CONSTITUTIONAL LAW

Early Notes:
- When people form allegiance to the US, the swear to the Const., not to king or emperor.
- One can plead the constitution in courts in the US, which is something that cannot be done in most countries.
- We have both a non-textual and textual constitutional tradition.
- Edmund Burke suggested that the colonies could send representatives to Parliament, but he was voted down.

Bobbitt’s Six Modalities of Constitutional Interpretation

1) Textual: this is the meaning of the words as understood by “the average person” in our time. However, it
could also refer to the meaning of the words at the writing of the constitution or amendment
a. His point really is about how lawyers argue about the meaning of the text, and thus what it means
now
2) Originalistic or Historical: This is what the ratifiers of the Constitution would have thought a particular
provision to mean
3) Structural: this is what the “institutional relationships promulgated by the Constitution require or are
incompatible with or tolerate in a particular” legal result.
a. Can the Congress get the president’s papers? What happens when there is no text to govern a
particular result?
4) Doctrinal: This is applying or distinguishing rules or principles generated by precedent, usually from courts,
but also from other institutions, such as the president or Congress.
5) Prudential/Consequential : Is a proposed law “wise or unwise” in terms of the practical effects of the law
and of a constitutional principle that would support it.
6) Ethos: This is the distinguishing character, sentiment, moral nature, or guiding beliefs of a person, group, or
institution. It is not “general culture” but is rather those parts of the culture that are enshrined in the
Constitution
a. Bobbitt says the only one is the notion of a limited federal govt
b. Rosenblatt says there is more than one ethos
c. when the above 6 traditions clash, they are all equal so the result will vary

Prelude to the Constitution

1) The Articles of Confederation

a. These were adopted under the theory that the states would retain sovereignty, these didn’t work out
too well.
b. Congress lacked power to tax & regulate commerce
c. So they decided to revise
2) The CONSTITUTION
a. Created a national government divided among three branches, hoping to create checks and balances
b. Division between states & federal: anything not explicitly stated in the Constitution as a power
granted to the federal government or prohibited to the states was left to the states
i. This is the 10th AMENDMENT
c. Federal government is one of enumerated powers
d. Federal law supersedes state law on the same subject
e. Framers were concerned with protecting individual rights and liberties.
i. They initially left out most on personal rights on the concern that enumerated rights:
1. would imply that they didn’t exist
2. would give government a free hand to interfere with individual rights
3. if you include certain rights that the government can’t interfere with, it would
contradict limited government
f. Traditionally judges interpret the const., but sometimes so do the other branches

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THE BANK OF THE US: A CASE STUDY

A) The First Bank: The new federal government had to deal with whether they should charter a bank and
whether such a national bank was within the powers granted to Congress by Article I. It ended up being a
question of whose method would be used to interpret the Constitution.
a. Madison’s View:
i. The very point of this government is limited, specific powers and the bank works against
that notion
ii. If there’s a clear text, then we have to accept what it says despite disastrous consequences.
If it’s clear, then it’s not up for debate
iii. If it isn’t clear, look at the text - Our original intent! We wrote the damn thing like this
iv. Necessary and proper clause doesn’t mean that we have this power. Necessary means
impossible to do without (by showing that an enumerated power is essentially linked) and it
isn’t an independent power!
v. This is beyond our delegated authority.
vi. When there’s not even that much authority (explicit) we must take a look at how much of a
leap it is and how important it is.
b. Randolph’s view
i. If we let this happen, it might grant too much power to the federal government
c. Jefferson:
i. Powers not delegated to US by Const. are reserved to states or the people
ii. To go further would be to expand those powers way too much and create a boundless field
of power
iii. Necessary doesn’t mean convenient
iv. note- Jefferson later bends strict construction when he becomes pres to buy LA Purchase
d. Hamilton:
i. We have both implied and express powers
ii. Implied powers can be used as an instrument of means of executing any of the specified
powers
iii. Congress must employ ALL MEANS which relate to its regulation to the best and greatest
advantage.
iv. Necessary and Proper means all means necessary to attain proper/lawful goals (Art. I § 8)
1. There needs to be a natural relation between the means chosen and the ends

B) The Second Bank: The first bank’s 20 year charter ran out, and Congress wouldn’t renew it. But four years
later, due to economic turmoil caused by the War of 1812 and state banks, Madison signed a bill reinstating
the bank. The states imposed hostile and incredible taxes on the bank.
a. McCulloch v. Maryland (PART I) (1819):
1. note- federal jurisdiction extends to cases and controversies- but must be affected
personally to have federal standing
2. The constitution’s structure implies that there are implied powers beyond those
enumerated in the constitution. CJ Marshall held that the Constitution implicitly
gave Congress power to take the means necessary to give effect the powers
granted.
3. The Necessary and Proper clause also helped Marshall’s conclusion: The Clause
expanded rather than limited Congress’ enumerated powers and conferred power to
take action which was useful even though not “necessary.”
4. TEST: Under the clause, “let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and spirit of the
Constitution are constitutional
5. NOTE: The N&P Clause has been a source of considerable additional powers. It
authorizes actions not only in Article I but throughout the Constitution.
A. Reaction to McCulloch: This caused a lot of controversy because it went way beyond the
specifics of the bank and set out a eloquent vision of a single nation, joined under a single &

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 powerful national government possessing broad powers, with the Court willing to offer what
could seem like total deference to decisions of Congress.
a. get very close to idea of nullification- stems from idea that the states created
the federal govt. (still relevant today, Regan seems to have suggested it
recently)
b. The most important argument about state sovereignty and the relevance
thereof were written in the late 1700s. The Virginia and Kentucky
Resolutions, written by Madison and Jefferson respectively
ii. Inherent v. implied powers: This is the canonical example of the Court’s willingness to discern
implied powers beyond those specified in the text. The point of calling them implied is that they
are indeed linked to the textually assigned powers and serve as means to the ends spelled out in
the text.
1. Express/Explicit: powers that are written directly into the Const., although meaning is
debatable
2. Implied: closely related to an express power, in conjunction with one, implied off text
3. Inherent: Doesn’t depend on the text or connection (the power to make the design of
the flag)
4. The Chinese Exclusion Case – The government, through the action of the legislative
department, can exclude aliens from its territory is a proposition not open to
controversy
a. This is a power necessary to maintain sovereignty, but even that is restricted
by the Const. – “restricted in their exercise by the Const. and considerations of
public policy and justice which control, more or less, the conduct of civilized
nations
5. US v. Curtiss-Wright Export: “Rulers come and go; govts end and forms of govt
change; but sovereignty survives. Do not need an affirmative grant of power in the
Conn to give the federal govt powers of external sovereignty, it was already there.”
a. federal govt foreign powers are plenary, not limited.
b. Union got this power from the King (who had it before the war) not the States
iii. McCulloch v. Maryland (PART II):
1. The Const. and the laws made in pursuance thereof are SUPREME; they override the
constitutions and laws of the several States, and cannot be controlled by them.
2. The power to create implies a power to preserve;
3. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible
with these powers to create and to preserve;
4. That where this repugnancy exists, that authority which is supreme must control, not
yield to to that over which it is supreme. But the very terms of this argument admit that
the sovereignty of the State, in the article of taxation itself, is subordinate to , and may
be controlled by the constitution of the United States … it is of the very essence of
supremacy to remove all obstacles to its action within its own sphere, and so to modify
every power vested in subordinate governments, as to exempt its own operations from
their own influence.

C) The President Interpreter

a. Andrew Jackson & The Demise of the Second Bank: Jackson presented a fundamental issue of the
allocation of constitutional decision making authority amongst the branches of the government.
i. “A bank is constitutional, but the province of the Legislature to determine whether this or a
a particular power, privilege or exemption is ‘necessary and proper’ to enable the bank to
discharge its duties to the government and from their decision there is no appeal to the
courts of justice. Rather legislature and executive will decide so.
ii. We don’t only have to look to the judiciary for precedent – President can interpret also
b. There are circumstances where the president may appropriately decline to enforce a statute that he
views as unconstitutional.
i. However, if it is probably that the Court would find it constitutional, he should enforce it.
ii. If he doesn’t think it’s Constitutional, and he thinks that the Court would agree, he should
decline enforcement

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 c. BUT: Once the Court has spoken on a matter, the president would seem to be bound by the
court’s determination

THE MARSHALL COURT

The Marshall/Federalist Constitution from 1804-1835

A) Pre-Marshall Court: Prior to Chief Justice Marshall, the Court was a relatively insignificant institution. The
Court had assumed the power to 1) review the validity of state legislation that conflicted with federal treaties
and statutes and 2) to construe federal legislation in light of presumably binding constitutional requirements.
a. The SC reviewed state court decisions of federal/constitutional issues in order to avoid state
prejudice and ensure uniformity
b. The Federal courts were in a better position to interpret federal law
B) Jefferson in Louisiana: Jefferson, while a champion of states rights and strict construction, needed to buy
the Louisiana Territory and had significant doubts about the legality of it. There was nothing in the
Constitution that allowed the federal government to add territory. Even with these misgivings, Jefferson
decided that for the good of the country, the purchase must happen, and advocated it though it lay beyond
explicit Const. power
C) JUDICIAL REVIEW OF LEGISLATION
a. Precedents for Judicial Review: There’s nothing in the Const. that explicitly authorizes the federal
courts to review Congressional Acts. In the years after the Revolution, tyranny by the majority
became obvious and there were only two remedies: the bicameral legislature and judicial review.
There is no clear consensus on whether the Court had that power prior to Marshall, but there’s
nothing to imply that it didn’t, and some of the 1790’s decisions show some presumption of authority
b. Bickel- the power of judicial review is countermajoritarian
i. this goes against the basic tenet that majority rule
ii. when the SC declares something unconn it is exercising a power above that of “we the
people”
iii. by acting in this manner the SC preserves the enduring values of the conn tradition that are
liked to the judiciary (corollary- legislative and executive branches more able to respond to
needs of the time, take care of present needs b/c politicized). here judiciary is making sure
that democratic values and fundamental fairness are preserved. (pro-majoritarian)
iv. Rosenblatt- sometimes it’s hard to know what the people want and what is in the conn
D) The Political Context of 1801-1803:
a. When Marbury was decided, the big issue was whether the Federalist Court would claim the power
to restrain Jefferson, a Republican president.
b. Marbury v. Madison (1803): Cited as authority for judicial review power of the courts:
i. Facts: Marbury sued in the SCUSA to compel delivery of his commission as Justice of the
Peace of DC after Jefferson and Madison failed to deliver after Adams had appointed him
ii. Opinion:
1. The Judiciary Act of 1789 was unconstitutional because it attempted to alter the
Constitution to allow original jurisdiction over something not in Art III. so
Marburry has a right but no remedy in the SC.
2. When there’s a statute that is in violation of the Constitution, the Courts must apply
the Constitution as the paramount law of the land which supersedes inconsistent
statutes.
3. JUDICIAL REVIEW and CONSTITUTIONAL PREEMINENCE aren’t in the
Constitution, but can be supported by constitutional argument
4. Marbury can be read as either giving the power of judicial review or the Court
asserting that it is the ultimate arbiter of the Constitution.
5. While many argue that the other branches also can interpret, the Court increasingly
contends that it has the ultimate power to do so.

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 c. Article III, §2: Supremacy Clause: The Constitution and the laws of the United States are superior
to those of the Several States

American Ethoi, according to Rosenblatt.

"Majoritarianism <-------------------------> "Inalienable Rights"

Materialism, Markets, Vested Rights, "liberty of the strong" <---------------> Spirituality,

idealism, fairness, community

Empire, militarism <----------------------------> Isolationism, pacifism, Fear of big gov., states'

rights

Subordination of "others" <----------------------------> Universal Inalienable rights

The pairs, described:

Pair 1 comes down to legitimacy through majority rule fighting against rights that cannot be
taken away by the majority. Fletcher is on the right in this instance

In Pair 2, Fletcher is on the left. Vested rights cannot be taken away. On the right are things we
haven't seen yet. They ask "what can the strong do to the weak?" Are there limits to what the
strong can do? Natural law says yes. The right side is the Senaca Falls things - that the strong
shouldn't be able to do whatever they want.

Pair 3 is expansion to the west, expelling the indians, taking over land, projecting the power of
the country. This is seen in Cherokee Nation case, as well as other Indian cases. On the other
side are the fears of big government - Jefferson's fears in the Louisiana Purchase are a perfect
example.

Pair 4 ties in with pair three. Subordination of "others" comes in to the Indian cases and the slave
cases. The other side is that ALL people are included in having universal inalienable rights.

