CON LAW OUTLINE

Professor Nowlin, Spring 2008 (Updated Sterling Kidd)

I.
INTRODUCTION
Popular Sovereignty: The foundation of the government is the consent of the
governed (popular sovereignty).
o Government Purpose - To protect natural rights from private violence and
promote human equality.
o Danger is that government becomes oppressive or tyrannical.
Anarchy/state of nature: Lack of government.
Habeas Corpus: Govt have to give a reason for the detention of a person they are
holding.
Declaration of Independence: A major theme in the DOI is federalism. It is no
surprise, therefore, that a clearly limited government emerged.
o The bill of particulars backs up the statement that the king and British
government had become tyrannical.

By negative implication, this list is a bill of rights, b/c it shows what a

just govt SHOULDNT do.
o Important principles: all men are created equal with certain inalienable rights,
the rights of life, liberty, and the pursuit of happiness. The ultimate guarantee
of the protection of liberty is the civic virtue of the people.
The United States is a political community. It exists and is not a set of provinces.
This sense of community is necessary before government can be created.
The form of the government is a republican representative democracy.
The ultimate goal of government is the civic virtue of the people.
DOI in what sense a Constitution?
o Purpose of a Constitution is to create a government. (The U. S. Constitution
does this, not the DOI).
o They also state values or aspirations of the government; in that sense the DOI
is a kind of Constitution. (Reaffirmed by Constitution)
o DOI does in some sense create a political community. (Reaffirmed by
Constitution).
Governmental Limits: To enforce the purpose of government, the government is
limited in the Constitution. There are two types of limits:
o Structure Limitsthe entire theme is the diffusion of political power

Bicameralismthe founders felt the legislature was the most powerful

branch (some) and they therefore split it up to weaken each individual
house and instill a sense of competition. (Obviously, closely related to
idea in DOI that legislative assembly is impt.).
Senate
House of Representatives

Separation of Powers

Representation in the way we structure the selection of public officers.

Federalism

Juriesa method of weakening the judicial branch (some viewed this

as the most powerful branch)

Various other means of checks and balances.

The slow-moving decision making process inherent in a bureaucracy.

o Constitutional rights

Right to trial by jury

Free Speech

Freedom of Religion

II.
JUDICIAL POWER
The judicial branch gets their power from judicial review and exercises their power in
a very quiet, unobtrusive way.
Tocqueville: judges and lawyers actually comprise a type of aristocracy, or, more
specifically, a juristocracy. He said political questions become Constitutional
questions. Lawyers thus have power that they dont have in other countries.
o The anti-populist reply to this is that lawyers should have this much power
because the people who know the most about the law should be ruling. Test
hint: take note whether an argument is populist or anti-populist (elitist). (In
class, this has been references more in terms of judicial supremacy).
Texas v. Johnson
o A Texas statute made it illegal to desecrate a flag. Overruled.
o Burning done to communicate political message and this is protected as free
speech. The statute is prohibiting the message not the act, so it violates free
speech; their whole reason for passing the statute is to protect flags value.
o Even though burning the flag is distasteful, must enforce the limits of the
Constitution. Court has to take cases even though they are controversial to
resolve Constitutional issues. W/in Courts authority/duty to resolve these
types of questions. (Orthodox view of role of S.C.)

Relates back to Marbury & Separation of Powers; Supreme Judicial

Review.
o Dissent: was allowed to use other forms of protest or say anything he
wanted, just not burn the flag (arguing that the statute didnt suppress free
speech). Flag is an intangible asset that should be protected, a symbol of unity
in times of crisis, which is an important state interest. The burden on Johnson
in not being able to burn the flag is trivial. You cant spray paint the Lincoln
Memorial, and so you shouldnt be able to burn the flag.

Judicial review evaluated by basic principles of federal government:

o Balance and diffuse

Pro: checks and balanceslimit power of Congress and executive to

violate Constitution.

Cons: Five votes do not properly balance/diffusetoo much power to

judiciary. 5 justices can beat out the other 4 justices, the states, the
Presidents and Congress, etc. (Ex. Texas v. Johnson).
o Representation
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Pro: Judges not representative, not subject to popular opinion. Laws

are technical questions that are properly left to legal experts.

Cons:
Decisions being made by non-representative institutions
judges not elected.
Also free speech issuerepresentation as free speechmay be
undermined when judges make decisions.
o Popular sovereignty

Judges as legal experts are just enforcing laws ratified by the majority
o Civic virtue

Pro: reaction to Supreme Court inspires reaction and popular input

about constitutional issues

Con: apathy, Let the Supreme Court handle it.

Marbury v. Madison
This case establishes judicial review in the American system.
o Arguably can be departmentalism or judicial supremacy, but its general cited
as created judicial supremacy.
o McCulloch v. Maryland (1819) made the first clear statement of judicial
supremacy. By this tribunal alone can Constitutional questions be resolved.
Judiciary Act of 1789 granted the Supreme Court the power to issue the writ, but the
act was in conflict with the original jurisdiction of the Supreme Court as established
in the Constitution, as outlined in Article III, 2.
o In all cases affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party, the supreme court shall have original
jurisdiction. In all the other Cases before mentioned, the supreme court shall
have appellate jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the Congress shall make.

Therefore it was unconstitutional for SC to have original jurisdiction

over this matter.
Argument that Marshall makes for the right to declare the Judicial Act
unconstitutional:
o Constitutional supremacy Constitution is supreme; therefore SC cannot be
granted a power by Congress that conflicts with the Constitution.

Constitutional Supremacy is based on:

Supremacy Clause (Article VI, Clause 2)
The very purpose of and existence of Constitution to limit
government.
Popular sovereignty We the people
Written document.
o Judicial Power Judiciary has the power to interpret Constitution, so it can
determine whether or not it should have original jurisdiction concerning writs
(i.e. if Constitution gives judiciary the right of original jurisdiction over such
matters).

Power of judicial review is based on:

Article III jurisdictional language gives S.C. power to hear
cases arising under the Constitution.
The judicial oath to uphold the Constitution.
Constitution binds the court.
Separation of powers Province and duty of S.C. to say what
the law is.

Constitutional Interpretation Four possible setups for constitutional interpretation:

o Legislative supremacy Congress had the final authority to determine the
meaning of the Constitution. Supported by a few at the founding, clearly
rejected by Marbury.
o Executive supremacy never seriously supported by anyone.
o Judicial supremacy/Supreme Judicial Review the SC is supreme in its
explanation of the Constitution; ultimate arbiter. Marshall, most federalists
support this.

By the late 19th Century this had become the orthodox view, although
some say it was later than that.

Cooper v. Aaron (1958) asserts this view

U.S. v. Nixon (1974) .

Very close to what we have today.

From McCulloch v. Maryland (an Article I, Bank of the United States

case), we get a new argument for thisthe settlement function.
Judicial review serves to maintain civic peace and help avoid civic
discord.
Settlement Thesis only a branch like the judiciary can settle
these issues peacefully and quickly. This limits the hostility
between branches and gives one answer to promote
constitutional stability. (Viewed as a more powerful argument)
4th argument along with separation of powers, Article III
arising under, and judiciary oath.

Counter-arguments to judicial supremacy (under a departmentalism

view):
Separation of Powers All three branches are supposed to be
equal under the Constitution; who checks the Court when they
violate the Constitution?
o They all need power to check each other.
Settlement Thesis Settlement at the expense of the other two
branches is actually judicial tyranny. Discussion and debate
are good.
Article III means judicial review, not supreme judicial review.
o Why would the founders have intended for the cts to
have this tremendous power and not even bother to
write it down?

o Departmentalism does not eliminate judicial review. It

just makes it only appropriate in its own sphere.
All of the public officials take an oath to uphold the
constitution, just as the court members do.
o Departmentalism or Coordinate Review all three branches equally share
power. This was the view that all 3 branches shared equally in their power to
interpret the Constitution.

Instead of supreme judicial review there would be MERE judicial

review.

Marbury is consistent with departmentalism or judicial supremacy, but

is cited for judicial supremacy.

Departmentalism was supported by Jefferson. and most Republicans.

National Supremacy, State Supremacy or Federal Departmentalism
Struggle between national government and state government.
o National supremacy (many founders supported this)

States are supreme over their state constitutions, so federal government

should be supreme over US constitution. Arguably, this is what
federalism means.

Separation of Powers National government should answer questions

of constitutionality because
State legislatures are less competent and
State legislatures do not have the power to perform judiciary
functions.

Many of the arguments for judicial supremacy apply here again;

Article III, etc.

Settlement Thesis national is better equipped to interpret the

constitution because if states are given the power there may be 50
different interpretations. In addition, if nobody to solve, may lead to
states taking up arms against each others.
National supremacy ultimately won out; many thought national
supremacy debate was settled after civil war, but debate
reemerged during civil rights movement in the 1960s.
o State supremacy (few founders)
o Federalism departmentalism (many) the states would have the power to
determine the constitutionality of federal laws within their boundaries; the
national government would have power in DC and other federal territories.

Sedition Act of 1798: Meant to suppress the expression of the

Jeffersonian Republicans, although said the purpose was possible war
w/ France.
You couldnt criticize the V-P, who was Jefferson.
J-R state governments said the Sedition Act was
unconstitutional, and thus it was null and void.

Federal departmentalism is also known as:

Nullification (State Constitutional Review) this is the state

asserting the right to nullify a federal law the state thinks is
unconstitutional.
o Nullification was killed out in 1960s.
Interposition the state will interpose their political authority
between the unconstitutional acts of the national government
and their citizens, in order to protect them.
State Constitutional Review state conventions sit in and
determine whether or not acts of the federal government are
unconstitutional.

Federal departmentalism arguments:

The Constitution is a compact between state governments.
When the entity created by the contract does something its not
supposed to do, the members of the contract get to decide how
to deal with it.
o We know that the states are members of the contract
because of Article VII. The ratification of the
conventions of nine states shall be sufficient for the
establishment of this constitution between the states so
ratifying the same.
Also, nullification is parallel to the actions taken against the
British government.
Centralizing power in the national judiciary is tyranny.
Again, their arguments mirror the ideas denying the supremacy
of the judiciary.
o Nullification Crisis of 1832: S.C. decided that a tariff was unconstitutional,
and nullified the tariff; Congress authorized an army to march into S.C.

Tariff bill was repealed, and S.C. repealed nullification; also nullified
force bill, but that became irrelevant.
Summary: Marshall believed in National and Judicial Supremacy; Jefferson believed
in federal and national departmentalism; others were in between.
o Our practice today tends to be Marshalls practice.

Constitutional Interpretation
Hamilton in Federalist 78 said that as long as the judiciary exercised its judgment
power and not its will then legit. Courts role is its judgment, not its will.
o Judgment is law interpretation through interpretative methods.
o Said the Constitution is supreme over the Congress and over the S.C.
o Legislative power is will.
Major sources of constitutional interpretation: (List moves from most legal to least).
o Text of the Constitution-Should always be the starting point.
o Original Understanding / Intent looking at the intent of the persons who
wrote the constitution (i.e. what the authors had in mind).

Can provide constraint in interpretation; some think good others bad.

o Judicial precedent: Stare decisis.

Sometimes there are no precedents, and sometimes they are wrong.

o Legal Traditions traditions of American people should be looked at because
they reflect the fundamental values of the US (just as the Constitution does).
o Modern/evolving legal traditions; what Americans think today.

Probably dont look at Gallup polls; but maybe state legislatures.

o Policy judgments: natural law/rights, moral philosophy, or judges values;
pragmatic
Judicial Activism v. Judicial Restraint (Calder v. Bull 1798)
Chase: we need to protect natural rights; if govt violates it, they have violated
Constitution; meaning judge has right to invalidate law.
o Activists loose constructionists who do more and are more flexible.

They emphasize discretion, policy arguments, & non-deference to

elected officials.

Want to adapt the constitution to modern values and protect minority

rights.
o Sources include text, precedents, and popular values and natural law.
Iredell disagreed: Said courts did not have the power to invalidate laws:
o Restraint strict-constructionists who do less and seek precedents; they are
more rigid.

