-state

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benefits. As such, much emphasis is placed on the cost/benefit factors resulting from the regulation. The less well served the states interest are by statute the harder it is going to be for it to survive Pike balancing. If states benefit is pretty minimal will be harder to show that benefits to state outweigh the burdens on commerce. Iowa failed to produce any persuasive evidence that 65-foot doubles are less safe than 55-foort singles. Plus, Iowas law substantially burdens interstate commerce insofar as it uses regulations out of step with all of its neighboring States regulations. Moreover, Iowa discriminates against out-of-state interests by providing Iowans exemptions that are not extended to out-of-state interests. Although the Supreme Court of the United States usually (Supreme Court) defers to the judgment of the State legislatures as to the justification of its laws concerning local concerns, less deference is due them in cases such as these: where the States safety justifications appear illusory; and where local regulation places a disproportionate burden of its statutory scheme on out-of-state interests. Concurrence: Justice William Brennan (J. Brennan) states that even if the burdens and benefits are related to safety, protectionist legislation is unconstitutional under the Commerce Clause. Dissent: Justice William Rehnquist (J. Rehnquist) states that where a state enacts a statute for the purpose of promoting safety, the Court should not directly compare safety benefits to commerce burdens and strike the law if former weighs heavier. Instead the Court should engage in a sensitive consideration to determine if an asserted safety justification is merely a pretext for discriminating against interstate commerce.

C. Maine v. Taylor 1986 Blackmun Upheld statute even though strict scrutiny was used bc law was discriminatory on its face because was a legitimate purpose w/ narrowly tailored means. Facts: The Defendant, Taylor (Defendant), in defense of criminal charges, challenged Maines law prohibiting the importation of live baitfish on the ground it violated the Commerce Clause of the United States Constitution (Constitution). Issue. Does a state statute that affirmatively discriminates against interstate commerce pass the strict scrutiny test where it attempts to prohibit significant damage to the States environmental well being? Held. Yes, the Supreme Court of the United States (Supreme Court) upholds this patently discriminatory law. State may regulate matters of legitimate public concern even though interstate commerce may be effected. Where a law is discriminatory on its face, the state must show that the law both serves a legitimate local purpose and that the purpose cannot be achieve by available nondiscriminatory means. Here, the Supreme Court determines that Maine chose the least discriminatory means to establish their legitimate objective. Maines statute directly restricts interstate trade by blocking all inward shipments of live baitfish, but this alone does not render it unconstitutional. The environment is a legitimate concern for Maine because importing minnows could ruin Maines fragile fisheries. Therefore, Maine cannot be expected to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees, on what disease organisms are or are not dangerous, before it acts to avoid such consequences.

IV. Separation of Powers Horizontal and Vertical Separation of Powers: National Legislative Executive Judiciary State Montesquieu: Separation of powers is necessary (Used in Federalist No. 47) Cons. scheme described as either Separation of Powers or Checks & Balances o Separation of Powers: Captures the Constitutional effort to allocate different sorts of power among 3 governmental entities that are constituted in different ways o Checks and Balances: Focuses on the Constitutional effort to ensure that the system will be able to guard against usurpation of authority by any one branch Distribution of Natl. power serves 2 purposes: Efficiency and prevention of tyranny

A. Foreign Affairs 1. Youngstown Sheet & Tube v. Sawyer (1952, Black) (Pages 361-370): 1. Youngstown Sheet & Tube Co. v. Sawyer (US, 1952) Facts: The Korean war effort increased the demand for steel. Disputes arose between steel industry management and labor that culminated in an announcement of a strike by the union. President Truman authorized Secretary of Commerce Sawyer to take possession of the steel industry and keep the mills operating. Government argument:

CON LAW OUTLINE

Presidents action was necessary to avert a national catastrophe that would result from the stoppage of steel production, he was acting under his powers as the nations chief executive and commander in chief.

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historical records of governmental seizure of private property during wartime, from the Revolutionary War and the War of 1812 through Lincoln's Emancipation Proclamation and seizure of telegraph and railroad lines to the government's seizure of industrial properties in the First and Second World Wars Steel Industry Argument: Presidents order amounts to lawmaking, a legislative function that the Constitution has expressly confided to the Congress.

Steel industry's brief focused instead on the lack of statutory authority for this seizure, emphasizing Congress' decision when enacting the Taft-Hartley Act to give the President the power to seek an injunction against strikes that might affect the national economy instead. It denied that the President had any power to seize private property without express legislative authorization, noting that Truman himself had asked for such legislative authority when the United Mine Workers of America went out on strike in 1950. Does the President of the United States have executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nations steel mills?

Issue

Holding and Rule (Black) NO. The executive is usurping the role of the legislative branch this is something that congress, but NOT the president could do. President is exercising domestic policy authority that he is not empowered to use. Powers in a Statute: None No. The President does not have implicit or explicit executive power under the war powers clause of the U.S. Constitution, or any implied powers gleaned therefrom, to authorize the Secretary of Commerce to seize the nations steel mills. Nor does any statute authorize the president to take possession of property the way that it did. The court held that there was no explicit statute or act of Congress which authorized the President to act in such a manner. The only two statutes which authorized the acquisition of personal and real property were not met here and the presidents order was not rooted in either of the statutes. Not only were such acts unauthorized, Congress specifically refused to grant such authorization. Taft Hartley Act: when this act was under consideration, congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Powers under Constitution: No Contention is that presidential power should be implied from the aggregate of his powers under the constitution o Executive powers: Article II: The executive power shall be vested in the president, Article II He shall take care that the laws be faithfully executed Presidents power to see that laws are faithfully executed refutes the idea that he to be a lawmaker. Legislative powers are only granted to Congress in the Constitution. o Military Powers: Article II he shall be Commander in Chief of the Army and Navy of the United States

Executive Order is too much like legislation to be constitutional: The President cannot order policy; he can only suggest it. Congress can approve any proposal for regulation, policy, settlement of disputes, wages, and working conditions. None of this is delegated to the President. Under a textual approach to interpreting the Constitution the Presidents powers are curbed in this extension Dissent (Vinson, Reed, and Minton) Many presidents have taken such action before, most notably Lincoln (Civil War, naval blockade, Emancipation Proclamation), Hayes and Cleveland (authorization of the use of the military to settle strikes) without state or legislative authority. Concurrence (Frankfurter) FDRs actions during the Great Depression resulted in extensions of executive authority, but his authority was not violative of the Constitution. Three laws had already been enacted by Congress when FDR enacted his policy, and six others were only enacted after Congress declared war, thereby falling under the war powers. Concurrence (Jackson): Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. JACKSON PROVIDES FRAMEWORK THAT THE SUPREME COOURT HAS CONTINUED TO APPLY. In determining whether the executive has authority, there are three general circumstances:

This power does not have grant the president power to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nations lawmakers, not for its military authorities. Other argument that taking over mills is a necessary element pof military engagement with Korea. NO. We are not in the theater of war.

1. When the President acts pursuant to an express or implied authorization of Congress, the Presidents authority is at its greatest, for it includes all that he possess in his own right plys all that Congress can delegate.

CON LAW OUTLINE 2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own

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independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law. o Here, if Congress has enacted no governing statute, the President can take the lead in implementing a policy, but that policy can later be restricted by Congress o The presidents initiatives here are contigently consituttional their validity depends upon congressional inaction.

3. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest, for then he can rely only upon hjis own constitutional powers minus any constitutional powers of Congress over the matter. o In 3rd Zone, only ok if President can claim that he has EXCLUSIVE power over the issue. So upholding the president in this situation would be a statement about what the CONGRESS CANNOT DO.

APPLICATION OF JACKSON TEST: Justice Jackson stated that this case falls into category three. If the Presidents argument were accepted the executive branch could exert its authority over any business or industry. o In Category three because: Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizire. There was some consideration in the legislative process as to whether president should have power of seizure. Jackson argues that Congress foresaw the possibility of such a circumstance and chose NOT to give the president seizure power; Jackson therefore interpreted the statute as implicitly signaling that Congress did not intend for the president to have that power. Solicitor General Argues that Pres has power in THREE CLAUSE OF EXECUTIVE Article: o 1. Executive power shall be vested in the President of the United States No way this entails such unlimited executive power. Forefathers didnt want a leader with absolute power. o 2. The President shall be Commander in Chief of the Army and Navy of the United States. Argument: The president, acting as Commander in Chief, sending American troops abroad, derives from that act affirmative power to seize the means of producing a supply of steel for them.

Just what authority goes with the name has plagued presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it ends or begins. Assuming that we are in a war, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army? No.

The Constitution expressly places in Congress the power to raise and support armies and to provide and maintain a navy This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress also alone controls the raising of revenue and may determine in what manner and by what means they shall be spent for military and naval procurement. Presidents command power is not such an absolute as might be impokied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy making branch is a representative Congress. President CANNOT escape the control of executive powers by law through assuming his military role. 3. He shall take Care that the Laws are faithfully executed. This authority must be matched against words of the 5th amendment that No person shall be deprived of life, liberty, or property without due process of law Take-Away: Its not always so easy to drop executive action into one of these zones. Jacksons framework is certainly useful for telling us whether the President is at the height or nadir of his authority, or somewhere in between. On the other hand, the framework is limited in its ability to help us for a couple of reasons. In many cases, it may not be entirely clear what Congresss intentions are.

B. U.S. v. Curtiss-Wright Export Corp. (US, 1936) President has broad authority to conduct foreign affairs and

determine whether the enforcement of the statute will have a beneficial effect to reestablish peace in the affected countries.

Facts: In 1930s, Bolivia and Paraguay fought a war for control of a large part of the Chaco region, which was thought to contain vast oil resources. US wanted stability in the region, wanted to bring the war to a close. In 1936, Congress passed a statute authorizing the President to embargo arms to the region IF the President finds that doing so would help bring about peace. President issued proclamation making arms sales illegal to the region. Curtis-Wright Corporation (CWC) convicted of selling machine guns to one of the partys of the conflict.

CON LAW OUTLINE CWC argued that the statute was constitutionally invalid mechanism for creating criminal laws.

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Congress did not enact the law; rather, it kicked the decision over to the President. Congress was unconstitutionally delegating its powers to the executive. Held (Sutherland): o The resolution may have been unconstitutional if it related solely to internal domestic powers, where the Presidents power is more constitutionally limited. However, There is a fundamental difference in the role of government in foreign affairs and domestic affairs. o Art. I section 8 Enumerated Powers and Necessary and Proper Clause only relate to internal affairs. These doctrines only applied to powers that states had before the Constitution was enacted, and since the states never severally possessed international powers, these powers did not need to be incorporated in these clauses. It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. o These powers over external affairs came from the Crown and passed to the colonies in their collective capacity if the US. o The Presidents foreign power is not dependent solely upon the affirmative grants of the constitution. o The President is the United States sole representative to foreign nations. o Functional Argument: In order to achieve the United States foreign policy aims, the President is better able than Congress to judge conditions that exist in foreign nations and is afforded substantial discretion and wide latititude in those decisions. The President has confidential information as well as consular, diplomatic and foreign affairs officers to help in his decision.

CurtisWright and Youngstown Debate about whether or not these opinions is inconsistent Some people say Curtiss about foreign, and Youngstown is about domestic Some say you cant draw distinction about whether they draw the line between foreign and domestic so clearly Under Youngstown Framework at any one of the 3 steps the executive might be exercising exclusive power; that is those steps dont tell you what the source of the executives power is they only tell you whether congress has spoken or not o In step One Congress might be backing Pres Up o Same thing in second step o Third Step is where court can say congress acting out of bounds or pres acting out of bounds
C. Dames & Moore o Settlement of some property claims and on-going litigation between the US and Iran. Certain claims would be extinguished. o SC upholds as valid international agreement o Issue. 1. Whether the Presidents acts of nullifying the attachments and ordering the transfer of all frozen assets are specifically authorized by Congress. 2. Whether the President has authority to suspend claims pending in American courts. o Holding/Reasoning:

Uses 3 prong test from Youngstown. 1. President and Congress are in agreement, if yes, then strong presumption that Presidents actions are constitutional. 2. Congress is silent, Court my look at practice. 3. Disagreement-Maybe the president has overstepped his authority; President has the burden to prove otherwise. First Issue: Uses First Prong. IEEPA authorized the president to nullify attachment and to transfer Iranian assets. 1. Yes. Because the Presidents actions in nullifying the attachments and ordering the transfer of assets were taken pursuant to congressional authorization (Section 1702 (a)(1) of IEEPA), it is supported by the strongest of presumptions and widest latitude of judicial interpretation and the burden of persuasion rests heavily on any who might attack it. Second Issue: IEEPA doesnt speak about the issue of termination of litigation/arbitration. Congress is silent here. SO goes to second testcourt looks at practiceHas congress been a persistent objector to such action? NO. President has done this in the past and Congressed has acquiesced.

2. Implicit Consent Here. Yes. Based on the legislation (IEEPA and the Hostage Act) which Congress has enacted in the area of the Presidents authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order

CON LAW OUTLINE

o

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Where Congress has a history of acquiescence, as with claims settlement, it thereby implicitly approves of the Presidents actions regarding that specific subject matter about which Congress was silent.

2. Presidential Power and War on Terrorism 1. Hamdi v. Rumsfeld (2004, OConnor) (Pages 383-394): Held although Congress authorized detention of combatants in narrow circumstances alleged here, due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker. Court DN decide if he has right to counsel earlier on (e.g. when first detained) That remains fuzzy.

1.

Two Questions Presented: 1. Can exec detain CITIZENS who qualify as enemy combatants? 1. Yes-authorized by Congress. 2. Is the process adequate? What process is due to a citizen who contests is enemy combatant status?

Detention of Hamdi, a US citizen, whom the Govt alleges took up arms with the Taliban. Seized in Afghanistan and turned over the US military. Govt argues Hamdi is an enemy combatant and this status justifies holding him in the US indefinitely w/o formal charges or proceedings unless and until it makes the determination that further process is warranted. o DUE PROCESS RIGHTS FOR US CITIZENS FOR CONTINUING DETENTIONS ON US SOIL o Court: Held although Congress authorized detention of combatants in narrow circumstances alleged here, due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status Court decides process Hamdi gets is the writ. Only has right to counsel on remand, when in Court already. Court DN decide if he has right to counsel earlier on (e.g. when first detained) That remains fuzzy. ISSUE 2: What, if any, process must be accorded to Hamdi? OCONNOR: 5th Amendment Cannot have liberty taken away w/o due process. Court DN specify procedures that needed to be followed in Hamdis case, but at a minimum, this inc. notice of charges, right to respond, and right to an attorney. Limits on Right to Due Process: 1) Continuing Detention: Right kicks in when there is some continuing detention, DN know exactly when that is. 2) US Citizen: Whether US citizens will have these due process rights when out of the country and detained (e.g. in Jordan, etc.)? 3) US Soil ISSUE 1: Does Fed Govt have the authority to hold a US citizen apprehended in a foreign country as an enemy combatant? Non-Detention Act 18 USC 4001(a) states that no citizen shall be imprisoned or otherwise detained by the US except pursuant to an Act of Congress. Pres. says he DN need congressional permission to detain Hamdi, not bound by law and can impose martial law on US citizens and hold them indefinitely without charge. President has developed argument of the absolute unitary executive, who at least during wartime is unconstrained by law. Plurality says power to detain given to Pres. through AUMF (Act of Congress) authorization of use of military force (use all necessary and appropriate force against persons he determines planned or aided terrorist attacks). What about power to detain though? Congress has authorized Pres. to make war, and an implied power from that explicit authorization is power to detain. See beginnings of distinction between lawful and unlawful enemy combatants. o Lawful EC: Someone fighting us, can be killed or captured under laws of war. If captured, can be held for duration of war. Cannot be convicted of a crime though. o Unlawful EC: Comes from SC precedent and law of war. Can be killed/captured, can be detained for the duration of conflict but also can be prosecuted for war crimes and thats what defines the combatant status is unlawful. Dont wear insignias/uniforms, etc. Distinction not particularly important in this case, but important in later cases.

CON LAW OUTLINE

o Law of War Paradigm vs. Criminal law Paradigm

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PLURALITY (4): OConnor thinks he can be held b/c AUMF authorized it. In category 1 of Youngstown. SOUTER and GINSBURG (C&D) (2): AUMF DN authorize it b/c Non-Detention Act was so clear Pres. shall not detain US citizens. SCALIA and STEVENS (D) (2): Can be no detention using war powers. Only power to detain is power of criminal law Can arrest someone, can hold someone if judge thinks theyre going to get away. To hold beyond that, need to prove theyre guilty in an Art. III Court. Scalia and Stevens take the view that there cant be any detention at all of Hamdi, UNLESS hes going to be criminally prosecuted.

THOMAS (D): Yes, War Powers. Yes, Congressional Approval. Plurality and Thomas together are saying yes, Congress gave you the power to detain. What about this shifting burden of proof? Govt needs to come forward w/ some credible evidence (easy to meet), then Hamdi needs to come and rebut that. Reason why Plurality and Thomas go together to make 5 votes, is that for Thomas any procedure, even minimal or none, is fine Souter says President DN have power to detain, but we want to make sure that he gets at least some procedure, so going to join on that.

6 votes for Procedure, as opposed to no procedure that Thomas would authorize 2. Boumediene v. Bush: Court held that those detained at Guantnamo have a constitutional right to file petitions for habeas corpus in U.S. federal court challenging the lawfulness of their detention. the

Court held that its jurisdiction to issue the writ of habeas corpus could reach outside the sovereign territory of the United States and that the Constitution compelled the writ's extension to Guantanamo detainees. In arriving at this conclusion, the Court fashioned a three-part balancing test to determine under what circumstances the writ would reach outside the United States. 5 With this balancing test, the Boumediene Court bequeathed a blank check to the lower courts to extend the writ beyond Guantanamo to "the four corners of the earth." 6
Congress passed, in response to Hamdi and Hamdan Detainee Trtment Act + Military Commissions Act. eliminates federal courts' jurisdiction to hear habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants Question presented here: Does the suspension clause and therefore habeas right that goes with it apply in Guantanamo? Is gitmo part of US foreign sovereign territory? o Technically its still Cuban Sovereign territory de jure part of cuba de facto totally under US control With Justice Kennedy writing for the majority, the opinion begins with a lengthy survey of historical habeas cases in which common law courts considered cases of noncitizens imprisoned without trial. o Acknowledging the uniqueness of the Administrations practices at Guantnamo, the Court found that no historical habeas case offered by either side was directly on point and, instead, turned to the fundamental principles underlying the purpose of habeas corpus: to allow the courts to act as a check against the abuse of Executive power. [F]rom an early date, it was understood that the King, too, was subject to the law. The Court emphasized that the Suspension Clause of the U.S. Constitution (The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.) was designed by the Founders to protect against the cyclical abuses of the writ by the Executive and Legislative Branches. It noted that the Framers view freedom from unlawful restraint as a fundamental precept of liberty. And central to the protection of this liberty is the duty and authority of the Judiciary to call the jailer to account. These separation-of-power principles guided the Courts reasoning throughout its opinion. The Court strongly criticized the President and Congresss attempt to declare that because Guantnamo was outside the sovereign territory of the United States, the Constitution did not apply.

CON LAW OUTLINE FUNCTIONAL TEST: EXTRATERRITORIAL APPLICATION OF CONSTITUTION: In considering the

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extraterritorial application of the Constitution to Guantnamo, the Court adopted PRACTICAL APPROACH: o The Boumediene Court identified three factors relevant to determining whether the writ of habeas corpus extends to detainees outside the sovereign territory of the United States: " the three factors, "for the sake of analysis," into six:

(1) (2) (3) (4)

the the the the

citizenship of the detainee; status of the detainee; adequacy of the process through which the status determination was made; nature of the site of apprehension and the nature of the site of detention; and The site of apprehension factor was relevant in Boumediene for only one reason: the Guantanamo detainees were apprehended outside of the United States, and therefore the factor cut against them the site of detention (like the site of apprehension) favors extension only where it is within the sovereign territory of the United States.

Site of Detention and Insular Cases: The Boumediene Court understood the Insular Cases to hold that "there was no need to extend full constitutional protections to territories the United States did not intend to govern indefinitely. o So too was the Boumediene Court's extension of the writ--the United States had occupied Guantanamo for over 100 years and had no plans to leave, thus making the extension of constitutional protections like habeas corpus necessary (5) the practical obstacles inherent in resolving the petitioner's entitlement to the writ.

The Boumediene Court's clear implication was that, while American forces in Eisentrager were charged with a massive nation-building and security mission and could not be bothered with judicial meddling over the status of a handful of enemy aliens, Guantanamo was a much more manageable piece of real estate--a little place where not much was happening. Thus, the writ could extend there without causing too much trouble.

(6)Judge Bates also noted a seventh factor that "tacitly informed" the Boumediene Court's decision--"the length of a petitioner's detention without adequate review."

TEST Applied to this Case: Several factors warranted application of the Suspension Clause to Guantnamo, including (1) that the petitioners are noncitizens who dispute their status as enemy combatants as determined by CSRTs in an unfair proceeding, (2) the United States exercises exclusive jurisdiction and control over Guantnamo, with no other countrys laws applying, and (de facto sovereignty) (3) no credible arguments exist that habeas proceedings would impede any military mission at Guantnamo. The Court concluded that the individuals at Guantnamo have a right under the Suspension Clause to challenge their detention, and the pragmatic approach it took in reaching that conclusion still leaves space for similar challenges to U.S. detention facilities elsewhere in the world. The Court then concluded that the DTA review was not an adequate substitute for a habeas petition. Fundamentally, a habeas proceeding and any substitute must afford the petitioner an effective and meaningful ability to correct any errors in the decision under review (here, the determination that the petitioner is an enemy combatant), an opportunity to challenge the sufficiency of the governments evidence, and the opportunity to present and have a court consider exculpatory evidence not considered by the tribunal below. o Specifically, the DTA statute fails to provide for release from custody as a remedy, offers no procedures for petitioners to present new, exculpatory evidence and to bring the full range of legal challenges available in a habeas proceeding. As a result, the Court struck down that portion of the DTA that deprived the petitioners of their constitutional right to habeas. o [T]he cost of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.

PART 2 FUNDAMENTAL RIGHTS

CON LAW OUTLINE

V. Substantive Due Process A. Rise and Fall of Economic Due Process 1. The Lochner Era 1905-1934: Basics: o Three Major Principles of Era articulated by Lochner Court

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1) Freedom of contract is a basic right protected as liberty and property rights under the Due Process Clause of the 14th Amendment. 2) Govt could interfere w/freedom of contract only to serve a valid police purpose: to protect the public safety, public health, or public morals 3) Judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose o Principles reflect Classic Substantive Due Process Due Process Clause was used not to ensure that the Govt followed proper procedures, but to ensure that laws served an adequate purpose o Court invalidated approximately 200 regulations, usually under the due process clause of the 14th Amendment, during this period Lochner v. New York Justice Peckham Supreme Court declared the law unconstitutional as violating the due process clause of the 14th amendment for two reasons: o 1. it interfered with freedom of contract (part of liberty and property of SDP of 14th amendment) and because

2. it did not serve a valid police purpose. Government could interfere with freedom of K only to serve a valid police purpose: Standard the court uses to decide whether this law serves a valid police purpose: IS this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty

This case is an example of classic substantive due process: The due process clause was used not to ensure that the government followed proper procedures, but to ensure that laws served an adequate purpose. The court here scrutinized both ends served by the legislation, to ensure that there really was a valid police purpose, and the means, to ensure that the law sufficiently achieved its purported goal. Facts: Supreme Court declared unconstitutional a New York law that set the maximum hours that bakers could work. NY law had said that no employee could work more than 60 hours in one week or more than 10 hours in one day. Did not apply to self-employed bakers. Issue: Is this piece of legislation a fair, reasonable, and appropriate exercise of the police power of the state or is it an unreasonable unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into contracts? Holding: Supreme Court declared the law unconstitutional as violating the due process clause of the 14th amendment for two reasons: o 1. it interfered with freedom of contract (part of liberty of SDP of 14th amendment) and because

2. it did not serve a valid police purpose. Standard the court uses to decide whether this law serves a valid police purpose: IS this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty

o Reasoning: 1. Law interfered with freedom of contract o Freedom of K is a basic right protected as liberty and property rights under the due process clause of the 14th amendment. (see Allgeyer v. Louisiana) The general right to make a K in relation to his business is part of the liberty of the individual protected by the 14th amendment. ..The right to purchase or sell labor is part of the liberty protected by this amendment o Law interfered with freedom of K because it prevented bakery owners and bakers from contracting for as many hours of work as they wished. 2. Government could interfere with the freedom of K only to serve a valid police purpose: that is to protect the public safety, public hearth, or public morals. o Standard the court uses to decide whether this law crosses this line: IS this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty o The act must have direct relation (means) to an end and the end must be legitimate. This law doesnt not serve a police purpose, it is not a health law.

There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the state the interest of the public is not in the slightest degree affected by such an act. Court emphasized that limiting hours of work for bakers had no relationship to public health. Court said: Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week

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Slippery slope argument: Yes we want our people to be healthy and robust BUT If this was allowed then hours of employers could be regulated 3. It was the judicial role to carefully scrutinize legislation interfering with freedom of K to make sure that it served a police purpose. o Court intended that many laws that purport to be exercises of the police power in reality are to redistribute wealth or to help a particular group at the expense of others. these laws passed under police powerare really passed for other motives DISSENT o Harlan: Cannot question validity of the statute unless there is no substantial relation to goals of the public health, morals, and safety. Defer to Legislature: Doubt MUST be resolved in favor of the legislature. Here, Legislation was a reasonable way to protect the health of bakers who suffered serious medical problems because of exposure to flour dust and intense heat. Holmes: Rejected the majoritys premise that the Constitution should be used to limit government regulations and protect a laissez-faire economy. The 14th amendment does NOT enact Mr. Herbert Spencers Social Statics A Constitutions is NOT intended to embody a particular economic theory, whether of paternalism and the organix relations of the citizen to the State or laissez-faire.