Examples for today: The Social security system was designed on the right side of the spectrum - it's not
a vested right. President Bush wants to move it to the left b/c he wants to make it subject to the market

YOU CAN MIX AND MATCH ON THE SIDES

E) Protecting Property Rights and the Natural Law Tradition (Source of Conn Interpretation)
a. The Natural Law Tradition – the notion that there are fundamental rights that exist but are not part
of the positive law. principles of law accessible through reason. Three features of English
tradition influenced American Constitutionalism:
i. Judges received jurisprudence, they didn’t just make up the common law
ii. Time and revision of history had changed the Magna Carta from a partisan political
document to a declaration of the natural rights of Englishmen, and the Petition of Rights and
English Bill of Rights, as well as the Declaration of Independence claimed not to establish
new principles but to declare ones that already exisited
iii. John Locke’s Second Treatise of civil Government: There are three basic rights: life, liberty,
and property. Property is the most fundamental – one you owned something, it was pretty
much yours. Social compact was designed to protect whatever distributions of wealth came
about through the varying talents and efforts of the members of society.
b. Judicial Protection of Vested Rights: Once a person had a vested interest in something (that is, it
belonged to him), it was immune from government divestment.
i. This doctrine mainly developed and flourished in the state courts
ii. In Marbury, this was the key issue: The President was free to appoint or not appoint
Marbury. But once Marbury had that right to his commission, the government couldn’t

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 deprive him of it – just like a salesman can’t sell something and vest title in the purchaser
and then take it back.
1. Vested Rights aside, judicial protection of individual rights depended mainly on
the written provisions of state constitutions and the US Const.
iii. Fletcher v. Peck- GA legislature was bribed into selling land. Next GA legislature tried to
revoke the fraudulent sale. Marshall says the past cannot be recalled by absolute power, the
legal rights were vested and cannot be taken away- legislature cannot undo it. GA is
restrained by general principles common to free institutions (unwritten) and part of the conn
(written). Johnson gets to same conclusion as Marshall just relies on general principle of
natural law that imposes rule even on God. If God is restrained certainly the mere GA
legislature is so bound also. (echoes Lockian labor theory of prop)
iv. Calder v. Bull : Government cannot deprive innocent people of a lawful private contract or
the right of private property-
1. Chase: Natural law is the basis for judicial review of the Constitution
a. natural law can be enforced over the will of the people (ethos/spirit)
2. Iredell Dissent: We have a written const., Court should never resort to declaring an
act void unless it is very sure. If it is in the scope of the congressional power, then
can not void on the principles of natural justice because it is too unclear and
contested. The legislature has its own view of natural law and there is no superior
authority which can deem one side right.
v. The Antelope: Justice Marshall: (ship found on highseas with slaves- Port and Sp claim
owenership)
1. Slavery is horrid, but it doesn’t matter that slavery is contrary to the laws of nature,
because international law has not yet adopted this principle as a norm.
2. The US must recognize the claims of slave owners to return their property that had
been illegitimately seized- SC will protect prop right of foreign nationals
3. Marshall knew that anything he said about slavery would be read very critically in
the US and he may not have wanted to piss off the foreign nations who claimed the
slaves.
4. justification: equality of nations is a general principle of natural law. when this
collides with inalienable rights of life, liberty and the pursuit of happiness- the
equality of nations will trump. (positive intl law establishing the slave trade and
natural law takes a back seat)
5. very much so in tension with Fletcher but consistent with Cherokee Nation
vi. Cherokee Nation Case- states disregarded treaties with Indians and federal govt. Invoked
original jurisdiction of the SC b/c claimed status as an independent country and GA
violation of K. Marshall says Indians not a foreign state- ignored their rights.
1. Indians not seen as having vested rights, they are outsiders to the community like
the slaves above (lib interest not valid over prop right of Europeans)
vii. The Ninth Amendment: The Ninth Amendment most seems to embody the concept of
natural rights.
1. “The enumeration in the Constitution of certain rights shall not be construed
to deny or disparage others retained by the people.
2. This is very ambiguous.
3. Does this safeguard individual liberties not enumerated in the first eight
amendments or only to protect the states against the national government’s
assumption of powers not delegated by I, II, or III?
viii. Women’s Citizenship in the Antebellum Era
1. Unlike slaves and Indians, women were deemed citizens of the US at the time of
the founding
2. However, they were still denied political rights, based on a theory of the
relationship between the obligations of political citizenship, economic dependency,
and family structure
3. Why was this separation possible? Despite the revolutionary ideology of human
liberty and equality, they were justified by a distinction between public realm of
active citizenship and public economic activity and the private domestic relations

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 4. During this period women’s rights movements began, growing out of evangelic
movements for temperance and abolition, culminating at the Seneca Falls
convention of 1848.
5. Many women’s rights advocates worked for the abolition of slavery, hoping that
securing rights for blacks would secure it for them. It didn’t for another 75 years.

F) Regulation of the Interstate Economy

a. Gibbons v. Ogden: Marshall drew a broad vision of the Commerce Clause
i. FACTS: NY act gave exclusive right to certain individuals to use steam boats in all the
waters of NY for 30 years. An injunction was issued restrained d from navigating
steamboats in the water within the state. D contented that the privilege violated an act of
Congress which regulated the licensing of ships and vessels in the coasting trade and
fisheries and was repugnant to the Const.
ii. OPINION:
1. Commerce extends beyond navigation to include commercial intercourse
2. the power to regulate involved the power to prescribe the rule by which commerce
can be governed.
3. “Among the states” did not include “that commerce, which is completely internal,
which is carried on between man and man in a state, or between different parts of
the same state, and which does not extend to or effect other states.”
a. Implicitly, it did include commerce which affected another state even
though it did not involve crossing a state line
i. (That’s technically dicta)
b. The 19th century included little federal legislation and most
interpretations of the Commerce Clause involved state regulations
b. Wilson v. Black Bird Creek: DE allows company to build a dam on a brackish creek, which
precludes navigation. P says that that interferes with Congress’ power to regulate commerce. The
Court says that Congress has not passed a law on the creek or otherwise and this involves the
“dormant commerce clause” (that is Congress hasn’t used it to pass law yet). DE argued that it was a
health concern statute, and doesn’t interfere with commerce. The Court ultimately agreed that it
didn’t infringe.

THE TANEY COURT and SLAVERY

1825-1860

The Marshall court was Hamiltonian (broad construction) and the opposition perspective was Jeffersonian (narrow
construction).
The Taney court was for State’s Rights and Pro-Slavery, and was opposed finally by Lincoln.

A) Somerset’s Case: Slave didn’t want to go back to Jamaica after visiting England with his master. Lord
Mansfield said that slavery was so odious that the only thing that supports it is positive law. Slavery is not part
of the natural law, and the English will respect natural law unless English positive law conflicts, and he
doesn’t have to accept Jamacian law. Eng pos law lets Sommerset free. (American law follows this case)
B) Slavery: Missouri’s entry into the Union proved contentious and created a heated conflict in Congress. It led
to the Missouri Compromise & the Civil war
a. Note: Freedom of Speech, Federalism, and Slavery: Although state laws banning abolitionist material
interfered with the powers of federal postal officials and created problems, they were never litigated
because the federal officials involved were willing to comply with the state laws
b. Prigg v. Pennsylvania: Prigg was a slave-owner, Margaret Morgan was a slave who was free,
married a freedman, and went to PA, a free state to live. Prigg went into PA, a free state, and seized
her. PA said “Hey, you can’t come in here, and the T.Ct. agreed.
i. TANEY: State has no power to pass laws that go against the constitution
1. Fugitive Slave Article (Art. IV, § 2): The PA statute violates this which gives
unqualified right to slaveowners to recover their property

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 ii. States have an obligation to return captured slaves- this upholds states rights but reserves the
exclusive power to legislate on the matter to Congress
C) Prelude to Succession
a. Dred Scott v. Sandford:Slaves and their descendents are not national citizens (Art.II § 2 Clause 1).
Taney uses history to say that blacks can’t be citizens:
i. A citizen has full rights and privileges under Article III
ii. Blacks don’t have full rights and privileges under state law
iii. Blacks aren’t citizens.
b. Curtiss’ DISSENT- at time of AOC there were states that had free black people- baseline that they
were part of political body that ratified the Conn. part of “we the people. there is “partial”
citizenship
D) Judicial Supremacy and Dred Scott: Lincoln Douglas: Dred Scott was a major part of the debates between
Lincoln and Douglass. Lincoln, in his “House Divided” speech denounced the Dred Scott decision and
suggested that it was part of a conspiracy to nationalize slavery. Douglas said that Lincoln wanted to catechize
potential nominees to the supreme Court
a. Professor Ackerman’s Reading: Article V is one, but not the only way to amend the
Constitution. He says that major moments of constitutional innovation in American history occur
significantly non in accordance with legal philosophies, but rather through a more irregular complex
and dynamic powers of a higher lawmaking
i. The first such moment was the founding of the constitution in 1787-1789, recognized at the
time and science as not having been the compliance with the then –applicable amendment
requirement so fo the Articles of Confederate.
ii. The second such moment was the 13th and 14th Amendments, whose proposal and
ratification depended on the stauts and political orientation of the southern states who had
just sustained and lost a devastating civil war
iii. The third time was the New Deal of the 1930’s, in which the Constitution was amended
even though no such formal amendment was proposed and ratified under Article V

FROM RECONSTRUCTION TO THE NEW DEAL – 1866-1934

Lincoln’s Constitution and the Struggle over its Meaning: 1858-1880

A) Racial Discrimination: Although the 13th Amendment abolished slavery, the black codes, adopted by the
southern states immediately after war, threatened to restore freedmen to antebellum status. The most lasting
achievement of the 39th Congress was the 14th Amendment, proposed in 1866 and ratified two years later

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 a. The Civil Rights Act of 1866: A key phrase in dispute over the scope of Congress’s concern with
racial discrimination was the prohibition of discrimination in ‘civil rights & immunities’ – the civil
rights formula – which first appeared in the ill-fated Freedman’s Bureau Bill and reappeared in the
civil rights bill

Reading #5, p.5

Ackerman suggests that Dred Scott is a position of formal inequality. Taney was saying that it was explicit and should be
explicit in our law that people do not have equal rights.

What are the alternatives to formal inequality?

• Formal equality: the law is going to treat everyone as if they were equal.
 No more classifications or distinctions,
 Everyone is equal before the law,
 Everyone is a citizen
 Blindness to class and color

Senator Thaddeus Stevens and Charles Sumner saw the terrible truth that quick reunion would result in Southern betrayal
of the new constitutional values trumpeted in the formal text. A President following Radical advice would have used the
precious months of 1865 to pave they way for a new class of property-owning and educated black yeoman in the South. He
would not have allowed rebel whites to regain their land in exchange for the minimal promises exacted by Johnson=s
amnesty oath. He would have heeded Stevenss call for a massive land redistribution to loyal freedmen and elaborated
Sumners great vision of a public school system that might compensate for slaverys enforced ignorance. . . . He would have
been prepared to keep the South under federal tutelage for a decade or more required for blacks to gain the educational
and economic resources needed to defend their interests at the ballot box. . . .[and achieve their moral right] to the land
and education they had purchased by centuries of slave labor.

• Substantive Equality
 We need to look at what's going on
 Need to look at what each person needs to achieve their rights.
 This road wasn't taken - it would have involved taxing and dispossessing a lot of people.

They ended up taking a path of combination between formal equality and formal inequality

b. Democrats and Conservative Republicans fought those bills because they were worried that the
phrase ‘civil rights’ could be construed much more broadly than its sponsors said they intended –
they feared black suffrage & finally had the leadership add an amendment that “nothing in the act
shall be construed as to affect the laws of any states concerning the right of suffrage”
c. Crandall v. Nevada
i. Remember, the issue here was whether NV could impose a tax on anyone leaving the state
by common carrier.
1. The court says that "the people of the United States are one nation, and the very
structure of the US implies a whole set of relationships with the citizens, one of
which is that they can travel to government places and abroad."
2. From that structure (Bobbitt) they imply a constitutional right to interstate travel
3. do not get to the 14th Amd here

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 Fourteenth Amendment
Section 1

Citizenship Clause:
(Takes away from the states who they decide as a citizen).

State Action Doctrine

No State shall deny:
•Privileges and immunities (P&I)
Limited to citizens.
•Life, liberty, property and due process (D.P.) Due
Process Clause, 5th Amendment.
Applies to states now as well.
Not limited to process.
•Equal protection of laws (E.P.)
To any persons, maybe a noncitizen.
The same offense means one punishment.
Section 2
- Each person is the state is counted, except Indians not taxed.
- The state still have the option of giving the vote to black and any
man, but Congress can reduce the representation of that State for
denial.
- Is racial discrimination penalized, but allowed?
- Applies specifically to males and is clear does not give women the
right to vote.
Section 3: Eligibility to Hold office
Section 4: Debt in the United States
Section 5: Adds to Congress’s power to enforce the amendment,
specifically section 1.
***: Article 4 P & I, fundamental rights. Cannot discriminate out-of-
staters.

B) The Protection of Economic Rights

a. The 14th Amendment Limited: At this period, the central question posed about the 14th amendment
was what compromised the rights and freedoms it guaranteed
b. The Slaughterhouse Cases: The majority here basically wrote the Privileges and Immunities Clause
of the 14th Amendment out of the Constitution, and this IS STILL GOOD LAW. This court refused
to distribute the power away from the states to the federal government, and narrowly construed the
Due Process, Equal Protection, and Privileges and Immunities Clauses.
i. Miller – Such a construction followed by the reversal of the judgments of the Supreme
Court of LA in these cases would constitute this Court a perpetual censor upon all
legislation of the States, on the civil rights of their own citizens, with authority to nullify
such as it did not approve as consistent with those rights, as they existed at the time of the
adoption of this amendment
1. This case put off application of the Bill of Rights for a long time to the states.
2. Art 4 P&I goes to NJ clam case (Corfeld) where SC said state citizenship P&I are
fundamental rights. follows that P&I of federal citizenship cannot be part of this
(US and state citizenship are not same thing).
ii. DISSENT: State-mandated monopoly is bad precisely because it represented a use of state
power to establish privileges that were anti-equal protection.
1. “This equality of right, with exemption from all disparaging and partial
enactments, in the lawful pursuits of life, [83 U.S. 36, 110] throughout the whole
country, is the distinguishing privilege of citizens of the United States. To them,
everywhere, all pursuits, all professions, all avocations are open without other
restrictions than such as are imposed equally upon all others of the same age, sex,
and condition. The State may prescribe such regulations for every pursuit and
calling of life as will promote the public health, secure the good order and advance
the general prosperity of society, but when once prescribed, the pursuit or calling
must be free to be followed by every citizen who is within the conditions
designated, and will conform to the regulations. This is the fundamental idea upon
which our institutions rest, and unless adhered to in the legislation of the country

10
 our government will be a republic only in name. The fourteenth amendment, in my
judgment, makes it essential to the validity of the legislation of every State that this
equality of right should be respected. How widely this equality has been departed
from, how entirely rejected and trampled upon by the act of Louisiana, I have
already shown. And it is to me a matter of profound regret that its validity is
recognized by a majority of this court, for by it the right of free labor, one of the
most sacred and imprescriptible rights of man, is violated”
2. Field- says LA representing this as a health law is pretense. LA really set up a
corporation
a. note- state police powers are default governmental powers (health, safety,
morals)
3. Bradley- broad concept of 14th Amd P&I- wants to give practical effect to Dec of
Ind inalienable rights
a. these 2 justices would bring us into formal equality

c. Bradwell v. Illinois – The clash between liberal free labor interpretation of the 14th and states rights
republican views reappeared almost immediately in another case claiming the substantive right based
on the P&I clause. IL Supremes denied Bradwell a right to practice law because she was a woman.
i. MILLER: the P&I clause is limited and the power to regulate licenses to practice law in the
courts of a State is up to the state.
ii. BRADLY: Men and women are in separate spheres, and their social lives are in two
domains where men and women have separate capabilities.
1. Biological differences
2. God made it this way.
d. Strauder v. W.VA. – D was convicted of murder. D objected to the fact that black men were
ineligible for jury duty. The Court held that the state statute unconstitutionally discriminated on basis
of race and that it amounted to a denial of equal protection.
i. There’s no right to have someone of your race on the jury, but an entire group cannot be
summarily not included (blanket exclusion is not allowed)
ii. the violation here is the denial of jury service to the qualified African American juror,
not the denial of the criminal’s rights (this is racial prejudice that undermined the
whole system)
iii. DISSENT: 13th and 14th are for civil rights only, not bestowing the power of political
rights.