Want to minimize policy discussions, and discretion.

Maximize legalistic forms of interpretation, & deferential to elected

officials.

Think that it undermines democracy to be too activist.

Want to protect majority rule; want a constraining (not adaptable)

Constitution.
o Sources include text, precedents, original understanding or intent, and legal
traditions.
Historical v. Living Constitution
Contrast between a living constitution approach and a historic constitution approach.
Remember, this contrast is a sliding scale.
o Living constitution emphasize flexibility/adaptability due to evolving legal
traditions, policy judgments, consensus values, and probably precedent.

Connected with judicial activism.

Pros
o Maybe the founders intended for it to be a living
constitution.
o This reflects current practice more closely.
o Has been used to expand our rights.
o Allows us to adapt.
Cons
o Too much political input; might overreach.

o Elitist view, since the lawyers are elitist; may give a

bias for the upper classes through the rulings.
o The constitution does not constrain properly
o Historical constitution emphasizes text, original understanding, and
precedent.

Connected with judicial restraint

If the values change we should evaluate them to make sure they stay in
tune with the Constitution.
Has respect for political process. Pro-democracy.
If we want to change the Constitution, there is an amendment
process available.
Separation of Powers. Let the legislature make the laws.
Pros
o Stable, predictable
o Rely on legal materials, not political whims
o The constitution restrains
o There are some horrible things that could possibly be
upheld under a living constitution that would not be
upheld under this constitution.
Cons
o Dead-hand control
o Roper involved a case where the S.C. has to interpret the Constitution as to
whether or not they could put a minor to death.

The founders did not hesitate to execute people.

Consensus value appeared that executing 17 yr olds was not good.

The S.C. ruled against the juvenile death penalty; they also struck
down the ability to execute the mentally retarded (Atkins).
Checks on the Judiciary
Power of Reprisal political control of the SC
o Constitutional Amendment

4 amendments were made in reflex to a SC holding:

Amendment XI establishing sovereign immunity for states.
Amendment XIVdeeming Americans of African descent
citizens of the US
Amendment XVIexpanding power of Congress to tax
Amendment XXVIsetting voting age

This check is very difficult to exercise: you need super majorities.

o The Power to Appoint

Political branches decide who sits on the S.C. Presidents nominate

justices and those nominations must be approved by the senate.

A very large power, but it is impossible to completely predict a

justices actions while on the bench.

Effective, but spotty; vacancies usually occur every 2-3 years

(although recently we have had longer periods).
o Impeachment happened once, but never removed so its largely ineffective
b/c justices know they will not be removed unless they commit a crime.
o Life tenure SC judges serve for life in an effort to promote judicial
independence.

Controlling sitting judges, informal mechanisms and self-imposed

limits judges are sensitive to political pressures; they dont exist in a
political vacuum.
o Article III, 2 gives court appellate power with such exceptions and under
such regulation as the congress shall make. Some argue this gives Congress
the power to strip courts of rights of appellate jurisdiction.

So, there has to be a Constitutional and Statutory basis for appellate

jurisdiction to lie.

Ex parte McCardle states that Congress can make exceptions through

explicit statutes (The S.C. does not have appellate jurisdiction in this
type of case), or implied, by saying they have appellate jurisdiction in
some areas, and thus leaving others out. 2 differing interpretations of
this opinion:
Plenary Power Reading: Full power; no limit on what Congress
can do in limiting S.C.s appellate jurisdictions.
o Textual: Article III says appellate jurisdiction can be
limited by exceptions made by Congress.
o Structural: Separation of powers: Provides a check on
the Supreme Courts power.
Limited Power Reading (Essential Judicial Functions
Argument): Congress may make exceptions and regulations
but cannot bar S.C. from hearing a kind of case entirely; they
have to leave at least one path of appeal.
o Textual: The nature of the word exceptions means that
it should not wipe out all appellate jurisdiction.
o Structural: The proper role for S.C. is the supreme
expositor of the Constitution.
o McCardle can still get back to the S.C., just through a
different habeas statute than the one relied upon.

Case or Controversy
Case or controversy requirements
o The judicial power only extends to cases and controversies stems from an
implicit reading of Article III, 2

SC has no power to issue advisory opinion b/c Article III says the
court can only decide case or controversy.
o Justiciability Doctrines (standing, mootness, ripeness, and political question)
assure there is a case/controversy for SC to resolve to ensure the court is not
issuing an advisory opinion or something that looks like an advisory opinion:

Standing
Allen v. Wright case dismissed b/c parties didnt have standing.
Standing requirements: Constitutional Requirements
o (1) Injury in fact - it must be distinct, individualized, &
concrete; real injury.

Citizen standing (i.e. every citizen is harmed

when government doesnt follow the law) fails:
not individualized.

Class Standing (i.e. African Americans are being

discriminated against so they should have
standing): fails.
Only those who are denied admission.

Impairment of Desegregation racial imbalance

is caused by government therefore there is an
injury in fact to parents forced to send their kids
to non-segregated schools. This is injury in fact.
o (2) Causation fairly traceable to the defendant.

No proximate causation (too many intervening

causes) between racial imbalance and tax
exemption; no statistics, etc.
o (3) Redressable by the court court has to be able to
issue a remedy (overlaps w/ the other 2).

In Allen, the S.C. should not micromanage how

the executive branch runs its affairs; thus, this
tightens up the traceability analysis.
o Dissent: It is basic elementary economics: the govt is
improperly subsidizing racial discrimination.

Also says surely the courts can tell the IRS to

enforce the 14th amendment and follow the
internal revenue code: in other words, not to
break the law.
Prudential Standing a court may have constitutional standing,
but may choose not to hear the case as a prudential matter.
Prudential limits are self-imposed restraints on the court to
promote the policies created by justiciability.
Political Questions a political question is a constitutional question
for resolution through the political process (political branches) rather
than through the courts. S.C. has never said whether or not this a
Constitutional requirement, or prudential. (Exception to Jud. Supr.)
In Baker v. Carr, a malapportionment of representation
occurred in TN due an influx of large numbers of people.
o Foreign policy is often seen as a political question.
o Internal Operations of Congress are also often seen as a
political question.

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o The Guaranty ClauseArticle IV, 4promises

citizens of the states a republican government, not a
monarchy. In the 1840s, the SC decided that the
Guaranty Clause only creates political questions. It
needs to be enforced, but it needs to be enforced by the
President or Congress. (Luther v. Borden. The Borden
Rebellion/Rhode Island case. If any department of the
US was empowered by the Guaranty Clause to resolve
this issue, it was not the judiciary.)
While they could not make decision on Guaranty Clause, they
could on Equal Protection Clause.
Six factors indicating something is a political question.
o (1) Demonstrable textual commitment of the issue to
another branch.
o (2) Lack of judicial standards that allow the Courts to
resolve the question;
o (3) A need for policy decisions that are outside the
judicial scope;
o (4) If making a decision would show lack of respect for
political branches;
o (5) Need for strict adherence to political decisions
already made; or
o (6) Judiciary deciding could cause embarrassment, such
as Pres. and Congress saying we are at war, S.C. saying
not.
Dissent, wants a broader interpretation of political questions.
He feels this is a guaranty clause political question in disguise.
o Federalism/State autonomy
o Have to be concerned with judicial isolation from
controversial political areas.
Ripeness
Ripeness is linked to standing and is about bringing a case too
soon. The case is non-justiciable because the case isnt ripe.
If the court feels there may be standing in the future, but the
timing isnt right.
If there is prosecution the case is ripe; if there is threat of
prosecution the case may or may not be ripe.
Mootness
Bringing something too late; if there is no controversy that is
alive.
Settling creates a moot case; also withdrawing of the law by
the legislature may moot a case if the court chooses.

o Policy reasons behind limiting SC power to case and controversy, and not
having advisory opinions:

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Major concern about the separation of powers and other constitutional

structures like federalism. While the Supreme Court might have the
power to interpret the Constitution (thanks to Marbury), it doesnt
have that power at all times; there must be some level of judicial
restraint.

Conserve Judicial Resources efficiency rationale; limit the number of

cases.

Soundness of Judicial Decision when we have a true controversy, the

adversarial situation will bring out the best, concrete arguments. The
Court will take it seriously if there are actual parties.

Fairness to the persons who are the proper litigants A group may be
negatively affected by a law, but be willing to hit a compromise with
the government. An ideological third party might hurt the proper
litigants.
o Arguments FOR allowing advisory opinions

Promotes efficiency in the other branches, b/c they might pursue

policies the S.C. thinks is unconstitutional.

Might actually conserve some judicial resources so that the lower

courts dont have to deal with whether or not some actions are
Constitutional.

If S.C. is guarder of Constitution, should do it at the outset.

The Courts sympathy for certain parties might actually make it less
sound in decision-making.

III.

RACE AND THE CONSTITUTION (14TH AMENDMENT EP).

14th AMENDMENT
1. No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
5. The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
State v. Post
Does the new NJ constitution prohibit slavery? If the framers of the NJ
constitution wanted slavery out of NJ, they would have written a clearer
statement of abolition. He allows slavery to continue and says the statement
that all men had the right to freedom was just aspirational and the first step
in a series of changes.
DOI: All men are created equal. Fundamental commitment of equality in U.S., even
if we havent always lived up to that.
o There was slavery at time of DOI; author was a slave-owner.
o There was also a condemnation of slavery in the original draft of the DOI, but
was removed.
o Some argue that the word men did not include slaves.
o There was an existing evil, and they hoped to deal w/ it after the Union was
solidified, and would disappear over generations.
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o Hypocrites wrote the DOI.

Constitutional mentions of slavery:
o 3/5ths Clause Persons held in bondage should count as 3/5ths of a person for
purposes of representation and taxation. Did not use word slave here.
o Importation Clause (Art. I, 9) allowed the importation of slaves for 20
more years before Congress could ban it.
o Fugitive Slave Clause (Art. IV, 2) if slaves from slave-states escaped to
non-slave states, the non-slave states had to return the slave to the slave states.
Dred Scott v. Sandford (Free African Americans are not citizens; slaves arent either)
o Clear endorsement of original intent.
o Is Scott a citizen of MO? The owner was a citizen of NY so he can get into
court if he has diversity jurisdiction. Constitution did not have original intent
for African Americans descended from slaves to be citizens.
o Constitutionality of MO Compromise? 1st time Court took away major
national political issue away from the political branches. MO Compromise
made slavery not allowable in MN Territory. A constitutional right to own
slaves that stems from the 5th amendment and that the MO compromise is
unconstitutional. First example of substantive due process.
o Substantive DP: The federal govt doesnt have the power to take property w/o
due process of law and therefore disallowing slavery is taking away property
without due process of law.
o Counterarguments:

There were African-American citizens at the time of the framing of the

Constitution, and the Constitution cannot take that away.
There are freed slaves who voted for adoption of the
Constitution and who fought in the Revolutionary war, they
were citizens.

Article IV gave Congress the ability to make laws for the territories.

If the 5th Amendment had meant to protect certain substantive rights, it

would have, and in fact, does. SDP is an oxymoron.
The government gave notice and they passed the law; therefore
there was due process of law.

The whole opinion is doctrinally contradictory. It flies back and forth

between judicial activism and judicial restraint and reeks of politics.

Also, there was no jurisdiction to rule on the MO Compromise, b/c

court didnt have jurisdiction b/c Scott wasnt a citizen.

The decision that is politicized to the core; this is an anti-slavery rule!

This is not a good faith interpretation of the Constitution.

This is an activist decision that pretends to be restraint by citing

original intent.