Critiques of Lochner o Institutional: Not rule of court to make institutional decisions about public welfare health. o Exemplary of period where courts ganged up on labor. o But lochner doesnt invent freedom of K, still think about courts as places to go to vindicate your rights. A lot of lochner comes down to whether you see freedom of K as fundamental right or not.

will protect zone of public/private if can find longstanding tradition of our people and our law. AFTERMATH: Lochner is heavily criticized. TWO main types of criticisms: Institutional, or that Court overstepped its bounds in relation to the legislature; and Substantive, or criticisms that stem from the idea that Court attempted to vindicate, as a matter of Cons. law, a laissez-faire conception of the role of Govt Some of the more important objection include: Court failed to look at State objective in Statute, liberty of contract not w/in liberty protected by Due Process Clause, and even if it is liberty or property protected by DP Clause DN accord substantive protection to the liberty of contract

Muller v. Oregon

Court upheld a maximum hours law for women. Attorney and later SC justice Brandeis wrote a detained 113 page brief documenting that womens reproductive health required limiting nondomestic work. How does Lochner court reconcile with Muller case? o Helping women is directly related to public welfare, they have and raise children. So here public welfare is served as a whole whereas Lochner is too much like class legislation to serve a certain class.
Adkins v. Childrens Hospital (1923) (Pages 756-757): Law established minimum wages for women. o MINIMUM WAGE LAW INTERFERED WITH FREEDOM OF CONTRACT, BUT DID NOT SERVE ANY VALID POLICE PURPOSE o Court: Invalidated law. Women capable of bargaining for themselves now b/c women have the vote, etc. While the physical difference must be recognized in appropriate cases, and leg. fixing hours/conditions of work may properly take them into account, cannot accept the doctrine that women of mature age, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances What is wrong with Redistribution? Why does Court say health, safety, morals legislation is okay, but not if youre trying to make some groups better off? o 1) Natural Law: Various views:

Con. embodies a natural law State stays out of private sphere. Natural law position is that in state of nature (before Govt), people exchanged freely and w/o regulation For others, it is a contemporary position, but its the correct moral/philosophical position

SC has decided whether these redistributive movements are allowed to have traction in legislature or through private organizations like unions. Two ways can redistribute: Can have State set terms of the Contract

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Allow workers to organize and bargain for themselves o PROF: Free Market is not the only kind of market; Great variety of markets w/different ground rules. Here, States in response to what they saw as abuses of FM in era of industrialization, were trying to restructure market and let workers pool bargaining power. Trying to pass laws where Unions are now legal and employers cannot destroy them Point is that this is a response to the Natural Law position Every market is regulated. FM is created by particular rules of the CL, only have that market with all the rules of property, contract, and torts that is law that creates a certain market. Prof thinks there is a strong attack on the natural law position 2) Originalism: Lochner blocks redistribution as a legitimate purpose. If take strict originalist position, might get something out of that for Lochnerism. Would only get delegetimitization of redistribution.

Originalism could serve double purpose Directly embodying the specific intent against redistributive legislation but also committing Cons. order to natural law, which might be seen as protecting FM

o o

Flip from natural law reasoning to positivist reasoning (2 opposing categories of legal imagination) In natural law perspective, rights come from the bottom-up. Natural law view is that rights grow in some fashion in private sphere, and then rights are codified in public sphere but not created in the public sphere. Positivist view: No such thing as natural rights or essential phenomena in the private sphere. All law and rights are created by the Govt. 3) Traditionalism: Even most originalist judge (Scalia, Roberts, Alito), when they talk about rights, talk about looking at text and longstanding traditions of the people. See that emerging in Holmes dissent in Lochner. 4) Argument from Futility: Standard move by legal economists. Arg is kind of regulation NY was imposing in Lochner (imposing max hours) and kind of legislation State was trying to implement in Adkins (min wage legislation) are doomed to fail and even to hurt the people they are trying to protect. Idea that if you impose a minimum wage, that will raise wages, cut-back on production, employers will cut-back on jobs. Legislation of this kind ends up hurting workers. If workers wanted to trade-off higher wages for worse safety provisions in workplace, would have made that deal through voluntary bargaining. So if Govt forces deal, forced deal on people that conflicts w/their preferences Counter: Recent empirical work When Govt imposes min wage, DN cause unemployment 5) Libertarian: Idea that ppl have a basic right to make voluntary consensual exchanges. State shouldnt come in and block their consensual exchanges (Language of Lochner; Workers have right to bargain for low wages, etc.) Also, arg about Autonomy (could be just another form of libertarian arg) Idea is that if Govt tries to expand workers autonomy, shrinking employers autonomy and impairing employers autonomy rights. Counter: Why should we take employers existing autonomy rights as the baseline? Libertarianism then has to connect with one of the other 4 theories some natural baseline between employees and employers - - often taken to be the CL (freedom of contract) Also, arg about just desserts. Ppl deserve what they can earn in market. Govt SN intervene to try to create some pattern of justice through redistribution or some prior vision about proper distribution. Proper distribution generated by free play of consensual transactions in market. Counter: Free play of market may depend on a lot of arbitrary factors. Even talents could be arbitrary. 6) Utilitarianism: Theory of justice that says what is just is social ordering that maximizes social welfare/utility (i.e. happiness). Economists say you maximize social wealth by allowing FM to do its thing without regulation. In free market, resources will flow to their most productive use. Argument for efficiency. Leads to debate of Political Science vs. Economics Whether free market actually maximizes social wealth, or whether there are market flaws that lead us to want to regulate market in order to actually max social wealth? Also, could criticize on basis that social wealth is not the only thing we want to maximize. Want to maximize personhood, etc.

CON LAW OUTLINE Another critique of utilitarian idea in economic form Want to figure out what

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legal/constitutional entitlements (i.e. rights) will be. Idea of Lochner in its utilitarian voice is do this by maximizing the value of everything that is produced in society (price x quantity). Problem with this is prices depend on 2 things: Peoples ability to pay and their Preferences. Ability to pay comes from initial endowments of wealth and legal entitlements. Problem in this structure is its circular. Trying to figure out what legal entitlements will be, but to figure them out, need to start with legal entitlements. DN work. o PROF: This is a powerful critique of utilitarianism. Cannot evade problem of distribution or redistribution. Lochner purports to assert you can determine legal entitlements from market exchanges without talking about distribution. 2. End of Lochnerism: The New Deal

Lochner rested on the assumption that freedom of contract and related property rights were part of the natural liberties possessed by individuals. o Legal realists attacked this premise and argued that law reflected political choices Using freedom of contract to invalidate State laws was a political choice favoring employers over employees and corporations over consumers During great depression national government and states adopted emergency measures, designed to palliate or cure. After Roosevelts reelection, Justices acquiesced, upholding New Deal legislation against both economic due process and federalism-based challenges. (previously had asserted such legislation was beyond congressional authority) Substantive Due Process Cases Standard of Review:

I.

The standard of review that these cases develop for legislation involving social economic issues is minimum rationality: if ends are legitimate and means are appropriate/reasonable then legislation passes minimum rationality review test.

Since 1937: o Not one State or Fed economic regulation has been found unconstitutional as infringing liberty of contract as protected by DP Clause of 5th and 14th Amends. o Court has made it clear that economic regulations laws regulating business and employment practices will be upheld when challenged under the Due Process clause so long as they are rationally related to serve a legitimate Govt purpose VERY DEFERENTIAL STANDARD A. Nebia v. New York 1934 MILK CASE, Justice Roberts: Rejected a conventional due process challenged. What standard does the court articulate for addressing substantive due process challenges? Guaranty of due process demands only that the law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a real and substantial relation to the object sought to be attained. Arbitrary or Capricious would be the standard. As long as the ends are not arbitrary and capricious and the means have to be sufficiently related.

Why isnt this class legislation? o Not so simple of classes pitted against each other. Idea that if you help everyone you are really helping society, its not one group against another. This is the shift in thinking thats happening: this is about the economy not taking where every class will benefit even if this cases focuses on one class. Rejected a conventional due process challenge to a price regulation Lochner did not permit government regulation of wages in the private relationship between employer and employee, but did allow regulation of certain business affected with a public interest such as railroads. Storekeeper convicted for selling milk below the minimum retail price of milk. Price was fixed by NY Milk Control Board that attributed the critically depressed state of milk farmers to price cutting among milk distributors and suggested that this destructive competition could be mitigated by setting minimum retail prices. Court: Justice Roberts: Upheld regulation What standard does the court articulate for addressing substantive due process challenges? Guaranty of due process demands only that the law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a real and substantial relation to the object sought to be attained. Arbitrary or Capricious would be the standard. As long as the ends are not arbitrary and capricious and the means have to be sufficiently related. This law is not unreasonable to prevent ruthless competition form destroying the wholesale price structure of milk

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o

Appellants contention that had previously been supported by court was that price fixing was per se unconstitutional except in business affected with a public interest and that such business were limited to franchised public utilities and monopolies. Justice Roberts admitted milk industry did not fit this description but sat that it could be regulated nonetheless because public interest is still involved. What is a business affected with public interest? Because milk industry is already highly regulated that therefore it falls under business as affected with public interest. It could just mean an industry. Affected with the public interest the idea is this is a business that cant properly be thought of as fully private so we are going to let the government regulate it. Dissent: o Milk industry not affected by public interest. o Price regulation is deprivation of fundamental right which one has to conduct his own affairs honestly and along customary lines

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B. 1935: Beginning of the end of Lochner: West Coast Hotel v. Parish , State Substantive Due Process Case Court here declared that it no longer would protect freedom of K as a fundamental right, that government could regulate to serve any legitimate purpose, and that the judiciary would defer to the legislatures choices so lo song as they were reasonable. Justice Hughes Clearly abandoned principles of Lochner : Case signified judicial deference to government economic regulations. Move from formalism to realism (recognition of social realities that inform law). What is this freedom of K? The Constitution does not speak of freedom to K, it speaks of liberty and prohibits the deprivation of liberty without due process of law. The Liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of people. Uses Ends/Means Test to uphold the law: End is legitimate, so means to the end is also legitimate: State legislature had a valid public interest in enacting the law to protect the health of women from unequal bargaining power (end) by regulating wages (means).

Court upheld a state law that required a minimum wage for women employees and expressly overruled Adkins v. Childrens Hospital. Justice Hughes made it clear that he was abandoning the principles of Lochner v. New York. Minimum wage law was challenged as interfering with the freedom of K: Justice Lochner replied: What is this freedom of K? The Constitution does not speak of freedom to K, it speaks of liberty and prohibits the deprivation of liberty without due process of law. The Liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of people. Liberty under the constitutional is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. End is legitimate, so means to the end is also legitimate: State legislature had a valid public interest in enacting the law to protect the health of women from unequal bargaining power (end) by regulating wages (means). o This would have been essentially rejected by Lochner court which refused to recognize disparity in contracting parties. The government and public good is affected by womens wages: o There is an additional and compelling consideration which recent economic experience has brought into strong light. The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community For 40 years the court had refused to allow the government to equalize bargaining power, now it was permitted. Court here declared that it no longer would protect freedom of K as a fundamental right, that government could regulate to serve any legitimate purpose, and that the judiciary would defer to the legislatures choices so lo song as they were reasonable.

C. Home Building and Loan Association v. Blaisdell 1934: Using the Historical Settings of K clause, it was not intended to confer absolute rights onto private parties entering contracts, but was intended to serve as a qualified right, over which the State retained some power to control for the benefits of the nation as a whole. Thus, the question is not whether legislative action affects contracts, but instead whether legislative action is reasonably appropriate to the achievement of a legitimate end. This is the test under the Contract Clause. The law was a legitimate use of its police powers since Minnesota faced massive economic difficulties. This is a constitution we are expounding Marshall

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from McCulloch, interpret the constitution with the notion that it is intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs

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Facts: In the midst of the Great Depression, Minnesota passed a law declaring an emergency and saying that during the emergency period courts could extend the time periods in which mortgagers could pay back their debts to their lenders. Pursuant to the statute, Blaisdells period of redemption was extended, unquestionably modifying the lenders contractual rights of foreclosure. The constitutionality of the law was brought into question. Issue: Did the Minnesota law violate the provision of the United States Constitution which prohibits a state from impairing the obligations of contracts? Holding: No. Reasoning: (The Contract Clause appears in the United States Constitution, Article I, section 10, clause)

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

o o o

o o

Its fine for the government to adjust the private rights of individual citizens for the benefit of the public: The Supreme Court in this case would have us view the Contract Clause not so much as a provision intended to confer a right on citizens as individuals, e.g., for the protection of private citizens entering into personal contracts; but rather as a provision that confers a right on the citizens collectively, e.g., for the protection of a sound credit market we all can enjoy. Viewing the clause as the latter type of right, it seems more justifiable for the government do as it has done here adjust the private rights of individual citizens for the benefit of the public. Emergency does not increase granted power or remove or diminish restrictions imposed upon power granted or reserved. Specific clauses of Constitution cannot be constructed. General clauses such as the K clause can be constructed. Using the Historical Settings of K clause, it was not intended to confer absolute rights onto private parties entering contracts, but was intended to serve as a qualified right, over which the State retained some power to control for the benefits of the nation as a whole: The Contract Clause was adopted by the Framers during the distressed economic times following the Revolutionary War. It was established to counter the ignoble array of legislative schemes of State legislatures which were designed to defeat the obligations of debtors owed to creditors by interfering with contractual arrangements. The Framers feared that if private contracts were not respected, the destruction of credit would result, and credit was essential to the prosperity of the Nations economy. States Retain Police Power: The states retain adequate power to protect the public health against the maintenance of nuisances despite insistence upon existing Ks. Legislation to protect the public safety comes within the same category of reserved power. Thus, the question is not whether legislative action affects contracts, but instead whether legislative action is reasonably appropriate to the achievement of a legitimate end. This is the test under the Contract Clause. In this case, the legislation was addressed to a legitimate end an emergency existed in Minnesota, the end was for the protection of a basic interest of society , not the mere advantage of particular individuals. Plus, the conditions upon which the period of redemption under the contract was extended do not appear unreasonable, the relief afforded by the statute has regard to the interest of mortgagees as well as to the interest of martgagors. The legislation seeks to prevent the impending ruin of both by a considerate measure of relief. The law was a legitimate use of its police powers since Minnesota faced massive economic difficulties. This is a constitution we are expounding Marshall from McCulloch, interpret the constitution with the notion that it is intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

Dissent: o Justice Sutherland: A provision of the United States Constitution cannot be interpreted in two distinctly opposite ways. It cannot mean one thing under certain conditions and

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another thing under other conditions. If the provisions of the Constitution cannot be upheld when it discomforts us as well as when it comforts us, they may as well be abandoned. Looking at the history and circumstances which led up to and accompanies the framing and adoption of this clause demonstrates that conclusively that it was framed and adopted with the specific purpose of preventing legislation designed to relieve debtors ESPECIALLY in time of financial distress.

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The Second Reconstruction: The Modern Doctrine of Economic Due Process and Judicial Review 1. United States v. Carolene Products (1938, Stone) (Pages 762-763, 535): Congress enacted Filled Milk Act, prohibiting any person to ship filled milk in IC. o COURT GIVES COMPLETE DEFERENCE TO CONGRESS WITH RATIONAL BASIS REVIEW FOR GOVT ECONOMIC REGULATIONS. Supreme Court upheld a federal law prohibiting filled milk a substance made by mixing vegetable oil with skim milk. Fifth Amendment at issue because this is a federal law The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases (3 types in footnote four)

Minimum Rationality Review: To uphold the law, the Court uses ends means language Economic Regulations should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved that it was the legislatures actual intent ends served by the law, to protect the public from the injurious product, is fine Even though the means were not necessary (the same could be accomplished by labeling requirements), the means only have to be reasonably tailored to the ends The court does not completely abdicate responsibility to analyze facts, but it is not going to go out and find them; but it is going to presume facts in favor of legislative judgment Post-hoc justification for the legislation allowed as long as the question is debatable then we defer; even if the legislative history doesnt justify, the court can just come up with something! Possibly the starkest example: Florida law prohibiting gay adoption Footnote Four o Background for Carolene Products Famous Footnote In constitutional litigation concerning individuals rights and equal protection the outcome often very much depends on the level of scrutiny used. The level of scrutiny is the test that is applied to determine if the law is constitutional. If particular law is an area where there is reason for great suspicion of the government, or a fundamental right is at stake, the government will be required, by the level of scrutiny, to meet a heavy burden. But if it is an area of general deference to the legislature, the government will have a minimal burden to carry. o Substance of Footnote Four: Court articulated the idea that different constitutional claims would be subjected to varying levels of review. More searching judicial inquiry is appropriate when (presumption of constitutionality wont apply when):

1. Narrow scope for operation of presumption of constitutionality when legislation seems on its face to violate rights, such as those of the first ten amendments : A lot of the disagreement comes down to whether you think its a fundamental right or not (in order for the court to decide whether to use minimum rationality or strict scrutiny) 2. Political processes Paragraph: courts will look more closely if legislation restricts the ability of the political process to repeal undesirable legislation We will look at legislation that affects political process more closely why? Arent we deferring? Because then you cant rely on ordinary political processes to rectify that legislation, then people cant vote those legislators who made that legislation out The whole logic behind deference is that its more democratic than the court, therefore where congress does interfere with political processes this basis no longer applies Political Process such as freedom of speech, restrictions on the right to vote, interference with political organizations, restrictions on right to assemble. 3. Discreet and insular minorities. (religtion, nationality, race) We are going to look more closely at groups that have been traditionally discriminated against. Discreet and insular why? Debatable. But if laws discriminate against these groups, we will look more closely.

Carole Products itself uses Minimum Rationality Review: Rational Basis Test, the right in this case is NOT a fundamental right.: (The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.) o All laws challenged under the due process clause or equal protection must meet at least rational basis review. (This test is enormously deferential to the government).

CON LAW OUTLINE o Under the rational basis test, a law will be upheld if it is rationally related to a legitimate government purpose.

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The governments objective only need be a goal that it is legitimate for government to pursue. The means chosen need be only a reasonable way to accomplish the objective. Law will be upheld unless the challenger proves that the law does not serve any conceivable legitimate purpose or that it is not a reasonable way to attain the end.

2. Williamson v. Lee Optical 1955 Justice Douglas : Rational Basis even when it is stupid. Stressed the need for judicial deference to legislative choices. An ANYTHING goes moment: Williamson shows that so long as the Court can conceive of some legitimate purpose and so long as the law is reasonable, a law will be upheld.

Supreme Court upheld an OK statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or ophthalmologist. The lower court had declared the law unconstitutional as failing the rational basis test because a prescription was unnecessary if a person broke a pair of glasses; an optician could measure the power of the lenses and duplicate them without a new prescription. Supreme Court reversed. Justice Douglas: Stressed the need for judicial deference to legislative choices. The OK law may lead to a needless wasteful requirement in many cases, but it is for the legislature not the courts to balance the advantages and disadvantages of the new requirement. Court hypothesized possible legitimate purposes for the law: legislature MIGHT HAVE concluded etc etc Court concluded by recognizing that the law might be illogical in some of its applications: Its true that this is kind of a stupid law (well they didnt exactly say that) but the law need not be with every context logically consistent with ends means and ends just got chucked out the window; Means/end fit doesnt need to be perfect Legislation can sweep broadly it can go beyond the intended ends An ANYTHING goes moment: Williamson shows that so long as the Court can conceive of some legitimate purpose and so long as the law is reasonable, a law will be upheld.

INCORPORATION OF FUNDAMENTAL RIGHTS FROM THE BILL OF RIGHTS INTO THE DUE PROCESS CLAUSE OF THE 14th AMENDMENT

Slaughterhouse: Court held that the rights guaranteed in the first 8 amendments are not privileges or immunities of citizens of the United states and thus are not applicable to the states via the privileges or immunities clause of the 14th amendment. (Remember in slaughterhouse cases, the Court held that the privileges or immunities clause was not meant to protect individuals form state government actions and was not meant to be a basis for federal courts to invalidate state laws.) In the early 20th century, the Supreme Court suggested an alternative approach: finding that at least some of the Bill of Rights provisions are part of the liberty protected from state interference by the due process clause of the 14th amendment. o What about the due process clause of the 14th amendment? To what extent does the 14th amendment due process clause incorporate the specific guarantees of the bill of rights? Court since Slaughterhouse has gradually held most of the rights guaranteed in the first 8 amendments applicable to the states via the due process clause of the 14th amendment. Selective versus total incorporation Total Incorporation o Incorporate all bill of rights into 14th amendment. Selective Incorporation o Picking and choosing what rights are incorporated into 14th amendments.

A. Barron v Mayor: the Supreme Court of the United States (Supreme Court) observed that the framers intended the Amendments of the United States Constitution (Constitution) to apply only to the Federal government and not the states. Each state formulated their own constitution, so the Amendments did not apply to them. The Just Compensation provision of the 5th is intended solely as a limit on the exercise of power by the federal government, and not applicable to the legislation of the states. Facts: Barron believed that municipal street construction by the City had diverted the flow of streams which caused silt deposits in front of his warf. This made the water too shallow for boats to moor up which caused his business to cease. Issue(s): Whether the protections of 5th Amend of the U.S. Const. apply to the citizens agasint the actions of state government? Holding: The Just Compensation provision of the 5th is intended solely as a limit on the exercise of power by the federal government, and not applicable to the legislation of the states. Reasoning: the Supreme Court of the United States (Supreme Court) observed that the framers intended the Amendments of the United States Constitution (Constitution) to apply only to the Federal government and not the states. Each state formulated their own constitution, so the Amendments did not apply to them. The Just Compensation provision of the 5th is intended solely as a limit on the exercise of power by the federal government, and not applicable to the legislation of the states. Article 1 Section: 10 of the Constitution provide an express list of the restriction upon state government. Had framers of the amendments intended them to be limitation on state powers, they would have expressed that intention by including something like Article 1 Section 10. Without words specifically stating that the Amendments of the Constitution apply to the states (or act as a limit on state powers), the Supreme Court refused to recognize that they did. Moreover, the Amendments themselves lack words allowing for an interpretation that they apply to the states. Here, since there was no conflict between the city and states action and the Constitution the Supreme Court had no jurisdiction. The Constitution was designed for the federal government and not the

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states. The States each have their own Constitution with their own powers. Amendments were enacted to guard against the encroachments of the federal government and not the states. Also, the amendments do not have any language indicating that they apply to the states. B. Murray v. Hoboken Issue: To what principles are we to resort to ascertain whether a particular process is due process? Holding: Look to those settled usages in the common and statute law of England.

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C. Twining v. New Jersey : This case provides an early explanation of the Doctrine of Selective incorporation, in which some but not all of the Bill of Rights is applied to the states by incorporating into the 14th Amendment's due process clause. Although provisions of the Bill of Rights are applicable to the States if the provisions are incorporated into the Due Process Clause of the Fourteenth Amendment of the Constitution, this right of self-incrimination is not. Facts: A New Jersey law provided that a jury may be instructed to view a criminal defendants failure to testify as something negative. New Jersey was one of the few states that did not incorporate in its constitution the right against compelled self-incrimination. The Defendant, Twining (Defendant), challenged the law under both the Due Process Clause and the Privileges and Immunities Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Issue: Does the Fourteenth Amendment of the Constitution make the right against self-incrimination applicable to the States? Holding: Court established that while certain rights enumerated in the Bill of Rights might apply to the states under the 14th amendment's due process clause, the 5th amendment's right against self-incrimination is not so incorporated. Reasoning: Moody considers both the Privileges or Immunities clause and the Due Process clause of the 14th amendment: "The general question, therefore, is whether such a law violates the Fourteenth Amendment either by abridging the privileges or immunities of citizens of the United States or by depriving persons of their life, liberty or property without due process of law." (Twining v. New Jersey: 211 U.S. 78, 91). Privileges or Immunities The court cited the decision in the Slaughter-house cases that the language in the 14th Amendment, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...", did not curtail state power. The Supreme Court voted 8 to 1 that the 5th Amendment rights to not self incriminate applied only to federal court cases. Selective Incorporation under the Due Process Clause This case provides an early explanation of the Doctrine of Selective incorporation, in which some but not all of the Bill of Rights is applied to the states by incorporating into the 14th Amendment's due process clause. In the opinion, Justice Moody writes: "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law ie are a fundamental principle of liberty and justice which inheres in the very idea of free government" The court concluded that exemption from self-incrimination was not necessary for a conception of due process. Although provisions of the Bill of Rights are applicable to the States if the provisions are incorporated into the Due Process Clause of the Fourteenth Amendment of the Constitution, this right of selfincrimination is not. Court looked at history, not in the Magna Carta. Not all states incorporate this right as a right of due process. And also The fact that exemption from compulsory self-incrimination is specifically enumerated in the Fifth Amendment shows that it was intended to be regarded as a separate right, and not as an element of due process of law. D. Palko v. Connecticut: Justice Benjamin Cardozo held that the Due Process Clause protected only those rights that were "of the very essence of a scheme of ordered liberty. Applying this subjective case-by-case approach (known as selective incorporation), the Court upheld Palko's conviction on the basis that the Double Jeopardy appeal was not "essential to a fundamental scheme of ordered liberty." Facts: was a United States Supreme Court case concerning the incorporation of the Fifth Amendment protection against double jeopardy. Issue: Does the entire Fifth Amendment double jeopardy prohibition apply to the states through the Fourteenth Amendment? Holding: Reasoning: Justice Benjamin Cardozo held that the Due Process Clause protected only those rights that were "of the very essence of a scheme of ordered liberty" and that the court should therefore gradually incorporate the Bill of Rights onto the States as justiciable violations arose, based on whether the infringed right met that test. Applying this subjective case-by-case approach (known as selective incorporation), the Court upheld Palko's conviction on the basis that the Double Jeopardy appeal was not "essential to a fundamental scheme of ordered liberty." Two requirements need to be met for a state to appropriately choose to not include the prohibition on double jeopardy, or any other piece of the 5th Amendment, in its law. They do not have to incorporate such a right if it is not of the very essence of a scheme of ordered liberty, and if its abolishment would not violate a principal of justice so rooted in the traditions and conscience of the American people as to be ranked fundamental. Here, the Supreme Court saw the states allowing a second trial on the same facts as not violating fundamental principles of liberty and justice because it was only done to make sure that there was a trial without legal error. E. Adamson v. California Facts: Adamson was convicted of murder. During the trial, the state had commented to the jury on his failure to take the stand. Issue: Whether a states comment at a state criminal trial on the failure of a defendant to take the stand at trial is a violation of the defendants 5th amendment privilege against self-incrimination. Holding: No. P Argument: The 14th amendment incorporates the 5th amendments privilege against self-incrimination and applies it to the states in the same way that the 5th amendment applies directly to the federal government.

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Majority Reasoning: (Black) Although the 14th amendments due process clause guarantees a right to a fair trial in a state criminal trial, there is no ground under Palko to make the self-incrimination privilege one of the fundamental rights that is incorporated in the 14th amendment and applied to the states. Concurrence Reasoning: [Frankfurter] argued that the 14th amendments due process clause has independent potency apart from the bill of rights. It does not represent shorthand for the first 8 amendments. However, in determining which clauses in the first eight amendments are incorporated and which are not, the judicial interpretation of which are fundamental is too subjective. The relevant question is whether the ciminal proceedings deprived the accused of the due process of law. F. Duncan v. Louisiana : The Sixth Amendment guarantee of a jury trial is applied to the states via incorporation through the Fourteenth Amendment. A jury trial in criminal cases is fundamental to the American scheme of justice. Brief Fact Summary. An altercation between Duncan, an African-American youth, and some white boys who were engaged in a conversation with his cousins. Duncan slapped one of the white boys on the elbow. Synopsis of Rule of Law. The Sixth Amendment guarantee of a jury trial is applied to the states via incorporation through the Fourteenth Amendment. Reasoning: A jury trial in criminal cases is fundamental to the American scheme of justice. Justice White noted that the right to a jury trial for criminal offenses is a deeply enshrined value in both the British and American legal traditions. Despite its particular flaws, he said, its importance was widely recognized and meets the test of being "deeply rooted in this Nations history and tradition." Thus, right to a jury trial in criminal cases is within the 14th Amendment, and therefore is applicable to the states. The question for the court was whether an offense subject to two years imprisonment is a serious offense. The majority noted that at the time of ratification, crimes punishable by more than six months imprisonment were typically subject to jury trial. Furthermore, both federal law and forty-nine states recognized that a crime carrying a sentence of over one year necessitated a jury trial. The Court found that the Louisiana law was out of sync with both the historical and current standards of the justice system and was therefore ruled unconstitutional.