The Emergence of the Social Darwinist Constitution: 1883-1937

State action, private discrimination, and “Natural,” “Voluntary,” and “Formal Equality”

A) Creation of the State Action Doctrine: The state action doctrine is the principle that the protection of the EP
and DP clauses are not triggered until there is some action by the state.
a. The Civil Rights Cases: Five civil rights cases were consolidated before the Supremes to see if
sections of the Civil Rights Act of 1875 were constitutional. The Court held that U.S. Const. Amend.
XIII prohibited the badges and incidents of slavery, and individual discrimination against blacks did
not rise to the level of slavery. Also, Amendment XIV did not provide authority to enact these
sections of the civil rights act, because it was aimed at the state legislatures, not at individual people
i. THREE DISTINCT PROPOSITIONS:
1. The 13th Amendment, though it addresses private persons as well as the
governments, does not prohibit or empower Congress to prohibit most racially
discriminatory practices other than slavery.
2. The 14th Amendment does not empower Congress to forbid discrimination by
private parties

11
 3. Therefore, the 14th Amendment doesn’t of its own force prohibit private
discrimination as distinguished from discrimination imposed or supported by the
state.
ii. DISSENT – Harlan: Congress could easily pass this law under the 13th, Congress can
protect the slaves and get rid of badges of slavery
1. Discrimination was bound up with the institution of slavery, and the 13th says
slavery shall not exist, and does mention private individuals, so we don’t need to
find state action because it is closely related to slavery
2. public accommodations are licensed by the states and are governed by the states.
They’re quasi-public entities
3. The citizenship clause should be a powerful clause: “all persons born or naturalized
are citizens, and all citizens deserve equal access to things.”

There's a fundamental contradiction that underlies all of law: We really need to be

connected to other people in order to do things in our lives. Being totally alone
would be a disaster. But on the other hand, we're afraid of other people. When we
need other people, we're afraid of other people doing some wrong to us.

All of law is an attempt to work out that problem - we need the connection to
other people but we also want to be safe.

Football really stresses this contradiction in a way that is more powerful than
other sports. The completed pass is this great moment of connection. The defense
is trying to deny the connection. It's this great struggle between the forces of
connection and the forces of disconnection.
B) Separate But Equal Doctrine: Although the court didn’t back away totally from Strauder, many decisions
following it seemed to uphold Negro inferiority rather than racial equality.
a. Plessy v. Ferguson (1896): A statute that implies merely a legal distinction between different races
does not tend to destroy the legal equality of the two races or to reestablish a state of slavery. The
statute in this case didn’t violate the 14th Amendment. the 13th Amd only prohibits the institution of
slavery, nothing else.
i. In determining whether the statute was a reasonable regulation, the LA legislature was given
a large amount of discretion, the legislature was at liberty to act with reference to the
established usages, customs, and traditions of the people, and with a view to preserving
peace and good order
ii. The Court rejected the argument that separation of the two races stamped one race with a
badge of inferiority. A legislature had to secure for its citizens equal rights before the law,
but if one race was inferior to another socially, the Constitution could not put the two races
on the same plane.
iii. Harlan’s DISSENT- this law is going to infringe on people of mixed race who want to
associate with eachother

The Social Darwinist Constitution and the State Regulatory Power: Substantive Due Process and Liberty of Contract

A) Protection of Economic Rights (Substantive Due Process)

B) The Heyday of Judicial Activism (1890-1943)
C) Doctrinal Test& Standard of Review - these deal with the legal concepts the courts are going to apply to
resolve a certain type of problem.
a. The idea of standard of review typically involves things such as:
i. Presumptions
ii. Burdens of proof
iii. Trigger: before you get to a particular doctrinal test or standard of review, it has to be
triggered.

12
Lochner v. NY (1905): Employer allowed employee, a baker, to work more than 60 hour a week in
violation of NY laws. The general right to make a contract in relation to one’s business, and the right to
purchase or sell labor, was part of the liberty protected by the 14th. The statute was not necessary as a
health law to safeguard the public health or protect the bakes. The trade of the baker is not unhealthy to
the degree that would authorize this & various regulations already governed the cleanliness of the baker’s
workplace. Restricting the number of hours a baker could work would not further purpose of those
regulations. It was not possible to discovery the connection between the number of hours a bake could
work and the quality of the bread.
States can regulate individual liberty, under their police power only if it is fair, reasonable , and
appropriate.

TEST: The mere assertion that the subject relates though but in a remote degree to the public health does
not necessarily render the enactment valid. The act must have a more direct relation, as a means to an
end, and the end itself must be appropriate and legitimate, before an can be held to be valid which
interferes with the general right of an individual to be free in his person and in his power to contract in
relation to his own power.

iv. DISSENTS:
1. Harlan: The challenger has to bring proof and thinks that there is a liberty to
contract. IF there is some reasonable argument that this is a health measure, Court
must defer to the state. There is room for debate that this is a health-care policy
and should be upheld. Deference is required.
2. Holmes: There are laws that already regulate liberties (taxes, lotteries, etc.). These
are not exactly infringements. Constitution does not embody one economic theory.
Legitimate goals are to regulate and protect the people. We understand this through
tradition and politics.
v. Doctrinal Map of Lochner:
1. There must be a strict means-ends relationship
2. End must be legitimate (the Court felt that the law in Lochner was to redistribute
wealth)
3. State has the burden of proof to justify legislation that imposes on individual rights.
vi. Liberty, Property, Process:
1. Liberty of Contract is a Fundamental Right (trigger): At the beginning of
Lochner, Peckham asserts that “The general right to make contract in relation to his
business is part of the liberty protected by the 14th Amendment.”
a. DP (previously on procedural) is now substantive- cannot infringe on
substantive rights of life, lib and prop
b. Warren disagreed, “liberty is simply the right to have one person free
from physical restraint”
2. Property: Even if the word liberty is construed narrowly, the due process clause
also explicitly protects property.
3. logic of the case: lib of K is protected by the 14th Amd, this triggers Conn
rights b/c there is a prima facie breach. BOP is shifted to the state to prove a
legitimate use of state police power (justification for infringing upon rights of
people). The act must have a direct relation (means-ends analysis). Here
health justification is NOT satisfactory. Lib of K is paramount.
vii. Scope of the Police Power:
1. The Court says that the statute necessarily interferes with the rights of contract but
also asserts that property and liberty are held on such reasonable condition as may
be imposed by the governing power of the state in the exercise of its police powers
viii. Burden of Proof:
1. One possibility is that the majority and dissent apply the same standard, but with
different burdens of proof or with the burden of proof on different parties.
2. Another possibility is that they possess different concepts of the nature of
permissible state regulation and police power
ix. Laissez Faire, Lawyers, and Legal Scholars:

13
 1. Opponents of 19th Century rate and labor regs usually argued traditionally
conservative viewpoints that the right sof property were insecure in the hands of
popularly controlled state legislatures.
2. They also liked to discuss Adam Smith, Herbert Spencer, and Sumner.

b. Coppage v. Kansas (Yellow Dog Contracts): Kansas passed a statute prohibiting “yellow dog”
contracts, which prohibited workers from joining labor unions.
i. The 14th stops states from interfering with property and liberty…
ii. The Court decided that the state statute protecting the workers violated due process because
it interfered with the right to contract, noting that “if we allow private property, we have to
accept the inequality of bargaining power. Private property is a constitutional right, so
inequality is one as well.”
iii. The state’s actual goal here was to level the playing field
iv. Court said that only legislation with the primary goal of helping the public interest and
welfare is accepted even if private interests are protected incidentally in order to encourage
free markets
1. Regulating for health, safety, welfare morals is legitimate, but regulating for
bargaining powers isn’t.
2. here the SC codifies the CL- would not have been legitimate
c. Mueller v. Oregon: Oregon had a law that limited the work of women in factories.
i. This case created the Brandeis brief that helps to educate the Court through facts and figures
ii. total OPPOSITE of Lochner b/c it’s for WOMEN
iii. The health of women here is considered a public concern, unlike the bakers in Lochner,
whose regulation was considered a slippery slope argument. In fact, the court notes the
unequal bargaining power of women.
iv. The feeling that women need protection and the fact that women were different from men
figured strongly here.
1. Women have babies
2. Women belong at home
3. Women can’t work long hours
v. here we find that real/substantive inequality is in tune with the natural/traditional idea of
women as inferior
d. Holden v. Hardy: Court upholds maximum hour legislation for miners but under health concern
The Progressiveissues. The Court
Era (1890 - 192)says part of their reason is that the miners may not really be “free” to bargain.

This is a period of Constitutional change and social change.

16th Amendment:
• Allows the federal government to raise a lot more money
• Goes away from the natural law view that it is wrong to take another's
property

17th Amendment:
• Popular election of senators
• Allows for an increase in accountability in the Senate

18th Amendment:
• Prohibition
• This came out of one branch of the reform tradition
• Represented an enormous increase in the power of government.
• Repealed by the 21st Amendment

19th Amendment:
• Culmination of the long struggle for the right to vote for women
• There was at least some group of women who saw the links between civil,
political, and social rights
 One group was saying "If we're serious about being first-class
citizens, it's not consistent with first class citizenship to have discrimination
in the other spheres."
14
• Adkins v. Children's Hospital: There was a DC law creating a minimum
wage for women (like Muller). The court overturned the law in a fit of irony, saying
that the differences between men and women have vanished since passage of 19th
The Social Darwinist Constitution and Federal Regulatory Power: The ICC and the Manufacturing/Commerce
Distinction

A) Congressional Regulation of the Interstate Economy: After the Civil War, the Court began to think about the
scope of Congress’ powers again. Towards the end of the 19th Century, with the Interstate Commerce Act and
the Sherman act, Congress began to intervene in the interstate economy. Railroads & things connected with
them were almost always in Congress’ power. However, that wasn’t true with other industries
a. US v. EC Knight (Sugar Trust Case): Court dismisses an action brought under the act to set a side
the American Sugar Refining Company’s acquisition of four other refineries. commerce and
manufacturing are separate. very formalistic view (not real at all).
i. Whether the particular subject of congressional activity is interstate commerce as
distinguished from some local activity?
ii. Are the purposes of the regulation consistent with the purposes for which Congress was
delegated the power to regulate interstate Commerce?
iii. Whether, independent of the first or second issues, a particular instance of congressional
regulation of interstate commerce runs afoul of the reservation of powers to the states?
B) Hammer v. Dagenhart: Congress passed an act which prevented interstate commerce of products made with
child labor. Father filed suit to enjoin the enforcement of the act.
i. The Court said that the Act attempted the federal government’s regulation of some thing
that was purely local- the harm comes before the goods are put into the stream of interstate
commerce. cannot regulate the product in order to regulate child labor.
ii. The Act exceeded Congress’ authority under the commerce clause and invaded the states
reserved powers under Amend. IX.
iii. Although there should be limitations upon the right to employ children in mines and
factories in the interest of their own and the public’s welfare, such regulation is reserved for
the states.
iv. DISSENT: Holmes – Congress is fully empowered to regulate commerce and this case is
legitimate commerce. he is usually a realist so would not look at face of what regulation is
(goods) but would see what real impact of regulation has (child labor)- flips his normal
position to uphold the law as Conn.
b. Prisoner’s Dilemma & Centralized Coordination:
i. Justice Day’s majority opinion implicitly concedes that there is something unfair about state
A allowing its industries a competitive advantage against state B because the former allows
a wicked practice.
ii. These situations lead to a prisoner’s dilemma, in which each state would be better of if they
would cooperate, but do not because they cannot be sure what the other party will do in
response to their unilateral action.
iii. One response to these kinds of collective action problems, especially as more parties get
involved, is for a central decision-maker to intervene and force each party to engage in
uniform behavior that benefits everyone.
c. Binary Opposition and Congressional Ability to Invoke its Commerce Powers
i. Hammer illustrates the importance of binary oppositions deemed crucial to ascertaining
whether Congress had the power to act under the commerce clause
ii. In addition to the distinction between inherently dangerous and harmless goods, the court
refers to another important opposition central to may cases of this period: manufacturing v.
commerce. Linked to this distinction between manufacture and commerce was that between
direct and indirect effects of commerce.

15
 iii. The Court also distinguished on occasion between items in the flow of commerce and those
not in flow, whether because they had not entered it yet or because the flow had come to an
end.
iv. However, after 1937, all these distinctions disappear.
d. Missouri v. Holland : A treaty with Canada protected birds, and Missouri claimed that the birds are
the property of Missouri.
i. Holmes: treaty power is an Art. II power, and Holmes rejects the ethos of the Framers and
says we must treat the Constitution as a living document and the states are powerless here
(10th Amd does not reach this part of the treaty power, it is explicit in the Conn that it
exists).