Reconstruction Amendments
There are delegated & enumerated powers in Const. for national government; was
expected that national govt would have narrow powers.
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o B of R put limits on national govt; did not apply to the states originally.
State has general jurisdiction, and the police power (policy power). It was expected
that states would pass the laws that affect our lives on a day to day basis.
o So they should have the power to enact moral ideas, etc.
Civil War Amendments showed idea that state government had become the real evil.
o Shifted a good deal of power to the federal governments.
o Also set up a battle as to who had control over the enforcement and
interpretation jobs; S.C. limited their power greatly under these amendments.
th
13 abolished slavery
14thdue process clause, equal protection clause (of the laws), privileges and
immunities (of U.S. citizenship)
o Grants citizenship to those born or naturalized in the US. (Overturns Dredd
Scott)
o 5 Includes a provision for Congressional enforcement.
o Questions arising: Protected Class (Who is Protected); and State Action
Dimension (From whom is the person protected).
15thprohibits race discrimination in voting.
Strauder v. West Virginia the purpose of the 14th was to protect blacks from hostile
state legislation (this is hostile, b/c an assertion of inferiority)
o Black was convicted of murder by jury. Only white men over the age of 21
who were citizens of the State could serve as jurors.
o This violated the 14th because the 14th declared that the law in the States had to
be the same for blacks and whites.
o S.C. allowed for many other exclusions, but could not be based solely on race.
o The dissent said the 14th amendment was not meant to protect jury service.
Slaughter-House Cases establish that the equal protection clause is just about race.
o It presents a two-tier approach.

Race receives a high level of scrutiny.

Everything else receives a low level of scrutiny.

o Dissenters focused on the distinctions between civil/political rights. The 14th
amendment was clearly meant to protect civil rights, things like enforcement
of contracts, the right to sue, the right to acquire property, etc. Jury service
and voting were actually considered political rights.

State Action Theory

State Action Theory there can be no violation of the 14th Amendment unless the
State has acted. 14th is fundamentally about protecting African Americans from racial
discrimination by the State. (See SlaughterHouse, Civil Rights, Strauder).
EP Clause
Civil Rights Cases (1883)

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o Congress passed the Civil Rights Act that prohibited all persons from denying,
on the basis of race, any individuals equal access to inns, public
transportation, theatres, and other places of public accommodation.

This exceeds Congress power under 5 of 14th because if there is no

state action there is no violation of the 14th.

Also not closely related enough to 13th Amendment, b/c not related to
slavery.

Dissent thought there was a close enough connection under 13th

amendment (racist attitudes supported slavery); and also that it fits
w/in 14th amendment (says not focused on ep clause, but on the wide
grant authorizing Congress to prevent blacks from not being treated as
citizens.)

SC says you should go to the state for remedy.

Plessy v. Ferguson
o The 14th was undoubtedly enacted to enforce the absolute equality of the
races, it was not intended to abolish distinctions based on color, or to enforce
social equality of commingling of the races. Narrow view of 14th.
o Plessy stands for 3 things:

Equality can allow separation as long as the separation is equal

Separate, but equal = equal protection under the laws; although
Plessy didnt say that; the LA statute said that, and it was
upheld.

Social rights are outsides the protection of the 14th

The 14th was to protect blacks from hostile legislation and the court
says that this legislation is not hostile (i.e. its not a badge of
inferiority).
o Suggested that social rights are not protected; only civil/political rights.
o Dissent: obvious hostility, and an endorsement of white supremacy.

The Road to Brown (The weakening of separate but equal)

Cumming v. Board of Education (1899) local authorities have substantial discretion
in allocating funds between white and black facilities; courts can only intervene in the
case of clear and unmistakable disregard of rights and abuse of discretion. Separate
but equal really means equal enough.
McCabe v. Atchison (1914) takes separate but equal seriously; said no discretion
granted to states. No deference to political actors. There actually has to be equality.
Gaines v. Canada (1938) practice of denying black law school applicants admission
into Missouri law school was unconstitutional even though there was a program setup to pay for out-of-state expenses incurred when a black student had to go to another
state to attend a school that MO didnt offer for black students. MO has to create a
black law school or let blacks into Missouri.
Sweatt v. Painter (1950) court ordered the admission of a black student to a white
school b/c the parallel black school was not equal, esp. on intangibles.

15

McLaurin v. OK (1950) OK admitted a black student, but required him to sit in a

special seat, he couldnt eat with the white students, and he had a reserved place in
the library. Basically denied him interaction.

Brown v. Board of Education of Topeka

Brown (1954) Segregation of children in public schools solely on the basis of race,
even though the physical facilities and other tangible factors may be equal, deprives
the minority children equal educational opportunities, so inherently unequal.
o Separation on the basis of race is detrimental to a childs education because
there is an inherent feeling of inferiority.
o 14th Amendment EPC, at the time it was passed, at least some thought should
invalidate segregation. (Really inconclusive)
At time it was passed, public education was really nonexistent; now
had become central to state government functionality; opens doors.
o Brown only says segregation in public schools is unconstitutional, but as the
court receives additional cases concerning segregated water fountains, etc.
they say unconstitutional see Brown.
Therefore, Browns true rule is Segregation is Unconstitutional! Why?
Option 1: Mere fact of racial classification is wrong
Option 2: Invidious(Unfair; Unfairly Injurious) Discrimination
o Brown is very easy for a judicial activist to swallow. Think the majesty of
the Constitution require that we use moral insight to interpret it.

People in favor of restraint think it is difficult to justify; they could go

back to the 14th Amendment to attempt to show that originally were for
it.
Or, just by applying precedent from the previous cases, it
shows that segregation is unconstitutional.
o Brown II required states to move with all deliberate speed; actual
desegregation took many years, esp. in the South.
*Reverse Incorporation*
The 14th incorporated the original bill of rights. Reverse incorporation is when a
provision of the 14th incorporates something into the bill of rights. EPC is one such
reverse incorporation.
Bolling v. Sharpe
o Because the 14th Amendment is just geared (explicitly) to the states, the Court
used the Due Process Clause to defeat segregation; says there is a substantive
component even though there is only a discussion of process. There is no EPC
in 5th Amendment. Whatever the states cant do under the EPC, the federal
government cant do under the DPC. This is known as reverse incorporation.

Judicial activism opinion.

o The court held that segregation in schools in DC is unconstitutional.
Levels / Tiers of Scrutiny
Ends
16

Means

 Strict Scrutiny (Race

Compelling
Necessary
Ethnicity, National origin)
o Triggered if there is a suspect classification, govt usually loses.
Intermediate Scrutiny
Significant, Substantial, or
Substantially Related
(Gender, illegitimacy)
Important
o Triggered if there is a quasi-suspect classification.
Rational Basis Review
Legitimate
Rationally Related
(Age, disability, sexual orientation, wealth, national origin could also be here; for
things like immigration, political functions, etc.)
o This is a non-suspect classification.
Korematsu v. United States
o Technically a 5th Amendment case; although came before Bolling.
o Korematsu establishes strict scrutiny for racial classifications.
All legal restrictions which curtail the civil rights of a single racial
group are immediately suspect, and subject to rigid/strict scrutiny.
o In Korematsu, the compelling state interest is the war effort. The law is
viewed as necessary to affect the compelling end.
o This is not an ordinary SS case, because generally nothing passes SS.
Why? It is a political constitutional question; they are trying to avoid
second-guessing military during a time of war.
o Court claimed it was not about anti-Japanese racism.
o Dissent said military cannot do anything they want simply b/c time of war; the
military has to at least be reasonable.
Unreasonable b/c limited to all Japanese.
Racism: Over-inclusive (included loyal Japanese) and under-inclusive
(did not include unloyal Germans & Italians)
Military will likely violate Constitution during war, and courts should
not interfere, but should not give stamp of approval.
o General feeling is that Korematsu was decided wrongly, but it stands today
that any classification based on race is subject to strict scrutiny.

Why are racial classifications subject to strict scrutiny:

o Race isnt relevant to legitimate government decision making usually.

So, if govt suddenly decides to make it relevant-suspicious.

o History of race problems and race based oppression (white supremacy) in
America.
o 14th Amendment is fundamentally about race; protecting African-Americans
from discrimination (by a slight extension, ag other minorities). There is also a
broader equality component that underlies the Constitution, and stems from
the Declaration of Independence.
o Immutable characteristic
o Political process fails to protect discrete and insular minorities (from a
footnote in Carolene Products) minorities that are socially distinguishable

17

and isolated in some sense. When we have those groups in a democracy, we

are worried that political process might not protect their rights.
o Racism is wrong (Normative) wrong to place stigmas on people, wrong to
discriminate, and is broader social harm of some kind/racial disharmony.

Instead of treating people as individuals, we treat them as groups,

which is often under/over inclusive.

Reinforce stereotypes by classifying on the basis of race.

The flip side of this argument maintains that discrimination is only

morally wrong if it stigmatizes or brands a group as inferior.
Palmore v. Sidoti (1984) SC overruled statute that allowed children to be taken
away from a white mom who married a black. Private biases cannot allow the
government to create racial classifications.
Anything that has the real whiff of racism is going to fail strict scrutiny; it is a very
tough test.

Express and Non-Express Racial Classifications:

Express classifications all three of these categories receive strict scrutiny.
o Laws that disadvantage traditionally discriminated-against groups
(Korematsu)
o Laws that are facially/apparently neutral as between traditionally
discriminated-against groups and other groups.

Analytically identical to separate but equal.

Loving v. Virginia. Inter-racial marriage ban. The law is facially

neutral because it affects whites and black equally. Virginia wants to
be analyzed under a no discriminatory effect standard. All express
classification will immediately receive strict scrutiny.
o Laws that advantage traditionally discriminated-against groups.

Discussion below-Bollinger cases and Adarand.

No express race classifications
o Laws with no express classifications might still have a race-based purpose but
no effect.
These laws will receive RBR; there may be some question here.
Palmer v. Thompson. Public pool case. There was a racial purpose,
but a neutral effect. Keep in mind that it might have been argued that
the effect was not neutral if you could prove that African-Americans
were more likely to be in a socio-economic bracket that would utilize a
public pool. This is the only case that addresses this weird category
and the Court might change their application later.
Village of Arlington Heights v. Metropolitan Housing Development
how do you prove discriminatory purpose when there is no express
racial classification?
(1) Look to the general historical background; (2) departures
from normal procedures; (3) specific legislative/administrative
history; and (4) patterns of behavior (no other groups to explain

18

stark pattern of discriminatory impact) (5) statistics (6)

common sense.
If discriminatory purpose is shown, it can still be upheld if
govt can convince ct. that they would have made the same
decision w/o the racially discriminatory purpose.
o Laws with race-based effects, but not race-based purpose.
These laws will receive RBR
14th Amendment was really meant to prohibit purposeful
discrimination, not really incidental discrimination.
Washington v. Davis. Just b/c test had disparate impact does not mean
that the test was written with the purpose of causing discrimination. If
every law had to pass strict scrutiny, the government would essentially
be prevented from making laws.
D.C.P.D. had also made affirmative recruiting efforts, showing
their purpose was not discriminatory.
Dissent said showing the effect goes a long way towards
adding the purpose.
McCleskey v. Kemp. No indication of a racially motivated purpose
from the legislature in enacting the death penalty statutes; said
showing risk of discrimination (Baldus study) not enough; must show
discrimination with his case. (So, jurors, prosecutors, legislature).
Other justifications for upholding the penalty:
o They would raise an inference of racial bias in the entire
Georgia judicial system.
o This argument is best left to the legislature.
A very spirited dissent bemoaned the irony that the majority
seemed afraid of too much justice.
o They also reinforce the idea that the role of the court is to
protect people who cannot protect themselves through the
democratic process; There is a manifest racism.
o Purpose and effects are race-based
These laws will receive strict scrutiny.
Hunter v. Underwood. Discrimination against more than one
group does not shield you from judgment under a race-based
purpose.
o Summary of laws w/o Express Classifications
Effect RBR
Purpose RBR
Effect and Purpose SS

Affirmative Actionany attempt to advantage member of a historically

discriminated-against group. Problem? The EPC only talks about individuals, not
groups.
o Adarand Constructors, Inc. v. Pena (1995)

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Main issuewhats the appropriate level of scrutiny?

The lesson of Adarand is that express racial classifications will always
lead a strict scrutiny analysis.

The narrow-tailored argument must look both at time and if there are
any race-neutral alternatives. OConnors analysis:
Skepticism we should be suspicious of race-based
classifications.
Consistency
o Same level of scrutiny for all groupsnot just
disadvantaged
o 14th Amendment protects individuals, not groups
o Dissent: we can tell the difference at a common-sense
level between things that are meant to help/hurt
minorities.