Birth of the Modern Era of Substantive Due Process

Almost all fundamental rights (usually not explicitly mentioned within the Constitution) have been proteced by the Court under the due process clause of the 5th and 14th amendment and or the equal protection clause of the 14th amendment. Relatively little depends on whether the court uses due process or equal protection as the basis for protecting a fundamental right. o Under either provision the court must decide whether a claimed liberty is sufficiently important to be regarded as fundamental, even though it is not mentioned in the text of the constitution. o Also, once a right is deemed fundamental, under due process or equal protection, SS is generally used. The major difference between due process and equal protection as the basis for protecting fundamental rights is in how the constitutional arguments are phrased. o Due Process Argument: Constitutional issue is whether the governments interference is justified by a sufficient purpose o Equal Protection Argument: The issue is whether the governments discrimination as to who can exercise the right is justified by a sufficient purpose. This difference can be a real distinction: If a law denies a right to everyone, then due process would be the best grounds for analysis, but if a law denies a right to some, while allowing it to others, the discrimination can be challenged s offending equal protection or the violation of the right can be objected to under due process.

I. Family, Personhood, and Privacy 1. Right to Privacy

Griswold v. Connecticut (1965, Douglas) (Pages 845-853) : Griswold (Exec Director of Planned Parenthood League of CT) and Buxton (licensed physician & medical director for League) gave info and medical advice to married persons as means of preventing conception. CT Statute prohibits any person to use any drug, medicinal article or instrument for the purpose of preventing conception o PENUMBRA OF BILL OF RIGHTS. EMANATIONS OF GUARANTEES HELP GIVE LIFE AND SUBSTANCE TO PRIVACY MARITAL RIGHT. o Court: Held Statute concerns a relationship lying w/in the zone of privacy created by several fundamental guarantees in Bill of Rights (1st, 3rd, 4th, 5th). DOUGLAS expressly rejected arg that the right was protected under the liberty of the DP clause. But CHEM says Bill of Rights is applied to State though DP clause of 14th Amendment, so penumbral approach is ultimately a DP one.

Specific guarantees in Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.

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Governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms st 1 Amendment Free Association: Husband & wife should be able to associate how they want, including associating in sexual behavior way they want. But all kinds of associations in society (e.g. employee/employer). Even if could make distinction in way Douglas tries to by saying this is a particularly critical relationship to social institutions, still DN mean it couldnt be regulated without more. 4th Amendment: Create a kind of privacy right requires that searches and seizures be reasonable But 4th Amendment taken strictly on its terms wouldnt do the job b/c there might be other ways to get evidence that would suppress on infringe on marital privacy. Prohibition on searches, not a prohibition on any other kind of regulation. 9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

BLACK (D): 9th Amendment is just intended to reassure people that by enumerating the powers of Con., there were not more powers of the Govt. Law constitutional b/c no right to privacy mentioned in the Con.

Police powers of State view: Con. has fed powers not as broad as police powers, and Con. creates all these rights that apply both to State and Fed power (concurrent zone of powers). 9th Amendment rights just apply to the State, so limits only on State power.

Blacks concern is that if these 9th Amendment rights limit Federal power, even though not stated anywhere in Constitution, then have really eliminated Stones #1. GOLDBERG (C): Concept of liberty embraces right of marital privacy though that right is not mentioned explicitly in Con., its supported both by numerous decisions of this Court and by the language and history of the 9th Amendment Have these rights in the Con. Then, have 9th Amendment rights, and these limit both Fed and State power. (Douglas might agree with this view too) HARLAN (C): Due Process Clause of 14th Amendment stands on its own, and while inquiry may be aided by provisions in Bill of Rights, not dependent on them Is this justifiable what DOUGLAS is doing Creating mix of Cons. rights, and their penumbras and emanations? Modes of Interpretation:

o o

(1) Objective Morality or Natural Law: Question is whether right to privacy is generated by natural law? Implicit in concept of ordered liberty To PROF, reads like natural law or objective morality. (2) Originalism: (a) Text: o Specific? If strict originalist, can say just going to take the specific text. Then, BLACKs position might work. o General? On other hand, can point to open provisions. (b) Intent: o Specific? o General? Look to general principles of the Con. In some ways what DOUGLAS is doing Examine provisions, have all these implications when taken together suggest right of privacy is provided by general purposes of Con. (3) Tradition (Evolving traditions): Most of the justices buy into that Idea that Con. is dynamic. Could also get to this from Originalist position if can show ratifiers and framers believed Con. should evolve.

(4) Contemporary Consensus: Court should read minds of the population and ask whether there is a deep consensus about fundamental values. o Note: Henkin Douglass argument = Since the Constitution, in various specifics of the Bill of Rights and in their penumbra, protects rights which partake of privacy, it protects other aspects of privacy as well, indeed it recognizes a general, complete right of privacy. 3. Right to Contraceptives Eisenstadt v. Baird right of privacy = individual married or single to be free from unwarranted governmental intrustion into matters so fundamental as reproductive autonomy Facts:

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Appellee was convicted for exhibiting and distributing contraceptive articles under a law that forbid single as opposed to married people from obtaining contraceptives.

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Posture: The Massachusetts Supreme Court set aside the conviction for exhibiting contraceptives on the grounds that it violated Appellees First Amendment rights, but sustained the conviction for giving away the foam. The law permitted married persons to obtain contraceptives to prevent pregnancy, but forbid single persons from obtaining them. Issue: Is there a rational ground for the different treatment of married and unmarried persons under the Massachusetts State law? Holding: NO. Reasoning: Fails Rational Basis Test: o The statutory distinctions between married and unmarried individuals did not rationally further legitimate state interest , whether it be the preservation of health or the prevention of premarital sex. o Brennan did not address the issue of whether or not access to contraceptive devises where fundamental rights because regardless of thus, the rights must be the same for the unmarried and the married alike.

Griswold: The distribution of contraceptives to married persons cannot be prohibited , ban on the individual is equally as impermissible o If the right of privacy means anything, it is the right of the individual married or single to be free from unwarranted governmental intrusion into matters so fundamental as reproductive autonomy

4. Right of an unmarried natural father Michael H. v. Gerald DP affords only those protections so rooted in the traditions and conscience of our people as to be ranked a fundamental right. Not only does it have to be rooted in tradition, but it has to be stated at the most specific level of abstraction. Facts:

1978, two years after GD and CD were married, CD began an adulterous affair w/ MH. Three years later she gave birth to V. Blood tests shoed MH was the biological father. CD and V had lived between both GD and MH, and another man for three years. When visits were denied by CD in 1982, MH filed an action in CA to establish paternity. 1983 CD filed summary, but she returned to MH and removed the motion. 1984 CD and MH signed stipulation that MH was Vs natural father, but 2 mos later CD left to live with GD in NY and the stip was not filed. MH sought visitation on his and Vs behalf. Gerald intervened, and argued that under California law (Cal.Evid.Code 621), when a child is born to a married couple living together (as Victoria was), then the child is conclusively presumed to be the husband's.

Reasoning:

1. Substantive Due Process challenge: Michael contends as a matter of substantive due process that because he has established a parental relationship with Victoria, protection of Gerald and Caroles marital union is an insufficient state interest to support termination of the relationship.

Court: However, Michaels interest in his relationship with his daughter must be a fundamental liberty to be constitutionally protected. Is Michaels liberty interest in his relationship with his daughter constitutionally protected? o To limit and guide the interpretation of the DPC, liberty interest has to be traditionally protected by our society by being so rooted in the traditions and conscience of our people as to be ranked as fundamental. Main Question; Whether the relationship between Michael and his daughter has been treated as a PROTECTED FAMILY UNIT under the historic practices of our society to allow Michael to obtain parental rights. NO. o Historically: NO 1. Historically, the marital family has been protected rather than the potential father outside of the marriage.

2.The presumption of legitimacy was fundamental at common law, and could be rebutted only by a husband who was incapable of procreation or had no access to his wife during the relative period.

The policy rationales behind presumption of legitimacy were the 1. aversion to declaring children illegitimate and 2. the peace and tranquility of the States and families. No modern or historical precedent similarly recognizes the power of the natural father to assert parental rights. o Modern Times: no This Case is about obtaining parental rights by being declared the natural father, so Michael must establish that:

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o o

society has traditionally accorded such a father parental rights. Doesnt matter that the law in a number of states appears to allow the natural father the power to rebut the marital presumption because these states still dont award substantive parental rights to the natural father of a chilled conceived through an extra marital affair. Court focuses on a very specific category to make its inquiry into historic traditions: Rights of an adulterous natural father (Brennan says should have used a more general inquiry like parenthood) o General traditions provide imprecise guidance o A Limit is also imposed by the fact that the mother is married to and living with another man who also wishes to raise the child as his own. To provide protection to an adulterous natural father is to deny protection to a marital father. o One of them will suffer from asserting their rightsleave it to the political process to choose between these to freedoms. Dissent: Brennan Plurality uses tradition to guide its understanding of fundamental rights in this instance yet supplies no objective means by which we can make these determinations o Plurality limits the concept of liberty in tradition though this concept can be as malleable as liberty itself. o What the deeply rooted traditions of the country are is arguable o What is the point at which a tradition becomes firm enough to be relevant for our defintion of liberty? Plurality was too precise in its consideration of the fundamental right: o The dissent accuses the plurality of being too specific in its search of history to support the right claimed by appellant, should have just asked whether parenthood is an interest that historically has received protection. o IF we had looked to tradition with such specificity in past cases, many a decision would have reached a different result.

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Plurality turns the Due Process Clause into a redundancy by describing the decisive question as whether M and Vs interest is one that has been traditionally protected by our society rather than one that society has traditionally thought important suggests that courts sole function is to discern the societys views Liberty must include the freedom not to conform o How can the court agree on what family or parenthood are when our society is not homogenous but pluralistic? This case is just about a parent-child relationship that society has obviously traditionally protected Previous cases have established that although an unwed fathers biological link does not guarantee parental rights, such a link combined with a substantial parent-child relationship will do so. o They did have a substantial parent-child relationship! Framework for Due Process Clause: o 1. Ask whether the person claiming constitutional protection has an interest that the Constitution recognizes : look to capacious language of the constitution then qualify this by what we mean by liberty from tradition. majority here found no fundamental right so didnt nee to ask about States compelling interest. o 2. If yes, then consider the states interest in limiting the extent of the procedures that will attend the deprivation of that interest Plurality didnt correctly apply the framework for the due process clause bc it prematurely considered CAs interests (need to preserve a unitary family) o IF it limits its holding to those situations in which a wife and ah usband wish to aise the child togerthe, then it takes the States interst into account in defining liberty traditional notions of family were changing, and that looking at historical precedent to make modern decisions was "one of make believe," especially considering that a blood test had proved Michael was factually the father.

5. Abortion

Roe v. Wade (1973, Blackmun) (Pages 857-863) : Texas Statutes under attack made procuring an abortion a crime except by medical advice for the purpose of saving the life of the mother. [For critiques of Roe, see CHEM 822-824] o STATE MUST HAVE A COMPELLING INTEREST IN ORDER TO INFRINGE ON A WOMANS FUNDAMENTAL RIGHT TO PRIVACY.

CON LAW OUTLINE 57 Although the constitution does not explicitly mention any right of privacy, the court has recognized that
a right to personal privacy or a guarantee of certain zones of privacy does exist under the constitution. o Court: Right of privacy, whether its founded in 14th Amendments concept of personal liberty as we feel it is, or in the 9th Amendment, is broad enough to encompass a womans decision whether or not to terminate her pregnancy. Ruled that Govt may not prohibit abortions prior to viability and that Govt regulations of abortions had to meet Strict Scrutiny. State would impose a large detriment to the women by denying this choice completely:

Marternity may force upon the woman a distressful life and future

The court further ruled that the right of the woman is not absolute. The state can regulate the womans actions in cases where the law serves a compelling state interest. o States Interests State has interests in safeguarding health, in maintaining medical standards and in protecting potential life. State has a legitimate interest in regulating abortion to insure that it is performed under circumstances that insure maximum safety for the patient. State also has another important and legitimate interest in protecting the potentiality of human life The court rejected Texas argument that at conception, the unborn should be considered a person under the Constitution. If this suggestion of personhood were to be established, the appellants case would collapse for the fetuss right to life is then guaranteed by the 14th Amendment/5th Amendment. o According to the court, the word person as used in the Constitution does not refer to the unborn. o Therefore, in the end, the court ruled that in the initial stages of the pregnancy (before the end of the first trimester) the woman and her physician are free to make their choice about abortion without the interference from the state Holding Framework that shows various interests at issue: o First Trimester Privacy Stage: For the stage prior to the approximate end of the first trimester (before 3 months), the abortion decision must be left to the medical judgment of the pregnant womans attending physician, and may not be criminalized by statute. in the initial stages of the pregnancy (before the end of the first trimester) the woman and her physician are free to make their choice about abortion without the interference from the state Womans interest are high here seen in relation to states interests o

States interest in protecting potential life still not compelling enough to justify regulation End of First Trimester/ Previability: States compelling interest begins at the end of the first trimester with respect to the States interest in the health of the mother: For the stage subsequent to the approximate end of the first trimester, the State may regulate abortion in ways reasonably related to maternal health based upon the States interest in promoting the health of the mother. Womens interests are low here in relation to states interests States interest in protecting potential life still not compelling enough to justify regulation States compelling interest begins at VIABILITY with respect to the States interest in potential life:
For the stage subsequent to viability (Viability refers to a point in fetal development at which the fetus may survive outside the womb), , the State may regulate and even proscribe abortion, except where necessary for the preservation of the mothers life, based upon the States interest in the potential of the potential life of the unborn child. Womens interest are at the absolute lowest DOUGLAS (C): 9th Amendment DN create federally enforceable rights. But have catalogue of rights retained by people that come within sweep of Blessings of Liberty mentioned in preamble of Constitution and many come w/in meaning of liberty as used in the 14th Amendmen Three types of liberties:

1. Autonomous control over the development and expression of ones intellect, interests, tastes, and personality These right protected by 1st Amendment and are absolute. 2. Freedom of choice in the basic decision of ones life respecting marriage, divorce, procreation, contraception, and education. Not absolute and subject to some control by police power. Compelling State Interest.

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3. freedom to care for ones health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or load. Subject to regulation on a showing of compelling state interest. Concurrence (Stewart): Even though the court in Griswold tried to avoid the substantive due process, it is clear that the case was decided based on this doctrine. The liberty protected by due process covers more than those freedoms explicitly named in the Bill of Rights. Einstardt: A woman enjoys the liberty to decide whether or not to terminate her pregnancy. But such liberty can be limited if the state shows a compelling interest (not just a legitimate interest). Dissents: Both emphasized that the question of abortion was one that should have been left to the legislative process REHNQUIST (D): To reach its result, Court had to find w/in scope of 14th Amend. a right apparently completely unknown to drafters of Amend. PROF: Blackmun reviews all this evidence, and says its radically contested whether the fetus is a person. Then, says its so uncertain, cant say its a person. He COULD have made another move, by saying its so uncertain that theres a risk that we are killing people with abortion, so we should err on the side of caution since were taking this chance. Prof thinks he had to say it was not a fetus, b/c otherwise there would be these implications and perhaps it would be mandatory to ban abortions so as to protect the life of the person. Due Process clause Does right inhere in concept of ordered liberty Traditions Right to contraception, marriage, & abortion Somehow Court is getting from Step 1 to Step 2, and going to Step 3 Court is looking at this idea of ordered liberty through this concept of longstanding traditions. Can say with contraception and marriage, have social consensus. But with abortion, there is this fundamental disensus. Why should this difference of fundamental views be settled by Court nationally, when maybe youll have greater consensus state-by-state? This is the case against Constitutional intervention. o Counter: Precisely when theres a disensus, need Constitutional right. If have consensus, dont need Constitution, because can trust States (easiest to announce Constitutional rights, but least necessary at that point). Where does womens right to choose right come from?

WHITE (D): Find nothing in lang./history of Con. to support majority

BLACKMUN tries to use doctor/patient relationship, but see in Casey, focus shifts to mother and deciding for herself.

PROF: Cannot get from abstract rights (Due Process of Liberty) to these very concrete rules. Single word liberty DN mechanically generate these very complicated set of rules, cannot go from very abstract to very particular w/o a set of intervening arguments (see arrows above). May be implicit arguments, but better if Court makes them explicit so we know the logic of the right BLACKMUNs argument is model of this (explicit). Prof thinks interests end up being KEY. In other contexts, he refers to this as a specific vision of social ordering in the relevant domain of social action. What he means is that the judges will have a fairly particular idea in mind (e.g. specific vision of gender justice, way abortion decision figures into that conception, etc.)

1. Planned Parenthood v. Casey The constitutionality of state abortion laws would now be judged on the basis of the degree of "burden" they placed on women seeking abortion. If the "burden" was "undue," the law was unconstitutional. Viability marks the earliest point where states interest in fetal life can justify legislative ban. Before viability, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy. It also may not impose upon this right an undue burden, which exists if the regulations purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. On the other hand, regulations that do no more than create a structural mechanism by which the state may express profound respect for the life of the unborn are permitted, if they arent a substantial obstacle to the womans exercise of the right to choose. Facts: A Penn. statute had five questioned requirements regarding an abortion: 1) informed consent of the woman, 2) 24 hour waiting period after receiving information, 3) informed consent of one parent for minors, 4) notification of the husband, and 5) reporting requirements for abortion facilities. Issue: What is the appropriate standard to use in determining whether a statute regulating abortion is unconstitutional. Holding:

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Unduly burdensome. An undue burden exists, and therefore a provision of the law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Reasoning: Jointly written by OConnor, Kennedy, and Souter

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First, the essential holding in Roe is reaffirmed. o 1) a woman has a constitutional right to choose to have an abortion before viability without undue interference from the state, o 2) the state has a power to restrict abortions after viability, and o 3) the state has legitimate interests in both the health of the mother and the life of the fetus from conception. In Roe it wasnt a legitimate interest, it was a compelling interest in the life of the fetus. o The constitutional protection comes from the liberty of the due process clause of the 14th amendment, which is a source of substantive rights beyond the Bill of Rights. At the heart of liberty is the right to define ones own concept of existence. It is not time to overrule Roe. Principles of Stare Decisis requires reaffirmation. The court doesnt follow a prior decision blindly, it reexamines it with pragmatic considerations to gauge the costs of reaffirming or overruling a prior case. There are FOUR considerations to use in deciding whether or not to overrule or reaffirm a case: o 1. Whether a central Rule has been found unworkable: NO. Not unworkable, just a simple limitation. o 2. Reliance Inquiry: Whether the rules limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question: NO. Women have relied on the law by being able to control reproductive lives and making various choices with this reproductive freedom in mind. o 3. Whether the laws growth in the intervening years has left Roes central rule a doctrinal anachronism discounted by society: NO. Cases since Roe are in line with Roes view that a states interest in the protection of life falls short of justifying any override of individual liberty claims o

One could classify Roe as sui generis, in a class of its own clearly no erosion of its central determination 4. Whether Roes premises of fact have so far changed to render its central holding irrelevant or unjustifiable: NO. Advancement of healthcare allowing abortions that are safe later have had no bearing on Roes central holding that viability marks the earliest point where states interest in fetal life can justify legislative ban.

Court compares Roe with cases that have also responded to national controversies. These cases required a new choice of constitutional principles to respond to changing societal demands. This is not the case in ROE neither the factual underpinnings of Roes Central Holding or courts understanding of it has changed. o 1. West Coast Hotel signaled demise of Lochner by overruling Adkins. Depression made court realize that contractual freedom in Adkins rested on a false assumption that an unregulated market satisfies min levels of human welfare o 2. Brown v. Board of Ed repudiated Plessys holding that the separation of the races did not rely on an assumption of inferiority. The effect of separate but equal was inferiority and inherently unequal Court rejects the trimester framework as appropriate means of reconciling the states interest with the womans constitutionally protected liberty: (Blackmun nor Stevens joins this but have plurality) o The framework is unnecessary to adequately protect the womans right to choose. o It misconceives the nature of the womans interest, and it undervalues the States interest in potential life. Undue burden standard is the appropriate means of reconciling the States interest with the womans protected liberty o Rule: Regulations designed to foster the health of a woman seeking an abortion are valid of they do not constitute an under burden. Undue burden= when the state regulation has the purpose OR effect of placing a substantial obstacle in the path of a woman seeking an abortion of nonviable fetus o Rule: State still may NOT prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. Analysis of the PN statute using the Undue Burden Standard. o 1. Informed Consent Requirement: A. Requires giving a woman information about a procedure and health risks associated with abortion and the probably gestational age of the unborn child. B. Also required informing the woman of the AVAILABILITY of information about alternatives and woman has to certify in writing that she has received such information. Constitutional: The informed consent requirement is constitutional, because it furthers the states legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating consequences, that her decision was not fully informed. The doctor should be required to provide information as in other medical procedures. State is allowed to express a preference for childbirth without effectively stopping you from getting abortion. 2. 24 hour waiting period between consent and abortion:

Constitutional: The 24 hour waiting period, although burdensome to those traveling long distances and those who have the fewest financial resources, is not an undue burden. Does not create health risk Its a reasonable measure to implement the States interest in protecting the life of the unborn, a measure that does not amount to an undue burden

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o A particular burden doesnt mean its a substantial obstacle. Roe never suggested that a woman has a right to abortion on demand 3. Spousal Notification Requirement=Undue Burden

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o
o

Unconstitutional: Because of domestic and sexual violence, the spousal notification requirement will prevent a lot of women from being able to obtain an abortion. Doesnt matter that this might only affect a small amount of the population, what matters is that its still a substantial burden to this group. Regulation will have a higher impact on the mother, her bodily integrity The constitution is about protecting individuals, a woman now has a separate legal existence from her husband 4. Parental Consent requirement for a minor Constitutional: Informed consent of minors parents is not an undue burden because the minors will benefit from the consultation with their parents. PROVIDED there is an adequate judicial bypass procedure (health risk) 5. Reporting Requirement

Constitutional: The reporting requirement, although not related to the states interest in informed consent, does relate to health and is a vital element of medical research and health regulation.

Concurrence/Dissent Reasoning: [Stevens]

Informed Consent Requirement: State cant inject information designed to persuade her not to undergo an abortion 24 Hour waiting period: Also, the 24 hour waiting period, in practice, serves to wear down a womans ability to get an abortion, without a showing that it is necessary or helpful. The waiting period appears to rest on the assumption that a woman is incapable of making a rational decision in less than 24 hours.

Concurrence/Dissent Reasoning: [Rehnquist Historical traditions dont support view that right to abortion is a fundamental right Dissent believes Roe was wrong when it decided a womans right to an abortion is a fundamental right

Overruling Roe would be entirely consistent with stare decisis because it misinterpreted the cases it purported to be based on. The majoritys new undue burden standard is not a good standardwill be based on subjective determinations with conflicting views. We also reject the strict scrutiny rule , should use rational relationship test A womans interest in having an abortion is a form of liberty protected by the DP clause but states may regulate abortion in ways rationally related to a legitimate state interest In each provision, it does and so should be entirely upheld.

Concurrence/Dissent Reasoning: [Scalia] The Court was right to say that certain liberties are protected from intrusive laws by the Constitution, but it is clear that not every liberty is protected, and definitely not right to abortion: there is no constitutional right to bigamy, for instance. o (1) the Constitution says nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. Would uphold all the Penn statutes using rational review

The justices' decision to protect the choice to have an abortion was not supported by "reasoned judgment" but "only by personal predilection. Defenders of Roe had to resort to subjective value judgments about things such as "personal choice" and "bodily integrity" to argue their case. Scalia notes that laws restrict personal choices-including very intimate choices- all the time: such as laws against polygamy and incest. Scalia points out, however, that court didnt really preserve Roe itself: o they essentially made up a whole new opinion with an entirely new standard at its heart: the amorphous "undue burden" standard (not strict scrutiny that was used in Roe) o This was not only an implicit rejection of Roe but contradicted numerous other Court abortion precedents.

The plurality's reliance on stare decisis was thus "contrived," a "keep-what-you-want-and-throw-away-the-rest" version that really was at odds with the whole point of stare decisis.

Moreover, the "undue burden" standard was not only a pure fabrication with no legal basis, but was also inherently circular and subjective. (At least Roe was clear in the guidelines it laid down, says Scalia.) o Undue burden" is a "manipulable" phrase that can mean any number of different things, as shown by the fact that theCasey justices were now defining it very differently from how they had used it in previous cases. o The inevitable result of the use of this "rootless standard will be that more power is placed in the hands of individual judges to write their own private preferences into the law. What appears to be the true meaning of "undue burden" is this, says Scalia: a state may not regulate abortion in such a way that the number of abortions actually goes down. That is, laws which are actually successful in deterring women from procuring abortions are

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inherently "burdensome" and thus unconstitutional.

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Scalia then refutes the notion that in Roe the Court had "resolved" the national controversy over abortion, or that it would resolve it in Casey. o On the contrary, Roe had made the controversy much worse by elevating the debate to the national level.

Prior to Roe the matter was being argued in state legislatures, where different policies could be fitted to different populations and compromises could be reached.

The political pressure that was being brought on the Court over abortion was the Court's own fault. By asserting that it could make value judgments rather than merely legal judgments, the Court had invited people to campaign for justices and judicial decisions that shared their own values. The plurality's demand that people "follow" the Court is therefore misguided, especially in view of its assertion that there are constitutional "rights" found neither in the text of the Constitution nor in the American tradition. The damage done to the Court (as exemplified by politicized and contentious judicial confirmation hearings) was of the Court's own making. Scalia concludes by comparing Casey to Dred Scott. o Casey would not resolve the conflict over abortion any more than Scott had resolved the conflict over slavery. In fact, like Roe, it would make the conflict worse by continuing to prevent a democratic solution. The conclusion is obvious to Scalia: "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining. Roberts v. US Jaycees (1984) (Pages 929-930): Minnesota statute prohibiting discrimination on basis of sex in places of public accommodation applied to Jaycees. o FREEDOM OF ASSOCIATION WOULD PROTECT A RIGHT TO DISCRIMINATE ONLY IF IT IS INTIMATE ASSOCIATION OR WHERE THE DISCRIMINATION IS INTEGRAL TO EXPRESS ACTIVITY o Court: Upheld Statute. Local chapters of Jaycees are large and basically unselective groups, clearly outside the category of relationships worthy of this kind of Constitutional protection (too large to be an intimate association) o Difference b/w 2 Constitutionally-Protected Freedoms of Association?

First Amendment Freedom of Association: Seems to have more to do with political association.

Freedom of Intimate Association: Comes from Liberty and Due Process Clause. Intimate Association is idea need a certain space in life to construct your own identity, to interact w/people in an intimate way, to which other people help confirm who you are & shape who you are. Constitutional shelter afforded such highly personal relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others Court says Jaycees not an intimate association. See following notes on State Action Doctrine

STATE ACTION CONSTITUTIONAL DOCTRINE : Constitutions protections of individual liberties and its requirement for equal protection apply only to the Govt. Private conduct generally DN have to comply w/Con. State action is somewhat of a misnomer, since the Con. applies to Govt at all levels Federal, State, and Local. o Therefore, idea is you only have Cons. rights against the State. Only State action can violate those rights, not action by other private actors. Government cannot censor you, but another private actor can influence or even limit what you say. Court has concluded that the 14th Amendment applies only to the Govt, not to private conduct. When does Constitution apply to Private Actions?