PART TWO: The Modern Constitution

THE NEW DEAL AND THE EMERGENCE OF THE MODERN PARADIGM

AN ASIDE TO INCORPORATION
A) After the Civil War we get Selective Incorporation of Bill of Rights to the States thru the 14th Amd- the only
ones that do not apply to the states today are the 2d, 3d- quartering troops, 5th-grand jury requirement for
criminal trial and 7th-rules about civil juries)
a. This is the process through which the Bill of rights becomes applicable to the states
b. Barron v. Baltimore held that states were not constrained by the Bill of Rights. Madison had
proposed an amendment to incorporate the Bill of Rights but it did not pass.
c. The 14th Amendment addresses the Bill of Rights as applied to the states, but which ones were
applicable?
i. Slaughtershouse said that P&I only pertained to limited national rights, but not to the P&I of
state citizens.
ii. However, the Court began to read the Bill of Rights into liberty designation of the Due
Process clause of the 14th Amendment
d. Selective Incorporation v. Total Incorporation:
i. SI: Clause by clause incorporation of the Bill of Rights in a series of individual decisions
1. “Under this approach, the court’s analysis could proceed clause by clause, fully
incorporating every provision the Bill deemed fundamental without deciding in
advance whether every clause would pass the test.
ii. TI: Never adopted, but pretty much every clause is applicable now to the States
B) The Court’s Withdrawal from Intervention in Economic Regulation
a. Nebbia v. NY: A milk seller was convicted for selling milk at a lower price than Congress set. The
seller claimed violation of due process. The Court REJECTED the argument.
i. Due Process Clause gets flipped, sorta. Congress has the power to save milk farmers from
being wiped out and to ensure that there’s a supply of milk for the public.
ii. There’s nothing in Due Process that prevents Congress from fixing prices, even if the public
good is not a major question and despite the fact that it may interfere with free contracting
iii. The only requirement is that the law not be unreasonable, arbitrary, or capricious and
the means selected shall have a real and substantial connection to the object

Holmes gives us the founding credo of legal realism:

"The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political theories, intuitions of
public policy, avowed or unconscious, even the prejudices which judges share
with their fellow men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed."

16
 b. Home Building and Loan Assn v. Blaisdell: The Court rules quite against originalism. Farmers in
MN were dragging the courts down with petitions against foreclosures, so the legislature passed a
law protecting the farmers. Bank says statute impairs the obligations of a K (mortgage).
i. Text and history do not control, you have to look at precedent and doctrine to see how it has
been understood over time, not at the time of framing
ii. Ethos: The spirit and the purpose of the contract clause was to protect society’s interests.
iii. Prudential:This law doesn’t just protect mortgagees, it protects creditors
iv. The fact that the Constitution is living means that we have to interpret it for changed
circumstances. in 1776 not foreseeable that this would happen to the economy.
v. Sutherland DISSENTS- very powerful originalist argument, give meaning to the intent of
the framers.
C) 1935-1937: The court that decided Nebbia and Blaisdell consisted of three progressives (Stone, Brandeis, and
Cardozo), and the ultra conservative “four horsemen” (Van Devanter, McReynolds, Sutherland and Butler),
and two swing members (Roberts and Chief Justice Hughes). Roberts wrote Nebbia and joined in Blaisdell,
but as the New Deal was revealed in all its terrifying dimensions to the conservatives of the nation, he became
ready for persuasion. Therefore, in 1935 the majority shifted. The most significant decisions of these terms
struck down recovery measures of the New Deal. Roosevelt was reelected in November 1936, and in Feb.
1937 he presented Congress with a judiciary plan that purported to cope with the supposed problem of
overcrowded federal court dockets. Court packing plan would have permitted President to appoint six
new S.C. justices and thus insure approval of the New Deal program.
a. West Coast Hotel v. Parrish – THIS OVERRULES ADKINS
i. The Court almost completely overruled substantive due process at the time, and decided that
deference should be given to legislatures unless obviously egregious,
ii. “Liberty under the Constitution is thus necessarily subject to restrains of due process,
and regulation which is reasonable in relation to its subject and is adopted in the interests
of the community is due process…The legislature had the right to consider that its minimum
wage laws would be an important aid in carrying out its policy of protection.”
iii. This was the switch in time that saved nine.

17
 Reading #7: More From Ackerman

• This is nothing new! Professor Ackerman says that the forces that want a stronger
federal government put it on the table politically, and the election of 1936 gave Roosevelt a
mandate that scared the living crap out of the Supreme Court. He gave a speech at the
nomination that was equivalent in nature to the Gettysburg Address.

• Carter v. Carter Coal Co.: SC says BCA 1936 is Unconn. Fed govt cannot step in
and prevent strike in coal mines (even tho affects whole country) and will result in more
layoffs. working conditions are local conditions which cannot be regulated by Congress.
• SC, an unelected entity, is striking down a law that protect the majority- shady.
• Morehead v. Tipaldo, right before the election, the Court struck down a NY
minimum wage law. Then Roosevelt was re-elected, and has reason to guess that the Court
will keep striking down laws.
• So Roosevelt proposes that the president be able to appoint a new justice for
every justice over the age of 70. Now this of course would be a major change in the nature
of the judiciary - and a possible attack on the independence of the judiciary.
• But less than two months after the law was proposed, Justice Roberts makes
the "switch in time that saves nine" in West Coast Hotel, upholding a minimum
wage law.
• There is no such thing as freedom of K, it's liberty under due process as
long as it is reasonable in relation to the subject and is adopted in the interests of
The famous footnote the community.
• be What could be closer to the public interest than the protection of women,
The justices were worried about whether there would
any judicial review left. In their minds was the example
and if it is, then what could be better?
of dictatorships in Europe, they were actually seeing
what was happening with them. • When people pay their employees less than a minimum wage, they turn
to the government for welfare; to allow wages to fall this low is unconscionable.
So they wrote footnote 4. • The Supreme Court says "This may be wrong, it may be unhelpful, but
it's not for us to decide. It's for the political branches."
"There may be narrower scope for operation of the
• Was this legitimate?
presumption of constitutionality when legislation
• of the One view says that it was coercion.
appears on its face to within a specific prohibition
•
Constitution, such as those of the first ten Amendments, Another view says Lochner was wrong all the time, Holmes was right,
which are deemed equally specific when held toliberty
be of K doesn’t exist in the in Const., West Coast Hotel goes back to the
embraced within the Fourteenth." original Const.

BUT WAIT! This is exactly what this case is about!• Ackerman says "No, something really changed. The New Deal represents
Liberty of K was at stake here. an "amendment" to the constitution. Roosevelt thought about amendments, but
gave up. But putting these constitutional issues on the political agenda, and then
getting re-elected.
"It is unnecessary to consider now whether legislation
•
which restricts those political processes which can Rosenblatt says "I see the political changes going back to 1890, not 1932
ordinarily be expected to bring about repeal of
undesirable legislation, is not be subjected to more
exacting judicial scrutiny under the general prohibitions
of the 14th than are most other types of legislation."
b. United States v. Carolene Products
If the law itself is actually restricting access to the
i. FACTS: Congressional act prohibited interstate shipment of filled milk to prevent fraud and
political processes, the court says that maybe we
protect
shouldn't restrict that. This part of the footnote is health. Ps challenged as a violation of substantive due process
implying that normally, the judges should ii. defer
ANALYSIS:
to the
legislature because the political process is open to all.
But when the political process is denying people the
1. 5th Amendment (liberty of K/DP case)
right to vote or the right to access, then the Court has a a. Scrutiny – the court automatically presumed that this was constitutional &
legitimate reason to intervene, and there should be a evidence presented to Congress is entitled to substantial weight.
burden on the government to show it. i. Judicial deference is that Court now assumes that legislation rests
The problem of lack of accountability might also arise
on some rational basis
because of prejudice. If there's prejudice that says we're ii. And if it does, there’s no need for proof!- court will make up a
going to ignore these people. Then the Court says "that reason why the legislation is good
may be a basis for more judicial inquiry."
iii. “legislation affecting orgdinary commercial transactions is
The same ideas for deference will also be applied to the presumed constitutional (rationally related to legitimate
states. govtal ends)
b. FOOTNOTE 4:
IF THE LAW SEEMS PRIMA FACIE
INCONSISTENT WITH THE BILL OF RIGHTS-
NO PRESUMPTION OF CONSITUTIONALITY
- main thrust seems to be for legislation that restricts
access to the political process
- Congress has lots of leeway in economic sphere but
18
in political/racial cases Congress/States will not get as
much deference from the Courts
 i. This suggests that the court can use different levels of scrutiny
because in some cases the political process malfunctions and the
Courts have to step in.
ii. The process isn’t problematic, it’s when discrete and insular
minorities get involved & it assumes democracy works normally.
iii. "There may be narrower scope for operation of the presumption
of constitutionality when legislation appears on its face to within
a specific prohibition of the Constitution, such as those of the
first ten Amendments, which are deemed equally specific when
held to be embraced within the Fourteenth."
1. BUT WAIT! This is exactly what this case is about!
Liberty of K was at stake here.
2. "It is unnecessary to consider now whether legislation
which restricts those political processes which can
ordinarily be expected to bring about repeal of
undesirable legislation, is not be subjected to more
exacting judicial scrutiny under the general prohibitions
of the 14th than are most other types of legislation."
3. If the law itself is actually restricting access to the
political processes, the court says that maybe we
shouldn't restrict that. This part of the footnote is
implying that normally, the judges should defer to the
legislature because the political process is open to all.
But when the political process is denying people the
right to vote or the right to access, then the Court has a
legitimate reason to intervene, and there should be a
burden on the government to show it.
4. The problem of lack of accountability might also arise
because of prejudice. If there's prejudice that says we're
going to ignore these people. Then the Court says "that
may be a basis for more judicial inquiry."
c. "Even in the absence of such aids, the existence of facts supporting
the legislative judgment is to be presumed, for regulatory legislation
affecting ordinary commercial transactions is not to be pronounced
unconstitutional unless in the light of the facts made known or
generally assumed it is of such a character that it rests upon some
rational basis within the knowledge and experience of the legislators."
i. Basically, the court says "we're going to presume that laws are
presumed constitutional when rationally related to a legit
governmental end"
ii. The challenger to a law has a very heavy burden to show that
there are no facts imaginable that would support the
rationality or constitutionality of it.
iii. LIBERTY OF K GETS FLIP FLOPPED
2. The Legislature is entitled to go after one problem at a time
c. Williamson v. Lee Optical Co: A statute limited licenses for making and refitting glasses to
optometrists but left out opticians.
i. RATIONAL REVIEW: Regulating health care is legitimate and legislatures can do what
they want as long as there is a plausible rationale
d. RATIONAL REVIEW:
i. ENDS: The purpose of the law must be permissible and legitimate
ii. MEANS: The chosen means must be reasonable

19
 Type of Rational Basis Intermediate Strict
review/scrutiny:
Government Legitimate Government Important Government Vital/Compelling
interest Purpose Purpose Purpose
Relation of the Rational relation (Court will Substantial Relation Necessary to achieve
law to that imagine a rationality: need that end (and
interest: not be the actual reason) narrowly tailored to
fit it)
Burden is on: Challenger Government Government
What receives - Non-suspect classifications Gender classifications - Racial and
it: - Non fundamental rights Alienage
(immutable)
classifications

- Interference with
fundamental rights:
voting, interstate
travel, access to
judicial process

Franklin Roosevelt's Second

Bill of Rights (Reading #8)
"True individual freedom
cannot exist without economic
security and independence.
'Necessitous men are not free
men.'"
When people are down and out,
and a dictatorial government
professes such relief, Roosevelt
says "We must protect and
provide economic and political
democracy."
This is the concept of social
citizenship. This is the notion
that citizenship is not only the
right to vote or civil rights, but
is the right to SOCIAL stuff.
rxn to Nazi dictatorships
e. NLRB v. Jones and Laughlin Steel: National Labor Relations Act prohibited employer/employees
from engaging in unfair labor practices. D was charged with interfering with rights of employees to
bargain collectively and organize
i. The Court adopts a broad reading of ISC: Although the dispute was in one plant only the
court found that the company’s activities in other states had a close relationship with ISC
that it was subject to the commerce clause
ii. THE MANUFACTURING PROCESS IS PART OF THE STREAM OF COMMERCE
iii. RULE: Activities, although intrastate incharacter when separately considered, may have
such a close and substantial relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens and obstructions, then Congress can use
commerce clause.
f. US v. Darby: The Fair Labor Standards Act established minimum wages and max hours for
employees engaged in the production of goods related to ISC. It prohibited the transport of good
20
 produced by employees who suffered substandard conditions, long hours, inadequate wages. This
forced employers to comply with wages and regulations if producing goods in ISC.
i. The Commerce Clause Power:
1. Congress has plenary power to regulate ISC – it doesn’t matter what Congressional
intent is. THIS OVERRULES HAMMER
2. Congress can control the transport of the product in interstate commerce and
control the production of goods that will move in interstate commerce
a. The court doesn’t really impose any boundaries – there is any
plan/expectation that the goods will be shipped through interstate
commerce, Congress is justified.
ii. Court rejects the idea that only states can regulate intrastate commerce.
1. 10th Amendment only applies when a power not granted is taken on, not when
Congress has been granted the power
iii. This is Post-Lochner. The Court took in an expansive reading of the commerce clause, and
took into consideration the great increase in mobility and the need for change.
iv. TEST: The power of Congress over interstate commerce is not confined to the
regulation of commerce among the states. It extends to those activities intrastate which
so affect interstate commerce or the exercise of the power of Congress over it as to
make regulation of them appropriate means to the attainment of a legitimate end, the
exercise of the granted power of Congress to regulate interstate commerce… Congress
may choose any means reasonably adapted to the attainment of the permitted end,
even though they involve control of intrastate activities.
g. Wickard v. Filburn (1942)
i. Facts: Guy wanted to grow his own wheat (to eat by himself)
ii. RULE: Even thought an act may be local in nature and not regarded as commerce, it
may still be reached by Congress if it exerts a substantial effect on interstate commerce
1. homegrown wheat competes with wheat in commerce?
2. this is they high water mark of CC Power