Race discrimination was worse in the country,

but easier for women to get preferential
treatment.

The states have been the worst offenders in race;

Congress should have more deference.
Congruence same standard for state and federal governments
o 14th EPC=5th DPC: substantive content with component
of EPC
o National and state government under same equal
protection standardalso Congress.

Remediation of general social harms has not been upheld as a

compelling state interest. The remedial action is read very narrowly.

Application of Strict Scrutiny

Strict scrutiny is NOT fatal in fact;
o The govt does not always lose
Compelling State Interest (Remedy past discrimination);
Narrow Tailoring (Consideration of race-neutral alternatives;
Duration)
o Scalia thinks AA never ok; this would be a
creditor/debtor race, rather than black/white.

Thomas thinks AA is paternalism; their intent and effect is to

stigmatize the achievements of racial minorities.

If there is an express racial classification strict scrutiny will apply:

it doesnt matter if minorities are advantaged, disadvantaged, or
facially treated equal.
o Arguments For and Against SS for Affirmative Action Classification:

Purpose of 14th: protected blacks; created color blind Constitution.

History of Racial Discrimination

Is toward minorities, so a classification that benefits minorities
doesnt need SS.

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 History is filled with racism, all racial classifications need SS.

Racism is Wrong
All classifications based on race are wrong, so they all need SS

Race is Irrelevant
Therefore no sense in race-based classifications, so need SS.
We are not there where race is irrelevant, so if classification
benefits minority it should not be subjected to SS.

Political System Failure

Minority cant represent itself in political process, so not every
classification should be subject to SS.
Grutter v. Bollinger Michigan law school/race-conscious admissions
program

Diversity is a compelling state interest; gives deference to educators.

Gives preparation for people to work w/ people of other races.

Narrow Tailoring Analysis: The program still gave individualized,

holistic file review, w/ race as a plus factor. Diversity plus is not just
race either.
The majority also reports an implied time limit. (Ginsburg
doesnt want a time forecast). (Dissent notes there is no sunset
provision).
Quotas, etc. are frowned upon.
There was an examination of race-neutral alternatives; they
were not tenable.

Dissent notes that the plus for race is really a super plus.
By upholding the unconstitutional program, we do not force the
smart people at Michigan to come up with a better alternative,
as they should.
Disagrees with the schools theory of critical mass. The
school is really just trying to achieve a proportional
representation of minorities; impermissible remedial measure.
Diversity could be met by lowering admission standards.
Maintaining a top 10 status not compelling state interest.

Take note of the fact that the court says its applying strict scrutiny, but
it seems to be applying a less stringent test.
Gratz v. Bollinger

Minorities got 20 bonus points merely b/c of color.

Too mechanical, point factor is too big, little individualized

consideration.

Still a compelling interest, not narrowly tailored.

After these two cases, affirmative action became very expensive.
Parents Involved in Community Schools v. Seattle School District

School assignment was based in part on race in order to have diversity

in the schools.

Race diversity was all they sought; by itself not enough.

o
o

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It is ok to promote diversity w/ special emphasis on race, but

they had gone beyond this.

Not clear the programs were making much difference in racial balance.
o Remedial Measures as CSI

Proven discriminator and proven victim = remediation as CSI

Proven discriminator, but no victims = unclear if remediation is a CSI

Paradise allowed it to be CSI.

General Discrimination in a Particular Field No proven

discriminators and no proven victims = NOT a CSI.

General Societal Discrimination (No discriminator, no victim) =

remediation is not a CSI.
o The 2 proven CSI are diversity promotion and remedial measures where there
is a proven discriminator and victim.
IV.
EQUAL PROTECTION CLAUSE (14TH) - CLASSIFICATION
**Typical RBR**
NY Transit Authority v. Beazer methadone user case
o The classification is drug-users & non drug-users.
o In Beazer, the court applies RBR because the majority does not think this is a
suspicious classification.
o The whole point behind RBR is to avoid policing laws on the basis of good
and bad policy. It is in place to maintain judicial restraint.
Even though its over/under inclusive, that is not necessarily
problematic under RBR. RBR routinely allows a significant
amount of over-inclusion and under-inclusion. Think of it as a
sliding scale: perfect
fitunderinclusiveoverinclusiveperfect non-fit
The dissent argues that it should be a tighter, more narrow
connection.
o Classification serves the general objective of safety and efficiency; therefore
the classification is not irrational and is upheld.
Railway Express Agency v. NY Prohibition of advertising on vehicles except those
used in delivery does not violate EPC. (Demonstrates underinclusion).
o It is not a requirement of EPC that all evils of the same genus be eradicated.
Reduction in the number of advertising clutter is a rational basis; legislature
doesnt have to eradicate all evils of the same kind and it doesnt violate EPC
to prohibit some and not all.
Williamson v. Lee Optical unlawful to fit lenses without a prescription (if youre not
an optometrist or ophthalmologist).
o Field classification doesnt require a higher level of scrutiny; court
hypothesizes a possible legitimate state interest (safety / public welfare).
Minnesota v. Clover Leaf Creamery Co. (1981) plastic milk jugs were outlawed.
o The legislature might have made an incorrect judgment call, but the Courts
job is not to second-guess the legislature.

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Again, they can hypothesize: Empirical proof that it fulfilled the goal
is not necessary.
o Unless the judgment is totally irrational, the law is upheld.

**RBR w/ Teeth (Bite) Atypical RBR**

City of Cleburne v. Cleburne Living Center (1985)
o It might just be tightened because the mentally retarded represent a discrete
and insular minority.
o High school nearby, concerned about possibility of hostility in community,
and concerned about the floodplain causing them to drown.
o Dissent hates tiers. He thinks that every problem is actually approached from
a spectrum point of view.
Moreno. Allowing food stamps only to families fails RBR because the real motive is
just to harm a politically unpopular group (hippies). animus. Using a tighter
standard because the rule has indicia of a politically suspect classification. It would
pass true RBR because RBR doesnt typically look at motive.
Romer fits here, too, but is discussed in-depth later. Idea of animus again comes up.
RBR Overview
Under RBR all that is required is legitimate state interest and classification is
rationally related to that state interest.
o State is allowed to solve one problem at a time.
o Not all evils of the same genus must be eradicated at one time.
o Efficiency will justify over or under inclusion.
o Dont look into actual purpose, but ask if there is a plausible legitimate state
interest. Everything passes RBR in its typical application (when it has no
teeth)
GENDER/SEX
Reed v. Reed
o First Supreme Court decision to invalidate gender classification under the
equal protection clause.
o Law which preferred one sex over another in administering an estate was held
as unconstitutional because it was an arbitrary choice based on convenience.
o Test was RBR with teeth!
Frontiero v. Richardson
o Can military make men prove dependence on wives to be classified as
dependent when females do not have to prove dependence? No.
o This case receives close scrutiny some form of intermediate scrutiny (or
higher scrutiny than RBR). This case slides up the line from Reed.
o Administrative convenience is not enough.
o Refers to past discrimination and how it was based, not on animus, but on
romantic paternalism.

Some call for SS b/c history, immutable characteristics (somewhat)

and political power concerns.

23

Hes trying to explain why this is a suspect classification. The

Carolene Products argument is difficult to make because women are
actually a majority, but because of the legacy of social discrimination,
women are underrepresented in democratic institutions.
o Other argues for RBR, but still holds that classification violates EPC.
Craig v. Boren
o Establishes intermediate scrutiny as a test for gender classifications.
o States interestenhancement of traffic safety (b/c males 18-20 are involved
in more drunk driving and traffic incidents, but only 2% overall).
o Statute found to be unconstitutional because there was no substantial relation
between means and end
o Some: when gender is involved, just apply RBR with a sharper focus. Dont
want to muddy the waters with a middle tier.
o Some; thinks the tiers are silly; just flexibly evaluate each case.
o Some: men do not have a history of discrimination so the classification is
completely non-suspect.
o The main thrust of this argument (IS for gender classifications) seems to be an
analogy to race.

Immutable/Highly visible.

History of discriminationnot animus, but romantic paternalism.

Amendment 14 2 says you cant disenfranchise men, but can
women.
United States v. Virginia
o If a state sponsored single-sex school denies women, state cant offer a
parallel program for opposite sex while retaining single sex status of school.
o New language into intermediate scrutiny: exceedingly persuasive justification.
May tighten gender test to some weird place somewhere between intermediate
scrutiny and strict scrutiny.

Diversity is a sham; women can be accommodated in the boot camp

style method; strongly suggests separate but equal not possible.

The different styles of teaching make them unequal.

o Other did not like the new language; not part of test.

Thought state could remedy the situation by creating another school,

of the same/similar quality; Separate not always unequal like race.
o Some women find this decision to be anti-women because this decision
essentially eliminates the possibility of the creation of special, tailored
universities just for women. Basically gives women right to go to school w/
men. Women who are big into acknowledging the legitimate differences
between men and women are disappointed by this decision.
o This IS* also makes it less likely for affirmative action programs to pass.
o Scalia uses lots of rhetoric: says they are shutting down the school; accuses
majority of judicial activism.
Keep in mind that you can get intermediate scrutiny without an express gender
classificationbut only if the purpose seemed to be based on some sort of gender
bias and the effect has a gender bias.

24

Also, running underneath all these cases is a tension between real differences and
stereotypes. It is hard to distinguish them. (Argument for RBR, rather than IS).
o Michael M: Statutory Rape statute: Punished males, not females court
upheld rape conviction of a 17 year old boy who had sex with a 16 year old
girl because state interest was to prevent illegitimate pregnancies and to deter
males by making sex at that age criminal.

Concern: Are they basing their rationale on the idea that men are
aggressive and women need their chastity and to be protected from
male aggressors.

SEXUAL ORIENTATION
There is a big status/conduct controversy.
Romer v. Evans (1996)
o Amendment 2 of CO Constitution prohibits municipalities from adopting
ordinances (statutes, etc,) to benefit homosexuals (lesbians or bi-sexuals).
o The court uses RBR (with bite) to invalidate Amendment 2.
o State interests include:

Put them in same position as every1 else, dont give special rights.
Ordinary Rights says that civil rights are basic and there is
nothing special about them.

Express State Interest Resource conservation (more groups must be

protected by civil rights, less resources there are to go to worth groups)

Express State Interest Freedom of association (persons may want to

discriminate against gay people to exercise their freedom of assoc.)
o Imposing discrimination. Civil rights are only necessary when there is
discrimination. Real state interest is animus; bare desire to harm.

There is no equal protection for gay people.

o Dissent: idea of electoral procedural discrimination is absurd.

Says it is not animus based on status, but moral disapproval of

conduct; analogizes to polygamists.
Court uses RBR with bite by using the racial analogy:
o There is history of discrimination between gays and lesbians.
o Its a minority group (4%) which some might say is politically powerless
o Some might think sexual orientation is immutable
o Sexual orientation is not relevant to governmental decision making
Different views of the moral purpose of sexual activity:
Views
Purpose
Reactionary..Procreation
Conservative.Marriage and Family
Liberal...Intimacy
Radical..Pleasure
Homosexual Marriage Analysis:
Goodridge: MA court held that the state interest banning homesexual marriage did
not pass muster. (Baker in Vt. also says state couldnt).

25

o State interests:

Said procreation was one of the goals; some people that get married
cant procreate.

Same sex couples not good parents; again, not a proper fit.

Same-sex couples more financially independent; again not enough.

Moral disapproval also not enough justification.

o Ct. later said civil unions not enough; have to use a marriage.
Defense of Marriage Act:
o Defines marriage as one man and one woman. Same sex not married for
purposes of law (taxes, etc.)
o No state has to recognize another states same sex marriage (as under full faith
and credit clause which says each state has to give credit to other states)
o 3 Obama administration believes it is unconstitutional, wont defend in
federal court. State attorneys defending it in court.

V.
Due Process Clause Implied Fundamental Rights (SDP)
In interpreting due process clause, or privileges and immunities clause, where do we
look to determine what rights are substantive?
o Some cases have said no rights.
o Tradition.
o Natural Law.
o Bill of Rights.

Dred Scott was first recognition of SDP.