13th Amend. is one provision that directly regulates private conduct Exceptions to the State Action requirement Situations where private conduct has to comply w/the Constitution

Public Functions Exception: Private entity must comply with the Con. if its performing a task traditionally, exclusively done by the Govt (See, Marsh, Hudgens)

Entanglement Exception: Private conduct must comply with the Con. if the Govt has authorized, encouraged, or facilitated the unconstitutional conduct. (See, Shelley) Statutes, both federal and state, can apply Cons. norms to private conduct Huge body of law that tells us when an action is attributable to the State.

CON LAW OUTLINE 62 Marsh: Jehovahs witness wanted to leaflet in town. Town owned by a Corp. Corporation
threw person off town property. Jehovahs witness sued Corp. 1st Amend. Right to distribute leaflets on this property. Court: Private town indistinguishable from an ordinary community, so that there is a public function in which a person had to be permitted to distribute leaflets. Company town is like a Govt even though it is private property.

Hudgens: Logan Valley argued Mall like a public forum in society, and SC agreed saying we have constitutional rights on shopping mall property.

Court: REVERSED itself in Hudgens, and said No State Action. SC said this is a private actor, DN look enough like a Govt so going to say no state action. DN even get to merits of whether there is a 1st Amendment right (2 questions/steps-see below).

Shelley v. Kramer: White homeowners made contract that when anyone sells our house, will not sell to Black ppl (racially-restrictive covenant). Seller says No State Action here Voluntary contract w/in private sphere & DN implicate State. Court: Held courts may not enforce racially-restrictive covenants. At high point of legal realism, when people make contracts, State is all over it b/c State creates contract law and Govt-employed judges are enforcing the contract law of the State. Two Questions: 2nd Q: Was substantive right violated (DP, Free Speech)? Court has needed to decide whether there is State Action in each of these settings: Apartment, Small Social Club, Country Club/Golf/Socialize, Elite Business/Political Networking Club, Small Mom and Pop Store (Sign says whites only): Is there State Action when mom and pop assert their property right to exclude blacks?, Department Store, Shopping Mall PROF: Think of property rights as delegation of State power. State is creating powers, giving them to you-Property Owner. Seems like the legislature delegated power to an administrative agency to create rules. Everywhere here there is a delegation of State power. If blow up State Action doctrine and get rid of public/private distinction and say public is everywhere, then what do we do with Constitutional law, how do we recreate this zone of autonomy and get to results that are intuitively sound to us? o Could say there is no State Action when exclude Blacks from your apt, so DN have to get to Equal Protection and 1st Amend. Prof argues NO, there IS State Action and have to get to Cons. rights and determine if theres a violation o Could say Right to Privacy Why is privacy right more important than free speech or other rights of people who want to get in? Would want an elaboration of this privacy right. PROF is arguing for all this to work, Judges need a highly contextual set of rules when one right trumps the other b/c rights have boundaries. Right of Intimate Association: Very contextual thing. Suddenly have this right to create our own identity, and Court thinks we create our identity through moral, emotional, and cognitive interactions with others. Need this space for intimate association, so need right to privacy. If you read State Action cases, where Court says its deciding whether there is State Action or not, will see Court will start talking about this stuff Homeowner has strong privacy/intimate interests, etc.. Court really is reaching the merits, and then claims its doing so through neutral State Action doctrine. Most scholars think State Action Doctrine is nonexistent. Profs point is cant avoid moral and political choice among those rights with their underlying values and interests? Most cases legal realist view is operating implicitly or explicitly.

Threshold Q: Is there State Action? If yes, go to 2nd question.

2. Gonzalez v. Carhart Where it has a rational basis to act, and it does not impose an undue burden, The state may use its regulatory power to bar certain procedures and substitute others Facts:

o This case concerns the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003 (the Act) which prohibits physicians from

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knowingly performing a partial-birth abortion in or affecting interstate commerce. o Anatomical landmarks Entire fetal head is outside the body of them other or any part of the fetal trunk pas the naval is outside the mother. o Overt Act Doctor must perform an overt act that kills the partially delivered living fetus o The Act contains an exception for cases in which the abortion is necessary to preserve the life of the mother, but no exception for the health of the mother. o The decision not to include a health exception came as a result of extensive congressional hearings where Congress found that partial-birth abortion is never medically necessary to preserve the health of the mother. o After President Bush signed the Act in November 2003, four physicians who perform late-term abortions brought suit to stop its enforcement. o Physician Argument: o Law imposed an undue burden on a womans right to choose because its too broad Court Response: No, standards under the statute are specific and defined, doctors who intend to perform a D and E procedure must adjust their conduct to the law by not attempting to deliver the fetus to either of those anatomical points. Congressional purpose of the act was to place a substantial obstacle in the path of a woman seeking abortion: Arbitrary distinction between Standard D and E and intact D and E

Every D & E regardless if its standard or in tact might violate the Act.

Court: NO. Not arbitrary Intact d And E perverts a process during which life is brought into the world. Process looks like birth. , dont want to lead to slippery slope. o Issue: Does the act further the legitimate interest of the government in protecting the life of the fetus that may become child? If so, does it present an undue burden on a womans right to an abortion? o Holding: YES furthers legitimate interest and is Not an undue burden=constitutional. o Resonating: o Does the Act impose an undue burden because its restrictions on second-trimester abortions are too broad? NO. Act is specific and does not apply to standard D and E procedure (removing the fetus in pieces).

The acts anatomic landmarks clarify that the removal of a small portion of the fetus is NOT prohibited. The act is more specific and limited than the statute in Stenberg. Differentiates between the overall partial-birth abortion and the distinct overt act that kills the fetus Emphasizes the intent requirements: physician must have deliberately and intentionally delivered the fetus to one of the acts anatomical landmarks. Furthers State Interests: Act doesnt on its face impose a substantial obstacle to late term but previability abortions,

Not just protecting the life of the fetus but promoting respect for life of the unborn

o o o

Casey: that the law, not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it protecting the integrity and ethics of the medical profession. Court uses test from Casey Where it has a rational basis to act, and it does not impose an undue burden, The state may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including the unborn Interests (above) are legitimate Statute furthers the governments objectives Type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Draws a bright line that distinguishes between abortion and infanticide (but doesnt call this infanticide just partial abortion?) No arbitrary Distinction between Standard D and E and Intact D and E. Intact d And E perverts a process during which life is brought into the world. Process looks like birth. , dont want to lead to slippery slope. Does Act impose a substantial obstacle on the abortion right bc it does not allow use of the barred procedure where necessary for the preservation of the HEALTH of the mother ? Only if subjected to the woman to significant health risksbut this is disputed, and we should defer to the legislature (Rational Basis) Also not an undue burden because there are alternatives. (Standard D and E) Just kill the fetus before it passes through the vaginal canal. Physicians (appellants) When there is a medical uncertainty, should defer to the position that banning a procedure could endanger a womans health

Court: Too exacting a standard to impose on the legislative power to regulate the medical profession. And there are other abortion procedures that are considered to be safe alternatives.

DISSENT:

The Court left the door open for as-applied challenges for the health issue. decided to let the law stand as a facial matter and let the parties fight later about what, if any, applications need to be blocked

CON LAW OUTLINE 64 o Supreme Court abortion precedent and "refuse[d] to take Casey and Stenberg seriously." o Referring in particular to Planned Parenthood v. Casey, Ginsburg sought to ground the Court's abortion jurisprudence based on the concept of equal citizenship rather than the Court's previous privacy approach: o "Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."[ o Lack of health exception burdens women , o Court has consisstentyly required that laws regulating abortion at any state of pregnancy safeguard a womans health. Court here goes against Stare Decisis o the absence of a health exception burdens all women for whom it is relevantwomen who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk." o For certain women, intact D and Es are safer and alternative procedures that are necessary to protect womans health. o Makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second trimester abortions, including those for which a health exception is unnecessary : very purpose of a health exception is to protect women in exceptional cases. o Law doesnt actually further the states interest in preserving and promoting fetal life o It doesnt save a single fetus from destruction but targets only a method of performing abortion. o Doesnt Protect the health of a woman o **Court upholds a law that doesnt preserve fetal life, and actually can threaten a womans health by barring her from choosing intact D and E though her doctor reasonably believes the procedure will protect her best. o Arbitrary Distinction between intact and standard D and E o Why does the law single out intact D and E? What makes this procedure so much more inherently gruesome than, say, dismembering a fetus limb by limb in the standard D&E procedure? These are just moral concerns that drive the court, not legitimate state interests. By allowing Moral concerns to determine the case and override fundamental rights, the court dishoners precedent. Lawrence o Ginsburg concluded by criticizing the majority for abandoning the principle of stare decisis, writing that "a decision so at odds with our jurisprudence should not have staying power."
Lawrence v. Texas (2003, Kennedy) (Pages 935-948): TX Statute provided a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex o CONSTITUTIONAL PROTECTION FOR ALL INDIVIDUALS IN THE MOST INTIMATE AND PRIVATE ASPECTS OF THEIR LIVES o Court: Overruled Bowers (Constitutional to have homosexual sodomy laws), and found Texas statute banning same-sex sodomy unconstitutional. However, CHEM says Court never articulated the level of scrutiny to be used. o Court in Bowers failed to appreciate the extent of liberty at stake This isnt just about the right to have sex, but the right to a private relationship

Moral tradition SHOULD NOT govern, there is an emerging awareness that within liberty there is a FUNDAMENTAL right of adult persons in deciding how to conduct their private lives in matters pertaining to sex, Griswold, Eisenstadt (access to contraception)

Casey: confirmed that laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception

CON LAW OUTLINE 65 o Liberty in 14th amendment allows homosexuals the right to decide how to conduct their private lives and so make
the choice to engage in sodomy HELD

Conclude case should be resolved by determining whether Ps were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process clause of the 14th Amendment When sexuality finds overt expression in intimate conduct w/another person, the conduct is but one element in a personal bond that is more enduring. Liberty protected by Con. allows homosexual persons the right to make this choice.

Matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment (940) CHEM Lawrence is important (Ps. 844-846) Laws in 13 States prohibiting consensual homosexual activity are uncon. Powerful affirmation of a right to privacy under the Con. Recognizes that sexual activity is a fundamental aspect of personhood and that its entitled to constitutional protection Most important decision recognizing the rights of gays and lesbians to equal dignity and equal treatment under the Con. CHART OF ARGUMENT: (explanation below) (1) (Abstract Test/Right) Liberty/Substantive Due Process (2) (Principle) Intrinsic to ordered liberty (P.940 indented) (3) Entrenched Tradition? Changed understanding of facts due to Justices own reading of history Emerging Awareness (4) Political Process Only morality of the Majority (5) (Holding) Gay Rights related to Sex Challenge under Constitution SC looking at 3 questions: Equal Protection Question Liberty and Privacy under Substantive Due Process (1) Majority goes off on Substantive DP claim. Finds a right to same sex sodomy in 14th Amendment. Whats the principle test? o To say Bowers simply about right to engage in certain sexual conduct DEMEANS claim individual put forward o (2) Broader principle that generates holding, not just about sex, but about PRINCIPLE of intrinsic to ordered liberty. Liberty component of Substantive DP is ABSTRACT right. o (3) Bowers finds there is no equal protection violation in sodomy laws directed at homosexuals, and there, majority said had this ancient tradition. Here, Equivocates, and says not critical to case, but want to show nonetheless that Majority got it wrong in Bowers. Changed understanding of the facts about whether there was an entrenched tradition. Emerging social awareness, precedents have been weakened. Could read in a few ways (Last Para. of Arg): Originalism: Could say just a form of Originalism. Take general principle from original Con. & apply it to a new context. No specific intent. Inclusiveness: Liberty constantly seeks to include groups that have been oppressed or marginalized. Comes from either the original understanding of framers that concept of liberty would expand and become more inclusive, or from an ongoing tradition. Could be called a substantive aspect of liberty ever-increasing inclusiveness Constitution of expanding liberty OCONNOR (C): DN join overruling Bowers. But finds Statute unconstitutional based on 14th Amendments Equal Protection Clause. SCALIA (D): State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are sustainable only in light of Bowers validation of laws based on moral choices Majority discuss how laws/traditions show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in

o o

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matters pertaining to sex. Scalia says such an emerging awareness DN establish a fundamental right TX statute seeks to further belief of its citizens that certain forms of sexual behaviors are immoral and unacceptable Gays are politically powerful in ways that are disproportionate to the size of the group, so they can protect their own rights Counter: Political process SN matter b/c if group has fundamental rights & those fundamental rights are being denied DN matter if the group has a lot of power or little power relative to its size. THOMAS (D): Thinks law is silly, but finds no general right of privacy. Is it more legitimate for Court to overrule Bowers, than overrule Roe?

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o o

In Casey, end up with a more moderate compromise than in Roe. Line has shifted a bit toward State interest in potential life. BUT central holding of Roe is still upheld, Court didnt swing all the way. This is all about Substantive Due Process:

LIBERALS: Liberals on Court and in society take position that Lochner was wrong, so New Deal shift was right. Means there are no economic rights (economic redistribution is okay) Economic Interventionists OK for State to regulate market, contract, and property. Might call them Economic Paternalists. o Now, there are these rights of Personhood (Social rights). All under Substantive DP. Rights of personhood fills up concept of Substantive DP Social Noninterventionists or Paternalists State should not invade this sphere. CONSERVATIVES: Opposite. Have supported economic rights (redistribution not a permissible State interest for Constitutional purposes) Economic Noninterventionists. o In current era, DN support these rights of personhood. So, they are Social Interventionists or Paternalists.

14th Amend. creates a bunch of rights Due Process, Equal Protection, Privileges and Immunities. When have 1st-10th Amendments that were in there from the State, how do these relate to each other?

1st-10th (Applies to Federal Government), 14th (Applies to States) Incorporation Controversy: SC decided most of the rights in 1st-10th are incorporated in 14th Amend. through DP clause. o Also, have 5th Amen. DP clause that binds Federal Govt (14th binds the States). Court comes up with reverse incorporation, now DP includes Equal Protection from 14th (if applies to States, should apply to Federal Govt as well) o Could argue an equality principle now grounds redistributive goals Privileges & Immunities Clause of 14th Amend. could be alternative outlet for future expansion of rights in Post-Lochner era. o Ackerman: Capable of stepping outside current interests and politics, and think of broader political framework. Rawls: Philosophical expression of Ackermans historical theory. People are capable of stepping outside own interests to think what our Constitutional values should be. Ackermans theory rests on idea that ppl cannot be in frenzied state all the time (intensive deliberation over principle), usually leave to leg. Limited capacity for intensive deliberation. Different for Madison Citizens capacity to think in broad terms is also limited. People are capable at rising up every 4 years to elect notables in society that are capable of intensive deliberation. o PROF: Would ideally want people to be able to incorporate both experiences Self-interested actors in politics but also aware there is a constitutional mode of thinking (higher principles).

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VI. Equal Protection

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13th Amend: Prohibited slavery and involuntary servitude throughout the US 14th Amend: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US, nor shall any State deprive any person of life, liberty, or property w/o due process of law; nor deny any person w/in its jurisdiction the equal protection of the laws. o Overrules Dred Scott decision All persons born or naturalized in the US are citizens of the US and of the State wherein they reside. CHEM EQUAL PROTECTION (Pages 668-677): o Well settled that the requirements of Equal Protection are the same whether the challenge is to the Federal Govt under the 5th Amendment or to State and Local actions under the 14th Amendment o SC has been clear that Equal Protection DN require allegations that the Govt has discriminated against a group or on the basis of group characteristics; there is a claim under the EP clause even for discrimination against a class of one. o Framework for Equal Protection Analysis: All EP cases pose same basic question of is the Governments classification justified by a sufficient purpose? (1) What is the Classification? EP analysis always must begin by identifying how the Govt is distinguishing among people. 2 Ways of establishing a classification: o Classification exists on the face of the law o Facially neutral law w/discriminatory impact and purpose (2) What Level of Scrutiny should be applied?

Strict Scrutiny: Discrimination based on race or national origin. o Law is upheld if it is narrowly tailored to achieve a compelling Govt purpose thats. Intermediate Scrutiny: Discrimination based on gender and for discrimination against nonmarital children. o Law is upheld if it is substantially related to an important Govt purpose.

Rational Basis Review: Minimum level of scrutiny that all laws challenged under EP must meet. o Law is upheld if it is rationally related to a legitimate Govt purpose. Enormously deferential to the Govt. (2)(a) How has the Court decided which level of scrutiny to use for particular classifications? Court has emphasized the immutable characteristics like race, national origin, gender, and the marital status of ones parents warrant heightened scrutiny Court also considers the ability of the group to protect itself through the political process History of discrimination against the group Related to this is the likelihood the classification reflects prejudice as opposed to a permissible Govt purpose (3) Does the particular government action meet the level of scrutiny? In evaluating the constitutionality of a law, Court evaluates both the laws ends and its means. For SS, compelling end; For IS, important end; For RB, just a legitimate purpose.

A. The Old Regime

Dred Scott v. Sandford (1857, Taney) (Pages 453-456) : Scotts former owner took him from MO to IL, then to MN (part of LA territory). In 1838, returned to MO and Scott sold to Sanford. Slavery legal in MO, but prohibited in IL by state constitution and in the LA territory by the federal statute embodying the MO Compromise. o 3 POINTS: MO COMPROMISE UNCONSTITUTIONAL. BLACKS CAN NEVER OBTAIN CITIZENSHIP. FED GOVT CANNOT FREE SLAVES. Missouri Compromise is Unconstitutional o Taney argued that although no clause of the Constitution expressly dealt with territories acquired after the constitution was created, (Taney said that Article IV 3 cl. 2 irrelevant because the word territoty referred only to the territory which at that time belonged to the USand therefore didnt apply to a territory afterwards acquired from a foreign government ie the Louisiana territory under

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the Louisiana purchase), powers of the US could be inferred from the provisions and principles of the Constitution, and its distribution of powers.

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As such, when the US acquired territories, it was bound to give inhabitants of these territories the same Bill of Rights protections enjoyed by citizens in the states. He argued that US could not create colonies where less than full constitutional protections I guess the northern free states were depriving people of their property rights And an act of congress which deprives a citizen of the US of his liberty or property could hardly be dignified with the name of due process law..5th amendment States cant deprive people of their property rights. An act of Congress, which deprives a citizen of his property merely because he brought his property into a particular part of the United States does not comport with due process of law. States can endow citizenship, but the citizenship does not transfer to other states or to the rights and privileges secured by the federal government. Right of naturalization was surrendered by the States, and confided to the Federal Government. o No state can introduce a new member into the political community created by the Constitution. Historical Argument: Who were citizens of the 13 colonies when the constitution was adopted? o The Declaration of Independence clearly never intended to include slaves. Look to the Language: all men are created equal seems to embrace the entire human family but African race not intended to be included. o Slavery was a moral normative: Blacks had for more than a century been regarded as bengs of an inferior order, that they had no rights which the white man was bound to respect. o England transferred this opinion to the colonies: in ever one of the 13 colonies they were bought and sold as slaves But what about divide between north and south? Slave states and non slave states? Obviously the opinion was changing. o Legislation of colonies before revolution mirrored public norms that were still in place during the Revolution Anti-miscegenation laws Such laws show that a perpetual and impassable barrier was intended to be erected between the white race and the one they had reduced to slavery. The Constitution never intended to confer on slaves or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. Two clauses in the Constitution which point directly to the black race as a separate class of persons, and show clearly that they were not regarded as citizens of the Government. o The contentious issue of slavery was too controversial to be resolved during the convention. As a result, the original Constitution contained four provisions tacitly allowing slavery to continue for the next 20 years. Section 9 of Article I allowed the continued "importation" of such persons,

Fugitive Slave Clause Section 2 of Article IV prohibited the provision of assistance to escaping persons and required their return if successful and 3/5 Compromise: Section 2 of Article I defined other persons as "three-fifths" of a person for calculations of each state's official population for representation and federal taxation. Article V prohibited any amendments or legislation changing the provision regarding slave importation until 1808, thereby giving the States then existing 20 years to resolve this issue. The failure to do so contributed to the Civil War.

Plaintiff is clearly not a citizen and not entitled to sue. So, Plaintiff did not become free by going into a state, which prohibited slavery.

RECONSTRUCTION PERIOD: north reconstructs the south, part of that is the reconstruction amendments 13, 14, 15 amendments, Southern states had to ratify them to come back into the union. What these amendments implied for the structure of the union and protection of rights is a major issue. 13, 14, 15 Amendments:

13 Amendment: abolished slavery preceded by emancipation proclamation basically constitutionalized here. Empowers Congress to enforce. 14 Amendment: various guarantees 15 Amendment: Guarantees right to vote regardless of race.

1. Slaughterhouse Cases: Privileges and Immunities of the 14th amendments enjoys the distinction of having been rendered a practical nullity by a single decision of the Supreme Court rendered within five years after its ratification. Background Bill of rights=first ten amendments to the Constitution. First 8 amendments detail protection of individual rights.

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Article Iv Section Two privileges and immunities clause: The clause did not require a state to grant any particular right to any person, but only prevented a state from conferring certain benefits on its own citizens while denying them to citizens of other states.

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14th Amendment= No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. o One interpretation: This provision was meant to apply the Bill of rights to the states. After all, arent the Bill of Rights the most basic privileges or immunities of citizenship.

The Slaughterhouse Cases

The choice of the words privileges and immunities suggests that the framers intended to protect fundamental rights from state and local interference. The words privileges and immunities were already part of the Constitution Article IV, Section 2 which prevents a state from denying citizens of other states the privileges and immunities it accords its own citizens, ie no discrimination based on state citizenship. In Corfield more than 40 years before the adoption of the 14th amendment, Justice Washington states that the privileges and immunities clause of article IV protected rights which are, in their nature, fundamental; which belong of right to the citizens of all free governments. Hisorical argument is disputed: Some of the members of Congress and the state legislatures probably believed that the privileges or immunities clause included the Bill of Rights, some probably didnt think so, and many probably didnt consider the question.

First Supreme court case to interpret the 14th amendment Facts: Louisiana legislature gave a monopoly in slaughterhouse business to one company. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee. Butcher/Plaintiff argument: State law impermissibly violated their right to practice their trade. The butchers invoked many of the provisions of the recently adopted constitutional amendments. o 13th Amendment: Restriction created involuntary servitude.

o o o
Court: o

14th: Deprived them of their property without due process of law 14th: Denied them equal protection of the laws. 14th: Abridged their privileges or immunities as citizens. Means-end analysis from McCulloch: As long as the end is lawful, then the means is too: Here, state has police power to regulate health issues etc, why cant they establish this piece of legislature as a means to achieve that end? Purpose of the 13th and 14th amendments was solely to protect former slaves. Court then proceeded to interpret each provision very narrowly and solely to achieve this limited goal (of protecting former slaves). Later overruled. Citizenship Clause: 14th Amendment opens with a definition of citizenship, not only of citizenship of the United States, but citizenship of the States in which one resides. Dred Scot Court had held before the civil war that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or the United States. To remove this, and to establish a clear and comprehensive definition of citizenship, the first clause of the first section of 14th amendment was created. 14th amendment overrules Dred Scot. Thus its main purpose was to establish the citizenship of blacks. Court rejected the application of the due process clause to protect a right to practice ones trade (viewed as property) No construction of the due process provision, can the restraint imposed by the Louisiana legislature be held to be a deprivation of property within the meaning of that provision Later overruled. PRIVILEGES AND IMMUNITIES OF FOURTEEN AMENDMENT: However the courts extremely narrow interpretation of the privileges or immunities clause never has been expressly overruled and has precluded the use of that provision to apply to the Bill of Rights.

o o

o o

Specifically, the Court held that the privileges and immunities clause of the 14th amendment was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws. Clause was not intended as a protection to the citizen of a state against the legislative power of his own State because word state was left out of No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the UNITED STATES Justice Miller Such a construction would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of the amendment. priveleges and immunities are left to the state governments for security and protection, and not by this article placed under the special care of the federal government This means that the privileges or immunities clause of the 14th amendment is removed as a basis for applying the Bill of Rights to the states or for protecting any rights from state interference.

CON LAW OUTLINE Court then considered the meaning of the privileges and immunities.

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Interestingly, the court gave a list of rights that were protected under the Constitution even before the privileges or immunities clause was adopted! Therefore, the Slaughter-House cases interpreted the provision in a manner to rob it of all meaning. Slaughterhouse Court: The privileges and immunities clause of the 14th amendment it just about rights of national citizenship, and certainly cant include the right to choose ones calling, thats civil rights, states have power over this.

Dissent: Justice Field If the privileges and immunities clause only refers as held by the majority court to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to the citizens of the United States, it was a vain and idle enactment, which accomplished nothing Justice Bradley: Privileges and immunities of citizens of the United Sates include the guarantees of the first 8 amendments to the constitution. Justice Stephen Field (J. Field) stated that if the Privileges and Immunities Clause refers only to such rights as were specially designated in the Constitution or as necessarily implied as belonging to citizens of the United States, it was an enactment that accomplished nothing. Justice Joseph Bradley (J. Bradley) argued that the granting of monopolies to individuals or corporations is an invasion of the right of others to choose a lawful calling, and thus, an infringement of personal liberty Privileges and Immunities of the 14th amendments enjoys the distinction of having been rendered a practical nullity by a single decision of the Supreme Court rendered within five years after its ratification.

Strauder v. West Virginia, 351-55 1880: Early application of the 14th amendment to Race Discrimination. : Purpose of the 14th amendment: it was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoined to white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by states. No discrimination shall be made against them because of their color, including a law barring jury service to non-white males solely because of their race.

Facts: West VA law limited jury service to white male persons who are 21 yeas old and who are citizens of this state Issue Is a law barring jury service to non-white males solely because of their race constitutional? Supreme Court: NO. But still bases its arguments on the assumption of black inferiority instead of racial equality. o Purpose of the 14th amendment: it was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoined to white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by states. No discrimination shall be made against them because of their color, including a law barring jury service to non-white males solely because of their race. o Right to trial by jury is guaranteed to every citizen by the Constitution of West VA, very idea is that a jury is composed of your peers. o Purpose of the 14th amendment: Designed to protect an emancipated race and strike down all possible legal discriminations against those who belong to it. Dissent o Equal Protection clause extends only to civil rights as distinguished from those which are political, or arise from the form of government and its mode of administration. This is shown by the fact that when it was desired to confer political power upon newly made citizens a new amendment was required (15th amendment) Difference between civil rights and political rights:

Civil Rights: are absolute and personal. Political rights: conditioned and dependent upon the discretion of the elective or appointing power, whether that be the people acting through the ballot or one of the departments of their government.

Plessy v. Ferguson Brown 1896 pg. 359

Facts: Louisiana law adopted in 1890 required railroad companies to provide separate but equal accommodations for whites and blacks; the law required there to be separate coaches, divided by partition, for each race. In 1892 LA prosecuted Plessy, a man who was 7/8ths Caucasian, for refusing to leave the railroad car assigned to whites. Issue: Does the act violate 13th (abolishing slavery) or the 14th amendments (prohibiting certain restrictive legislation on the part of the states) ? No. Supreme court held that the statute did not violate either the 13th or 14th amendments. Reasoning: o 13th amendment: Statute does NOT conflict with the 13th amendment because it merely implied a legal distinction between white men and colored races, and has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. o 14th amendment:

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Wasnt intended to abolish distinctions based on color. Laws permitting or requiring separation in places do not necessarily imply the inferiority of either race to the other and have been recognized within state legislatures in exercise of their police power. Example: separate schools for black and white children which have been held to be a valid exercise of legislative power Example: anti miscegenation laws within police power

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Plaintiff makes slippery slope argument that such a law will invariably lead to other laws such as races walking on different sides of the street, painting their houses a different color etc But court says that Every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of a public good, and not for an annoyance or oppression of a particular case. See Yick Wo statute made here was not in the promotion of a public good but was a covert attempt to make an arbitrary and unjust discrimination against the Chinese race.