RACE AND SEX EQUALITY

A) Leading up to Brown, there were several cases:

a. Berea College Case (1908) – College let blacks and whites study together. KY passed a law that
made this illegal – College said “Hey, that’s unconstitutional.”
i. SC disagreed – non-profit can be forced by the state to do the state’s bidding
1. Really about preventing interracial marriage, though.
ii. Holmes concurred, Harlan dissented (he is always on the ball)
b. Murray v. MD (1950’s) – Admitted blacks to all white school in MD
c. Teacher Salary Cases – Equal pay for black and white teachers in Maryland (and later all teachers)
d. Gaines v. MO – Separate Education could not be provided outside of the state
e. Sweatt v. Painter- notion of racially segregated law schools is not feasible. inherently unequal.
(Univ of TX). chipped away at segregation in higher education before hitting primary and secondary
school systems
B) BROWN v. BOARD of EDUCATION (1954)- Warren was CJ on SC
a. This dealt with a bunch of consolidated cases in which students were barred from attending their
local schools because of their race.
b. This was a unanimous decision – more power and support from entire government
c. Ackerman would say that this is all “higher lawmaking”
d. OF MAJOR IMPORTANCE WAS the fact that the State Department said that segregation had to go
in order to fix the US’s image in the world – the communist countries were “desegregated!”
e. RULE: Separate schools are inherently unequal & segregation is unconstitutional
f. ANALYSIS:
i. Original Intent: SC hoped to decide on historical grounds, the intent of the framers for the
EP clause), but that wasn’t enough b/c strict original intent not there:

21
 1. framers didn’t discuss schools, school system was different in 1776 (schooling not
as important back then)
2. Many people were involved in the creation of the 14th amendment – too hard to get
to intent
ii. Warren makes a living Conn argument- decide what EqP means in contemporary society
iii. Prudential Interpretation – there are major harms of separation:
1. Education is fundamental to society & while no fundamental right to education,
while government provides, it must be done equally
2. Segregation itself is discriminatory – it affects morale and generates a feeling of
inferiority
iv. Textual
1. Constitution itself supports decision
2. 14th amendment is very very broad
3. Framers intended and understood that the text spoke for itself
g. REMEDY: Brown II:
i. District Courts should implement with “all deliberate speed” – this was very slow in some
areas
1. Why? It was difficult to manage, the court didn’t want to lose the unaminity, and
the risk of social political shock
ii. But it also emboldened Southern whites because of the lack of immediate action
h. ACTUAL EFFECT: This really didn’t have a physical effect until Civil Rights Act of 1964 –
but it did have Constitutional Value!
C) Bolling v. Sharpe – For the reasons segregation is unconstitutional under the 14th Amendment, it is also
unconstitutional in DC under the 5th Amendment
a. Unequal protection must be applied to both – THIS IS REVERSE INCORPORATION of the 14th
into the 5th.
D) After Brown (1960s)
a. There was massive resistance to the ruling.
b. 1964 Civil Rights Act (Congress and President weigh in on meaning of 14th Amd)
i. Title II- no racial discrimination in public accommodations
ii. Title VI- no racial discrimination in federally financed activities
iii. Title VII- no racial or other kinds of discrimination in private employment
c. 1965 Voting Rights Act- enforces the 15th Amd.
d. Swann v. Charlotte-Mecklenburg – The District Courts can order compliance when the local
school authorities fail to desegregate
i. Demographic factors may result in one-race schools
ii. Plans to desegregate must include free transportation and assurance of a place in the school
e. Green v. Kent County School Board (1968) – Freedom of choice plans are unconstitutional
i. De Jure Segregation – segregation sponsored by law (covert segregation)
1. this is unconn
2. even today still reflects the civil and political vs. social rights distinction
ii. De Facto Segregation – segregation as a matter of fact
1. this is conn
2. segregation resulting from circumstances not state mandated (eg. Social patterns)
3. De facto segregation is not really unconstitutional?
f. Miliken v. Bradley (1974) – Courts can impose busing remedies within a district that has
intentionally violated the LAW. Only for DE JURE violations. DC had tried to impose busing
interjurisdictional to remedy the segregation situation.
i. DISSENT (Thurgood Marshall): original de jure segregation in city made the problem and
caused this. The State created the white flight and now profits from its own wrong and will
achieve perpetual segregation

E) Anti-Discrimination
a. Loving v. VA (1967): VA prohibited interracial marriages. SC says:

22
 i. Courts must consider whether statutory classifications constitute “arbitrary & invidious
discrimination”
ii. State has burden of showing that statute was “essential to the accomplishment of some
permissible (NOW COMPELLING) state objective to be permitted”
iii. STRICT SCRUTINY: racial distinctions & no government created social strata
1. will apply to suspect classifications- must be a
necessary/compelling/legitimate/permissive objective of state law, means and
ends must have very close relation. the burden is on the state to justify its
legitimacy. this is modern conn doctrine
iv. triggers for strict scrutiny in this case
1. EqP- racial classification (prima facie)
2. DP- involves the right to marry which is a fundamental right
b. Why STRICT SCRUTINY?
i. Political Process Rationale (Carolene Products FN4): a group that is powerless in the
political process & prejudiced against needs the court to help them.
ii. Immutability Rationale: People have no control over their skin color
iii. Anti-subordination Rationale: Group based laws that are used to enforce subordinarion
against a group

GENDER BASED SCRUTINY

Note on Scrutiny : Normally, the court applies “rational basis” and gives deference to the legislature.
- But some things automatically require strict scrutiny:
o Racial classifications
 explicit/facial- state must prove that the law is narrowly tailored to achieve a compelling
governmental interest.
• note: narrowly tailored is a little broader than necessary, permissible is more broad
than compelling. differences have not been emphasized.
• you presume that the law is not constitutional here
o Alienage by the states (not by federal govn’t)
o National origin
A) Previous Gender Cases where SC applied rational basis and upheld statutes
a. Bradwell v. Illinois- state can refuse to give woman law license
b. Goesaert v. Claery- state can not allow women to work in bars, keep order
c. Reed v. Reed (1971)- ok to presume man as intestate heir when 2 relatives are of equal closeness,
men are better at business (heightened rationality)
B) Frontiero v. Richardson (1973) –
a. Servicemen got automatic benefits for wives if married, but women didn’t get it for their husbands
(unless they were more dependent). Men had (1) no need to prove anything (procedural DP) and (2)
if awoman’s husband earned more than her, she didn’t get the benefits. (substantic DP)
b. The plurality used strict scrutiny
C) This was the same time as the ERA, which never worked.
D) Frontiero v. Richardson (1973) - P brought this because if she had been a man, the wife would have
automatically been eligible for benefits. But because P was woman, she had to prove he was dependent.

• This was a FACIAL classification. Justice BRENNAN, writing for a plurality, talks
about the long history of discrimination, and explicitly says that women must have equal
treatment.
• Between p.990-991, BRENNAN says "Sex, like race and national origin, is an
immutable characteristic." It is not related to merit or abilities, it's just irrational."
• But this was a plurality, so strict scrutiny wasn't adopted.

(law made females adults at 18, males at 21, for drinking )In Craig v. Boren, the SC adopted
INTERMEDIATE REVIEW: "must serve important government objectives and must be
substantially related to achievement of those objectives."

23
 Four prongs of Craig Rule (Universal Craig/Brennan-Marshall):
1. The asserted goal is the actual goal
1. The goal is important
1. The challenged sex classification is a highly accurate proxy
1. A gender-neutral rule would be less effective.

Under this approach, if you can show that a gender-neutral rule would be less effective, you can probably
win.

Under the Rehnquist-Stewart Approach, it's the "real differences." If it is an "overbroad

generalization based on sex which are entirely unrelated to any differences between men and women OR
which demean the ability or social status of the affected class."

This seems to be both the standard of review and the trigger point.- “different in fact”
Note: D has a light burden here, show it is not one of the above 2 things and you do not trigger
heightened scrutiny.

E) Stanton v. Stanton (1970’s) – Utah said parents have to support boys until 21 and women until 18. Reflects
attitude that men go to college and women do not. SC strikes it down- not sure if it was struck down on real
differences approach or Brennan-Marshall.
a. No longer are women only for home work
b. It’s illegal to role-type as a government objective.
F) Golber v. Rostker: Males only are eligible for the draft. Only males is the trigger here, you have a facial
gender classification. SC upholds the draft for men and not women.
a. counter-trigger is the military
b. Frontiero was about the military as an employer, here you get to core military function and in this
area the SC is going to be extremely deferential to Congress
c. Senate reports explicitly saying why women left out- the military used men and women in a different
way which is a real difference that is permissive
d. even today women are excluded from combat
G) Michael M. v. Superior Court of Sonoma County
a. Here we have a law where only a male can be guilty of statutory rape, and it's pretty clear. Most
states now have gender neutral assault and statutory rape laws.
b. TRIGGER: A legislature may not make overbroad generalizations based on sex which are entirely
unrelated to any differences between men and women or which demean the ability or social status of
the affected class…this Court has consistently upheld statutes where the gender classification is not
invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain
circumstances.
i. Real differences in relation to the statutory goal: women can get pregnant, men can't! So the
legislature can give men an extra deterrent, criminal punishment, and that's reasonable,
according to Rehnquist.
c. What standard applies to a "real differences" case? Rehnquist allows a looser fit: "The relevant
inquiry however, is not whether the statute is drawn as precisely as it might have been, but whether
the line chosen by the legislature is within constitutional limitations."
i. seems like more of a minimum rationality test
ii. Rhenquist’s argument is biological
d. The DISSENT, by Brennan, White, and Marshall:
i. This law isn't designed to protect pregnancy, it's directly linked to an 19th century law
ii. In any case, the burden is on the state to prove that that's the purpose
iii. And even accepting that it's the purpose, the state can't show that it's effective!
iv. If the legislative goal is to prevent quasi-unconsentual sex, Brennan would say that's a
legitimate goal - but if we're going to test for that, we should have a hearing for it. It might
be than 99% of the people caught by the rule would be men, but there are some women who
might be caught. The statute requires no proof, all it requires is that a man have sex.
v. Brennan disagrees b/c here you have closed off a defense to a man
H) US v. VMI (1996)– VMI is an all-male military college. Dis.Ct. gave three options: admit girls, relinquish
state funding, or establish an alternative female inst. Sup.Ct. said that was insufficient

24
 a. The SCUSA used an intermediate standard BUT stressed that the governments interest must be an
exceedingly persuasive justification (this is a very stringent standard of intermediate scrutiny)
b. Difference between Race & Gender: Race is a prescribed characteristics. With gender there are
“inherent physical differences.”
c. The Real Purpose was to create citizen soldiers – the means (excluding women) were not
substantially related to the ends (citizen soldiers)
d. Gender classifications are not automatically suspect but they are automatically problematic.
I) Tuan Anh Nguyen v. INS (2001)
a. IN this case, there's a distinction between men and women for determining the citizenship of children
born outside the US to unmarried parents. US law treats the citizenship of the mother differently than
the father's.
b. This is a facial gender classification. SO what is the standard of review? Interestingly, the majority
applies the Craig standard. "[A]t least that the challenged classification severs important
governmental objectives and the discriminatory means employed are substantially related to
the achievement of those objectives."
i. the focus here is on the definitional difference which is legit (accd to the maj)
c. normally under the Craig approach if there is a gender neutral alternative, it must be used. from
Frontiero we have that easy administration is not enough to justify a gender classification when
applying heightened scrutiny. Maj seems to have overlooked this.
d. Rosenblatt says to look here for a good example of the real differences approach
i. do a means end analysis if posed with this type of question (mention controversy)
e. DISSENT- the gender part in this statute is gratuitous and should not be allowed. it is not related to
the real objective (Congress does not want to allow kids from soldiers to show up and claim
American citizenship)

EXECUTIVE POWER DURING MILITARY CONFLICT (AND IN GENERAL)

A) Lincoln’s Suspension of Habeas Corpus

a. Ex Parte Merriman – Lincoln suspended HC (bring body before the court) while Congress was out
of session.
i. So Merryman challenges it, and the Circuit Court, under Taney, says that:
1. The president, under the Constitution and laws of the US, cannot suspend the
privilege of the writ of habeas corpus, nor authorize any military officer to do so.
(Congress can tho- it is an Art. I power so pres cannot exercise it)
2. A military officer has not right to arrest and detain a person, not subject to the rules
and articles of war, for an offence against the laws of the US, except in and of the
judicial authority and subject to its control - and if the party is arrested by the
military, it is the duty of the officer to deliver him over immediately to the civil
authority, to be dealt with according to law.
ii. Anyway, Taney doesn’t “win” at the time, but it becomes precedent- Congress came back
and passed a law authorizing president to suspend the writ
b. Ex Parte Milligan
i. When there is a civil government in place, and there is no war situation, the military has no
power to try citizens
ii. these people were in Utah- the normal court system never stopped operating so cannot
subject them to a military tribunal
B) World War I/II
a. Ex Parte Quirin – Violators of the rules of war are not subject to article three even if they’re
citizens
i. Scalia says that this is not the Court’s most famous hour
b. Korematsu v. U.S. (1944) pg 810
1. a. Post-Pearl harbor military order excluding all persons of Japanese ancestry from
certain areas of the West Coast and resulting in their effective imprisonment. The
Court upheld the order b/c there was a need to prevent espionage and sabotage and
there was no practical and sufficiently rapid way for the military to distinguish the
loyal from the disloyal