The Slaughter-House Cases (1873)
o Do the Civil War amendments grant US citizens broad protection against the
actions of state governments? No.
o The P & I clause is held NOT to contain extra implied rights. They list rights
that were already implicitly included. Limit app. only to black people.
o They argue that this would be a drastic change in the fed. structure of the Con.
o Dissent: This is an unreasonable restriction on the way to make a living; wants
to go to natural law to determine meaning of P & I clause. Other dissent urges
to look to traditional rights.
o Its still good law. But this ushers in the era of SDP.
Substantive Due Process
o 14th and 5th have a DPC.

Procedural due process says you can take away a certain amount of
life, liberty and property as long as the correct due process is given.

Substantive due process says these things cannot be taken away no

matter how much process is given.
SDP 2 Doctrines:
o Barron v. Baltimore stated that B of R did not apply to states govt.
o Incorporation of Bill of Rights

Total Incorporation

Pseudo Incorporation
26

Selective Incorporation

Incorporation
Three Different Views of Incorporation:
o Total incorporation

Incorporates ALL/ONLY the Bill of Rights. Simple approach to a

complex problem. Does not allow for the inclusion of other rights.
o Pseudo-Incorporation / Fundamental Fairness (Used to be favored)

14th amendment doesnt incorporate the Bill of Rights, but 14th

amendment protects fundamental rights.

Tradition/Natural Law/Political importance helps determine if right is

fundamental.
o Selective Incorporation (Won out)

Duncan v. LA made it.

Actual incorporation, but only some not all. Decision based on

fundamental fairness.

Compromise between total and pseudo incorporation. First prong:

Does the text of the Bill of Rights really apply? [from total
incorporation school.] Second prong: Apply the fundamental fairness
test to see if it will be included.[Psuedo]

The rights considered fundamental by most Americans have been

incorporated.
.

Economic SDP Rights specific right protected under SDP, but not as part of
incorporation of bill of rights: Right to Contract. Economic SDP does not exist today.
Lochner v. New York (1905).
o New York regulation prevented bakers from working more than 10 hours a
day. Said to violate the DPC.

No direct relation in this case upon health of the employee or public.

Act interferes w/ freedom to contract, to allow this will allow it to
creep in many professions.

State can put in legitimate safety and health regulations limiting

freedom of K, but cannot be pure labor regulations.

Ct. said it was more about evening the bargaining power b/w
employee/employer who wants you working long hours.
o Dissent:

Baking is actually a very physically demanding job, so at least

debatable that it is a health measure.

State laws may regulate life in ways which we find injudicious or

which interfere with the freedom to contract. Constitution does not
embody a particular economic theory; therefore court shouldnt
impose its own (laissez faire).
Says it is a perverse interpretation of the 14th Amendment when
it is used to prevent outcome of dominant opinion, unless that
outcome interferes w/ a traditional fundamental right.
Whats Wrong with Lochner:
27

o Decision is too activist

o Most liberals say it is picking out the wrong rights, by protecting right to K.
o Libertarians would think that it is rightly decided.
o The Lochner era was put to bed by the Great Depression.
West Coast Hotel Co. v. Parish
o Statute establishing a minimum wage for women was upheld.
o Public interest in protecting women. Community should not have to provide a
subsidy to women who are not paid enough b/c of unconscionable employers.
Williamson v. Lee Optical of OK
o Formalizes standard of review for deprivations of economic liberties RBR.
Ferguson v. Skrupa
o Could only be debt adjustor if you are a lawyer.
o Similar to Slaughter House cases completes the circle (SH to Lochner, back
to Skrupa).
Rise and fall of economic substantive due process
o Slaughterhouse no economic rights protected under 14th amendment (RBR)
o Lochner economic rights protected under 14th Amendment broad contract
rights, economic conservatism
o 1930s-1960s Lochner dissents become majority opinion in 1930s.
Lochner implicitly overruled (economic SDP rights disappear).
Social SDP Rights
Contraceptives (Right to Privacy)
Griswold v. Connecticut (1965)
o Does a constitutional right of privacy exist that prohibits states from making
the use of contraception by married couples a crime? Yes.
o Bill of Rights casts shadows and the right to privacy is within these shadows
(penumbras).

Majority doesnt recognize a SDP to privacy because they are new

deal appointees who were put on the court to end economic SDP
rights, so they dont want to create any SDP rights. They try to make
it look like incorporation; not SDP.
o Harlan wants to look at it from a 14th Amendment/Due Process/fundamental
fairness standpoint (SS); this becomes the dominant view later. There is a
substantive component of the due process clause.

Living legal tradition methodology.

Privacy part of living traditionsright to privacy in home, marital

bedroom is fundamental.
o Goldberg argues that it should be found w/in the 9th amendment, since it
leaves open rights not enumerated.
o Ct. said that it was criminalizing a husband and wife having sex, so not
narrowly tailored enough (meant to prevent extramarital sex).
o Black & Stewart say there is not constitutional right to privacy.
o Griswold is a very narrowing holding, but has been criticized bc it led to Roe.

28

Eisenstadt v. Baird the court used EPC (based on marriage classification) and
applied RBR (a-typically because statue was overruled).
o Now considered more about the scope of right to privacy
o The ct. invalidated a law that prohibited contraceptive devices from being
given to unmarried persons violated EP clause, b/c did not prevent married
couples from obtaining it.
o Claimed to be applying RBR, but clearly wasnt.
Carey v. Population Services International widened the right to privacy as
articulated in Griswold to include individual decisions about child-bearing (rather
than just rights to privacy in marriage).
o Overruled statute which prohibited any1 besides pharmacists to distribute
contraceptives.
o SDP.
There is a continuum of what rights people think are included in 14th Amendment, in
addition to due process:
o No rights
o History and Specific Tradition: Need documentation of tradition, to some
degree.
o Living Tradition: Tradition changed by changing times
o Natural Rights-Like true liberty.
o Justice
o Public policy-The most activist; judges overrule things b/c they are bad public
policy.

Abortion (Right to Privacy / Autonomy Rights)

Roe v. Wade
o May a state make it a crime to get an abortion except to save the mothers
life? No. The right to privacy is expanded to include abortion. B/c privacy is
a fundamental right=SS
o The majority moves to 14th DPC, not Bill of Rights.
o Majority actually seems to use more a true liberty/justice approach in its
opinion because it cant use living tradition b/c at the time of Roe 46 states
prohibited abortion in some way.

Also have policy analysis of what happens w/o availability of abortion.

Majority held that fetus is not a persons as referenced in the

Constitution. Therefore fetuses have no rights.
Diff. theories about when life begins; no agreement on this
matter, so Texas cannot decide itself.
o The specifics (trimester scheme) have been overruled. What remains is a
broad protection of womens reproductive autonomy.

Sliding scale of state interest: trimester rules:

Prior to end of 1st trimester, abortion must be unregulated.

29

After the 1st trimester, (2nd trimester) State may choose to

regulate in ways that are reasonably related to maternal health;
and
Post-viability (3rd trimester) state may proscribe abortion, but
there must be a health exception for the mother.
o Emotional/mental health is included; it is likely very
broad. This was decided in companion case of Roe.
o Dissents: Extravagant exercise of judicial power b/c creates a new right for
pregnant mothers that overrides most existing state abortion laws.

Must be some historical rooting for a right to be fundamental.

Test is RBR and this statute passes (it wouldnt if it banned all
abortion, but it has a health of the mother exception).
o Roe in Reverse arguing Roe under EPC

If a state has liberal abortion laws can this violate Constitutional right
to life under EPC? 14th amendment says cannot deny any person due
process. Pro-life says person is broad enough to encompass unborn
child.

Must determine if the birth-status classification (if you are born, cant
kill you, if unborn, can kill you) is suspect, quasi-suspect, etc. Then
justify some level of heightened scrutiny. Use SS to hold liberal
abortion laws unconstitutional b/c it violates rights of fetuses under
EPC.
Court didnt choose this approach b/c they were pro-choice.
Planed Parenthood of Penns. v. Casey
o Moves the Roe spectrum down towards natural rights. Overrules trimester
scheme and creates undue burden test. Some of the language discusses
tradition; others discuss natural rights.
o The court talks about stare decisis: not overturning Roe, although they say
Roe may be wrong.
o The new dividing line is viability. Pre-viability and post-viability (the line
seems to be at about 23 weeks; will change as tech. advances)

The pre-viability testundue burden/substantial obstacle. If the

regulation in purpose or effect places an undue burden with a womans
ability to have an abortion, the regulation will be overturned.

Post-viability testas long as there is a health exception for life &

health of mother, regulations that restrict abortion will be upheld as
valid.
This exception likely has to be very broad, and include
emotional health.
o Application of undue burden to statute in Casey:

Spousal notification was an undue burden;

Opens up the possibilities: Domestic violence, Divorce,
Publication of wifes choice.

24-hour waiting period (along w/ medical info about abortion) may be

a burden, but not an undue burden;
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Parental consent (w/ judicial bypass option) for minors ok.

Record keeping ok.
o Roe is reaffirmed (excluding trimester scheme) because

Individual autonomy is a SDP right that should be adhered to.

They mix in living tradition/justice approach.
Mystery passage-Heart of liberty is right to define own
concept of existence, of meaning, of the universe, of the
mystery of human life.

Special reasons not to observe Stare Decisis: None present

Unworkable Unlike Lochner, and Plessy, Roe has not proven
unworkable;
Lack of Reliance repudiation would create hardship for those
who have come to rely on the decision;
Doctrinal Erosion no con law development has made Roe
obsolete; and
Question of Facts changes of facts have not affected Roes
central holding.

Institutional Integrity if the court overruled under the political

pressure they would in essence cave-in and that would subvert their
legitimacy; suggest they are not making their decisions based on Con.
o Blackmun wants to look at this under gender equality; equal protection clause;
intermediate scrutiny

Geduldig said pregnancy classifications are not gender classifications.

Not everybody who is not pregnant is a man.
o Dissent, takes apart opinion piece by piece: SDP is narrow not broad; fake
stare decisis because Casey overturn Roes legal doctrine (so this is not real
stare decisis analysis); fact argument is irrelevant because Lochner and Plessy
were overturned due to being wrong the day they were decided (no need for
facts to change); and looks worse if you refuse to change a wrong decision
than if you change under political pressure.
o Scalia says this is a decision for the state legislatures.

Also says this will not kill the controversy.

Stenberg v. Carhart
o Partial-birth abortion ban was overruled because it was not specific enough
and might have been used to outlaw standard abortions and because it did not
include a health exception post-viability.

If D&E is banned it would effectively ban abortion because it is the

most common form of abortion. This would be an undue burden.
Ct focuses on language that made it unlawful to deliver into
the vagina a living unborn child, or a substantial portion
thereof.

Said the health exception, which only protected life of mother, was not
strong enough.

Stevens says equally gruesome-irrational distinction.

Ginsburg extends Stevens and says it is only used to express hostility.

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o The law was seeking to prohibit Intact D&E (D&X), but statue was
ambiguous and could have also banned D&E.
o Three procedures

D&E = fetus killed inside the womb

D&X = skull collapsed and extracted partial birth

Homicide = killing the fetus when it has been birthed.

o Arguments that NE statute is unconstitutional

95% of 2nd trimester use D&E (did not want to affect these);

Remaining abortions use D&X (statute was trying to prohibit these).

Court says it did prohibit these.
o Dissent Roe and Casey are wrong and when theyre overruled any
prohibition on abortion will be constitutional.
o Kennedy: there is a state interest in banning D&X b/c it may numb medical
community to the wonder of human life; and this only applies to D&X b/c
state says it does!

Ct. focuses on only 1 part of statute, instead of looking at it a whole.