Is the LA law reasonable then? Yes, because it promotes the preservation of public peace and good order. Plaintiff: But such laws are based on an assumption of the inferiority of blacks and thus stigmatize them with a second class status. Court: The law does NOT implicitly stamp the colored race with a badge of inferiority. If this is so, its only because the colored race chooses to put that construction upon it. Equal protection clause was designed to assure political not social equality. Its not the job of the legislature to force commingling between the races, this must happen naturally. If one race be inferior to the other socially, the Constitution cannot put them upon the same plane. Dissent: Justice Harlan Such legislation is inconsistent with equality of rights which pertains to citizenship, and the personal liberty enjoyed by ever one within the United States.

o
o

Thirteen amendment not only struck down the institution of slavery, but prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. Statute does not prescribe a rule applicable to white and colored citizens, but compels blacks to keep to themselves while traveling on railroad passenger coaches. Statute interferes with the personal freedom of citizens, if a white man and a black man choose to occupy the same public conveyance on a public highway it is their right to do so, and no government proceeding alone on the grounds of race can prevent it without infringing the personal liberty of each. Police Power argument null: what can more certainly arose race hate, then state enactments which proceed on the grounds that colored citizens are so inferior that they cant be allowed to sit in public coaches occupied by white citizens. Chinese men are not allowed citizenship yet are allowed to ride in the same coaches as whites.

B. Racial Justice: Desegregation to Multiculturalism

Strict Scrutiny: If a classification that disadvantages a racial minority constitutes a racial classification, either b/c the classification explicitly draws racial lines or b/c its motivated by a racial purpose, Court will use strict scrutiny and probably invalidate it. o Purpose Q: Whether leg. intended to disadvantage a racial minority simply for the sake of harming it rather than for sake of achieving some permissible end?

Rational Basis Review: If classification is non-race-specific, Court will use rational basis review despite the classifications disproportionate impact on minority group and probably uphold it. 1. Race and Desegregation

Brown v. Board of Education of Topeka (I) (1954, Warren) (Pages 473-475): Minors had been denied admissions to schools attended by white children under laws requiring or permitting segregation according to race. Segregation was alleged to deprive Ps of the equal protection of the laws under the 14th Amendment. o SEPARATE IS INHERENTLY UNEQUAL o Court: In the field of public education, doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Ps, by reason of the segregation complained of, had been deprived of the equal protection of the laws in the 14th Amendment. Initial Brown decision DN answer remedy ques. Found segregation of children in public schools solely on the basis of race, even though physical facilities and other tangible factors may be equal, deprived children of minority group of equal educational opportunities. Holding and Rule (Warren)YES: The race-based segregation of children into separate but equal public schools violates the Equal Protection Clause of the Fourteenth Amendment and is unconstitutional.

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The separate but equal doctrine adopted in Plessy v. Ferguson, which applied to transportation, has no place in the field of public education. o There have been previous cases involving separate but equal doctrine in the field of public education, but in none of these cases was the validity of the doctrine itself challenged: in none of these cases was it necessary to re-examine the doctrine to grant relief to the black Plaintiff. Most important: Courts decision does not turn merely on tangible factors comparing white schools to black schools, but on the effect of segregation itself on public education o there were already findings that Black schools and white schools involved were being equalized with respect to tangible factors such as buildings, curricula, qualifications and salaries of teachers etc. The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the role of public education in American life today since the court is looking at the effect of segregation ITSELF on public education. o Very little in history of the 14th amendment relating to its intended affect on public education. Development of public schooling in the south lagged behind those in the north AND even the conditions of public education in the North do NOT approximate those existing today. Education is the most important function of local and state governments: it is doubtful that any child should succeed in life if he is denied the opportunity of an education. Such an opportunity is a right which must be made available to ALL on equal terms. o Separating black children from others solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. o The impact of segregation is greater when it has the sanction of law. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law tends to impede the educational and mental development of black children and deprives them of some of the benefits they would receive in an integrated school system. Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority and any language to the contrary in Plessy v. Ferguson is rejected. Separate educational facilities are inherently unequal. The court did not prescribe a remedy. But asked for reargument in the next term on that issue. A year later in Brown II, the SC remanded the cases to the lower courts to use traditional equity princples to fashion remedies to admit to public schools on a racially nondiscriminatory bases with all deliberate speed the parties to these cases o What method of Cons. interpretation justifies this change from Plessy to Brown? Simply that Plessy was wrong to begin with? (see Plessy)

Intent: When look at intent, there is general and specific intent, so maybe the framers DN specifically intend to desegregate schools but they had a more general intent to promote social equality. What Court is doing in Brown, is take this general intent and apply it to some new facts. Facts have changed, and Court is taking an originalist position. Principles: Another way to look at this is Court is looking at general principles in the 14th Amendment in the beginning. What if there was evidence that Framers of the 14th Amendment affirmatively opposed school integration, suggesting that their understanding of the general purpose and principles was different? Is it legitimate for Court in 1950s to say principles have evolved? Text: Text really hasnt changed. History: Global context utterly different now from 1860s. Must have some meta-method that tells you when its legitimate to change method of interpretation that will include expressive or demonstrative functions in a global context. Court does point to historical changes and wouldnt need to do that if it were taking a purely originalist position. o Legitimate Interpretation: Point is Court is looking to current social norms, thats an internal critique to the methods of Constitutional interpretation. Could say tradition in Courts of deciding cases based on all this stuff. Only accept the political truce as a legitimate element in constitutional interpretation if judges can identify it as a moment where people are stepping outside of the political war. Not really a political truce, but a political settlement after higher deliberation over the long-term values of society. Whose morality counts? o Political ideology or moral beliefs and these guide the decision, and these doctrines (in the chart) dont matter. Perhaps thats illegitimate in some sense, going back to countermajoritarian difficulty Why in a democracy, do we have 9 people imposing their values on the rest of us? o Maybe Court thinks theres a real possibility for social integration now. Very confident Court then Going to implement our values but with expectation that these are going to project wildly into society.

CON LAW OUTLINE 73 o In the aftermath of Brown, liberal law professors actually made arguments: Wechsler: Argued there was no neutral principle to justify Brown, and that law has to be
based on neutral principles. Charlie Black: Argued we know separate is inherently unequal, know that cultural meaning of this law is to stamp Blacks with a badge of inferiority. After Brown, Court held that many other segregated facilities were unconstitutional: Gayle v. Browder (buses); Holmes v. City of Atlanta (municipal golf courses); Mayor of Baltimore v. Dawson (public beaches and bathhouses). Calls into question the assertion that public education is a special area particularly deserving of equal treatment.

Bolling v. Sharpe 1954 decided the same day as Brown: Reverse incorporation: incorporation of equal protection into due process

clause of the 5th amendment ALWAYS (except for immigration issues): federal government also cant separate the public schools.
Facts:

Issue:

The Petitioners, Negro minors (Petitioners), allege the segregation in the public schools of the District of Columbia deprives them of Due Process of law under the Fifth Amendment of the United States Constitution (Constitution). The District of Columbia is governed by federal law, not state law therefore the 14amendment of the Constitution does not govern the District of Columbia.

Whether the Due Process Clause of the Fifth Amendment of the Constitution is violated by the segregation of public school children in the District of Columbia? Holding: yes Due process and equal protection are not interchangeable (5th amendment does not contain the 14th amendments equal protection clause the more explicit safeguard of prohibited unfairness) The Supreme Court found in this case that segregation of public school children is also unconstitutional based on federal laws because personal liberties protected by the Due Process Clause of the Fifth Amendment were violated. o Liberty is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for property government objective. o Rational Basis test: Segregation in public education is not reasonably related to any proper governmental objective, and thus imposes on black children a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

Brown v. Board of Education (II) (1955, Warren) (Pages 481-482): o DESEGREGATION WILL OCCUR WITH ALL DELIBERATE SPEED o Court: Held Cases would be remanded to District Courts to enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to these cases. Courts (local federal courts) that originally heard these cases can best perform judicial approach of considering whether action of school authorities constitutes good faith implementation of the governing constitutional principles Courts may consider problems related to administration, arising from physical condition of the school plant, school transportation system, etc. AND adequacy of plans Ds may propose to meet these problems o Why does SC say All deliberate speed (means not immediately). Why didnt Court demand immediate desegregation, having found this grave injustice? Court acknowledged likely resistance to mandated segregation PROF: One possibility is Court anticipates if it orders immediate desegregation, local school districts and States where those districts are located are going to flout the SCs order. But if thats the only resistance, Court does have the power behind it (power of US Marshals who enforce orders, and if necessary, the US Army) to enforce decision. Is it legitimate to give way to fact that Parties that are the wrongdoers may continue to resist and do wrong? o After Brown, Courts found themselves in position of restructuring or supervising restructuring of an entire social institution (schools). Courts instead of ordering a one-shot payment of money damages, or one-shot change of behavior in injunctive relief, are closely supervising transformation of a complex institution.

SC, in Brown II, says we are going to turn this over to the District Courts to figure out in the 1st instance. Could make sense, since problems are local, complex, and require experimentation which goes to SC to sort out what is legitimate and whats not.

CON LAW OUTLINE o Brown IIs all deliberate speed formulation has been widely criticized. Arguments

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against this approach: If segregation is unconstitutional, Court cannot legitimately tolerate continued segregation Brown II needlessly encouraged White resistance to desegregation by failing to demand an immediate remedy Brown II overstated the administrative difficulties of desegregation

Court acted unwisely in remitting the task of enforcement and elucidation of Brown I to the lower federal courts Massive Resistance to School Desegregation South responded to Brown with a barrage of measures designed to preserve and entrench segregation. Supreme Court remained largely silent during this period until two cases: Cooper v. Aaron o SC ordered Little Rock AK to proceed with school desegregation in the face of state-inspired opposition, violence, and disorder. Griffin v. Prince Edward o Court ordered a county school system reopened after it had been closed for 5 years to avoid desegregation. Pupil Placement Acts o By requiring time consuming individualized determinations of all requests for transfers, pupil placement acts allowed local school boards to preserve the racial status quo. TWO TYPES OF DESEGREGATION PLANS: o Basis of Residence Unitary Zoning Consolidating dual attendance zones into one unitary zone, would have led to whites going to formerly black schools which were inferior in every traditional measure of school quality. Goss v. Knoxville SC held these majority to minority transfer provisions unconstitutional on the ground that they were based solely on racial factors which inevitable lead towards segregation of the students by race. o Most popular: Freedom of Choice Each child could opt to attend either a formerly white or black school. The district was required to furnish transportation to the nearest school of the pupils opposite race. No choice could be denied for any reason other than overcrowding, in which event preference was based solely on geographic proximity. Seldom yielded desegregation! 10 years after Brown, less than 1 percent of black children in the deep south attended schools with whites. A. Green v. County School Board 1968 Brennan : Supreme Court declared unconstitutional a freedom of choice plan that was a common approach used to frustrate desegregation. The school district could NOT employ a freedom of choice plan when its effect was to perpetuate the long standing tradition of segregation. School boards were charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.

Facts: School system in rural VA adopted a desegregation plan where students could choose which school to attend (freedom of choice plan) Supreme Court declared unconstitutional a freedom of choice plan that was a common approach used to frustrate desegregation. The school district could NOT employ a freedom of choice plan when its effect was to perpetuate the long standing tradition of segregation. School boards were charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. Freedom of choice plan did not come until 11 years after Brown 1 was decided!! This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Freedom of choice plan is not an end in itself ; if it fails to undo segregation, other means must be used to achieve this end. Three years after freedom of choice was enacted, no white student was attending a black school and only 15 percent of the black students were attending white schools. SCHOOL DISTRICT MUST FORMULATE A NEW PLAN.

B. Swann v. Board of Education 1971 Burger: Remedial judicial authority doesnt put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults; basically when they arent doing enough to rid segregation. SC approved Four important remedial features in the desegregation plan.

Facts: Following Green the district court ordered a new plan that redrew school districts to improve racial balance. The plan also ordered School busing: black students in the first four grades were bused to the outlying schools and white 5th and 6th grade students were bused to the city schools.

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Issue: Supreme Court addressed the issue of the federal courts power to issue remedies in school desegregation cases. Holding: SC said District Courts have broad authority in formulating remedies in desegregation cases. However, Remedial judicial authority doesnt put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults; basically when they arent doing enough to rid segregation. Court approved Four important remedial features in the desegretation plan: o 1. Court upheld the limited use of racial goals in remedial orders: This does not mean that every school in every community must always reflect the racial composition of the school system as a whole. However, awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. o 2. Plan for a unitary system could retain some one-race schools. o 3. Once a constitutional violation was shown, the DC possessed the power to order pupil reassignments on the basis of race bc ratially neutral plans may failed to counteract the continuing effects of past school segregation. o 4. Court approved use of busing as a judicial remedy. o 5. Limits of Judical Intervention Doesnt mean the federal courts are without power to deal with future problems, but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary. Court said that DC could use busing as a remedy where needed.

C. Keyes v. School District No. 1 1973 Brennan: Courts first important statement on Northern segregation (de facto segregation) where segregated schools were not the product of state laws. Absent laws requiring school segregation, Ps must prove intentional segregate acts affecting a substantial part of the school system to provide a basis for a federal court remedy. A finding of intentionally segregative school board actions in a meaningful portion of a school system creates a presumption that other segregated schooling within the system is also intentional. POWELL: Emphasizes this idea that state is acting whether segregation is state created, assisted,

or perpetuated

Courts first important statement on Northern segregation (de facto segregation) o In northern states, where segregated schools were not the product of state laws, the issue arose as to what had to be proved in order to demonstrate an equal protection violation and justify a federal court remedy. Unlike southern school systems, the Denver school system had never been segregated by the mandate of any state law. Ps claimed that the schools were de jure segregated as the result of the school boards race conscious manipulation of attendance zones and selection of school sites. Posture: 10th circuit reversed the portion of the DC decree requiring desegregation of the inner city schools. SC reversed. Holding: Absent laws requiring school segregation, Ps must prove intentional segregate acts affecting a substantial part of the school system. Reasoning: o Ps did not have to prove an intent to segregate with respect to every segregated school in the system. o A finding of intentionally segregative school board actions in a meaningful portion of a school system creates a presumption that other segregated schooling within the system is also intentional. Burden then shifts to school authorities to show that their actions as to other segregated schools within the system were not also motivated by segregative intent. o The differentiating factor between de jure segregation and de facto segregation is purpose or intent to segregate. Latter constitutes a constitutional violation only if there is proof of discriminatory purpose. Dissent Rhenquist: No affirmative duty to desegregate should exist in situations of de facto segregation. o He says that Green went too far. o Theres a diffrence between a truly dual (segregated) system and a system like that which was not segregated by law, not as a district truly dual. Have to reign in this policy venture that courts have imbarked on. Concurrence: o Powell urged the Court to abandon the distinction between de jure and de facto segregation and require that all schools act to end school segregation. o Didnt like double standard between north and south. o If theres an affirmative duty to integrate, then what difference does it make if its de facto or de jure? o Emphasizes this idea that state is acting whether segregation is state created, assisted, or perpetuated Consequences of Keys in North were basically that de facto distinction didnt matter bc its not that hard to find intentional discrimination somewhere.

D. Miliken v. Bradely 1974 Burger: SC imposed a substantial limit on the courts remedial powers in desegregation cases. The remedy must not be interdistrict if the violation was not interdistrict. Before the boundaries of separate school districts can be set aside to create a remedy that involves multiple school districts, it must be shown that the constitutional violation was inderdistrict. (across districts) like

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when one or more school districts have caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race.

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Facts: The District Court found de jure segregation within the city of Detroit, and entered a desegregation decree that included 53 surrounding suburban districts, although there was no substantial evidence of race-dependent action intentionally designed to segregate the citys Blacks from the suburbs Whites. Issue: Whether the remedy for unconstitutional de jure segregation found in a particular public school district (Detroit) may include suburban school districts also? Holding: No. Majority Reasoning: The scope of the lower courts remedy exceeded the scope of the constitutional violation. The remedy must not be interdistrict if the violation was not interdistrict. o Before the boundaries of separate school districts can be set aside to create a remedy that involves multiple school districts, it must be shown that the constitutional violation was inderdistrict. (across districts) like when one or more school districts have caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. Since only one particular school district was found to have de jure segregation, it was the only district to which remedies were appropriate. Holding differently would go outside of Brown I and Brown II. There was no finding that the other school districts contributed to the segregation. Dissent: Justice White

Relevant Actor is the state: Theoretical argument: Doesnt matter wether the violation was interdistrict or not for imposing an interdistrict remedy because constitutional violations were committed by governmental entities for which the State is responsible regardless.

From Reyonolds: Such subdivisions (here school districts) are merely subordinate governmental instrumentalities that assist in the carrying out of state governmental functions, and should be treated as such. Dissent: Justice Marshall Violation was probably interdistrict because the states action might have contributed to the disparity between the racial makeup of Detroit and of its surrounding suburbs. States creation of all black schools through de jure segregation led to whites filling schools in suburbs and blacks filling schools in the city. There is no reason why school district lines should sheild the state. Random Milikan can be defended based on the traditional principle that a court has the authority to impose a remedy only after it has proved that the person or entity violated the law.

Milikin had devastating effect on ability to achieve desegregation in many areas. In a number of major cities, inner city school systems are substantially black and are surrounded by almost white suburbs. Yet miliken precludes an interdistrict remedy unless there is proof of an interdistrict violation.

9. Milikin v. Bradley II Alternative remedies to de jure segregation: DC might order the state to expand funds for remedial education designed to put black students roughly in the position they would have been but for the original constitutional violation. 10. Missouri v. Jenkins 1995: remedies such as the creation of magnet schools and salary increases for teachers and school staff exceed the District Courts remedial power in this case. Following Milliken II, the goal of attracting white students from outside the school district at issue was not a permissible remedy to a case that only involved an intradistrict constitutional violation. The case did not involve interdistrict constitutional violation that would support interdistrict relief. This interdistrict goal of attracting non-minority students from outside the KCMSD schools is beyond the scope of the intradistrict violation identified by the District Court. De Facto segregation as seen from all white suburbs is not enough. Racial isolation itself is not a harm, only state-enforced segregation is. Brown Concurrence: CRITICAL QUESTION IS WHETHER STATE ACTORS HAVE ENGAGED IN INTENTIONAL DISCRIMINATION BY USING RACIAL CLASSIFICATION. Racial classification offends the constitution because they are arbitrary.

Facts: In 1977 the Kansas City Missouri School District and a class of students sued Missouri for operating segregated schools in Kansas City. De jure segregation in the city, not in the suburbs. o In 1985, the district court then ordered the legal remedies with dual goal of attracting white students back into public schools, and providing minority students with quality educational programs.

Remedies included the creation of magnet schools, which were thought to be the best way to attract white suburban students back into city schools. The district courts ordered increased salary to teachers and school staff. District court also ordered continued state funding for the magnet schools so long as student achievement schools remained below national norms.

Issue: Did remedies such as the creation of magnet schools and salary increases for teachers and school staff exceed the District Courts remedial power in this case? Holding: Yes. Following Milliken II, the goal of attracting white students from outside the school district at issue was not a permissible remedy to a case that only involved an intradistrict constitutional violation. The case did not involve interdistrict constitutional violation that would support interdistrict relief.

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Reasoning: o 1. This interdistrict goal of attracting non-minority students from outside the KCMSD schools is beyond the scope of the intradistrict violation identified by the District Court. You can only fix the harms attributed to de jure segregation. How are you going to figure that out? Very difficult to do so and may not be able to do this. o 2. Increased expenditure on teachers salaries or books or buildings cannot be sustained either because this rationale of increased expenditure leading to more nonminority students attending schools in the KCMSD is not susceptible to any objective limitation. o 3. On issue of continued state funding when test scores are below national standard, Court implies that disparities between African American and white students on standardized tests were not a sufficient basis for concluding that desegregation had not been achieved because varying test scores courts may not be the result of segregation and therefore do NOT figure into the remedial calculus. WHY DIDNT IT MATTER THAT THE FEDERAL COURT DESEGREGATION EFFORTS ACTUALLY MADE A DIFFERENCE???? ACTUALLY LED TO DESEGREGATED SCHOOLS by 1993 no elementary school student attended a school with in enrollment that was 90 percent or more African-American. Dissent: Souter o Majority misread Milliken I and II. o The court in MILLIKEN I and II did not hold that any remedy that takes into account conditions outside of the district in which a constitutional violation has been committed is an interdistrict remedy and as such is improper in the absence of an interdistrict violation. Milliken remedy focused on affecting suburban districts that had commited constitutional violations while this case focuses on the district itself that had committed constitutional violations, and only incedently affects outer districts by attracting non-minority students. o Following, the DC has the remedial power to order such remedies as it did in this case when the remedies are necessary to redress the harms flowing from the constitutional violation, even if the intended effects go beyond the district of the wrongdoers violation. Concurrence: Thomas o The existence of one race schools is not by itself an indication that the state is practicing segregation; this may reflect voluntary housing choices or other private decisions. o To find unconstitional segregation, plaintiffs must prove all the essential elements of de jure segregation: segregation resulting from intentional state. o Misreading of Brown: District Courts ruling appears to rest on the idea that any school that is black is inferior and that balcks cannot succeed without the benefit of the company of whites. Stemmed from a misreading of Brown. With sociological studies that de jure segregation harmed black stuents by generating a feeling of inferiority, the DC believed that black students in the KCMSD would contnue to receive in inferior education despite the end of de jure segregation, as long as de facto segregation persisted. Brown did not say that racially isolated schools were inherently inferior, the harm that it identified was tied purely to de jure segregation, not de facto segregation. Brown I did not need to rely on any psychological or social science research in order to annoynce the simple yet fundamental truth that the government cannot discriminate among its citizens on the basis of race. CRITICAL QUESTION IS WHETHER STATE ACTORS HAVE ENGAGED IN INTENTIONAL DISCRIMINATION BY USING RACIAL CLASSIFICATION. Racial classification offends the constitution because they are arbitrary. Racial isolation itself is not a harm, only state-enforced segregation is.

2. Rational Basis Review a. Basics

Rationality Basis Test: Minimum level of scrutiny that all Govt actions challenged under equal protection must meet. Basic requirement is that a law meets rational basis review if it is rationally related to a legitimate Govt purpose. o Real question in Equal Protection cases involves deciding whether, under particular circumstances, a challenged classification is permissible? How has the Govt defined the group being benefited or burdened? What is the goal the Govt is pursuing? Sufficient connection between means Govt is using & ends it is pursuing? o SC has been extremely deferential to the Govt when applying the rational basis test. Result is that it is very rare for the SC to find that a law fails the rational basis test, one of the few exceptions being Cleburne. When to use? o When there is no suspect classification or fundamental right b/c the classification is presumptively Constitutional. The Doctrine State must show:

CON LAW OUTLINE o (1) Legitimate govt. purpose (not necessarily the actual Govt
What constitutes a legitimate purpose?

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purpose)

At the least, Govt has a legitimate purpose if it advances a traditional police purpose: protecting safety, public health, or public morals (See, Williamson). But also, virtually any goal that is not forbidden by the Con. will be deemed sufficient to meet the rational basis test. Must it be the actual purpose behind the law or is it enough that such a purpose is conceivable? Law will be upheld so long as the Govt can identify some conceivable legitimate purpose, regardless of whether that was the Governments actual motivation. (2) Means must be rationally related to ends purpose seeks to achieve Law will be upheld unless the Governments action is clearly wrong, a display of arbitrary power, not an exercise of judgment. Court will allow laws that are both significantly underinclusive and overinclusive:

Underinclusive: DN regulate all who are similarly situated. Overinclusive: Regulates individuals who are not similarly situated Covers more people than it needs to in order to accomplish its purpose (See, Beazer)

b. Cases

Williamson v. Lee Optical of OK (1955, Douglas) (Page 764): OK Statute made it unlawful for an optician to fit or duplicate lenses without a prescription from an ophthalmologist or optometrist. Opticians can make proper glasses without prescriptions in some cases. o AS LONG AS COURT CAN CONCEIVE OF SOME LEGITIMATE PURPOSE AND THE LAW IS REASONABLE, WILL BE UPHELD. o Court: Upheld law. Law need not be in every respect logically consistent with its aims to be Constitutional. Court emphasized public health as a basis for finding a law constitutional, despite law seeming to have a clearly protectionist purpose. OK law might impose a needless, wasteful requirement in many cases, but it is for the legislature, not the Courts, to balance the advantages and disadvantages of the new requirement. Enough there is an evil at hand for correction, and it might be thought that the particular legislative measure was a rational way to correct it. o Rationality Review

PROF: Carolene Products was a similar example of this. Statute almost always passes the test. Classic case where the law appears to be overinclusive, meaning the law creates a category, and the regulation is justified as to some subset of the category. Stricter Scrutiny requires a tight fit between the Legislative purpose and the classification used by the Legislature.

3. Strict Scrutiny STRICT SCRUTINY FOR DISCRIMINATION BASED ON RACE AND NATIONAL ORIGIN o Racial classifications will be allowed only if the Govt can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling Govt purpose. Govt must show: (1) Compelling Govt interest or purpose for its action (2) Racial categorization is necessary. Goal cannot be achieved through any less discriminatory alternatives. o Justifications for Strict Scrutiny of Racial Classifications: Long history of racial discrimination makes it very likely that racial classifications will be based on stereotypes and prejudices. Test flushes out invidious motives by requiring law to fulfill 2 requirements above. Race is rarely, if ever, relevant to any legitimate governmental purpose Racial classifications violate a fundamental moral norm Heightened scrutiny for Govt actions discriminating against racial and national origin minorities is justified b/c of the relative political powerlessness of these groups Race is an immutable trait Unfair to discriminate against people for a characteristic that is acquired at birth and cannot be changed. 2 Ways of demonstrating existence of a race or national origin classification: o Classification exists on the face of the law (Text of law draws a distinction among people based on race or national origin)

CON LAW OUTLINE 79 (1) Laws that expressly impose a burden or disadvantage on people b/c of their race or
national origin Korematsu (3) Statutes requiring separation of the races Plessy Law is facially neutral, but a race or national origin classification might be proved by demonstrating discriminatory administration or discriminatory impact.