25
 2. Hirabayashi- SC upheld the curfew for Japanese people, this was the next step
3. too hard to separate who was loyal and who was not so separation on basis of race
justified
4. aside- Korematsu eventually gets a conviction corem novis- reversal of judicial
opinion when fraud

c. Youngstown Steel v. Sawyer

ii. Jackson’s 3 categories of presidential power
President – Art II
i. There were labor disputes in the steel industry, and Truman tried to seize the mills
Article I (medium) (small)
1) Congressional 2) Congress silent- 3)Congress Prohibited-
Authority- fed govt uncertain distribution of only pres can act here
lacks this power power
completely
Twilight zone- not clear
what Congress thinks.
who has the burden of
initiative
Dissenters are here- Black- this is a narrow Jackson is here-
there are a lots of laws area, it has to do with Congress has outlawed
about nat’l defense and the pres’s own conn seizure.
Congress seems to have power. the pres’s own
authorized this (inherent power is limited. he is
and implied authority to commander-in-chief and
do this) that is it. this is not a
theatre of war. this is
trying to stop a labor
dispute (maj)- so no
power to act here

iii. Basically, the presidents power varies with the interaction of article I and article II

C) Hamdi v. Rumsfeld- Hamdi found fighting with the Taliban and taken by the Northern Alliance and then
stuck on Guantanamo Bay w/out any type of process. His dad files for a writ of habeus corpus.
a. O'Conner - For her, this is a framing of looking at the law of war. This follows from Ex Parte
Quirin. It's easy for her to look at the AUMF as applying the laws of war to everyone.
b. Souter - Approaches this from the view of the Non-Detection Act and not repeating Korematsu. For
him, one of the prime things since WWII has been the rejection of "security grants to the executive."
i. p. 36 - "The threshold issues is how broadly or narrowly to read the Non-Detentiona act…",
AUMF doesn't authorize this. This is a box III reading of Jackson in Youngstown, this is
directly against Congress' will.
ii. On p.39-40 - White house said Geneva Convention applies, but then they DIDN'T apply it.
c. Scalia - Constitutional test - if you're accusing a citizen of levying war against the US, you gotta
charge them with treason. DP clause and the connection to the Writ of Habeas Corpus. He cites
English history as precedent. His basic idea is that congress either can suspend the Writ, or they can

26
 prosecute for treason. And what you get is a very interesting lineup - Scalia and Stevens. Is this a
ringing defense of individual rights on the part of Scalia? Maybe - or he could be telling the Congress
to suspend the writ.
d. Thomas- this executive has this power and anyhow courts are not competent to make decisions on
this issue

CONGRESS’S AUTHORITY TO RESPOND TO DISCRIMINATION

The 1964 Civil Rights Act in part prohibited private employment discrimination and forbids discrimination by
places of public accommodation,, such as hotels & restaurants
- Congress enacted under Commerce Power (§ 5 of 14th Amd) because Court had said that 14th Amendment
may not grant power to ban

A) Heart of Atlanta Motel v. US (1964)

a. SC upheld the 1964 Civil rights act
b. In evaluating the law and its applications, the only questions are:
i. Whether Congress has a rational basis for finding that racial discrimination by motels
affected commerce, and
ii. If it had such a basis, whether the means selected to eliminate that evil are reasonable and
appropriate (very deferential standard)
c. Commerce power includes this
d. “If interstate commerce feels the pinch, it does not matter how local the operation which applies the
squeeze.”
B) Katzenbach v. McClung – “Congress’s power under the Commerce Clause is broad and sweeping.”
C) Perez- SC upholds power to non-racial cases. Lone sharking can be a federal crime under ICC b/c it is part of
organized crime as a whole.
D) U.S. v. Lopez (1995)
a. What is the doctrinal test?
i. "IF the legislation substantially effects interstate commerce, then such legislation is
within the power of Congress."
ii. "In order to decide if Congress has exercised its commerce power, the Court must ask if the
legislation must "substantially effect" interstate commerce."
THIS IS
b. There are three broad categories under which Congress may use their commerce powers:
MODERN. i. They may regulate the use of the channels of interstate commerce (Darby, Heart of
ISC power is Atlanta Motel) - this partly means shipment of goods or people traveling in interstate
being limited commerce
by current ii. They are empowered to regulate and protect the instrumentalities of interstate
court commerce, or persons or things in ISC, even though the threat may come only from
intrastate activities (things like airlines, railroads, and highways)
iii. Also includes the power to regulate those activities having a substantial relation to ISC
(Jones-Steel)
In
c. Lopez, the SupremeonCourt
3rd Paragraph pageidentified three
514 - "this broad
has categories in which
no jurisdictional a regulation
element" is valid
- Example under the Commerce
"possession of a firearm
Clause: (1) Regulating the use of channels of interstate commerce, i.e. hotels and roads, (2) regulating the
that had moved in interstate commerce".
instrumentalities or persons or things in interstate commerce (e.g. railroads), and (3) regulate activities that
substantiallyi. affect
Proving that commerce.
interstate fact in the When
individual case the
regulating would create
killing what wasspecies
of endangered in the in
realm of theCongress
this case, interstate
is
not regulating thecommerce clause, of
instrumentalities and this maybecause
commerce; have made the law constitutional.
they established no jurisdictional test for those animals
which fall ii.
underSO thethis doesn't
act (e.g. fit in category
movement in ISC asI anor element
II, but does
of theitlaw)
fit inforIII? Government
those animals whichargues that the Act,
fall under
Congress cannotcommerce
be said to regulate the use of
and education gochannels
hand in of interstate
hand. commerce.
Rehnquist says Therefore,
"if we keepthegoing
issue here
down is to beroad,
this
determined by Congress'
it will be power to regulate
total federal activities
power." lawhaving a substantial
is unconn underrelation
the ICC.to interstate
wow. commerce.
The Court set out four factors to determine if a intrastate activity has a substantial relation to interstate commerce:
1. Was the activity economic or commercial in nature
2. Did the statute provide jurisdictional limits
3. Does the statute or legislative history included findings linking the activity to
substantial effects on interstate commerce
4. What was the strength of the (how attenuated was the connection) relationship between
the activity and its impact on interstate commerce
5. Is this an area traditionally reserved to the states?

[The SC has said that (see Wickard) that it will27

uphold Congressional regulation of isolated acts that have a
cumulative effect on ISC]
 Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.

In our current period, Lopez (gun free school zones) and Morrison (girl in college is raped and sues under violence against women act)
restrict the Commerce clause within the 10th Amendment again.
- gender motivated violence is not economic activity so Congress cannot reach these private actors under the Commerce
Clause

Where the struggle with the 10th and 11th Amendment typically takes place is around the Fair Labor Standards Act and all.

In 1976, National League of Cities struck down a portion based on the 10th Amendment. Rehnquist said "It's not that this isn't commerce,
but it's blocked by the 10th Amendment."

But then, a few years later, in Garcia, the SCUSA reversed. "We can't define what a core governmental function is - National League
included hospitals and transit workers." Rehnquist dissented, and said "I will prevail in the long run."

Garcia is still good law, but barely- Congress has authority under the commerce clause to reach state commercial/economic
activities

(Congress cannot abrogate 11th Amd immunity under the commerce power) Basically, you can't sue for back wages today (b/c that would
be suing the state), but you can sue for an injunction on future wages. Seminole blocks the damages, but Ex Parte Young allows
injunctions.
11th Amd- A citizen of another state cannot sue that state.
- nor can a citizen of state A sue state A in federal court
- citizen of state A suing state A in its state court is up to that state to decide
- note however that the 14th Amd comes after the 11th Amd so it modifies everything before it- 14th Amd is EqP so
Congress can enforce this against the states using § 5 of the 14th Amd to override 11th Amd immunity.

Real quick - Printz v. US (1997) - Congress cannot "conscript" state law enforcement offers to do background checks.

E) City of Boerne v. Flores (1997) – How broad is Congress’ power?

a.ask about Sherbert v. Verner and Employment Div. v. Smith and WTF happened here
b.FACTS: Congress passed a statute that stated the SC’s standard of review. SC disagreed and so
struck down the standard Congress tried to apply
c. ANALYSIS
i. Congress may not create new rights or expand the scope of its rights; rather Congress
is limited to laws that prevent or remedy violations of rights
ii. Only the court can decide what the standard of review is – not Congress. Only the court can
decide what is and is not a Constitutional violation
iii. Kennedy: Legislation which deters or remedies can fall within the sweep of Congress’
enforcement power even if in the process it prohibits conduct which is not itself
unconstitutional and intrudes into “legislative spheres of autonomy previously reserved to
the states.”
1. Legislation which alters the meaning of a Clause cannot be said to be enforcing the
clause
2. Congress has the power to enforce but not determine what constitutes a
constitutional violation
3. Congress is limited to enacting law that prevent or remedy violations of RIGHTS
ALREADY RECOGNIZED BY THE SC
iv. “There must be a congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end.
1. Look at the injury to be prevented and ask if the means actually remedy or prevent
that specific constitutional violation.
F) Nevada Dept. of HR v. Hibbs (Recent)
a. Federal Government created a law that said employees can take 12 weeks off work for leave.
b. Was the family medical leave act valid exercise of congressional 14th amendment power?
i. Stevens CONCURRING: This is textualism that cuts the other way. Stevens doesn't think
this is a valid exercise of the 14th Amendment, but thinks it is a valid exercise of the
Commerce Power. 11th amd- States can be sued by their citizens.
1. In his view, the FMLA is clearly a valid exercise of the commerce clause. And
under the commerce clause
ii. REHNQUIST:
1. Congress may, in the exercise of its § power, do more than simply proscribe
conduct that we have held unconstitutional. "Congress's power to enforce the
Amendment includes the authority both to remedy and to deter violations of rights

28
 guaranteed thereunder by prohibiting a somewhat broader swath of conduct,
including that which is not itself forbidden by the Amendment's text." In other
Two ways to deny words, Congress may enact so-called prophylactic legislation that proscribes
legislation enacted facially constitutional conduct, in order to prevent and deter unconstitutional
under the commerce conduct.
clause: a. If this was family leave only for women, that would be a facial
1. It's not classification.
commerce b. This isn't. It only triggers the test for intermediate scrutiny - "substantially
2. It is commerce, related to an important government interest"
but it's blocked by c. If it was only for women, then Congress could say it was a violation, and
the 10th they could create a damage remedy! The question is "is this what most
states were doing?" Only three states had that. Most states had no family
leave.
d. If Congress didn't give family leave, even if facially neutral, it would have
a disparate impact! A statute mirroring Title VII that would have only
mandated gender equality in the administration of leave benefits would
not have worked! Predominantly women are caregivers, and any different
law would have reinforced gender stereotypes, and Congress can deter
this result under §5.
iii. Scalia DISSENTING: Congress can't make the states guilty by association.
iv. Souter, Ginsburg, Breyer: they concur but are careful to state that they don't agree with a lot
of the cited cases
c. Notes in Supplement (145):
• Gender discrimination gets heightened scrutiny here will accept less proof of violation,
Congress has less leeway
• Age and disability don't get heightened scrutiny, it is harder to make out a violation
because you are up against the rational basis test
• Notion of what a violation is inaction and neutrality. Normally Rehnquist does not
accept inaction and "neutrality" as a basis for heightened scrutiny
G) Morrison v. US
a. 3 Part Test for Determining Congress’ Commerce Clause Power: Congress May Regulate:
i. The channels of interstate Commerce
ii. The instrumentalities of Interstate commerce and persons or things in interstate
commerce
iii. Activities that have a substantial effect on interstate commerce, i.e. those activities
that substantially effect interstate commerce
b. When reviewing Congressional Legislation:
i. Presumption in favor of constitutionality
ii. Limits to congressional power that the judiciary needs to enforce
c. Findings by Congress are helpful but not dispositive
d. Lopez Doctrines for helping support constitutionality:
i. Where economic activity that substantially effects interstate commerce, it is Const.
ii. The notion of express jurisdictional elements may support
iii. Legislative findings about the substantial effect may support
iv. Attenuated link between activity and interstate commerce may PROHIBIT
e. While there is a valid claim that the state has failed to enforce its laws, and Congress can reach state
actors, the problem is that the injury and remedy are against private actors
i. §5 of Amd.14 is directed at the state, not individuals.

PROCEDURAL DUE PROCESS

- This is the idea that Life, Liberty, and Property cannot be taken without due process of law.
o Procedural DP: The procedures that the government must follow before it deprives a person of life,
liberty, or property.

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 o Substantive DP: Asks whether the government has an adequate justification for the deprivation.
Justification depends largely on the level of scrutiny
- Procedural DP: Three Basic Questions
o Has there been a deprivation?
 Government only must provide DP if there has been a deprivation.
o Of what? Life, liberty, or property? There are two approaches (but courts are leery of life):
 Define based on the importance of the interest at stake
 Defined based on the expectations engineered by law.
o Without due process of law?
- 1800’s – Distinction of Greater/Lesser Power (THE RIGHTS/PRIVILEGES DISTINCTION)
o If the government has the “greater power” to do something (like “not hiring” or making a park) it…
o Also has the “lesser power” to fire for no reason or segregate or place restrictions on speech.
- 1960’s – Civil rights movement eroded this idea
o Goldberg v. Kelley (1970) – Some things, like welfare, provided by the government were previously
considered to privileges, not rights…this is where it started to change, really.
 SC held that individuals receiving welfare benefits have a property interest in continued
receipt of benefits and the government must provide DP before termination
 BRENNAN:
• Trigged by deprivation of life, liberty (imprisonment, physical restraint), or
property
 One should ask:
• Has there been, or will there be a deprivation of “property” – statutory entitlement?
• What procedures are required by the constitutional principle of due process?

TRIGGER: Decision has to involve Life, Liberty, or Property?