Federal Ban on Partial Birth Abortions: Congressional fact finding found that D&X
were usually more unsafe than D&E and never safer. There was also a more careful
description of D&X to ensure language could not be used to prohibit D&E also.
Gonzales v. Carhart
o S.C. upheld federal ban on partial birth abortion, which had banned D & X.
o Kennedy said state has rational interest in banning partial birth abortion,
prevent from dehumanizing the medical profession.
o NO health exception is necessary in this scenario. This was a facial challenge,
saying the entire statute was unconstitutional. In the face of medical
uncertainty, Congress is free to legislate. Litigants are free to bring cases
showing that in some circumstances there is medical necessity.
o Dissent again argued that there is no rational basis for the distinction, fed
govt is attempting to express hostility to abortion.
o The question is how far the federal ban reaches; there has to be a link to give
federal govt power over it.
Possible categorizations for the reproductive line of cases:
o Fundamental rights
o Substantive due process
o Privacy rights
o Reproductive privacy
o Autonomyindividual freedom
o Sexual freedom.

All of these simply represent different levels of generality about these

cases.

The distinction matters because we need to know how to use these

cases as precedents.

Right to Die (Suicide)

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Washington v. Glucksberg
o Prohibition against Physician-Assisted-Suicide does not violate 14th.

Unanimous decision but diff. rationale.

Concurrence: No right to physician-assisted suicide, but a physician

may give treatment which hastens death when relieving pain.
o Specific Tradition Approach (Rehnquist) in almost all states and western
society it is a crime to assist in suicides.

Autonomy rights protected under SDP does not include all important,
personal, and intimate decisions.

Caseys broad rights do not relate to suicide.

Cruzan assumed a competent person has the right to refused unwanted

medical treatment. at common law, was a battery.
o Test: RBR the ban must be rationally related to the states interest.

Unqualified interest in the preservation of human life;

Suicide is a public health problem;

State interest in protecting integrity and ethics of medical profession;

Risk of subtle coercion and undue-influence in end-of-life decisions.

o O Conner wants a person to have right to receive pain treatment if they are
terminal, and in excruciating pain, even if side effect you might die.
o Souters concurrence seems to leave the door open for physician-assisted
suicide in some form one day.

He does not want to stick to specific historical tradition.

He says those arguing for application of Casey standard are not

completely wrong.

Suicide is not longer a criminal deal; has analogies to Roe.

He, too, is concerned w/ the slippery slope leading to involuntary

suicide.

Sexual Privacy
Bowers v. Hardwick
o Court upheld a GA law banning homosexual Sodomy; declines to classify
sodomy as fundamental right, in sexual freedom/individual freedom line.
o They instead use specific tradition methodology no deeply rooted right in our
culture to engage in homosexual sodomy historically criminalized.
o Test no specific tradition, no fundamental right RBR
Lawrence v. Texas
o Liberty presumes autonomy of self that includes certain intimate conduct;
Court overrules Bowers to invalidate an anti-sodomy statute.

Point to living tradition and justice analysis.

Specific tradition analysis in Bowers is wrong because we should look

at emerging trend which is to move away from anti-sodomy laws, and
no prosecution. So there is suggestion for fundamental right.

Also Casey and Romer create doctrinal erosion because they are
sweeping statements of individual autonomy and class-based
legislation denies EPC to homosexuals.
33

There is also no apparent reliance.

Bowers was wrong day it was decided, and has been subjected
to lots of criticism.
o Level of scrutiny: Pretty clear using SS, event though say no legitimate state
interest which represents RBR.
o Kennedy has a living tradition argument of the constitution

Asks what laws are on the books that prohibit sodomy.

Argues that the fundamental right is not sodomy but personal

relationships that include intimate conduct, in privacy of their own
homes, between consenting adults.

Says this case is not about sex in public, minors, coercion, commercial
transactions, and marriage.
o OConnor Concurring

Holds statute should be struck down under the EPC

Homosexuals should be able to since heterosexuals are able to

o Scalia Dissenting

RBR should be the standard; Moral disapproval is a rational-basis

This decision dismantles distinction between heterosexual and

homosexual unions

They also look to the EU; he hates this.

Also points out that there was an oscillation back and forth between
broad and narrow views of SDP. If Casey erodes Bowers, then Bowers
must logically have eroded Roe.

Says the ct. is disingenuous; dont believe their analysis and this is
elitism.
SDP Considerations
o Liberty interest
o Infringement
o Fundamentality

Specific tradition-longstanding historical tradition.

Living tradition

Natural justice
o Apply test

SS-if fundamental, this applied.

RBR-if non-fundamental, this applied.

Notice-these do not always apply, they may create their own test.
Common Social Substantive Due Process Cases
o Procreation

Contraception & Reproduction & Abortion.

Griswold, Roe, Casey
o Sexual Privacy/Intimate Relationships.

Lawrence
o Medical Autonomy

Right to die.

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o Family Autonomy
Washington v. Gluxberg: Physician-assisted suicide.
Is there a right to have a physician help you commit suicide? Washington
prohibits it. The tradition has been to prohibit this. It is not a fundamental right, so
it is subject to RBR. Is there a rational basis for this?
Rehnquist (opinion)- State has an interest in protecting life and preventing people
from committing suicide. Also helps protect vulnerable groups of people
(mentally ill, etc.) We need to help these people, not give them the means to
commit suicide.
o Ethics of the medical community; Doctors should be healers.
o If people have the option to commit suicide, they may feel pressured if the
option exists. (Grandma has 3 weeks to live, wants to live, but worries
about hospital bills, etc.)
o Could lead to euthanasia, voluntary or even involuntary, doctors deciding
to kill very sick patients without consent. Insurance companies making
these decisions, refusing to pay for more treatment, etc.
OConnor, concurring: Agrees there is no generalized right to commit suicide.
But, there is no need to answer the question of whether or not you can receive
palliative care, which may endanger their lives, right now.
Souter, concurring: Doesnt like fundamental, specific tradition approach in
majority opinion, thinks it should be broad, living tradition methodology. Says
that now that suicide is not a crime, assisting in one is not a crime and we should
revisit this argument because of medical autonomy. State interest that wins out in
this case is the same question as in majority about vulnerable groups. Worries that
doctors may have trouble distinguishing who should be a candidate for this. s
Family Autonomy SDP Rights
Myer v. Nebraska and Pierce v. Society of Sisters
o There exists a fundamental right to family autonomy (parental control)
o NE statute said only English could be taught in schools; Pierce concerned a
state law that outlawed attendance at private schools.
o Overruled

Interfere with parents right to control childrens upbringing;

This is Lochner era, so there are contract arguments; and

Tradition these are rights long recognized at common law.

Moore v. East Cleveland
o There is a family autonomy SDP right; tradition based right.
o Family fundamental right heightened scrutiny because the family is a
traditional area of liberty. Maybe strict, maybe not. State interest will have to
be pretty weighty.

Expansion of SDP rights should be approached cautiously, but family

autonomy is a deep rooted tradition. Traffic, overcrowding, etc, are not
enough.
o Justice White basically says he is suspicious of SDP.

35

In re Michael H. court used specific tradition analysis to hold that there was no
fundamental right to paternity of a biological father if the mother was married (i.e.
husband, not father has paternity right). This statute subjected to RBR and upheld
because state has interest in preserving the marriage. Court says no specific tradition.
o Could even argue that the legal tradition favors the marriage unit, rather than
the mere biological relationship.
o Brennan (dissent) blood relationships important, father should have right.
Troxel mothers son has died and she wants visitation rights with his child (her
grandchild). Judge says he has right to grant visitation to anyone if its in the best
interest of the child. Mother says this sweeps too broadly.
o Majority applies some level of heightened scrutiny; Dissent wants RBR
There should be no fed. family law (Scalia)
o Thomas wants to overrule SDP precedents, or pick level of scrutiny.
Overview:
A long line of cases emerge where the court recognizes some fundamental right.
o Right to refuse unwanted medical treatment Cruzan.
o Permission to live with ones family Moore v. City of East Cleveland.
o Marriage as a fundamental right (note this was also related to race) Loving v.
Virginia.
o Parental freedom and rights related to the upbringing of children Meyer v.
Nebraska.
o The existence of private schools Pierce v. Society of Sisters.
o But the court did not recognize an unwed fathers parental rights as
overwhelming the states interests In Re Michael H.
All the rights you have under 14th Amendment, you have under 5th Amendment, but
5th Amendment applies to fed., rather than states.
o This is where reverse incorporation comes into play.
VI.
Federalism
Federalism distribution of power between a national government and state
governments.
o General Rule:

For an act of the federal government to be valid it must fall within the
federal powers specifically enumerated in the Constitution and it must
not violate any particular limitations on federal powers found in the
Constitution.
o Federal balance balance between ensuring the state governments have all the
power theyre supposed to have and no more and ensuring the federal
government has all the power its supposed to have and no more. Problems
emerge when the line must be drawn.

Some want fed or state to be more powerful than the other.

Values of Federalism:
o Individual choice / Satisfaction with government allows states to make their
own decisions to reflect their local or regional feelings, and if you dont like it
you can move.
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o Efficiency more efficient to do things at the local level.

o State experimentation Louis Brandeis notion if we had a system without
federalism, we would have to pick a state guinea pig and force the experiment
upon them. 50 laboratories are better than one. Federalism allows states to
try new policies and if they work other states can adopt them.
o Promotes democracy breaks down the government into small constituent
parts and makes people feel involved in the smaller governments. Easier to
influence local government.
o Protection from tyranny less likely that power will be abused.
Federalism in the US Constitution:
o Congress is a government of delegated and enumerated authority. Congress
can pass a law when it is enumerated in Article I. States=general jurisdiction.
o The 10th Amendment reasserts a basic tenet of the Constitution by saying that
powers not delegated to the US by the Constitution are reserved to the States.
o Art. 1 8 - National governments powers:

Few and defined; specific jurisdiction. (only things on list or N&P)

No general police power

Delegated to Congress from states.

o States powers:

Numerous and indefinite; General Jurisdiction.

General police power. (police comes from policy)

State can do anything as long as they dont violate the Constitution.

o U.S. Senate is allocated by states.
o Constitution was ratified by state approval.
Powers of Congress: Overview
o Interstate Commerce Clause Congress may regulate commerce among the
States. This includes:

Channels of Commerce (waterways),

Instrumentalities (Greyhound bus on interstate),

Stream / Flow of Interstate Commerce, and

This obviously includes going across state lines to sell things.

Any economic activity that when aggregated substantially affects IC.

Purely non-economic activities that Congress cannot regulate
include crime, family law, and education.
o Limits on Congress Commerce Power:

Traditional State Functions Garcia: Congress can regulate the states

as if they were a private business as long as the regulation is one of
general applicability (i.e. applies to States and private businesses).

No Commandeering The federal government may not commandeer a

state legislature to pass the laws that Congress wants (cannot
commandeer a state to carry out Congress plans).
Congress can use conditional spending (carrots) and
conditional preemption (sticks), but not commandeering.
Congress cannot commandeer state executives or officers.

37

o Power to enforce the 14th through 5 Congress has the power to enforce 14th
through appropriate legislation. Congress can abrogate SI.

3 levels of Congressional power under 5:

Pure Remedial
Remedial Plus
Substantive View

Court applies the remedial plus view which allows Congress to

prohibit activities that are not unconstitutional, but which may lead to
violation of what the court has deemed is unconstitutional. Congress
can create a buffer zone around what the court sees as unconstitutional
to prevent constitutional violation.
This buffer zone must be proportionate and congruent to what
the court has determined is unconstitutional.
Commerce Clause (Article I, 8)
Congress may regulate commerce with foreign Nations, and among the several
States, and with the Indian Tribes.
4 Eras of the Commerce Clause Overview:
o Early Republic; Pre-Industrial (Founding Civil War)

IC includes buying, selling, and exchanges across state lines, as well as

channels/instrumentalities of IC.
o Industrial Period (1880s 1936)

Flow/Stream of Interstate Commerce courts in this era recognized

that Congress could regulate the flow and stream of commerce as well
as channels and instrumentalities.
Production is pre-flow and final sale post-flow. Anything inbetween is in the stream of commerce and therefore could be
regulated by Congress.
o New Deal Period (1937 1995)
Court began to recognize that authority to regulate commerce included
any transaction that substantially affects IC in the aggregate.
This swallowed up channels, instrumentalities, and flow.
Many thought this made congress power to regulate commerce
unlimited.
o The New Federalism (1995 until)
Congress can regulate channels of IC, instruments of IC, flow / stream
of IC, and other economic activities that substantially affect IC in
the aggregate, but not non-economic activities.
Non-Economic activities include family law, crime, and
education.
Early Republic (Founding Civil War)
Commerce clearly includes buying and selling or bartering or exchange if it occurs
between the States. As long as state lines are crossed, these transactions are clearly
included.