(2) Government actions that burden both whites and minorities Loving

(1) Requires proof of a discriminatory purpose (See, Washington v. Davis, McClesky v. Kemp). (2) Need proof that the Govt desired to discriminate. Not enough to prove that the Govt took an action with knowledge that it would have discriminatory consequences (See, Arlington Heights) (3) Evidence of discriminatory purpose shifts the burden to the Govt to prove that it would have taken the same action w/o the discriminatory motivation (See, Arlington Heights footnote)

SUMMARY: If a law is racially neutral, challenger must show a discriminatory purpose and a discriminatory effect. If such proof is provided, Govt has opportunity to demonstrate that it would have taken the same action regardless of race or national origin. a. FACIALLY-DISCRIMINATORY LAWS Korematsu v. United States (1944, Black) (Pages 525-529): See facts above. o UPHELD ORDER DESPITE RACIAL CLASSIFICATION B/C IT WAS WARTIME AND HARDSHIPS ARE PART OF WAR. o Court: Upheld exclusion order. Survives Strict Scrutiny. o Strict Scrutiny: (requirements first articulated in this case) Is there a compelling interest? Seems to be a compelling interest, during wartime Is this the necessary means to satisfy compelling interest? (primary issue) Less discriminatory alternative means? o Discriminatory means used here are necessary, b/c no LDA means. No LDA involves proving a negative Have to imagine all possible alternative means that might be less discriminatory and compare them w/means actually used. o One case where a law has passed strict scrutiny. Racial classification was enormously overinclusive (all Japanese-Americans were interned b/c a few might be disloyal) and enormously underinclusive (those of other races who posed a threat of disloyalty were not interned and evacuated). However, highly discredited case. For that reason, typically say once you apply strict scrutiny, the law is gone. Loving v. Virginia 1967 : FACIALLY DISCRIMINATORY LAW: Equal Protection requires, at least, that classifications based on race be subject to the most rigid scrutiny. Requiring the consideration of whether the classifications drawn by any statute constitute an arbitrary or individious discrimination. Strict Scrutiny Test bottom of page 962: If statutes using racial classifications are to be upheld, they must be shown to be necessary to the accomplishment of some permissible (later to be construed as compelling) state objective, independent of racial discrimination. Ends are a problem, this is about white supremacy (racial integrity): The statutes were clearly drawn upon race-based distinctions. The legality of certain behavior were based on the races of the people engaging in it. Means are also a problem, because if you want the end of racial integrity, why are you only applying the statute to white marriage? Facts: The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or the reverse. The constitutionality of the statutes was called into question. Posture: The Supreme Court of Appeals of Virginia held that the statutes served the legitimate state purpose of preserving the racial integrity of its citizens. State: Argued that Equal protection means that state laws containing an interracial element must apply equally to both whites and non whites. The State argued that because its miscegenation statutes punished both white and black participants in an interracial marriage equally, they cannot be said to constitute invidious discrimination based on race and, therefore, the statutes commanded mere rational basis review. Then under rational basis review, the court should defer to the wisdom of state legislature in adopting its policy of discouraging interracial marriage.--> States main concern in these statutes is preserving racial integrity. Issue. 1. Was rational basis the proper standard of review by which to evaluate the constitutionality of the statutes? No. Need to use strict scrutiny.

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2. Were the Virginia miscegenation statutes constitutional under the Equal Protection Clause? No. Holding: No and No.

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Two ways courts reject states equal application argument: o The mere fact that a statute is one of equal application does not mean that the statute is exempt from strict scrutiny review when racial classification is involved. o Equal Protection requires, at least, that classifications based on race be subject to the most rigid scrutiny. Requiring the consideration of whether the classifications drawn by any statute constitute an arbitrary or individious discrimination. Strict Scrutiny Test bottom of page 962: If statutes using racial classifications are to be upheld, they must be shown to be necessary to the accomplishment of some permissible (later to be construed as compelling) state objective, independent of racial discrimination. Court is looking for pretext in applying strict scrutiny: o Court says there is patently no legitimate overriding purpose independent of individuous racial discrimination which justifies this classification (preservation racial integrity is not legitimate) o Ends are a problem, this is about white supremacy (racial integrity): The statutes were clearly drawn upon race-based distinctions. The legality of certain behavior were based on the races of the people engaging in it. o Means are also a problem, because if you want the end of racial integrity, why are you only applying the statute to white marriage? Legislation actually doesnt even apply equally: The fact that Virginia bans only interracial marriages involving whites is proof that the miscegenation statutes exist for no purposes independent of those based on arbitrary and invidious racial discrimination. (in footnote c) Statute also violates DUE PROCESS clause of the 14th amendment by taking away liberty Freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by freemen.

Concurrence. Justice Potter Stewart (J. Stewart) Goes further than majority and argued it is not possible for a state law to be valid which makes the criminality of an act depend upon the race of the actor.

The key to this case is articulated in J. Stewarts concurrence. The miscegenation statute was improper because it made the legal consequences of an action turn on the races of the persons participating in it.

Palmore v. Sidoti 1984 Facts: Ms. Sidoti had been awarded custody of her 3 year old daughter after divorce. After she began living with an African American Man whom she later married, Florida state court awarded custody to her ex husband based on the fact that she had chosen a lifestyle unacceptable to her father and to society. If the child were allowed to remain with her mother, she would be more vulnerable to peer pressures and suffer from social stigmatization. SUPREME COURT REVERSED: Applied Strict scrutiny: it was clear that outcome would have been different if she had remarried a Caucasian man.

Law cannot give effect to Private Biases: Private biases and the possible injury they may inflict are NOT permissible considerations for removal of an infant child from the custody of her natural mother. Constitutional CANNOT control such biases nor can it tolerate them.

4. Subjective Intent: Facially neutral laws with discriminatory impact Triggers of Strict Scrutiny? o 1) Knowledge of consequences, but Govt takes action in SPITE of the disparate impact (consequences)

See McClesky Says DN trigger SS. 2) Knowledge of consequences, but action is taken b/c of disparate impact Yes. Get to SS. o 3) Govt explicitly intends to differentiate on the basis of race Yes. Get to SS. o 4) Facial Categorization Korematsu (Govt enacts law saying Japanese will be put in prison camps). DN have to look at subjective intent. Captured w/initial fact that there is a facial categorization based on race in the statute in the first instance o 5) Invidious/Hostile Racial Motive DN make sense, since test is for invidious motive a. FACIALLY NEUTRAL LAWS WITH DISCRIMINATORY IMPACT
o

Griggs v. Duke Water Power Co. Justice Burger Unanimous Court 1971 : CASE IS ABOUT TITLE VII. Title VII prohibits facially neutral practices that have a disparate impact, where as has to be discriminatory purpose for equal protection to kick in.

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Facts: A company had an employment screening procedure that required the applicants to take a general intelligence test and have a high school diploma. The practical effect was that fewer blacks were being hired, and the standards were not shown to have a predictive affect on job performance. Issue: Whether, in a Title VII case, the giving of general intelligence tests and requiring a high school diploma for employment are violations of equal protection if the practical result is to statistically exclude more blacks than whites, and the tests do not have a demonstrated predictive affect on job performance. Holding: Yes. Reasoning:

Point of this interlude is to be clear about what is required under equal protection clause but this case focuses on TITLE VII o Intent for Equal Protection o Impact for Title VII How does facially neutrally test discriminate against minorities? o Freezes the status Quo of prior discriminatory employment practices Qualifications have to be related to the job because otherwise they are PRETEXTUAL, they are ARBITRARY TITLE VII prohibits facially neutral practices having a disparate impact
Employer has burden of showing that requirements have a relation to the job

2. Washington v. Davis 1976: Laws or practices that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose (like the law or practice not being related to job performance) under 5th amendment equal protection. Laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose. Disproportionate impact is not irrelevant, but it alone does not trigger the rule that racial classifications are subject to the strict scrutiny standard of review. Invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact that the law bears more heavily on one race than on another (disproportionate impact) but it by itself does not who violation of equal protection or that court should apply strict scrutiny. Facts: A higher percentage of black applicants than white applicants failed a qualifying test administered by the District of Columbia Police Department. Some of the unsuccessful black applicants claimed these effects constituted unconstitutional discrimination against them. Case involves a practice that has a neutral purpose but disproportionate racial consequence. Issue. Was proof of the disproportionate effects of the qualifying exam sufficient to ground a finding that the exam unconstitutionally discriminated against the respondents? (Sued to invalidate the test on the ground that it was racially discriminatory of the Fifth Amendment, District of Columbia under Title VII) Holding: NO. Proof of a disproportionate impact is not enough, standing alone, to ground a finding that a law amounts to unconstitutional discrimination. Court of Appeals decision reversed. Reasoning: Court of appeals erroneously applied STRICT SCRUTINY applicable to TITLE VII cases. o When Strict Scrutiny is applied: Strict Scrutiny is applied under Title VII cases : Under Title VII Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is insufficient response to demonstrate some rational basis for the challenged practices.

Disproportionate impact does not by itself violate equal protection under 5th amendment, without regard for governmental intent showing a racially discriminatory purpose o School segregation cases o Strauder v. West Virginia white juries case. Disproportionate impact is not irrelevant, but it alone does not trigger the rule that racial classifications are subject to the strict scrutiny standard of review. o Invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact that the law bears more heavily on one race than on another (disproportionate impact) but it by itself does not who violation of equal protection or that court should apply strict scrutiny. Laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose. Rational Basis Review because purposeful discrimination could not be shown: The exam is rationally related to the legitimate government purpose of ensuring that police officers have acquired a particular level of verbal and written skill. o This case doesnt show that the disproportionate impact of the test is a purposeful device to discriminate against blacks. Test is administered to everyone and has a legitimate purpose.

Concurrence. Justice John Paul Stevens

Seems like he places more importance on evidence of impact alone can be enough if its bad enough: frequently the most probative evidence of intent will be a showing of what actually happened, meaning that you can infer intent from disproportionate impact. A Constitutional issue does not arise, however, every time some disproportionate impact is shown.

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Two reasons why the test here is legitimate: o Test serves a neutral and legitimate purpose o Same test is used throughout federal law

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Important Effects of Washington v. Davis aware that this section was not in text book but in chemirinsky.

After this case, a court confronted with a law that has a disproportionate effect on a racial minority, must first determine if the law is race specific. If it is, either because the law is facially discriminatory or because the law was motivated by a racial discriminatory purpose, the law will probably be invalidated under the strict scrutiny standard of review. If the law is non-race specific, the court will apply the rational basis standard of review, regardless of the laws impact on racial minorities.

Judicial Review of Covert Race-Dependent Decisions: The Inquiry Into Motivation. A. The Arlington Heights Factors 1977: Court reaffirmed rule of Washington v. Davis that mere showing of discriminatory effect was not sufficient: plaintiffs had to show that intent to discriminate was a motivating factor. But even proof that a decision was motivated in part by a racially discriminatory purpose did not necessarily result in its invalidationsuch proof would have shifted burden to GOVERNMENT to prove that same decision would have resulted even had the impermissible purpose not been considered (SAME DECISION TEST). Court offered a list of factors for courts to use to determine whether governmental decisions were racially motivated.: Ps have to show whether intent to discriminate was a motivating factor: These factors help court determine whether a decision was even if partially racially motivated, if it was SUBSTANTIAL>

1. Impact of a law may be so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes. Show statistical pattern thatn can be explained only by a discriminatory purpose. whether a clear pattern, unexplainable grounds other than race, emerges from the effect of state action even when the governing legislations appears to be neutral on its face 2. The historical background of the decision, particularly if it reveals a series of official actions taken for individuous purposes. 3. The specific sequence of events leading up the challenged decision 4. Departures from the normal procedural sequence 5. Substantive departures where the factors usually considered important by the decision maker strongly favor a decision contrary to the one reached 6. The legislative or administrative history, especially where there are contemporary statements by members of the decision-making body, minutes of its meetings.

B. But-for Motivation Hunter v. Underwood 1985

Using Arlington Heights court struck down a provisions of the Alabama Constitution that disenfranchised persons convicted of certain enumerated felonies and misdemeanors. Court found that law would not have been adopted in the absence of the racially discriminatory motivation. It is a but/for motivation. Justice Rheinquist Proper Inquiry: Once racial discrimination is shown to have been a substantial or motivating factor behind the enactment of the law, the burden shifts to the laws defenders to demonstrate that the law would have been enacted without this factor.

Palmer v. Thompson 1971 SC found that equal protection was not violated when a city council voted to close down its previously segregated swimming pool rather than allow it to be integrated. (to maintain peace and order)

No case in this court has held that a legislative at may violate equal protection solely because of the bad motives of its supporters. case suggests that discriminatory purpose alone is insufficient to prove that a facially neutral law constitutes a race or national origin classification. (if purpose alone would be sufficient, another law would be repassed with just another justification for it. )

Together with Washington it appears that a facially neutral law will be regarded as creating a race or national origin classification only if there is proof of BOTH a discriminatory impact to the law and a discriminatory purpose behind it. same end but dont invidiously discriminate or at least not to the same extent.

5. Affirmative Action, Benign Intent, and Diversity

CHEM: Clearly established SS is used to evaluate all Govt affirmative action plans o Arguments for SS for AA programs:

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All racial classifications whether invidious or benign should be subjected to SS. Con requires that the Govt treat each person as an individual w/o regard to his race, and SS used to ensure this occurs All racial classifications stigmatize and breed racial hostility, and therefore all should be subjected to SS Arguments against SS: Significant difference b/w Govt using racial classifications to benefit minorities and using racial classifications to disadvantage minorities Achieving social equality requires AA at this point in American history Major difference b/w a majority discriminating against a minority and the majority discriminating against itself

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ELY: When the group that controls the decision-making process classifies so as to advantage a minority and disadvantage itself, the reasons for being unusually suspicious and therefore employing a stringent brand of review are lacking (e.g. Croson) 4 Major Objectives for AA: (1) Remedying past discrimination Under current law, clear that AA will be allowed if its directed at entities that are proven to have engaged in illegal discrimination and if its limited to providing a remedy to those who are proven victims of that discrimination AA will NOT be allowed if its based on a desire to remedy the long history of racism throughout society (2) Enhancing Diversity

Diversity is a compelling interest in higher education (Grutter) (3) Providing role models for those in minority communities SC has rejected this is a justification for AA (4) Increasing services for minority communities Justification not accepted as sufficient by SC

1. Race dependent decisions designed to benefit rather than disadvantage the members of minorities who had been subject to prior discrimination: Regents of the university of CA v. Bakke 1978 . ALWAYS USE SS EVEN FOR REMEDIAL RACE BASED CLASSIFICATIONS. Concludes that the quota system was unconstitutional (not narrowly tailored), but that it was permissible for race to be used as one factor in admissions decisions to enhance diversity. Facts: Allan Bakke, a white male, was denied admission to the University of CA Davis Med School and filed suit challenging the schools practice of setting aside 16 spits for minority students out of an entering class of 100. Bakke Argument: Its policy violated both the Equal Protection Clause of the 14th amendment and Title VI of the Civil Rights Act of 1964. State Argument: Bakke lacked standing based on the redressability requirement. Even if the affirmative action program were declared unconstitutional, Bakke still might not be admitted to the medical school. Reasoning: No majority opinion for the Court, But the vote was 5-4 invalidating the set-aside (Powell, Stevens, Burger, Rehnquist and Stewart) and 5-4 that it is permissible for universities to use race as a factor in admissions to increase diversity (Powell, Brennan, Marshall, White, Blackmun) Four justices, Brennan, White, Marshall and Blackmun said that intermediate scrutiny was the appropriate test for racial classifications benefitting minorities. (Constitutional analysis) (Brenans dissent) o Racial classifications designed to further remedial purposes must serve important governmental objectives and must be substantially related to achievement of those objectives. o State government may adopt race conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination.

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o Race neutral alternatives would be sufficient to remedy the effects of past discrimination that had produced a dearth of minority doctors. Voted to uphold the schools affirmative action program.

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MOST IMPORTANT USED NOW everyone saw powells opinion as controlling one: Justice Powell Three issues for debates over affirmative Action: o 1. What was the appropriate level of scrutiny? STRICT SCRUTINY , when applying strict scrutiny need to show narrowly tailored AND compelling state interest. Racial and ethnic distinctions of any kind are inherently suspect and call for the most exacting judicial examination. Rejected argument that strict scrutiny did not apply because white males are not discrete and insular minorities requiring such extraordinary protection. US had become nation of majority groups composed of various minority groups all struggling to overcome prejudices. Unequal application of Equal Protection clause invalidates the core purpose of the clause. o 2. What constituted a sufficiently compelling interest to justify affirmative action? Maybe increasing the number of physicians who will practice in communities currently underserved, but Davis did not show this. Attempting to increase the number of minority physicians for its own sake was illegitimate (not compelling). Davis argued it could engage in affirmative action to counter effects of societal discrimination as opposed to remdedying concrete past constitutional violations: Powell SAID NO Regents are not competent to make findings of past discrimination and CANt be made at the expense of others. Diversity is a compelling interest situated in the first amendment The freedom of a university to make its own judgments as to education includes the selecting of its student body. o 3. Narrowly tailored problem because quota is not the narrowly tailored, could just use diversity of candidate, but not use a quota system.

o Concludes that the quota system was unconstitutional, but that it was permissible for race to be used as one
factor in admissions decisions to enhance diversity. Bakkes injury was an inability to compete for all 100 slots and therefore a judicial decision declaring the set aside of 16 spots unconstitutional would remedy the injury and give him a chance to compete for all the slots.

2. City of Richmond v. J.A. Croson Co. Regardless of its application to racial minorities or to other racial groups, race-based classifications require the highest level of scrutiny in all cases. STRICT SCRUITNY FOR EQUAL PROTECTION REVIEW OF RACE CONSCIOUS REMEDIAL MEASURES. COMPELLING INTEREST MUST BE SHOWN THROUGH IDENTIFIED DISCRIMINATION! None of the evidence presented by the city points to any identified discrimination of the Richmond Construction Industry so that city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race. Facts: Issue. Richmond, Virginia city council created a set-aside program which required that a percentage of subcontracts for construction projects be reserved for minorities. The purpose of the Plan was to promot[e] wider participation by minority business enterprises in the construction of public projects. Plan was challenged on the grounds that it violated the equal protection clause because there had been no specific finding that the Plans purpose was supported by past discriminatory practices in the construction industry of Richmond, Virginia. Whether a state may enact an affirmative action plan without support that the race-based plan ameliorates the effects of past discrimination Does it violate equal Protection? YES.

Holding: NO. Regardless of its application to racial minorities or to other racial groups, race-based classifications require the highest level of scrutiny in all cases. Law violates equal protection. Reasoning: Justice OConnor

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City Argument: o Uses Fullilove to argue that a city council doesnt need to make specific findings of discrimination to engage in race conscious relief. Court Response: NO, congress has a specific constitutional mandate to enforce the dictates of the 14th amendment. Just because Congress has this power doesnt mean a fortiori, the State and their political subdivisions are free to decide that such remedies are appropriate. If all a state or local government need do is find congressional report on the subject to enact a set aside program, the constraints of Equal Protection will have been rendered a nullity. OConnor calls for strict scrutiny in this case because the city council is making a quota requirement based on race. o From Bakke: guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. SS= 1. Narrowly tailored and for a 2. compelling government interest Not for A Compelling Government Interest: None of the evidence presented by the city points to any identified discrimination of the Richmond Construction Industry so that city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race. o Without a showing that a race-based initiative was created to remedy past racial discrimination and that it supports a compelling governmental interest, the race-based initiative is unconstitutional and cannot withstand strict-scrutiny. o The race-based measure of Richmond, Virginias construction set-aside program makes only a generalized assertion that there has been past discrimination in . . . [the construction industry and] provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. o The discrimination that the city is trying to fight must be identified. The city has no evidence that qualified minority subcontractors are being skipped over for non-minority contractors. The city should look to determine if a specific MBE has been discriminated against before giving it preferential treatment. A generalized assertaion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. No logical stopping point. Not Narrowly Tailored: o The Plan failed to consider race-neutral measures that would encourage more minority participation in the construction program. o Also, the 30% quota allowed by the Plan was not narrowly tailored to any goal, except perhaps outright racial balancing. Concurrence. o Justice Stevens The premise of remedying past wrongs should not be the sole requirement for allowing racial classifications. The judicial system, not the legislative process, is best equipped to identify past discrimination and to create ameliorative remedies. o Justice Anthony Kennedy (J. Kennedy). The Fourteenth Amendment ought not be interpreted to reduce a States authority [eradicate racial discrimination] . . . unless, of course, there is a conflict with federal law or a state remedy is itself a violation of equal protection. o Justice Antonin Scalia (J. Scalia). All racial discrimination is unconstitutional. There is only one instance when a State may act by race to undo the effects of past discrimination: where that is necessary to eliminate their own maintenance of a system of unlawful racial classification.

Dissent: Marshall: Because the city councils legislation is designed to further remedial goals, the court should have applied Intermediate Strict Scrutiny. (Like that applied to gender discrimination) (Race conscious classifications should use intermediate strict scrutiny) o City council has supported its determination that minorities have been wrongly excluded from local construction contracting. He says the evidence presented is enough (ratio of minority trade organization members, few city contracting dollars go to minorities, etc). o Because the city councils legislation is designed to further remedial goals, the court should have applied Intermediate Strict Scrutiny. (Like that applied to gender discrimination) (Race conscious classifications should use intermediate strict scrutiny)

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1. Must serve important governmental objectives and 2. Must be substantially related to achievement of those objectives. 1. OBJECTIVES: There are two powerful public interests here: (1) citys interest in eradicating the effect of past discrimination and (2) ensuring that in dispensing contracts the city doesnt perpetuate the old system. Also, the city did prove the necessity prong: They tried non-racial classifications to fix the problem, but it didnt work. o Does it have enough proof to support its objectives? YES Only .67 percent contract jobs awareded to minority owned contractors 2. Must be substantially related to the achievement of these objectives o Citys ordinance is very similar to the upheld okd federal set aside provision in Fullilove o Already used a race neutral method that FAILED

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3. Adarand Constructors v. Pena : All racial classifications, remedial or not, imposed by whatever federal, state, or local government actors, must be analyzed by reviewing court under strict scrutiny. All racial classifications require strict scrutiny in order to determine whether the supposedly benign purpose is valid, otherwise we risk making the same mistake as in Korematsu. Applying strict scrutiny does NOT mean that racial based remedial classifications will always fail: when race based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the narrow tailoring test the court has set out. Facts: o Adarand is a highway construction firm that submitted the lowest bid on a subcontract. A minority-owned construction firm also bid, and won the contract because the general contractor was given bonus money under federal statutes for awarding the subcontract to a firm controlled by economically and socially disadvantaged persons. Procedural Posture: o Adarand lost by summary judgment in both the District Court and the Court of Appeals. Both courts felt that the recent Supreme Court rulings in Fullilove and Metro Broadacasting, which applied a level of intermediate scrutiny to federal affirmative action (benign racial classifications), were controlling. Issue: o What is the proper standard of review for federal racial classifications. Holding: Strict scrutiny. There are three general propositions with respect to governmental racial classifications, 1) skepticism (racial classifications are inherently suspect, invoking strict scrutiny), 2) consistency (the standard of review does not depend on which race is benefitted and which is discriminated against), and 3) congruence (equal protection under the 5th amendment is the same as that under the 14th amendment). Plurality Reasoning: OConnor o The history of equal protection jurisprudence must be traced to determine the proper course. o In Bolling v. Sharpe, the court stated that the phrase: all legal restrictions which curtail the civil rights of a single racial group are immediately suspect carries no less force in the federal context. o Secondly, in Croson, the court announced that the strict scrutiny standard applied to any racial classification under the 14th amendment. Although some other cases have been more split (i.e. Bakke, and Wygant), the same themes are echoed there. o Metro Broadcasting, which used intermediate scrutiny for the federal government, was a departure from stare decisis, and is therefore overruled to the extent that it is inconsistent with this opinion. o All racial classifications require strict scrutiny in order to determine whether the supposedly benign purpose is valid, otherwise we risk making the same mistake as in Korematsu. o Applying strict scrutiny does NOT mean that racial based remedial classifications will always fail: when race based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the narrow tailoring test the court has set out. Concurrence Reasoning: [Scalia] felt that a racial classification could never serve a compelling interest [and thus never pass strict scrutiny] because that only fosters racial hatred, even when done for the most beneficial reasons. The Constitution protects individuals, not groups, and there are no debtor and creditor races.

CON LAW OUTLINE [Thomas] wrote separately to disagree with the dissents premise that there is a racial paternalism exception to the
principle of equal protection.

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Dissent Reasoning: [Stevens] Remedial-based race classifications are distinguishable from race discrimination and should be afforded a more intermediate standard of review consistent with Fullilove and Metro Broadcasting. It is wrong to have consistency between the standard of review for discriminatory and benign racial classifications because the first is a No Trespassing sign, where the second is a welcome mat. Furthermore, there is solid justification for treating the 5th and 14th amendments as affording different levels of protection, namely that Congressional deliberations about a matter should be accorded far greater deference than those of a State or municipality. Lastly, the stigma of affirmative action is surely less than that of discrimination. 4. Grutter v. Bollinger 2003 OConnor: Schools may consider race as a part of the admissions process as long as it is only one factor in an individualized process. Diversity can be a compelling interest under SS, Defer to the universitys judgment that racial diversity is essential to its educational mission. Law school is not trying to assure within its student body a specified percentage of a particular group, that would be racial balancing which is unconsititutional. To be Narrowly tailored, the program must consider race or ethnicity only as a plus in a particular applicants file, while ensuring that each candidate compete with ALL other qualified applicants, is evaluated as an individual, and not evaluated in a way that makes an applicants race or ethnicity is the defining feature of his or her application. Narrow tailoring does NOT require the exhaustion of every raceneutral alternative. But it does require SERIOUS GOOD FAITH CONSIDERATION OF WORKABLE RACE NEUTRAL ALTERNATIVES THAT WILL ACHIEVE THE DIVERSITY THE UNIVERSITY SEEKS. Ultimately, all race-conscious admissions programs have a termination point Facts.

Petitioner, Barbara Grutter, applied for admission to University of Michigan Law School in 1997 with an undergraduate GPA of 3.8 and an LSAT of 161. She was denied. Petitioner, who is white, is challenging the law schools use of race as a factor in the admissions process. Did the University of Michigans use of race as a beneficial factor in the admissions process violate the Equal Protection Clause under a Strict Scrutiny evaluation or Title VI of the Civil Rights Act of 1964? o Grutter/Petitioner argument: Her application was rejected because the law school uses race as a predominant factor, giving applicants who belong to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups.

Issue.

Holding: No. Colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity. Reasoning: Justice OConner Court uses Strict Scrutiny, but Even under St/Scr a degree of deference is given to Us academic decisions w/i Contl limits. (All racial classifications imposed by government must be analized under SS) Such classifications are constitutional if they are o 1. Narrowly tailored o 2. To further a compelling governmental interest.

1. Diverse student body is a Compelling Governmental Interest: YES o Court upholds Law Schools argument that a compelling state interest is a diverse student body. Defer to the universitys judgment that racial diversity is essential to its educational mission. Diversity will yield educational benefits. Will promote cross racial understanding Break down stereotypes Discussion in classes is more enlightening and interesting when students have the greatest possible variety of backgrounds. Law school is not trying to assure within its student body a specified percentage of a particular group, that would be racial balancing which is unconsititutional.