Here the SC says "Welfare is property"

SO to determine if D.P. applies,

1. Is there a government actor or state action? (cannot reach
private parties)
2. Is the trigger present? (life, liberty or prop)
3. What kind of process is due? what procedures must be
followed for this to be constitutionally fair?
- ?: is this test limited to welfare recipients only?
Minimum procedural safeguards: (limited to welfare recipients)
a. Timely and adequate notice of the grounds of
adverse action
b. Effective opportunity to defend by
1. Confronting adverse witnesses
2. Oral argument (recipients frequently
uneducated)
3. Opportunity to retain a lawyer
a. decision must rest on law and evidence (not rumors)
b. must have an impartial decision-maker (not one involved
in initial decision to terminate welfare)
c. hearing must occur pre-termination of welfare cut-off
(balancing test)

 Black- DISSENT- welfare is charity not a prop right. govt should be able to terminate
without a hearing. an unintended consequence of this is going to be that it will be harder for
people to get welfare now since govt is going to be wary of handing it out since so hard to
stop payments (esp if lots of fraud).
 Congressional Response- AFDC repealed in 1996 and TNAF (temp aid for needy families)
passed. explicitly says this aid is not an entitlement (what let to quasi-prop rights above)- so
welfare departments today are free to refuse those who meet all of the criteria.

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 o Matthews v. Eldridge (1970’s)
 Government must provide notice and hearing before terminating welfare benefits (as in
Goldberg v. Kelley), but it needs to only provide a post-termination hearing for social
security, because eligibility for social security benefits isn’t based on financial need (and
social security people have other ways to obtain aid, such as welfare.)
• THIS IS CURRENT LAW
 Individual/Private interest is balanced against the risk of erroneous deprivation (if gov. does
what it wants, it terminates benefits first and then has a hearing)
 This is heard before an ALJ and is often reversed.
 BALANCING TEST (DP analysis)– to determine what procedures are required when
Kindly, the SC there has been a deprivation:
didn’t give any idea • The private interest of the individual that will be affected by the official action
• The risk of erroneous deprivation by summary procedures used, and the probable
of how to balance,
value, if any, of additional or substitute procedural safeguards
though. • The government’s interest, including the function involved and the fiscal &
administrative burdens that an additional or substitute procedural requirement
would entail.
o this was the test applied in Hamdi
 Matthews TEST Questions:
• What type of notice is required?
• When must a hearing be provided? (Before or after?)
• What type of hearing is required? (EX: adversarial? Government provide atty?)
• Who has the burden of proof – and what is the standard of proof?
• Who should be the decision maker?

- DEPRIVATIONS – there is a property interest requiring DP only if there is an entitlement. There are
two ways of determining if there is an entitlement or not:
o Roth v Board of Regents: Teacher’s contract was not going to be renewed without an explanation
 RULE: To have a property interest in a benefit, a person must have more than an abstract
need or desire for it. There must be more than a unilateral expectation of it as well. There
must be a legitimate claim of entitlement to it.
• Why? Protect those claims upon which people rely in their daily lives
• Property rights created/defined by existing rules or understandings that stem from
an independent source, such as state or federal laws
 APPROACH 1: The importance of the interest to the individual
• If people rely on a government benefit in their “family lives” then it should be
regarded as a property interest that MUST NOT BE ARBITRARILY
UNDERMINED
• This would find a property interest if there is an important benefit regardless of the
context of state law
 APPROACH 2: Based on the reasonable expectation of continued benefit
• Existence of an entitlement is determined by an “independent source such as state
law” and the “rules or understandings that it creates”.
• By this view, an entitlement exists if there is a reasonable expectation to continued
receipt of a benefit
o This would find a property interest only if the state law creates a
reasonable expectation to receipt of the benefit.
o Perry v. Sinderman – teacher at university had been there for 3 years. claimed he had a prop
interest in job that he relied on after his job renewal even though no specific K. SC says he does
have prop interest b/c of reliance- this applies to governmental employees not directly to private
ones. prove this arrangement and you are entitled to procedural DP.
 SC adopts Approach number 2 – BUT it is applied inconsistently! prop interest does
not have to be explicit law, reliance and informal understandings will be enough

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  Under this approach, the existence of an entitlement depends on whether the law creates a
justifiable expectation that the benefit will continue in the future
 PROBLEM: This allows government to undermine existence of property simply by telling
people not to expect continued receipt of the benefit.
o Arnett v. Kennedy (pp. 1412) (1974) - "the employee's statutorily defined right is not a guarantee
against removal without cause in the abstract, but such a guarantee as enforced by the procedures
which Congress has designed for the determination of cause…Where the grant of a substantive right
is inextricably intertwined with the limitations of the procedures which are to be employed in
determining that right, a litigant in the position of appellee must take the bitter with the sweet.
 BITTER WITH SWEET APPROACH HAS BEEN REPUDIATED!!!!!!!1111
o Cleveland BOE v. Loudermill (1980):
 DP questions are for the courts, not the legislature
 BITTER WITH SWEET misconceives the constitutional guarantee
 RULE: If there is a deprivation of life, liberty, or property, there must be constitutionally
adequate procedures
 In some cases, DP is satisfied if the government provides a fired employee with both an
informal pre-termination hearing where it is possible to respond to charges and then a
later post-termination hearing
o Gilbert v. Homar (1997) – Cop was suspended. SC said “The Matthews test is used here. The loss
to the individual is relatively minimal, and there’s an important government interest in immediately
suspending employees charged with felonies, especially if they occupy positions of public trust, such
as cops.” (yes, sufficient DP)

SUBSTANTIVE DUE PROCESS –

• Does the Constitution Guarantee Any Welfare Rights?

o Prior to the American and French Revolutions, there was "formal inequality."
o "Formal equality" assumes that everyone is equal before the law. The law applies to everybody, not
taking into account the difference.
o The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the
streets, and to steal bread.
 Anatole France, The Red Lily, 1894, chapter 7
 French novelist (1844 - 1924)
o FDR’s 2d BOR tries to go for substantive equality by talking into account differences
o The overwhelming tradition in our country is formal equality (5th and 14th Amds)
 prohibits more action by the state, not inaction

Griffin v. Illinois - p. 1371 - states must provide trial transcripts or its equivalent to an indigent criminal defendant
appealing his conviction based on trial errors, notwithstanding the state's general practice of conditioning appeals
on appellants' furnishing transcripts at their own expense. note- difference btw action and inaction here is
fuzzy.
A state that does grant appellate review cannot do so in a way that discriminates against some convicted
defendants on account of their poverty. Appellate review has not become an integral part o the IL trial
system for finally adjudicating the guilt or innocence of a D.
- Harlan’s DISSENT- state should have no duty in this case b/c it has not done anything. these people
want the State to step in and discriminate for them. since States have no Constitutional duty to have an
appeals system, this is not protected by DP.

Douglas v. Cali- state has to pay for a lawyer for appeal (again Harlan dissents)

Gideon v. Wainright - Counsel must be provided to all felony defendants since it (trial level) since it is here thatg
the facts of the case are established and this makes a big difference in determining someone’s guilt or innocence.
Harlan agrees here.

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 Harper v. VA Bd. Of Elections (p. 1373) - poll taxes are not allowed, the ability to pay a poll tax does create the
right to vote. Ability to pay a tax should not affect your ability to exercise a fundamental right such as voting.
this is one of the areas the SC is going to enforce equality.
 note poverty is not a suspect classification
 Harlan again dissents saying this is a question for the State legislatures

Deshaney v. Winnebago County Dept. of Social Services - the issue is whether the government's failure to
protect a child from his parent's abuse constitutes a failure of substantive due process.
• Nothing in the DP clause requires the state to protect the life, liberty, and property of
citizens against invasion by private actors. The Clause protects people from the state; it does not
require the state to protect citizens from each other
• Rehnquist's "No Worse Off" analysis - the state is only responsible if the state has
actively acted to your detriment if the state has made you worse off then the situation you
have actually been in. here state never acted, kid was no worse off nor in custody of state.
• note also states have sovereign immunity under their tort law- there are 2 main barriers
to recovery 1) discretionary function principle and 2) absolute money limits
• The DP Clause does not confer an affirmative right to governmental aid, even when
necessary to secure life, liberty, and property interests. Because the clause doesn't impose this
obligation, the state cannot be held liable under the Clause for injuries that could have been
avoided had the state assumed it. There is no special relationship between P & D that arose
merely because D knew P was in danger. If people want that relationship, they can have the
legislature adopt it.
• DISSENT- most agree with them- presence of SS worker formed the special
relationship needed and precluded others from getting involved.

Township of Castle Rock, CO. v. Gonzalez - (HANDOUT) – The SC will probably reverse this.
• DeShaney says that they shouldn't be required to protect (guts substantive DP- no claim
here)
• P says "I had a right to have my claim heard!
• 10th Circuit says yes, she has a right to be heard, at least on the procedural due process
issues. The argument is that once she has the order plus a right under the statute, so she has an
entitlement (prop interest).
• DISSENT - Not mandatory, says "reasonable means" is discretionary. The police have
the discretion to go and do this. Neither order nor statute take this away. Many of the dissents
also say that these procedural things don't make any sense. She wants the police officers to take
action, not to sit there and conduct a hearing.

WHAT IS DISCRIMINATION?

This is important, because it determines the level of scrutiny that will be applied – but only for FACIAL DIS.

A) Racially Dependent Decisions

a. Facially neutral laws applied in a discriminatory way
i. Laws that do not classify based on race but administered racially
ii. EX: Yik Wo – The Chinese Laundry Case – Laundry permits law written neutrally, but only
white applicants granted permits
1. this is a hidden/cover classification
2. remedy- convictions of Chinese laundromats are overturned
b. Law Obviously/Expressly Based on Race

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 i. Lovings v. VA- no interracial marriage, Segregation Laws, Korematsu- Japanese
internment, etc.
c. Facially Neutral Laws, applied in a racially neutral way, but based on race.
i. INVIDIOUS REASONS
ii. Race dependent decisions to adopt a non-racially specific law
iii. Ho Ah Kow – Chinese male prisoners had to cut hair (an attack on Chinese honor) but the
females weren’t. State said it was for health reasons, but the SC said that if the government
was really concerned, it would have made the women do it as well
d. Transferred De Jure Discrimination
i. A practice that does not itself take race into account but may disproportionately
disadvantage a racial minority as a result of casually related de jure discrimination
ii. Gaston Co. v. US – SC accepted that literacy tests to vote were fair and impartial, but the
fact that the black citizens had been educated in inferior schools made it suspect because it
was based on an earlier racially motivated decision.
1. The law here was racially neutral on its face, but because previous de jure laws led
to racial impact, the requirement was unconstitutional.
iii. BUT SEE Swann v. Charlotte-Mecklenburg – “We do not reach in this case the question
whether a showing that school segregation that is a consequence of other kinds of state
action, without any discriminatory action by the school authorities is a constitutional
violation requiring remedial action by a school desegregation decree.
e. Disproportionate Impact
i. If there is a disparate impact on a protected characteristic/group the burden of proof is
shifted to the D to prove that the discrimination has a legitimate purpose
ii. Griggs v. Duke Power; Washington v. Davis

B) CASES
a. Griffin – School district closed rather than desegregate – that was discrimination
b. Palmer v. Thomson (1971) – More than just discriminatory motive is required, there must be a
discriminatory impact as well
i. While the motive in shutting down a pool rather than integrating it may have been
discriminatory, the “legitimate purpose” to preserve peace and avoid deficits was not open
to impeachment that decision makers were motivated by racial considerations
c. Griggs v. Duke Power
i. FACTS: Title VII case. Soon after CRA1964, employer began requiring a HS diploma and
a test to work inside the factory. D could not show that the diploma and test were job
related, they only had an effect based on race.
ii. RULE: If an employment test has a disparate impact on a protected
characteristic/group (it excludes higher than normal on that characteristic), the
burden of proof is shifted to the D to prove a legitimate purpose.
1. here burden was on D to show a business necessity for requiring the HS diploma
after CRA. if it is a valid measure of performance on the job than ok. not so here.
d. Washington v. Davis (1976) – Applicants for the DC police were required to take a test that blacks
failed more than whites did.
i. EP clause hopes to prevent official discrimination on race, but proof of disparate impact is
Title 7 does not enough.
not yet apply ii. Disproportionate impact, standing alone, doesn’t trigger the rule that racial classifications
to Fed. At this are to be subject to the strictest scrutiny and are justifiable only by the weightiest of
considerations.
point.
iii. Laws that are facially neutral as to race/origin will receive more than the rational basis
review only if there is proof of a discriminatory purpose. (Note that this still doesn’t take
it to strict, but only to intermediate+.)

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 iv. Note- Griggs is a statutory case, this is a Conn one. if came out the other way in this case,
then disparate impact would apply to all legislation which would lead to a slippery slope
since all governmental action has some type of disparate impact

. EXAM: Things to Remember about Disparate Impact:

1 Disparate Impact is a starting point to show discriminatory purpose.
2. Under Rehnquist/Stewart
a. almost impossible to show that disparate impact legislation has a discriminatory purpose:
1. The Burden on the Challenger is extremely heavy
2. Statistics alone are not enough must have:
a. perfect fit - almost never
3. B/C almost impossible they apply rationality review
a. however if you do prove purposeful intent to discriminate it trigger heightened scrutiny under race or gender(strict -intermediate)
4 Under Brennan Marshall
1. easier burden on challenger to show purpose from disparate impact legislation.
1. Once challenger shows discriminatory purpose using evidence - go through the heightened scrutiny(strict and intermediate)
2. Under both RS and BM once you find discriminatory purpose you go through heightened scrutiny analysis and just say actual
purpose is discriminatory so it fails the test.

Disparate Impacts
1. Neutral on its face but it has affected a class disproportionately
2. If statute/regulation is neutral then do disparate impact analysis -
A. Is discrimination intentional/discriminatory purpose?
B. Is there a classification?
C. Is it neutral on its face?
D. Ex. Washington v Davis - the test was for everyone but affected blacks at a disproportionate rate - 4x more likely to fail - (burden on
P to show that purpose/ impact)
E. Is this w/in EP? Yes then;
F. Washington said if trying to prove disparate impact the state has to prove that that the law was not intentional
G. If not intentional then the law is GOOD
H. If yes to intentional then depending on the class do:
1. Strict Scrutiny
2. Intermediate
3. Rational Basis
3. If the statute is not neutral then go straight to disparate treatment - then ask is it a protected class - then apply the appropriate standard of review

How do we find discriminatory purpose?