38

o Gibbons v. Ogden commerce includes not just buying and selling, but also
includes the regulation of navigation on waterways.
This gives Congress the power to regulate instrumentalities of
interstate commerce as well as transportation of items for sale where
they cross state lines.
Background of this case is S.C. having jurisdiction to interpret
Congress commerce power.
Industrial Era (1870s 1937)
Federal government is permitted to control the flow or stream of interstate
commerce.
o End of Flow goods come to resting point within a state. Local sale is post
flow of IC.
o Beginning of Flow goods are moved in IC. Production is pre-flow.
Schechter v. US
o Schecters were post-flow. They purchased live poultry at NY railway,
slaughtered in NY, sold to local butchers, who then sold to local customers.
o If commerce clause reaches all enterprises having an indirect effect on IC,
federal authority would reach all activities. Has to be in the flow or stream of
interstate commerce.
o Considered a formalist approach
Carter Coal Case
o Production is occurring in one state, so it is intrastate. It is not commerce. It is
not in the scope of congresses enumerated power. They can regulate when it
enters the stream of commerce.
o The acts occur before the beginning of the transportation of commerce; they
are production. State regulates intrastate production.
o What about argument that this has huge effect on national economy?
Sutherland says this is indirect, so no matter how big it is, it is beyond
Congress authority to regulate.
Stafford
o Interstate shipment of cattle.
When temp. held in Chicago, the cattle are still in the stream of
commerce, b/c they are not being raised there, or slaughtered. This is
just in the middle of their shipment.
New Deal Era (1937 1995) Realist period; overturned previous cases.
Congress can regulate anything that has a Substantial Effect on IC.
Wickard v. Filburn
o A local activity that may not be regarded as commerce can be regulated by
Congress under the commerce clause if the activity, in the aggregate, exerts a
substantial economic effect on IC, regardless of whether the effect is direct or
indirect.
o Some commentators argue that this ushers in an age of no judicial
enforcement against Congressional statutes that have even the remotest

39

connection with interstate commerce. And, in fact, no such law was struck
down until the contemporary age.
o The test becomes RBR.
o Wickard arguably turns National Government power into police power rather
than D&E power!
The New Federalism (1995 until)
Congress can regulate:
o (1) Channels and instrumentalities;
o (2) Flow / Stream of IC; and
o (3) Activity that substantially affects IC in the aggregate.
Activity is limited to economic activity in the new federalism.
Non-Economic activity that cannot be regulated by Congress is:
Family Law
Crime
Education
US v. Lopez (1995)
o SC struck down Congress Gun Free School Zone Act as being outside the
commerce clause. Court says there is a limit to Congress power.
Congress later passed new law, which included requirement that gun
had recently moved in interstate commerce.
Added a jurisdictional hook.
o Now economic activity is distinguished from non-economic activity. If
something classifies as economic, you stick with Wickard. If something is a
non-economic activity, Congress will almost surely not be able to regulate it
under the guise of the CC. Guns near schools NOT an economic activity.
o Rehnquist:
Allowing this to take place makes a hash of the enumerated powers;
you have to preserve some balance.
Guns involve crime, schools involve education- both traditional state
functions- fall under police power rather than commerce clause.
Doesnt fit two categories; Not going to create a new categorical rule.
o Kennedy and OConnor add two important points concerning why there must
be a limit to Congress power:
Blurring the lines of political authority. In a democratic form of
government, the people need to know who to blame or praise at
election time.
The state is traditionally responsible for education, criminal
legislation, and family law. These are very risky areas for the federal
government to get involved in.
o Thomas wants to take it all the way back to the Industrial Era, and possibly
Pre-Industrial.
o Dissents: Should use RBR. These dissenters are termed realists because
they want Congress to be able to regulate all activities that really do affect IC.
40

Wickard does not distinguish between Economic/Non-Economic.

It is also not clear whether the decision can be made with any
type of clarity, will lead to uncertainty in litigation.

Fed-5 v. Realist 4:
o Fed-5 say federalism is part of the Constitution and therefore has to be subject
to judicial enforcement.
o Realist Dissenters feel federalism shouldnt be subjected to judicial review
and is better enforced through the political process.
They really prob. feel that federalism is a historical anachronism.

United States v. Morrison (5-4)

o No bar to using Wickard for non-economic activities, but not here or Lopez.
o Congress cannot provide a civil remedy for victims of gender-motivated
crimes of violence because this is not an economic activity.
Congressional fact findings concerning violence against women
affecting IC is not convincing (Ct. had criticized lack of fact-finding in
Lopez).
o Dissent Majority result could lead to random and arbitrary results.
Again see argument that federal balance has shifted; much more
powerful national government than framers could have imagined.
Congress can merely re-word the statute.
If a woman was victimized 2 feet from an interstate the statute
wouldnt apply, but if she was victimized on the interstate the
statute would apply. random and arbitrary; IRRATIONAL.
Raich (2005): comprehensive federal ban on private cultivation and use of marijuana.
o Is the controlled substances act as applied w/in the Commerce power of
Congress?
Yes
Court rules 6-3 that Congress can regulate the medical use of
marijuana (i.e., economic activity)
Wickard revisited Stevens says it is controlling.
Use of marijuana is an economic activity, bc there is a market
for marijuana.
Dissent says states have rational basis
OConnor distinguishes Wickard.
Wickard was for the sale of wheat
Moreover, medical marijuana does not really affect interstate
commerce.
Raich gives Congress potentially perverse incentives.
o Congress has a massive regulation rather than a narrow wording, in order to
ensure that they have jurisdiction.
Broader Regulatory Scheme (broad scheme is constitutional)
Regulating national markets, rather than narrow things.
o There is tension between this ruling and the previous two.

41

Implied Limits on Congressional Power (applied after commerce clause; 5)

10th Amendment-All powers not delegated to the U.S. are reserved to the individual
states.
Even if Congress has authority under the CC to regulate an area of law, there might
be a limit that keeps Congress from doing so because of the sovereign dignity of the
states. Two candidates:
o Traditional/Core State Functions Began in National League of Cities and
evolved into Garcia.
This has found not to be an implied limit.
o Anti-Commandeering New York and Printz
This has.

Traditional State Functions

o Theory: FLSA is w/in the commerce power, but there is an implied limit.
Wal-Mart can be regulated, but not Arkansas.
This theory 1st found success in S.C., then didnt.
o National League of Cities v. Usery (overruled)
In the area of traditional state functions, there is an implied limit. If
Congress regulates the states in these areas of TSF in a way that
impaired sovereignty, that is unconstitutional.
In areas of TSF the 10th prohibits the national government from
regulating states as if they were a private corporation.
o Garcia v. San Antonio Metro Transit Authority
Overruled NLC and said there are no implied limits on the basis of
traditional state functions. The TSF analysis is not an implied limit.
States sovereignty is properly protected by procedural safeguards
inherent in the structure of the federal system.
Any attempt to define core state functions would cause the Ct.
to have to define the core state functions (unworkable).
Federalism is to be left to the political process (procedural) as
opposed to courts
Different than Lopez in that Lopez said federalism was to be left to the
judicial process.
Garcia has not been overruled yet.
Even though it has been doctrinally eroded.

Commandeering (No Commandeering of State Governments)

o Congress may not order/command a state government to enact an
administrative or federal program, but Congress may coerce states:
Conditional Spending (Carrots) Congress can give money as subsidy
in exchange for cooperation with a federal program.
SD v. Dole (1987) said
o Condition must be clear, and;

42

o Some relationship between the condition and the

spending;
o Conditional spending cant be too coercive (Potentially
dicta, but Nowlin says part of the holding).
W/o this the state wouldnt have a real
choice anymore.
Federal Government can withhold money from the states or
offer the States money to encourage States to do what Congress
wants.
Congress has the power to spend for the general welfare and
generally courts will defer to Congress decision concerning
what is for the general welfare. Article I, 8
o As for back as Butler in 1936 this deference was
allowed; this will not be reviewed by courts.
Article VI-Clause 2-Supremacy Clause-The fed. laws are supreme.
Conditional Preemption (Sticks) Federal law wins over state
laws under the supremacy clause; therefore Congress can say
pass this law or we will pass one for you and preempt you.
o New York v. United States (1992) Radio-Active waste reform act used sticks
(cannot ship rule) and carrots (surcharge payment), but included a take title
provision that said if States hadnt met Congressional requirements (by a
certain date) they would have to take title and become liable for the waste
produced with their state. This last provision was unconstitutional
commandeering; telling states to adopt law fitting w/ federal specifications.
It was the functional equivalent of telling the state legislatures that
they must pass laws to regulate the provision. Even if states are
WILLING to cede their constitutional power doesnt mean they can.
10th Amendment.
Constitution protects us our own best interests, even it is formalist.
Policy argument: Blurs accountabilitymirrored in Lopez and Printz.
Also, there is a concern about federalism.
Dissent Appropriate analysis is Garcia, Court shouldnt be enforcing
formalistic limits on Congress. This is TOO obedient to federalism.
It should be left to the political process.
Again, just as in Garcia, it will be too difficult to determine
what should/should not be included in commandeering, just as
in TSF.
Why is NY decided differently than Garcia? In Garcia, everyone else,
private actors were being regulated. NY dictated to states alone.
Garcia treated states like employers or businessesthat is all right.
Inconsistencies between the two? Garcia says no to judicial
enforcement of federalism (political enforcement is fine). NY says yes
to judicial enforcement, even if it becomes formalistic
o Printz v. US (1997)

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Gun Control Act that required state officials to do background checks

was held unconstitutional because it commandeered state officials.
The enforcement has to be voluntary, through carrots or sticks.
Federalism type argument.
o State officials would have to pay the costs for the
implementation, in addition to suffering the political
heat; also blurs the lines of accountability.
Commandeering state officials interrupts the separation of
powers because Congress can bypass the federal executive
branch by going straight to state officials. Damage and erode
separation of powers by bypassing president, going to govs.
Historical point: Brady act is a new idea; he is a legal
traditionalist.
Dissent: Articles of Confederation allowed for national
government to require executives to enforce federal law, and
our new Constitution was enacted to be more powerful.
o Reno v. Condon
State DMVs were selling personal info. to different companies.
Law passed banning this practice.
S.C. upheld; it regulated both private actors and states.
Even though it regulates states moreso than private actors; still
falls under general applicability.
Says it falls under Garcia; not commandeering.
o NO commandeering rule applies to State legislatures and State executives
(officers).
o No-Commandeering does NOT apply to state judicial branch:
Commandeering is not assigned to the overtaking of a state judicial
branch because
The Supremacy Clause says that state judges shall be bound by
federal law
The judicial branch is not democratically accountable in the
same way that the other two branches are (not a political
branch, not elected).
Testa v. Katt is precedent saying its ok.
Opposing arguments:
o There is lots of electoral control over courts. About
of the states. These courts also make lots of policy.

Civil Rights Protection under the Commerce Clause

Congress may use its commerce power to regulate in the area of civil rights.
o Cant use 5 of the 14th to regulate private actors because 14 only applies to
States; therefore to prohibit racial discrimination in private businesses use
Wickard under Commerce Clause.

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Congress can say discrimination in the aggregate over time in public

accommodation (hotels / restaurants) affects IC.
Heart of Atlanta Hotel v. US and Katzenbach v. McClung
o B/c of discrimination in these areas, ppl had to get
books and such so they could find out where to eat,
stay, etc.
o The fact that Congress also didnt like the racism did
not take it outside the commerce power.
o Falls under Wickard as modified by Lopez (these are
economic activities)

Congress passed RBR for thinking the economic

activities, in the aggregate, substantially affect
interstate commerce.
o Analysis for a state-owned hotel that was engaged in
racial discrimination: Under the Garcia principle, its
permissible to treat states the same way as private
actors are treated.
Commerce Clause Limitations
o Under the commerce clause Congress can regulate States (as long as no
commandeering) and private activity.
o Congress cannot Abrogate Sovereign Immunity under the CC.