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Law school wants to enroll a critical mass of minority students because of educational benefits that diversity is designed to produce. Critical Mass= Meaningful Representation 2. Narrowly Tailored: YES o to be narrowly tailored, a race conscious admissions program cannot use a quota system. Quota=program in which a certain fixed number of admissions are reserved exclusively for minority students and insulate the individual from comparison with all other individuals. o To be Narrowly tailored, the program must consider race or ethnicity only as a plus in a particular applicants file, while ensuring that each candidate compete with ALL other qualified applicants, is evaluated as an individual, and not evaluated in a way that makes an applicants race or ethnicity is the defining feature of his or her application. Here the law school engages in a highly individualized review of each applicant, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. o Law schools goal of attaining a critical mass of underrepresented minority students does NOT transform its program into a quota. Some attention to numbers, without more, does not transform a flexible admissions system into a rigid quota. The schools consultation of daily reports arent used by admissions officers to give race any mor or less weight based on the information contained in the reports. o Rebuttal to Kenedy Racial Balancing: The school is not trying to achieve racial balancing because # of URMs who enroll are substantially diff from their representation in the applicant pool. o All applicants regardless of race have the opportunity to highlight their own potential diversity contributions in their applications: The law school does not limit in anyway the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. Living abroad Fluent in other languages Overcome personal hardship o Narrow tailoring does NOT require the exhaustion of every race-neutral alternative. But it does require SERIOUS GOOD FAITH CONSIDERATION OF WORKABLE RACE NEUTRAL ALTERNATIVES THAT WILL ACHIEVE THE DIVERSITY THE UNIVERSITY SEEKS. Law school sufficiently considered race neutral alternatives. Using a lottery system or decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores would require a dramatic sacrifice of diversity and the academic quality of admitted students. 3. Ultimately, all race-conscious admissions programs have a termination point o the durational requirement can be met by periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. o we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest of student body diversity.

Dissent: Chief Justice Rheinquist Law schools program is an effort to achieve racial balancing o Program is designed to ensure proportionate representation of applicants from selected minority groups. Law schools disparate admissions practices with respect to all minority groups demonstrate that its goal of critical mass is a sham o Law school seeks to get a critical mass of each URM group but the numbers of admits of each group are very different, (one would think the same size critical mass would be needed for all minority groups.),so law schools program has little relation to achieving Critical Mass. the tight correlation between the percentage of applicants and admittees of a given race were "far too precise to be dismissed as merely the result of the school paying 'some attention to [the] numbers.'" Dissent: Justice Kennedy

the Ct does not actually use Strict Scrutiny b/c it deferred to the Univ for implementation of the goal of student body diversity and failed to address how the school actually implements its admission policy.

Dissent: Scalia and Thomas Real Compelling state interest here is Michigans interest in maintaining a prestige law school whose normal admissions standards disproportionately affect blacks and other minorities.

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Educational benefit that univ of Michigan seeks to achieve (preparation of diverse workforce) is not an educational benefit within the law school context. The split in courts between Grutter and Gratz will lead to mounds of litigation and controversy

Dissent: Thomas Law schools admission procedures themselves are racially discriminatory. o The Law school maintains an exclusionary admissions system that it knows produces racially disproportionate results: Racial discrimn is not a permissible solution to the self-inflicted wounds of this elitist admission policy. Compelling state interest must be of pressing public necessity: Mich Law school has no compelling state interest in having a law school at all. State must show a cognizable interest in having an elite law school. o Pressing Public Necessity (or compelling state interest) will only occur when state provides against anarchy or prevents violence. o There is no pressing necessity in maintaining a public law school and so marginal improvements in legal education do not qualify as a compelling state interest. o Only interests that can satisfy Equal Protection clauses demands are those found within a States jurisdiction (comes from 14th amendment itself within jurisdiction)The only state interest that are justifiable by operating a public law school is the education of that states citizens and training of that states lawyers. MI law school does little to advance the welfare of the people of Michigan or any interest of the state of MI (only 16 percent of the law schools graduate stay in MI) Even if there was a compelling state interest, it is NOT narrowly tailored: o Boalt Hall uses no preferential treatment on basis of race but still maintains a racially diverse class o Could percent plans to achieve diversity The Law Schools continued adherence to measures it knows produce racially skewed results (LSAT) is NOT entitled to deference. Underneath courts decision is idea that some racial discrimination is beneficial and necessary to remedy sociatel ills. 5. Gratz v. Bollinger 2003 DIVERSITY IS A COMPELLING INTEREST IN EDUCATION. BUT QUOTAS OR NUMERICAL QUANTIFICATION OF BENEFITS IS IMPERMISSABLE!! The admissions policy does NOT ensure individualized consideration. Facts:

Issue:

The University of Michigan undergraduate program used a 150-point scale to rank applicant, with 100 points needed to guarantee admission. The University gave underrepresented ethnic groups, including African-Americans, Hispanics, and Native Americans, an automatic 20-point bonus on this scale, while a perfect SAT score was worth only 12 points. Is the admissions plan that assigns bonus points for underrepresented ethnic groups, narrowly tailored? (Compelling interest not at issue here, Grutter, held that diversity is a compelling interest).

Holding: NO. The undergraduate admissions plan was not narrowly tailored to achieve a compelling interest in diversity. Reasoning: Justice Rheinquist The admissions policy does NOT ensure individualized consideration. o Applicants are giving a bonus 20 points only because of their race and nothing else The policy makes race a decisive factor for every minimally qualified URM Rebuttal to schools argument: Process of flagging applicants for further review does not ensure an individualized examination of every applicant o Such a consideration is the exception and not the rule in the admissions program o It is only provided AFTER points are distributed

Rebuttal to Schools argument: Fact that implementation of a program capable of providing individualized consideration might present administrative challenges does NOT render constitutional an otherwise problematic system.

Concurrence OConnor: Points system ensures the diversity contribution of applicants cannot be individually assessed o Points for diversity contributions other than race are capped at lower levels Admissions Review Committee does not offset the absence of individualized consideration:

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o o o Its not an important part of the applicant review process Review itself is based on cut off levels Unknown how many applicants are reviewed in such a process

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Concurrence Thomas: States use of racial discrimination in higher education is prohibited by the Equal Protection Clause o The system is racially discriminatory to other non URM groups because it does not sufficiently allow for the consideration of nonracial distinctions among underrepresented minority applicants Justice Souter Dissent: Undergraduate admissions system is closer to what Grutter approves than what Bakke Condems o Not a racial quota system where race is the sole fact of eligibility for certain spaces in a class (Bakke), but an individualized consideration of race where race is not assigned a preordained value in all cases (Grutter) Not Like Bakke o Bakke plan insulated all non minority candidates from competition for certain seats , by contrast the plan here lets all applicants compete for all places o 20 points do not convert race into a decisive factor comparable to reserving minority places like Bakke, non minority students may also receive 20 pints for certain factors College has compelling interest of racial diversity, and so race must be considered in a way that increases some applicants chances for admission. o The college does by a numbered scale what the law school accomplishes in its holistic review. Points system that results in individualized review is not unconstitutional, but the record is silent on the case by case work of the committee, so the court should have vacated and remanded for evidence about the committeees specific determinations instead of ruling the points system unconstitutional. Race neutral alternatives such as percentage plans are just as race conscious as the point scheme 6. Parents Involved in Community Schools v. Seattle School District No. 1

Facts: Both school districts adopted plans whereby, school assignments were made on the basis of race to ensure that schools were racially balanced (Seattle used race as a 2nd tiebreaker to allocate slots in schools that were not within 10 percentage points of the districts overall white/nonwhite racial balance) (Louisville used a voluntary assignment plan. Students are assigned based on available space, but once a school has reached less than 15 percent or more than 50 percent black, it will take only students who will keep the racial balance within these guidelines). Seattle had never been subject to court ordered desegregation but had adopted its plan to correct the effects of racially identifiable housing patterns. Louisville had been subject to court ordered desegrgation dissolved in 2000. A non-profit group, Parents Involved in Community Schools (Parents)(www.piics.org) sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. Posture: A federal District Court dismissed the suit, upholding the tiebreaker. On appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed, but upon en banc rehearing the court affirmed the lower court decision. The en banc panel ruled that the District had a compelling interest in maintaining racial diversity. Applying a test from Grutter, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored, because 1) the District did not employ quotas, 2) the District had considered race-neutral alternatives, 3) the plan caused no undue harm to races, and 4) the plan had an ending point.
Issue: Do Grutter and Gratz Govern this desegregation lawsuit? Reasoning: Chief Justice John Roberts wrote the opinion of the court as to Parts I, II, III-A and III-C.

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Part III A with racial classifications, that action is reviewed under strict scrutiny." This is because "'racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.'" In order to survive strict scrutiny analysis, "a narrowly tailored plan" must be presented in order to achieve a "compelling government interest." Supreme Court cases had recognized two compelling interests for the use of race in the school context.

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First, "remedying the effects of past intentional discrimination." NEITHER SCHOOL HAD THIS COMPELLING INTEREST: o The harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that 'the Constitution is not violated by racial imbalance in the schools, without more.'" But the Seattle schools had never been segregated by law; and the Kentucky schools, though previously segregated by law, had their desegregation decree dissolved by a District Court in 2000 on the finding the school district had "eliminated the vestiges associated with the former policy of segregation and its pernicious effects". Any continued use of race must be justified on some other basis. Second, "the interest in diversity in higher education", as upheld in Grutter v. Bollinger. Roberts distinguished Grutter from this case, and argued that this case was more similar to Gratz v. Bollinger (racial quota, set aside system). In Grutter, the interest was student body diversity "in the context of higher education," and was not focused on race alone but encompassed "all factors that may contribute to student body diversity of which racial or ethnic origin is but a single though important element. The Grutter Court quoted the articulation of diversity from Regents of Univ. of Cal. v. Bakke, noting that "it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race." In Grutter the admissions program at issue focused on each applicant as an individual, and not simply as a member of a particular racial group." In the present cases, by contrast, race is not considered as part of a broader effort to achieve "exposure to widely diverse people, cultures, ideas, and viewpoints," Race, for some students, is determinative standing alone. The plans here do not provide for a meaningful individualized review of applicants My Question: Can they really provide an individualized review? Public schools do not have a subjective admissions process and such an individualized subjective process would seem to be unconstitutional in itself if applied to public school because it would create a barrier to equal access of education. The plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/"other" terms in Jefferson County. The way Seattle classifies its students bears this out. If a parent identifies more than one race on the form, "[t]he application will not be accepted and, if necessary, the enrollment service person taking the application will indicate one box.""[15] Context here is also different from Grutter and so present cases here are not governed by Grutter: "the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." These limitations were disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. Context matters" in applying strict scrutiny, and repeatedly noted that it was addressing the use of race "in the context of higher education." The Court in Grutter expressly articulated key limitations on its holdingdefining a specific type of broad-based diversity and noting the unique context of higher education Part III B (joined only by a plurality of the Court, The plurality opinion did not receive the support of over half the justices, but received more support than any other opinion.) Court construed both plans as just racial balancing plans and rejected the notion that racial balancing could be a compelling state interest, as Both school districts argue that the compelling state interest is a diverse learning environment from which broader socialization benefits flow. Court says this is not really the schools interest and construes the plans as racial balancing plans The plans are based on racial demographics alone, no evidence that level of racial diversity necessary to achieve educational benefits coincide with racial demographics.

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REJECTS RACIAL BALANCING As compelling State Interest Balancing is working background from a particular benchmark Allowing racial balancing as a compelling end in itself would "effectively assur[e] that race will always be relevant in American life, and the 'ultimate goal' of 'eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race' will never be achieved." An interest "linked to nothing other than proportional representation of various races (racial balancing) . . would support indefinite use of racial classifications

Part III C addressed the school districts narrowly tailored claim Roberts replied that these classifications were clearly not necessary, since they had a "minimal effect" on student assignments. o He contrasted this circumstance to Grutter, where "the consideration of race was viewed as indispensable" in more than tripling minority representation at the law schoolfrom 4 to 14.5 percent. The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. o Narrow tailoring requires "serious, good faith consideration of workable race-neutral alternatives," Grutter, and yet in Seattle several alternative assignment plansmany of which would not have used express racial classificationswere rejected with little or no consideration. o Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Part IV (again joined only by a plurality of the Court) addressed Justice Breyer's dissent. Justice Breyer seeks to justify the plans at issue by recognizing the compelling interest in remedying past intentional discrimination. o Dissent ignores the distinction between de jure and de facto segregation. Dissent relies heavily on dicta from Swann o Swann says nothing of the permissible means that a school district might employ to achieve a permissible objective because Swann didnt involve any voluntary means adopted by a school district. Dissent overreads Grutter o Grutter itself recognized that using race simply to achieve racial balance would be patently unconstitutional o Grutter emphasized the importance of individual consideration of the type that the school districts in this case do not emply Dissent argues that a different Standard of Review should be applied because the districts use race for beneficient rather than malicious purposes o Dissent dismisses holdings that all racial classifications be reviewed under SS Costs of racial classifications are large o Such classifications create notions of racial inferirority Brown supports todays holding o Government classification and separation on grounds of race themselves denote racial inferiority o 14th amendment prevents states from according different treatment on the basis of race o Brown II required determining admission to public schools on a non racial basis Thomas Concurrence: wrote about the unsettled debate concerning whether racial balance or diversity has a positive effect on educational outcomes Dissent conflates segregation and racial imbalance: o Racial Imbalance without intentional state action to separate the races does not amount to segregation. Because racial imbalance is not inevitabley linked to unconstitutional de jure segregation (can arise from private decisions), it is not unconstitutional in and of itself. School lacks a cognizeable interest in remediation: o Without a history of state enforced racial separation, a school district has no affirmative legal obligation to take race based remedial measures to eliminate segregation. o For a government unit to remedy past discrimination for which it was responsible, the assertions need to be defined and cannot be instances general societal discrimination. Allegations in complaints cannot substitute for specific findings of prior discrimination Dissent is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance o Two concepts are distinct see above o School cannot remedy racial imbalance in the same way that it can remedy segregation

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Unlike de jure segregation, there is no ultimate remedy for racial imbalance : demographics will continuously change Since schools ultimately lack a cognizable interest in remediation, their plans do not serve a genuinely compelling state interest. The districts race based programs are not as benign as the dissent believes: o Every time the government uses racial criteria to bring the races together, someone gets excluded, and the person excluded suffers an injury solely because of his or her race. Dissent argues that the interest in integration as an educational element o Thomas recoils at the suggestion that black students can only learn if they are sitting next to white students. o black students can succeed in majority black schools such as HBCUs. o Seattle school district operates an African American Academy which has a nonwhite enrollment of 99 percent that has produced high test scores Our constitution is color blind and neither knows nor tolerates classes among citizens Justice Thomas concludes noting "If our history has taught us anything it has taught us to beware of elites bearing racial theories." In a footnote the Justice added a personal mention of Justice Breyer: Justice Breyers good intentions, which I do not doubt, have the shelf life of Justice Breyers tenure.

Justice Kennedy Concurring in part and concurring in the judgment the goal of obtaining a diverse student body is a compelling state interest. o "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue. " o Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered." Plurality opinion is too dismissive of the legitimate interest the govt has in ensuring all people have equal opportunity regardless of their race. Nevertheless, Kennedy found the school districts did not narrowly tailor the use of race to achieve the compelling interests in the case. o Jefferson county fails to make clear whether it relies on racial classifications narrowly tailored to the interest in questions, rather than in a far reaching, inconsistent manner Doesnt make clear who makes the decisions, if any oversight is employed, precise circumstance in which an assignment decision will or will not be made on the basis of race o Seattle has failed to explain why it uses white and non white to promote educational benefits from diversity o Specifically, Kennedy finds that the districts could have achieved the same goal through less racially charged means. Strategic site selections of new schools, allocating resources for special programs, How are above programs ok under the equal protection clause? Because these are in some sense more narrowly tailored, they are last resorts. Basically whats good about these proposals is that they are a little opaque. In the real world, our constitution is NOT colorblind o Colorblind constitution cannot in the real world be a universal constitutional principle Justice Kennedy asserts that the dissent must "brush aside two concepts of central importance for determining the validity of laws dsigined to alleviate adverse consequences resulting from race discrimination" to uphold the racial classification in the case. o First, Kennedy harshly faults the dissent for consciously ignoring the difference between de jure and de facto segregation. Schools districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate, those that were de fact desegregated did not. Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it like by classifying individual students based on race

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When de facto segregatio is at issue, state must seek alternatives to the classification and differential treatment of individuals by race. And second, Kennedy faults the dissent for ignoring the "presumptive invalidity of a State's use of racial classifications to differentiate its treatment of individuals."

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Justice Stevens Dissent he accuses the plurality

of misusing and misapplying previous Supreme Court precedents including Brown v. Board of Education. He concluded by saying that the current Court has greatly changed and that previously: o "[I]t was...more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
Court strays away from School Com. Of Boston v. Board of education o Where court noted that it would be ironic if an act enacted to achieve equal educational opportunities by prescribing school pupil allocations based on race, was declared unconstitutional.

Justice Breyer Dissent In light of the evident risk of a return to school systems that are in fact resegregated, many school districts have felt a need to maintain or extend their integration efforts. Distinction between de jure segregation and de facto segregation is meaningless o A number of school districts in the south voluntarily desegregated their schools without a court order, just as Seattle did: Are courts really to treat as merely de facto segregated those school districts that avoided a federal order by voluntarily complying with Browns requirements? o This Distinction concerns what the Constitution requires school boards to do, not what it permits them to do. (pg 218) No case of this court has ever relied upon the de jure/de facto distinction in order to limit what a school district is voluntarily allowed to do. Both seattle and Louisville began with schools that were highly segregated in fact o In both cities, the school boards adopted plans designed to achieve integration by bringing about more racially diverse schools o Both districts explored a wide range of other means, including nonrace-conscious policies Uses precedent to show that the Equal Protection Clause permits school boards to use race-conscious criteria to achieve positive race related goals o Swann : Affirming the broad discretionary powers of school authorities to use race-conscious criteria to

achieve positive race-related goals, Mc Daniel: This freedom is also within school districts who voluntarily adopt desegregation plans (not limited to court-ordered plans) Court has also held that school districts may be required by federal statute to undertake race-conscious desegregation efforts even when there is no likelihood that de jure segregation can be shown. o Board of Ed v. New York No case has ever held that the test of strict scrutiny means all racial classifications including benign ones must be treated the same. o These cases, though all applying strict scrutiny, apply the test in a manner that is fatal in fact only to racial classifications that harmfully exclude. o They apply the test in a manner that is NOT fatal in fact to racial classifications that seek to include. Court should have applied a standard of review that is not fatal in fact to cases with benign racial
o

classifications. APPLIES STRICT SCRUTINY:

o

Compelling Interest is to eliminate school by school racial isolation and preserve greater racial integration of public schools and this interest has 3 essential elements :

1. Remedial Element: Setting right the consequences of prior conditions of segregation 2. Educational Element: Studies suggest that children placed in integrated settings often show positive academic gains

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3. Democratic Element: Helping children learn to work and play together with children of different racial backgrounds o Plans are narrowly tailored: 1. Race conscious criteria only constitute one part of plans that depend primarily on other non racial elements. 2. These race conscious restrictions are less burdensome 3. School districts tried other race neutral plans but they were not sufficient to achieve the citys integration goals. Justice Breyer concluded that the majority had departed from the long history and moral vision of the Fourteenth Amendment52 and threaten[ed] the promise of Brown.53

C. Gender Justice: Same Treatment and Different Treatment OLD REGIME 1. Bradwell v. Illinois right to choose labor is NOT protected by 14th amendment privilage or immunities clause because its not a right of US citizenship. Its not even a privilege or immunity of state citizenship.

Facts: Illinois Supreme Court refused Bradwell a license to practice law solely because she was a woman; no one doubted that she was otherwise qualified. P Argument: Used right to labor and drew analogy between the discrimination against women and the racial oppressions the amendment was universally acknowledged to oppose. o Privileges and Immunities: Rights of the Declaration of Independence as among the privileges and immunities protected by the 14th amendment; among the specific rights protected was that of laboring in ones chosen vocation, Equal protection clause: In pursuit if happiness, choosing ones profession is protected as a right, and in protection of such rights, all are EQUAL before the law. Court: Upheld the Illinois law that prohibited women from being licensed to practice law. o Justice Miller didnt consider gender discrimination but rejected the argument that practicing law was a privilege of citizenship protected under the privileges and immunities clause of the 14th amendment. o Concurring Opinion: Justice Bradley addressed the claim of sex discrimination and opined that the state was justified in excluding women from the practice of law. Destiny and mission of women is to fulfill the offices of wife and mother A woman has an obligation to her home and family as a wife and mother. (No talk about a husbands power over her) Maxim that a woman had no legal existence separate from her husbanda woman is incapable, without her husbands consent, of making binding contracts.

2 The New Departure and Womens Place in the Constitutional Order, 340-43

New argument arose in relation to Section 1 of the 14th amendment: Women suffrage was guaranteed because the right to vote was inextricably linked to the citizenship guaranteed by section 1. o 14th amendment made the privileges and immunities of American citizens National in Character and paramount to all state authority. And right to vote was one of the privileges and immunities of American Citizenssee Corfield. Susan B. Anthony voted and was indicted under KKK act where it was a crime for any person to do an unlawful act to secure a right or opportunity to vote. 1873. o Anthony argued that the 15th amendment guaranteed women suffrage, because it prevented states from denying the vote on account of previous condition of servitude. Marital status of women had preciously reduced them to a condition of servitude. o Anthony: Your denial of my citizens right to vote is my denial of my right of consent as one of the governed, my right of representation as one of the taxed, the denial of my right to a jury of my peers as an offender against law o Supreme Courts decision in the Slaughterhouse cases significantly undermined the suffragist arguments because it suggested that the Privileges or immunities clause had virtually no content.

3. Minor v. Happersett, 1874: Recognized that women are citizens under the Constitution, but held that denying women the right to vote is permissible because voting is NOT a privilege or immunity of United States citizenship.

Facts: Virginia Minor attempted to register to vote in St. Louis. She was refused and sued for relief arguing that women possessed a constitutional right to vote. SUPREME COURT: Upheld the constitutionality of excluding women from voting. o Recognized that women are citizens under the Constitution, but held that denying women the right to vote is permissible because voting is NOT a privilege or immunity of United States citizenship. o Sex has never been made one of the elements of citizenship in the United States. The 14th amendment did not affect the citizenship of women anymore than it did of menrights of the plaintiff do not depend upon the amendment.

CON LAW OUTLINE 96 o Issue: If right to vote is one of the necessary privileges of a citizen of the United States, then the constitution and laws
of Missouri confining it to men are in violation of the Constitution of the United States, so Are all citizens voters?

Was the right to vote coextensive with the citizenship of the States at the time of its adoption (constitution or 14th amendment?) ? If it was, then theres a strong argument that right to vote was one of the rights which belonged to citizenship. When federal constitution was adopted, upon an examination of those constitutions court found that in no state were all citizens permitted to voteall had property qualifications for the vote. Since not all citizens were entitled to vote before the adoption of the constitution, if the framers had intended to make all citizens have the right to vote, they would have done so explicitly. Textual Arguments: o If suffrage was one of the privileges and immunities (protected by the 14th amendment) why amend the Constitution to prevent its being denied on account of race (in the 15th amendment)?

MODERN REGIME Equal protection clause everyone knows that despite the fact that is says persons it was primarily aimed at racial classifications, and yet theres that language it says persons and its protections have been extended to others We saw Bradwell the EP did not help her get law license

Minor case women didnt get voting rights under 14th amendment Muller which upheld max hours for women

In short, courts have been deferential to laws discriminating in cases of sex 1970s Burger court broadened protections for women In these cases still thinking about what gets you Heightened Scrutiny, what makes a suspect class? History: will matter and yet his Immutability: those arguing for end of sex classifications emphasize immutability of gender, cant change sex Arbitrariness: relevance of the category for purposes of making classifications What should be the Level of Scrutiny? (Chem, P.756) o Many of the factors that explain use of SS for racial classifications also apply to gender discrimination. Long history of discrimination against women in virtually every aspect of society; Gender classifications are usually based on stereotypes too; Sex is an immutable characteristic o Those who argue for only intermediate scrutiny Framers of 14th A. meant only to outlaw race discrimination; Biological differences b/w men and women make it more likely gender classifications will be justified; Women are political majority not isolated from men & cannot be considered a discrete/insular minority Cases 1. Reed v. Reed First SC case to invalidate a gender classification under the equal protection clause. Idaho law said that males must be preferred to females in the appointment of administrators of an estate o State Justification: Objective was of reducing the workload by eliminating an area of controversy when two or more persons, otherwise equally entitled, sought to administer an estate

Holding: This preference violated the equal protection clause. Court only applied rational basis review A classification must be reasonable, not arbitrary and must rest upon some ground of difference having a fair and substantial relation to that object of the legislation. o Although the objective or reducing workload was legitimate, the means used to achieve that objective, gender classification, was the kind of arbitrary legislative choice forbidden by the Equal Protection Clause.

2. Frontiero v. Richardson, 1973 Brennan

A federal law allowed a man to automatically claim his wife as a dependent, and receive a greater allowance for medical benefits. A woman could not do the same. Brennan Plurality: Classifications based on sex are inherently suspect, and must be subjected to strict judicial scrutiny. o What makes it inherently suspect? History of past discrimination Immutability: those arguing for end of sex classifications emphasize immutability of gender, cant change sex Arbitrariness: relevance of the category for purposes of making classifications What differentiates sex from such non suspect statuses such as intelligence or physical disability and aligns it with the recognized suspect criteria is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.

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3. Geduldig v. Aiello 1974, Stewart Excludes the regulation of pregnancy from the scope of heightened scrutiny.

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Holding: Discrimination on the basis of pregnancy is not discrimination on the basis of sex within the meaning of Reed and Frontiero

4. Craig v. Boren 1976 Brennan : ESTABLISHES INTERMEDIATE SCRUTINY FOR GENDER CLASSIFICATIONS. Classifications by gender must serve important governmental objectives and must be substantially related to those objectives. Court declared unconstitutional an OK law that allowed women to buy low alcohol at age 18 but men couldnt until 21.

Supreme Court agreed upon intermediate scrutiny as the appropriate level of review for gender classifications: To withstand constitutional challenge: o Classifications by gender must serve important governmental objectives and must be substantially related to those objectives. Difference from SS: Not compelling purpose, but important purpose Not necessary means to those purposes, but substantially related Intermediate Scrutiny Test: o Although traffic safety is an important government interest, gender discrimination was not substantially related to that objective. How is the reasoning here anti classification? (as opposed to anti-subordination) o Archaic broad generalizations that sounds in anti classification, we are judging this groups are groups we arent judging them as individuals o Bottom of 1214 : Warned against sex based state action premised on outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas.

The equal protection cases of the 1970s provided a new doctrine of intermediate scrutiny that protected individual freedom to deviate from status roles generally ascribed to a group, and eliminated forms of state action that subordinated groups by enforcing status roles on group members as a whole. **Remember Differences Between Anti-Subjugation and Anti-Classifications interpretations of Equal Protection in the 14th amendment

Anti-Subordination : principle that laws may not aggravate or perpetuate the subordinate status of a specially disadvantaged group. Benign racial classifications would be allowed here. o guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification and argue that law should reform institutions and practices that enforce the secondary social status of historically oppressed groups. o it is when government perpetuates . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is most implicated. Anti-Classification: this principle holds that the government may not classify people either overtly or surreptitiously on the basis of a forbidden category, for example, their race. o The anti-classification principle instead sees equal protection as invalidating all distinctions based on a forbidden category. Whether the classification is malicious or benign, or whether an individual belongs to an historical or contemporary dominant or subordinate race, does not matter. All such classifications are invalid.

5. United States v. Virginia : Can use real difference to justify a law under IS; the justification must be genuine, not hypothesized. And it must not rely on overbroad generalizations about the differences between males and females. Facts: VMI was the sole single-sexed school among Virginias 15 public institutions. VMIs mission is to produce citizen soldiers, (male) leaders of the future. VMI achieves its mission through its adversative method, which is characterized by physical rigor, mental stress, absolute equality of treatment, absence of privacy, etc. The school admits only men. Issue. Did VMI represent a violation of the Fourteenth Amendments Equal Protection Clause? Holding: YES. Fails Intermediate Scrutiny. VA has shown no exceedingly persuasive justification for excluding all women. Reasoning: o Intermediate Scrutiny Test: Gender-based classifications of the government can be defended only by exceedingly persuasive justifications. Burden rests on the state to show to show an Exceedingly persuasive justification has to pass this test: o 1. its classification serves important governmental objectives and that 2. the means employed are substantially related to those objectives. The justification must be genuine, not hypothesized. And it must not rely on overbroad generalizations about the differences between males and females. o Two things court would use two justify gender based classifications: o 1. Real differences like physical differences o 2. Benign justifications where those would promote one of the goals listed on the bottom of 1232 o In heightened Scrutiny interest: o 1. Needs to deal with REAL interest that you were pursuing

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o o 2. And has to be truly Important Virginias interest: o Diversity in educational approaches: single sex school adds to diversity to education in Virginia and provides important educational benefits Court doesnt believe that there interest in diversity is REAL o Preserving VMIs unique adversative method

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o o

Why is it ok to allow some justifications here and not in Grutter? MI did have to change and lower the min SAT score to allow for diversity, Court is saying it WONT CHANGE THE essential nature of the place to change it to admitting women. Where as in Grutter it would have changed the atmosphere of the school to lower the SAT score. Moreover, VWIL does not qualify as VMIs substitute. VWIs student body, faculty, course offerings and facilities do not match VMIs. Rheinquist in concurrence objects to analysis why? o Doesnt like that theres this phrase :Exceedingly persuasive that could catch on, we should just adhere to traditional test: important objective, substantially related means. Scalia Dissent: has problem with amorphous exceedingly persuasive phrase that gives impression that theres no latitude and what Scalia wants is for there to be more latitude for Virginia o Page 1242 Scalia: Virtue of a Democratic System Function of court is to preserve societys values Coherent argument about deference: theres a principled way to defer here, and the place where he will do a little struggling is ok well how do you distinguish between Race and Sex?

6. Geduldig v. Aiello : The majority found that even though only women would be directly affected by the administrative decision, the classification of normal pregnancy as non-compensable was not a sex-based classification, and therefore the court would defer to the state so long as it could provide a rational basis for its categorization. Facts: The California insurance program at issue did not exclude workers from eligibility based on sex but did exclude pregnancy from a list of compensable disabilities. Issue: Whether failing to provide disability insurance for pregnancy is a violation of equal protection. Holding: NO. Reasoning:

We will only use Rational Basis Test, not heightened scrutiny, because the the classification was not based on gender, as such. Rational Basis Test: o legislation will be upheld if it is reasonably related to the achievement of a legitimate end. Presumption of constitutionality applies. Challenger bears burden of showing legislation is unconstitutional. Very deferential to the legislature. Although California has chosen to provide disability insurance, it has not chosen to pass on the expense of pregnancy to the whole state of employees. Under equal protection, the state can choose to do things one at a time. The state has a legitimate interest in keeping the cost of insurance down. There is no invidious discrimination here because the lawmakers have divided the state into two classifications, pregnant females, and non-pregnant persons. As such, both males and females are benefitted. Class Notes: Does discrimination based on pregnancy ever violate equal protection? o Yes, when its a pretextual classification hiding invidious intentbut how would you show this? Argument about stereotypes with respect to social roles, Dissimilar treatment of men and women based on physical characteristics tied to one sex is sex discrimination. Thus, the standard should have been the strict scrutiny of Frontiero. The states interest in preserving the fiscal integrity of the insurance program cannot render the states use of a suspect classification constitutional.

Dissent:

7. Michael M. v. Superior Court of Sonoma County: Statutory Rape Law does not violate equal protection even though it makes men alone criminally liable for statutory rape. Facts: CA enacted a statutory rape law that defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus makes men alone criminally liable for statutory rape. The Petitioner, at the time of the complaint, was a 17-year-old male who had sexual intercourse with a 16-year-old female. Issue: Whether CA's "statutory rape" law violates the Equal Protection Clause o the Fourteenth Amendment. Holding. No. Law Upheld Reasoning: Rheinquist. Court avoids saying what Level Scrutiny its applying o does not specifically refer to the application of intermediate scrutiny.

CON LAW OUTLINE 99 o Important Govt Objective: However, J. Rehnquist gives great deference to the fact that the States alleged objective was
to deter teenage pregnancies. Half of all teenage pregnancies in abortion. Illegitimate children are likely candidates to become wards of the state. Suficciently related Means: The majority states that a state may attack the stated objective (deterring teenage pregnancies) directly by prohibiting the conduct only of males. The reasoning behind this assertion is that females already have significant deterrence to abstain from the behavior, namely pregnancy itself and its attendant difficulties. Women suffer disproportionately more from the effects of unplanned pregnancy. Gender-neutral statute would make it less likely that a girl would report violations of the statute (rape) if she herself would be subject to criminal prosecution.

DISSENT: Too much emphasis on the state's goal and not enough on the emphasis of whether this is sex-based discrimination (sufficiently related means). Ca still has the burden of proving that even if they have a legitimate objective - that there are fewer teenage pregnancies under its gender based statutory rape law than there would be if the law were gender neutral. There are now at least 37 states that have enacted neutral rape laws. California failed in its burden of proving that there are fewer teenage pregnancies under the gender-based statute that there would be if the law were gender-neutral. The law was not enacted as a way of preventing teenage pregnancies but is a holdover from a less enlightened time in which females were to be deemed legally incapable of consenting to the act of sexual intercourse. It is, therefore, premised on outmoded sexual stereotypes. 8. Nguyen v. INS Court allows gender classifications benefitting women but burdening men because of biological differences between men and women. Facts: 28 USC 1409 governs US citizenship for a child born to a US citizen and a non-citizen when the parents are unmarried and the child is born outside of US and its territories. The statute imposed different and greater requirements for the childs acquisition of citizenship if the citizen parent is the father as opposed to the mother. Issue: Does the statute violate equal protection of 5th amendment when it imposes a higher burden on males as opposed to females? Reasoning: NO. Kennedy. Gender Classifications must serve important governmental objectives that are substantially related to the achievement of these objectives. Intermediate Scrutiny Test.

Congress decision to impose requirements on umarried fathers that differ from those on unmarried mothers is based on the signigicant different between their respective relationships to the potential citizen at the time of birth. Objectives: Are these important/ legitimate objectives? o govts objectives of 1) ensuring a biological parent-child relationship exists and 2) ensuring the parent-child have potential to develop a relationship recognized by law but that also consists of real everyday ties that prove a connection b/w parent-child and the child-US? o Court: YES

Means: Do the means of imposing additional requirements, by 1409, upon an unwed citizen father that are not imposed upon an unwed citizen mother substantially relate to the govts objectives o Court: YES The difference in the rule serves the govts interests in being sure that there is a biological relationship between the parent and the child. There is no doubt as to the relationship between the mother and the child, but paternity is not so certain. Also serves the govt interests in ensuring the child have potential to develop a meaningful relationship that consists of everyday ties. In the case of a citizen mother and a child born overseas, the opportunity for a meaningful relationship between mother and child exists at birth, the same opportunity does not result in birth in the case of the unwed father. why might court want to lower the level of scrutiny here? o 1) Immigration deals with national security issues. More deference to Congress/President in this category. 2) the plaintiffs conduct is bad. 3) The burden of proving citizenship is minimal. Dissent: Oconnors The majority merely hypothesizes about the interests served but doesnt look into the actual purposes of the statute. It also didnt adequately explain the importance of these interests. The means/ends analysis wont fit heightened scrutiny. Precedents require higher scrutiny than is given here. There are other better race neutral alternatives. o Why dont we just use DNA tests? She points out that in previous cases, a comparable or superior sex-neutral alternative has always been a good reason to reject a sex-based classification. Regarding the second goal, a demonstrated opportunity for a meaningful relationship doesnt mean one will occur. There are many sexneutral alternatives that would fit the means/ends analysis and pass scrutiny. The 1409 requirements go along with the stereotype that guys normally dont have a relationship with their kids like the mothers do. D. Suspect Classifications III : Poverty, Alienage, Disability, Sexuality : RATIONAL REVIEW PLUS

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1. City of Cleburne v. Cleburne Living Center: Rational Review for legislation that distinguishes between the mentally retarded and others. Such legislation must be rationally related to a legitimate governmental purpose. More like Rational Review Plus because there wasnt great defference to the legislature in finding a legitimate interest. Facts: The Petitioner, City of Cleburne (Petitioner), denied a special use permit to the Respondent, Cleburne Living Center (Respondent), for the establishment of a group home for the mentally retarded in the community. Posture: The Court of Appeals of the Fifth Circuit determined that this group is a quasi-suspect class triggering an inermediate level standard of review and that the ordinance violated the Equal Protection Clause of the United States Constitution (Constitution). Issue:

Is the mentally retarded part of a quasi-suspect class subject to a higher scrutiny under the Equal Protection Clause? No. Rational Basis.

Is the special use permit requirement constitutional? No. Fails Rational Basis review, its unconstitutional. Holding: Justice White. When courts have used Heightened Scrutiny o Race, Alienage, Natl Origin
Why isnt this a suspect class? o 1. Differences Real differences may justify legislation Idea that somehow differences of this group have been more relevant, there are more of them to justify legislative action Diffuseness of class makes the court not institutionally suited to evaluating laws o 2. This group has been represented in the political process o 3. Slipper Slope Problem Where do you cut off the line of suspect classes? If we go down slipper slope, that will lead to court micromanagement
Not Suspect Class, Only Rational Basis Review Plus, less deferential to the legislature. Legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. o 1. Use a standard that Defers to legislature because not likely that the classification reflects prejudice State has a legitimate interest in dealing with this group and providing for them They have reduced ability to function in everyday world Dont use heightened scrutiny here because it involves substantive judgments about decisions that legislature is better informed about and better equipped to handle o 2. This group has been represented in the political process and we should defer to legislature bc it needs flexibility to create legislation that encompasses the varying needs of this group. Given the wide variation in the abilities and needs of the mentally disabled, governmental bodies must have a certain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.

Using Rational Basis Review, Is the special use permit requirement constitutional? No. o Rational Basis Review Test: legislation will be upheld if it is reasonably related to the achievement of a legitimate end. Presumption of constitutionality applies. Challenger bears burden of showing legislation is unconstitutional. Very deferential to the legislature. o Test Applied:

Cities Legitimate Interests: Safety and fears of residents in the adjoining neighborhood, and number of people to be housed in the facility. No Legitimate Interests Court says there is NO rational basis for believing this home would pose any special threat to the citys legitimate interests. There is no rational basis for requiring this particular group home to have a permit when other similar arrangements are not required to do so. o All the Citys reasons for imposing this permit show that the restrictions are only limited to the mentally disabled , court wont allow that It is clear that the only reason this permit was required was because the mentally retarded were involved. Private biases cannot be permissible bases for treating a home for the mentally disabled differently from other types of homes Other interests that could be legitimate (congestion) but fails on means-end fit because it specifically targets mentally disabled Marshal Dissent/Concurrence Court did not really apply rational basis, but heightened scrutiny. o The test applied today is not the rational basis test from Williamson

Williamson: Means/end fit doesnt need to be perfect, Williamson shows that so long as the Court can conceive of some legitimate purpose and so long as the law is reasonable, a law will be upheld.

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Court should have applied Real Heightened Scrutiny: Intermediate Scrutiny to these groups, but doesnt say this outright o 1. Importance Interest at Stake of the group (Housing) o 2. History of Discrimination Rather than striking the ordinance down, the Court invalidates it merely as applied to respondants. o The court should have struck it down

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2. San Antonio Independent School District v. Rodriguez 1. Education is NOT a fundamental right, so minimum rationality is the test in cases where there are education-based classifications. 2. Impoverished People are NOT A suspect classificationrational review. Facts: Mexican-American parents of children in the Edgewood School District in San Antonio sued on behalf of children of poor families residing in districts having a low property tax base. The challengers attacked the constitutionality of the Texas system of financing public education, which relied heavily on such property taxes.

Equal Protection Claim: challengers claimed that the system violated equal protection because it produced substantial inter-district disparities in per-pupil expenditures, stemming from the differences in property values among the district. Although contributions from a statewide minimum foundation school program served to reduce inter-district disparities, district spending continued to vary considerably on the basis of property wealth.

Posture: The District Court, exercising strict scrutiny, held that the Texas scheme violated equal protection. Issue: Does the Foundation Program which funds 80% of schools and leaves the other 20% to local taxes create a suspect classification on the basis of wealth? Does it violate poor childrens fundamental right to education, violating the EP clause of the 14th amendment?

Holding: No, No. Reasoning: 1. No Suspect Classification so no heightened scrutiny: Appellees define the group in 3 different ways to try and prove this is a class who is discriminated against. o 1. Defining the group as a class of definibly poor persons does not amount to a class who is discriminated against

1. No evidence that the financing system discriminates against any definable category of poor people poorest people are not necessarily concentrated in the poorest districts

2. Students still have access to schooling Where wealth is involved, equal protection does not require equal education. o 2. Comparitive Discrimination theory doesnt work either still unclear what degree of correlation is necessary o 3. District Wealth Discrimination: Discrimination against all those who reside in a certain district This is just an artificially defined level of district wealth, could be due to a number of factors o However its defined, it doesnt work. This class is too big to apply heightened scrutiny to, its amorphous unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with disabilities, or subjected to a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. Therefore, the Texas system does not operate to the peculiar disadvantage of any suspect class 2. EDUCATION IS NOT A FUNDAMENTAL RIGHT, SO NO HEIGHTENED SCRUTINY o Education is NOT a fundamental Right: The key to discovering whether education is fundamental is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing.

Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Not Explicit in Cons. Not Implicit in Const. o Apellees: Education is a fundamental right implicit in the constitution because it bears a close relationship to other right and liberties accorded explicit protection under the constitutionfirst amendment freedoms, and intelligent utilization of the right to vote. Right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively.

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Court: Doesnt matter. We have never presumed the authority to guarantee the most effective speech or the most informed electoral choice. Maybe it would be different if the financing system precludes children from acquiring basic skills necessary for the enjoyment of rights of speech, but thats not the case here. o Hypocritical Court: Travel, voting, privacy, procreation, marriage are all rights that have been created by the court. None of these are explicitly in the Constitution, but the court says theyre implied there. This is hypocritical! Conclusion: No violation of the Equal Protection Clause using Rational Basis Test o Rational Basis Test requires that the States system be shown to bear some rational relationship to legitimate state purpose.

Purpose= Local control of School District Yes has a rational relationship

Apellees: Local Control could be preserved and promoted under other financing systems that resulted in more equality in educational expenditures. Court: This doesnt matter: o 1. The existence of some inequality is not alone sufficient basis for striking down an entire system o 2. This isnt strict scrutiny this doesnt need to be the less restrictive alternative.

Dissent: Justice White

TX system extends a meaningful option to all local school districts to increase their per-pupil expenditures and so to improve their childrens education to the extent that increased funding would achieve this goal. However, this option is not available to Edgewood districts with a low per pupil real estatee tax base EVEN IF PARENTS WANT TO SUPPORT THEIR SCHOOLS WITH GREATER TAX REVENUES, THEY CANT. (state places ceiling on tax rate) This real property tax doesnt have a rational relationship to the states purpose: o State aims at maximizing local initiative and local choice is NOT ACHIEVED through this tax

MARSHALL DISSENT

Districts with property tax bases so low create little opportunity for interested parents, rich or poor, to augment the school districts revenues. INVIDIOUS DISCRIMINATION

This is not a de minimus claim ,that wouldnt have protection under 14th amendment, this is a program that faules to ameliorate seriously discriminatory effects of the local property tax Court has not only applied a black and white standard of review but a spectrum of standards depending on the importance of the intrest adversely affected Fundamental Rights for the purposes of equal protection analysis are not always determined explicitly or implicitly in the Constitution o Marriage o Procreation o Right ti appeal o Vote The classification at issue should have been subjected to a higher degree of scrutiny than the rational basis standard of review. Our equal protection cases cannot all fit neatly under one of two categories rational basis or strict scrutiny. The Supreme Court of the United States should use a spectrum of standards in reviewing equal protection challenges with consideration for the societal importance of interests adversely affected and the invidiousness of classifications at issue. Test for determining fundamental Right: o 1. Determine to the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the constitution As the nexus between the specific constitutional guarantee and the non constitutional interest draws closer, the nonconstituitonal interest becomes more fundamental o Only if we closely protect the related interets from state discriminaton do we ultimately ensure the integrity of the constiutional guarantee itself. o There is a close nexus between education and established constitutional values o There is discrimination on the basis of group wealth (3rd category) that calls for careful judicial scrutiny (heightened scrutiny) child cant control how wealthy he IS (immutable characteristic) o Applies Some type of CLOSE judicial scrutiny, something more than rational basis but doesnt say its intermediate or strict 1. Legitimate Interest : Local Educational Control is a substantial state interest but here its offered as an excuse and NOT as a justification for interdistrict inequality

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3. Plyler v. Doe: Rational Basis Plus: Courts stops short of calling it intermediate scrutiny. Undocumented children//Education. Rational Basis with some value balancing. Whatever State interests may be they are insubstantial when looking at the costs of not educating these children for the State and the Nation. Facts:

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In 1975 the Texas legislature passed a law withholding funds for the education of children of illegal aliens. This law also authorized local school districts to deny entry in the public schools of the state to these children. Issue: Whether the educational law at issue here violates equal protection under the 14th amendment? Holding: YES Reasoning: Brennan Children should not be punished for their parents misconduct Education is not a right, but it plays a fundamental role to maintain the fabric of out society o 1. Need it to participate effectively in society o 2. Need it to lead economically productive lives Denial of education to a group of children poses an affront to one of the goals of Equal Protection: o The abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit Cant be self reliant or self sufficient w/out education

Scrutiny: The law needs to further some substantial goal of the state, seems like right above RB it is RB with some value balancing. Rational Basis Plus, court stops short of calling it intermediate scrutiny o State: Interest is the preservation of the states limited resources for the education of its lawful residents.

Court: Preservation of resources alone CANNOT justify the classification used in allocating those resources. Three Other interests: 1. State seeking to protect the state from an influx of undocumented people.

Court: this law is not an effective way to deal with any economic or demographic burdens that undocumented people may be on the state. There is evidence to suggest that these people do not impose any significant burden on the States economy. 2. Undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the States ability to provide high quality public education in the state. Court: Barring undocumented children from local schools would not necessarily improve the quality of education provided in these schools. 3. Undocumented children are less likely to remain in the state and less likely to put their education to productive social or political use within the state. Court: This is difficult to quantify. The state has no assurance that ANY child will remain in the state and work in the state. Ultimately Court Says: Whatever savings might be achieved by denying education to this group are INSUBSTANTIAL In light of the costs involved to these children, the State and the Nation. Whatever these interests may be they are insubstantial when looking at the costs of not educating these children for the State and the Nation.

Dissent: Burger Majority should have used a lower standard of scrutiny because there is no suspect class here and education is NOT a fundamental right; without SS EP clause permits a State substantial latitude in distinguishing between different groups of persons. Majority is guilty of policymaking EP clause does not preclude legislators from classifying among persons on basis of factors and characteristics over which individuals may be said to lack control: o Me , really? What about immutable characteristics? Applies Min Rationality o It is not irrational for a State to conclude that it does not have the same responsibility to provide benefits for persons whose very presence in the State and in this Country is illegal as it does to provide persons lawfully present 4. Romer v. Evans : A law declaring that it shall be more difficult for one group of citizens than all others to seek aid from the government is a denial of equal protection in the most literal sense. Amendment 2 classifies homosexuals to make them unequal to everyone else and does not further a proper legislative end. Purpose is So broad cant be justified by any reason and so only seems explicable by animus towards the class it affects. Not directed toward any identifiable legitimate purpose or discrete objective. ITs only status based and is a classification of persons undertaken from its own sake, rather than towards any legitimate purpose. Facts:

Several municipalities in Colorado had passed legislation that banned discrimination against homosexuals in housing transactions. The Petitioner, Romer (Petitioner), was not leased an apartment by the Respondent, Evans (Respondent) because of his sexual orientation. Petitioner was denied housing because of his sexual orientation and brought a claim against Respondent under the municipal code. But, the Respondent defended citing the newly enacted state law that repealed all prior provisions that designated homosexuals as protected class for Equal Protection purposes.

CON LAW OUTLINE State: Amendment 2 only denies homosexuals special rights because it nullifies anti discrimination laws passed that ultimately
benefit of gays and lesbians Issue Held:

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By singling out a group and denying them the protected class status has the Colorado amendment violated the Equal Protection Clause of the United States Constitution (Constitution) YES A law declaring that it shall be more difficult for one group of citizens than all others to seek aid from the government is a denial of equal protection in the most literal sense. Amendment 2 classifies homosexuals to make them unequal to everyone else and does not further a proper legislative end.

Reasoning: The majority indicates that this amendment results in discrimination against a group because it singles them out and denies them protection of the law. o The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies Amendment 2 does more than just deprive homosexuals special rights o it may deprive them even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings Amendment two fails the conventional inquiry into whether a law burdens a fundamental right or a suspect class. o 1. Imposes a broad disability on a single named group. o 2. Lacks a rational relationship to legitimate state interests (Minimum rationality review) A law declaring that it shall be more difficult for one group of citizens than all others to seek aid from the government is a denial of equal protection in the most literal sense. Minimum Rationality Test: Law must have a rational relationship to a legitimate governmental purpose o Purpose:

State: 1. Respect for other citizens freedom of association, specifically the liberties of landlords or employers who have personal or religious objections to homosexuality. 2. Also an interest in conserving resources to fight discrimination against other groups. Purpose is So broad cant be justified by any reason and so only seems explicable by animus towards the class it affects.

Rationally related: NO. the breadth of the amendment is so far removed from these particular justifications that it is impossible to credit them.

Court: Not directed toward any identifiable legitimate purpose or discrete objective. ITs only status based and is a classification of persons undertaken from its own sake, rather than towards any legitimate purpose.

Dissent Scalia: Statute doesnt disfavor homosexuals in any substantive sense but merely denies them preferential treatment. Court contradicts Hardwick by implying that opposition to homosexuality is as reprehensible as racial or religious bias Since Constitution says nothing about this (whether or not homosexuality is as reprehensible as racial or religions bias), it should be resolved by the political process, including the democratic adoption of provisions in state constitution Majority mistakes a cultural struggle for animosity towards a group of people Am. 2 isnt about a desire to harm but about an attempt to preserve traditional sexual mores

Court contradicts Hardwick by implying that opposition to homosexuality is as reprehensible as racial or religious bias Since Constitution says nothing about this (whether or not homosexuality is as reprehensible as racial or religions bias), it should be resolved by the political process, including the democratic adoption of provisions in state constitution The amendment prohibits special treatment of homosexuals, and nothing more. Rational Basis Test o 1. Legitimate Interest: There was a legitimate basis for the prohibition of special protection for homosexuals, if it is constitutionally permissible for a State to make homosexual conduct criminal (under Bowers) then it is constitutional for a stae to enact other laws merely disfavoring homosexual conduct. This is not about animosity but about differening morals Slippery Slope o Majoritys ruling suggests that statutes against polygamy are unconstitutional

STATE v. PRIVATE CONDUCT in EQUAL PROTECTION CASES Shelley v. Kraemer : Application of the Constitution to Private Conduct through Govt Enforcement of Private Decisions= Unconstitutuional. (Restrictive Covenant Case)

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Facts: 30 out of 39 owners of a section of St. Louis, signed an agreement, stating for 50 yrs., no part of the properties would be occupied by any person not white. In two cases, black families had purchased homes burdened by restrictive covenants, signed by property owners in the neighborhood, that prohibited occupancy by nonwhites. Respondents brought these actions in state court seeking to specifically enforce the covenant provisions. Issues: 1. First, are racially-based restrictive covenants legal under the Fourteenth Amendment of the United States Constitution? Not on their face standing along. 2. Secondly, can they be enforced by a court of law? No. This could constitute state action. Holding: The United States Supreme Court held that racially-based restrictive covenants are, on their face, not invalid under the Fourteenth Amendment. Private parties may voluntarily abide by the terms of a restrictive covenant, so long as the purposes of those agreements are effectuated by voluntary adherence to their terms

but they may not seek judicial enforcement of such a covenant, because enforcement by the courts would constitute state action. Since such state action would necessarily be discriminatory, the enforcement of a racially-based restrictive covenant in a state court would violate the Equal Protection Clause of the Fourteenth Amendment. o The action of state courts in imposing penalties or depriving parties of other substantive rights without providing adequate notice and opportunity to defend, has long been regarded as a denial of the due process of law guaranteed by the 14th amendment. o IT is clear in this case that the owners of the properties were willing sellers, and petitioners were willing purchasers. But for the active intervention by state courts, petitioners would have been free to occupy the properties in question without restraint. The court rejected an argument that since state courts would enforce a restrictive covenant against white persons, judicial enforcement of restrictive covenants would not be a violation of the Equal Protection Clause. The court noted that the Fourteenth Amendment guaranteed individual rights, and that equal protection of the law is not achieved with the imposition of inequalities.

3. Burton v. Wilmington: The exclusion of a Negro solely on account of color from restaurant operated by private owner under lease in building financed by public funds and owned by the parking authority which was an agency of the State of Delaware is discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment.

Private Activity on Govt Property Relevant Facts: The Eagle Coffee Shoppe, Inc., a restaurant located within an off-street automobile parking building in Wilmington, Delaware, refused to serve appellant food or drink solely because he is a Negro. The parking building is owned and operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the restaurant is the Authority's lessee. Appellant claims that such refusal abridges his rights under the Equal Pro Cl of the 14th . Legal Issue(s): Whether the exclusion of a Negro solely on account of color from restaurant operated by private owner under lease in building financed by public funds and owned by the parking authority which was an agency of the State of Delaware, was discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment? Court's Holding: Yes Law or Rule(s): Private conduct abridging individual rights does no violence to Equal Protection Clause unless to some extent the state, in any of its manifestations, has been found to have become involved in it. 14th via Civil Rights Cases. Court Rationale: The land and building were publicly owned. As an entity, the building was dedicated to 'public uses' in performance of the Authority's 'essential governmental functions.' But no State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith. The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment. o No precise formulation for recognition of state responsibility under Equal Protection Clauses has been or could be fashioned or applied; only by sifting facts and weighing circumstances can nonobvious involvement of state in private conduct be attributed its true significance. o It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the State to serve a public purpose, all persons have equal rights, while in another portion, also serving the public, a Negro is a second-class citizen, offensive because of his race, without rights and unentitled to service, but at the same time fully enjoys equal access to nearby restaurants in wholly privately owned buildings.

CON LAW OUTLINE Plaintiff's Argument: Exclusion of a Negro patron, solely on account of color from restaurant

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operated by private corporation under lease in building financed by public funds and owned by parking authority which was an agency of state, was a discriminatory state action in violation of Equal Protection Clause of Fourteenth Amendment. Defendant's Argument: Dfs, as private owners of businesses, were under no duty to serve the pl b/c dfs were individuals not a state agency.