Sovereign Immunity state immunity from lawsuit where is a

private citizen for money damages. States have this immunity to
protect state treasuries, so state treasury can be used for other state
responsibilities (roads, protection, education, etc.).
Therefore cannot give private citizens the right to sue the state.
o Alternative Remedies:

US can sue on the private partys behalf; or

Private citizen can name a state official as in is private capacity.

Problem with this is there may be no indemnification; official
may be broke; official has to be personally responsible for
discrimination; etc.

Section 5 of the 14th

5 of the 14th Amendment
o Section 1: The Due Process Clause and the Equal Protection Clause and the
Privileges and Immunities Clause. And, through the process of incorporation,
most of the provisions of the Bill of Rights.

Section 5 Congress shall have the power to enforce, by appropriate

legislation, the provisions of this article. Congress has a delegated
and enumerated power to enforce by appropriate legislation the DPC,
the EPC, the incorporated Bill of Rights, and the P&IC.
Three different broad views of the scope of 5:

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o Pure Remedial View Congress may prohibit via statute anything the
Supreme Court thinks is unconstitutional. To enforce 1, Congress must
enforce the meanings of 1 that the Supreme Court deems appropriate.

Narrowest view, which that gives Congress almost no authority.

All Congress can do is pass redundant legislation and authorize

lawsuits

Scalia is here.

Congress cannot go outside the S.C.s box.

View most favorable to federalism.

This would line up the Marbury v. Madison view.

o Remedial Plus View Congress is given remedial powers (i.e. power to
prohibit by statute activities the SC finds unconstitutional) plus the power to
prevent and deter constitutional violation by creating a proportionate buffer
zone of behavior that the Supreme Court doesnt think is unconstitutional, but
prohibiting such behavior will help protect the limits included in the true zone
of unconstitutionality.

As the buffer zone gets larger, it becomes more like the substantive
view, but as it decreases in size, it becomes more like the remedial
view.

The other justices are all in this range somewhere, w/ 4 taking a broad
view, and 2 take a narrow view; we dont know where the 2 new guys
are.

Congress can draw a box around the S.C. view, but only to a certain
extent.
o Substantive View Congress gets to interpret 1 for themselves, meaning
they can decide what rights are included.

Congress can basically draw its own box.

Broadest interpretation which gives Congress co-equal authority along

with Courts to determine what is constitutional / unconstitutional
under 14th.

View that is worst for federalism; b/c gives Congress a good deal of
power over states.

This view undermines judicial supremacy.

Katzenbach v. Morgan (Remember there are numerous Katzenbach cases, so
remember the other names if you are only going to learn one).
o In Lassiter, it was decided that literacy tests as a voting requisite is
constitutional. Congress then used their 5 powers and passed the Voting
Rights Act, which made literacy tests illegal as a pre-requisite to vote if the
citizen (i.e. voter) had completed 6th grade in Puerto Rico (meaning a person
who had completed 6th grade in accredited Puerto Rico school could not be
denied the right to vote because of lack of English).
o The court upholds the law, despite previously acknowledging that literacy
tests were constitutional.
o There is no test laid out. Analysis says 5 gives Congress an affirmative grant
of authority.

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Nowlin says probably not RBR but is very deferential.

Ct. may be using Remedial Plus view b/ c Congress has engaged in
fact-finding to determine a constitutional violation that Court missed.
Some interpreted as the Substantive view.

Given Lassiter as a precedent, Congress may have decided that it was

invidious.
Congress smoking out discrimination that is not otherwise
apparent.

Prophylactic, b/c it is meant to prevent discrimination; if they can vote,

their electoral voice will be heard.
o Dissent: There are no facts/evidence to show that hidden discrimination was
actually discovered or that NY literacy tests arent fairly applied.

Advocates for a very narrow remedial plus; expresses concern for the
separation of powers and federalism.

City of Boerne v. Flores

o Incorporated provisions of B.O.R. (through 1 of 14th Amendment) include
freedom of religion; Congress has power to enforce the rights of 14th
Amendment.
o Congress has a Remedial Plus power. Congress can sweep more broadly
that what SC has said is unconstitutional, but what is made illegal by statute
must be proportionate and congruent to what the court thinks is
unconstitutional.

Boerne Background:
Sherbert (1963) If a statute results in substantial infringement
of the free exercise of religion (which is protected under DPC
incorporation), then that law is unconstitutional as applied to
those persons unless it passes SS balancing test (which
involves CSI-NT v. Burden on Religion).
Employment Div, Dept of Human Resources of Ore v. Smith
overturned Sherbert and said that if the government infringes a
religious right, a no-targeting test applies.
o Unless the religion was specifically targeted, then the
law is not unconstitutional.
o Conservatives and liberals were both pissed by this
ruling; C want to protect religion and liberals want to
protect minority rights.
o This is much less protective of religion and very
controversial, so Congress passed the Religious
Freedom Restoration Act (RFRA) to essentially make a
statutory form out of Sherbert. Made SS the test.

Said they could do it under 5.

o The Court overturns RFRA as being outside of the scope of 5.

SS is not congruent and proportional to RBR; Congress made a level

jump.

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Congress does not have any substantive authority to change 1.

Congress must follow SC interpretation; therefore SC accepts a
Remedial Plus Theory.

Giving Congress a substantive right would violate separation of

powers because Congress could step on SCs powers.
Marbury v. Madison disallows this thought.
Counter: Congress wrote the language b/c they were concerned
about S.C.s anti-Reconstruction bias.

Shifting legislative majorities could change the Constitution and

effectively circumvent the difficult and detailed amendment process
contained in Article V.
Counter: The very purpose of the 14th Amendment was to alter
the federal balance.
Remedial Plus Power Proportionality and Congruence Test:
o Congress can sweep more broadly than what SC holds as unconstitutional, but
that buffer zone must be proportionate and congruent to what the court
thinks is unconstitutional.

Congruence the Supreme Courts interpretation has to be central to

the new law. We want a roughly symmetric buffer zone.

Proportionality the buffer zone cant be much bigger than the actual
core violation.
o This buffer zone / sweeping power allows Congress to:

Deter or prevent constitutional violations under 1; and

Create complex remedies.

Sovereign Immunity
Rights or immunities of a non-consenting state not to be the in a suit in either state
or federal court where the is a private citizen for money damages (and may
includes other damages like injunction).
o Cannot sue a state for injunction, but you can name a public official in their
private capacity for an injunction.
What can Congress do to authorize lawsuits that are consistent with sovereign
immunity?
o Instead of the state, name a public official in his or her private capacities.

Problems:
Statutory Immunity statutory immunities may protect public
officials' private assets.
Insolvency a person may not have the personal assets to
cover a judgment
Possible that the states cant/wont indemnify the person.

Make the US rather than the private citizen the .

This is generally ineffective because US cant handle all these
cases.
Policy in favor Sovereign Immunity

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o Strongest argument for sovereign immunity is to protect the state treasury.

o There is also a pomp & circumstance idea: you shouldnt sue states, cant sue
crown, etc.
o Substantial historical support for the view of sovereign immunity, even though
it was not included in the Constitution.
Policy ag sovereign immunity
o If state government can break the law with no recourse, they will not follow
the law. If they break the law and injure a private citizen that citizen should
be allowed to recover.
Chisolm v. Georgia: States dont have SI.
11th Amendment: Sovereign immunity Amendment.
o The judicial power of the U.S. shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the U.S. by the
citizens of another state, or by citizens or subjects of any foreign state.
o Hans v. LA: SI is inherent in the structure of the Constitution; the 11th
Amendment is illustrative and not exhaustive, and SI extends to citizens of the
state.

Said federalism means respect for SI.

The question then becomes when Congress can abrogate (eliminate) sovereign
immunity.
o Fitzpatrick v. Bitzer: Congress can use 14th amend 5 power to abrogate
sovereign immunity.

14th Amendm. meant to give Congress more power, change federal

structure of the Constitution, and abrogating SI was one of the powers.
o PA v. Union Gas: Plurality of the ct. said commerce power could be used to
abrogate sovereign immunity, BUT
o Seminole Tribe v. Fl said commerce power could NOT Be used to abrogate SI,
and rejected reasoning from Union Gas.

Original Constitutional plan had both commerce power and SI, so they
should be read in harmony.
Garrett
o Americans w/ Disabilities Act grants disabled persons right to reasonable
accommodation.
o This is an employment regulation; they are regulating both states and private
actors. That is w/in the commerce power. BUT, Congress cannot abrogate
sovereign immunity to enforce this right, unless they are working under 5.
The reasonable accommodation is not at issue, but the SI is.
o Ct. says exceeds the power of 5, and it cannot stand only on the grounds of
abrogating SI.
o Ct asks whether there is a clear statement of abrogation: Yes.
o 5 Analysis:

Scope of 1 right that Congress is attempting to enforce? In this case,

is EP clause. Disability discrimination is RBR.

What is the pattern of discrimination, or violation, that Congress is

trying to remedy?
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There was not a pattern of state discrimination, but private

parties. It would also have to be a pattern of unconstitutional
state discrimination.

Is the statute Congress has passed proportionate and congruent given

the 1 right and the violation?
Since the states have done almost no unconstitutional
discrimination, there is no pattern of discrimination, and well
beyond what the constitution requires.
Basically changing the scope of the right from Cleburne,
widely expanding it.
o Ct. also notes that the act is good, but those discriminated ag will still have a
remedy.
Nevada Dept. of Human Resources v. Hibbs: Congress buffer was not too big, they
had no exceeded their 5 power.
o The higher the level of scrutiny, the bigger the buffer zone.
o Required employers to give employees 12 weeks of leave for family
emergencies (including pregnancy). Again, Congress can use their commerce
power to establish this right, but cannot use commerce power to abrogate SI.
So, have to be under 5 of 14th Amendment.
There is clear abrogation:
Scope of 1:
o EP clause: Reinforces gender stereotypes. Employer
is given incentive to hire men instead of women.
Patterns of violation:
o Lots of states that grant maternity leave and not for
paternity leave.
Proportional & Congruent
o Congress had a narrow remedy and a broad remedy:
But had they taken the narrow (making them be
gender neutral in granting leave), the states would
likely have granted little or no leave.
Ag, this would have been harmful to
women.
o Dissent: Pattern of violations is guilt by association; lots of this violation was
in private sector, not by states.
Most of the discrimination was only paternity/maternity leave,
whereas the statute allowed leave for all types of family illness.
EP clause does not require 12 weeks of family med. leave, so no sense
by which Congress is enforcing Constitution.
o Heightened level of scrutiny. The higher the level of scrutiny the more
deference to the proportional/congruence test is, the more leeway Congress
has to prohibit unconstitutional behavior.
For example: In age discrimination, Congress not going to get much
deference.

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Tennessee v. Lane
o Disabled victim had to go to court, but he couldnt get to the court room
because it wasnt wheelchair accessible. Congress passed the ADA which
requires court houses to be handicap accessible. Again, clear abrogation.
Access to courts receives some level of heightened review, regardless
of disability.
The scope of 1 obv extends to access to courts.
The need for a pattern is lessened under heightened scrutiny.
Again, P & C is less impt.
RULE:
o If were at RBR, Congress buffer zone must be very small.
o At heightened scrutiny, the proportionality analysis is more deferential.

EXAM- 4 Sections:
Policy Q: Historical evolution, debate on the court, usually judicial power and
another area.
Short answers: 3 sentences max. Some will be case names or yes/no.
2 Fact Patterns about current law: no history, no theory. You want to back this
up with case authorities. Write it like a brief, not a novel. No need for tons of
background info, just give the rule and cite it.
Refer to other sections when you have to talk about the same thing twice, or cut
and paste.
May pick something from the current docket for making the fact pattern
(healthcare).
Tips: short, concise, to the point. Use common sense abbreviations. No pretty essays.
Time crunch: 3-hour exam. Just answer each question and move on. No need to write
everything you know. You can type or write.

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