Arlington Heights v. Metropolitan Housing Development Co. (1977)

- City refused to zone a parcel of land to allow construction of low/moderate income housing. This had the
effect of excluding blacks from that section of the city
- The SC identified several ways in which discriminatory purpose can be proved/IDed:

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 o Start by identifying whether the impact of the law may be so clearly discriminatory as to allow
no other explanation than that it was adopted for impermissible purposes:
a. The impact of the official action, including whether "a clear patter,
unexplainable on grounds other than race, emerges from the effect of state action
even when the governing legislation appears neutral on its face" (the court says
these will be rare)
a. "the historical background of the decision… particular if it reveals a
series of official actions taken for invidious purposes (Griggs)
a. "the specific sequence of events leading up the challenged decision
a. Departures from the normal procedural sequence
a. Substantive departures where the facts usually considered important by
the decisionmaker strongly favor a decision contrary to the one reached
b. The legislative or administrative history…especially where there are
contemporary statements by members of the decisionmaking body, minutes of its
meetings, or reports.
- If the P produces evidence of discriminatory purpose the SCUSA says that the burden shifts to the gov’t to
prove that it would have taken the same action without discriminatory motivation
- “Where there is proof of a discriminatory purpose as motivation factor in the decision, judicial deference is no
longer justified.”

What about discrimination on sex? Personnel Administrator of MA v. Feeney

- There was a state law that gave civil service preference to veterans, but most vets were men, the law had a
severely disparate impact on women & the state KNEW this.
- RULE: Knowledge on the part of the state actor is not enough – the state actor must make the decision not
merely act in spite of, they must BECAUSE OF (for the purpose of achieving such a result of discrimination)
- NOTE: Strict scrutiny applies to affirmative action but not to other laws that have a disparate impact
on minorities and women

Problems with Davis and Feeney

- Unless Const. can reach laws that are neutral on their face, but have a disparate impact, racial discrimination
will never be resolved. The Full force of the Constitution & EP clause will never reach many aspects of
structural discrimination
- The Purpose of the EPC is not to stamp out “invidious intent” but to gain a full measure of dignity for
everyone.

Support for Davis and Feeney

- Pragmatic concerns: we’ll go down a slippery slope if we allow racial impact to justify strict scrutiny. We
would be forced to challenge most of our laws and our democracy. Countless laws have some impact on some
group
- The principle concern is that the EP is not concerned with equal rights. It is concerned with stopping state
actors that are invidiously motivated. Equal protection Clause is not concerned with thought, but with justice.

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 What is "Discrimination?"
This is SHORTHAND for "When does the court apply higher scrutiny?"
The most obvious answer is when there is facially different treatment.
Feeney - differential treatment with a harmful purpose
Hynson v. City of Chester - H obtained a protection order (but it expired). She warned police that she had been threatened, and then
he killed her. The court said there was no differential treatment
P didn't claim that a domestic complaint from a male would be treated differently
Nor was there a policy of ignorance

Soto v. Flores - despite evidence that police chief hindered enforcement, there was no discrimination

There seems to be a deep tension between this doctrine and the whole point of heightened scrutiny for gender. Classic problems of
discrimination do not involve violence towards women

If you try to raise underenforcement of domestic violence laws as an equal protection claim, you end up with these results. -
fails because of Feeney
If you try to raise liberty & substantive due process, they fail because of DeShaney
Procedural due process - passes because of Castle Rock, but may be overturned by SCUSA

IMPLIED FUNDAMENTAL RIGHTS (p.1131)

Are there fundamental rights that are not explicitly granted in the Constitution?

A) Prelude to Implied Fundamental Rights

a. Modern Doctrine of Fundamental Rights Adjudication stems to three traditions:
1. Tradition of judicial protection of rights from the concept of “general constitutional
law”
2. Judicial protection of individual rights following WWII because of the expansion of the
EPC and the incorporation of the BOR through the 14th Amendment

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3. In the Lochner Era, during the heyday of economic due process, many government
regulations were struck down as interfering with fundamental rights.
i. SCUSA intervene to protect non-economic interests as well
ii. Lochner developed a theory of fundamental rights grounded in liberty and DP
clauses of 15th and 4th amendments
iii. BUT these were abandoned through darby and Carolene products, after which
economic DP was shot down, and the courts began deferring to the legislature
and stopped looking for non-enumerated rights
4. Pre-Griswold, Post-Lochner cases
i. Meyer v. Nebraska – SCUSA struck down law prohibiting teaching foreign
language because it infringed upon fundamental rights protected under the
liberty guarantee of the 14th amendment (the right to teach and the right of
parents to instruct their kids.
a. Court applies “strict scrutiny”
b. NOT FIRST AMENDMENT! This is close to the Slaughterhouse
dissents, based off of common and natural law. (this is pre-
incorporation of BOR thru the 14th Amd)
ii. Pierce v. Society of Sisters
a. Same – OR banned private/parochial schools, SCUSA says “No, the
parents have the right to choose”
iii. Skinner v. Oklahoma (1942)
a. This is really the first “sign” of the second age of substantive due
process.
b. SCUSA invalidated a law that required sterilization of felons after the
third felony involving a “moral turpitude”.
c. Court established that marriage and procreation were
fundamental rights, thereby triggering strict scrutiny
d. EqP applies strict scrutiny to suspect classifications- race,
national origin AND fundamental rights

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 A) The Birth of Modern Substantive Due Process
a. Griswold v. CT (1965) – Griswold (a doctor and the executive director of planned parenthood) was
prosecuted for directing married couples on the use of contraceptives. (The state didn’t appear to
have a problem when private doctors gave contraceptives, it’s that this was a free service. I think
there was a law, but it wasn’t enforced normally.)
i. Griswold was allowed to bring the case to overturn the law because of the doctor/client
relationship
ii. THERE ARE A LOT OF OPINIONS
1. MAJ – Douglas:
a. The right to privacy is a fundamental right – specific guarantees in the
BoR have PENUMBRAS FORMED BY EMANATIONS from those
guarantees that give life and substance – p.1136
i. It isn’t protected by the DP clause
Douglas lived through the Lochner era
and tried to avoid it. But his approach
ii. But it is implicit in many of the specific provisions of the BoR
here has not been followed. The iii. Not all guarantees are explicitly contained in the language of the
Penumbral approach is ultimately based Constitution. There must be implicit peripheral rights, otherwise
off of DP. the specific enumerated rights would be less secure. Fundamental
right to privay is implicit in the penumbras & the marital
relationship lies in these.
b. (Text/Ethos) Lochner has nothing to do with this, because Lochner was
the court acting like a super-legislature
c. Strict Scrutiny is needed here: There must be a compelling governmental
J. Jackson - "The great safeguard in law is interest and a law that is necessarily related to that interest.
that they apply to everybody." i. While the state demonstrated a compelling interest (preventing
premarital sex) it was not under a narrowly tailored law.
When there's a law that can't be
applied to everyone, it must be ii. A more narrowly tailored law would just target eliminating extra-
scrutinized martial affairs.
2. CONCUR – Goldberg
Who needs Planned a. The 9th Amendment is where we find the justification for this
Parenthood? People who are
young or poor. People who b. There are fundamental traditions (ethos) and the (text) 9th amendment is
can't afford a regular doctor. the authority for the court to protect non-textual rights such as privacy
This law was being enforced
c. “To hold that a right so basic and fundamental and so deeply rooted in our
against these kind of people. society as the right of privacy in marriage… (ethos)
d. Strict Scrutiny
i. Suspect classification OR fundamental constitutional right
3. CONCUR – Harlan
a. Implicit in liberty are fundamental values. This is ethos-liberty. It can't be
Harlan says the basic question is reduced to a formula, it's a balance. If it has been a rational process, it
whether the statute infringes the DP certainly hasn't been one where justices are free to roam.
clause of the 14th and violates basic
values “implicit in the concept of
i. HARLAN was a fairly conservative justice
ordered liberty.” ii. But here he says that the Constitution is a living thing and
therefore can evolve.
We have to look to our certain iii. How do we know that this case & law violate our traditions?
fundamental rights/principles that
preexist the constitution and if the
b. This is a very unusual law. Lots of states regulated, but NO other state
legislature tries to infringe (natural made it a crime to use
law, Lockean!) court has to strike c. IT was, for the most part, not enforced. Women could get contraceptives.
down.
The law hadn't been enforced for years.
i. This law had been advanced by Anthony Comstock. He was a
morality crusader (and a hater of freedom and liberty).
ii. Political cost to remove, but also cost to keep.
d. Justification - the major justification the state offers is as a way of
prohibiting adultery and stuff. But according to the law, the law prevented
married couples from using contraceptives.
e. Harlan then goes on to distinguish other laws. The core of privacy is the
intimacy of husband and wife, and the state must preserve that. It's not
that the state can't regulate marriage at all, but it is something entirely
different when it attempts to get rid of privacy.

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 4. CONCUR – White: These are fundamental rights. This doesn’t even meet rational
basis!
5. DISSENT: Black/Stewart: There is no right to privacy in the Constitution!
iii. TRIGGER – Civil prohibitions on access or use
b. Eisenstadt v. Baird - at a public meeting, Baird was distributing and talking about contraceptives,
and he was prosecuted under Mass. Law. The Court takes Griswold and says "rights must be the
same. If you can't ban to married couples, you cannot ban to the unmarried couple either. If the right
of privacy means anything, it means the right, either married or single, to be free from unwarranted
governmental intrusion into matters so affecting a person as the decision whether to bear or beget a
child."
i. This couldn’t be defended as a health measure either.
c. Carey v. Population Services
i. There was a NY law that prohibited sale of condoms to minors – Court said UNCONST!
ii. Expanded Griswold to all matters of childbearing, essentially
iii. STRICT SCRUTINY
1. “Compelling” is of course the key word; where a decision as fundamental as that
whether to bear or beget a child is involved, regulations imposing a burden on it
may be justified only by compelling state interest and must be narrowly drawn…
2. TRIGGER: "significant burden"
3. Find a right & then apply strict scrutiny. You're on pretty safe ground if you say "if
there's something recognized as a fundamental right, and there's state action against
that right, you can pretty much go with strict scrutiny…BUT THAT'S UNTIL
THE 1990's.

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 Review of Interpretive Theories
Conventional Morality (ETHOS LIBERTY). AKA: Fundamental values; implicit in ordered liberty. - values that underlie our law,
supported by the legal practices of our country, not subjective.
CON: Why are judges in a better position to discern conventional morality than are the legislatures?
These are highly contested ideas, and judges always get dragged into thinking about this.
Rights-Based Theories - We can ID our fundamental rights through something not grounded. Natural law, Common Law, and Moral
philosophy.
Theories of Fundamental Rights Adjudication:
Conventional Morality/Ethos
* Griswold led to a great debate over the assignment of substantive
meaning to the due process clause, and the decision that fundamental
rights require strict scrutiny under the equal protection clause.
A) Conventional Morality (or Ethos) – One way of talking about
Griswold
- Addition of Ethical Modality to Bobbit’s Modalities: The Court
in order to uphold fundamental rights must ascertain and enforce
society’s conventional moralities (moral principles held by
society / shared conventional moralities)  does not claim that
one argument is right or wrong, just captures our moralities (p.
1146)
- Argument against the Court using an Ethical Modality:
legislature may be in a better position to enforce society’s morals
because they represent the people  COUNTER: legislature
could get caught up in a heated political moment; also legislature
may make decisions based on interest groups that fund them
- Criticism: how can the SC discern what public opinion is?
Should the SC make use of the social sciences as in Brown?
a) No societal consensus exists / if it appears to, it is just the
domination of certain groups
b) even if a consensus does exist, it is not reliably discoverable – by
looking at society one can see what they want to see
- Overriding question – When should the SC defer to the
legislature and when is the Court a better decision maker?
a) Brennan’s dissent in Stanford v. KY: task of defining
amendment cannot be handed back to the same political
majority that the Constitution was supposed to limit
B) Rights Based Theories (another way of looking at Griswold)
- Court should enforce rights deriving from natural law  people
are naturally imbued with certain inalienable rights that are
independent from conventional moral views  justification of
Griswold: Right to privacy is a natural law of men and women.
It is the role of the Courts to make sure the government doesn’t
impinge upon them.
- Implicit in this debate is the tension between the rights of the
individual and the rights of society.
- Debate: Who gets to decide what these rights are? Who gets to
interpret them?
41
- Criticism:
a) Natural law has supported many ideas that have been abused in the past
(evident by historic precedent)
b) judicial reasoning has a systematic bias  favoring the values of the
upper-middle class professionals
C) Justifications for Government
Regulation
o Not everyone accepts the idea that
individual rights trump all  some believe that there are two
primary justifications for interfering with individual rights
 States’ interest in
enforcing morality
 Protecting the stability
of the family
D) Criticisms of Fundamental Rights
Adjudication
o The levels of abstraction problem:
Court often defines right to specifically  some argue it is crucial
to define liberty at a high enough level of generality to permit
unconventional variants to claim protection along with mainstream
versions (ex. Bowers v. Hardwick – Court should have asked about
private consensual sex, rather than a particular homosexual act)
o Lochnering: Lochner often
symbolizes the negative side of fundamental rights  there is a
debate on how one would reject Lochner but accept Griswold:
 One argument (Tribe):
Rejects the notion that if you reject Lochner you reject
Griswold  says the problem was not with Lochner’s
methodology (finding rights that were not enumerated), the
problem was substantive because Lochner decision was
socially regressive
 However, many
criticize Lochner’s methodology (claiming the Court made up
rights)  Griswold did the same thing  and this is where
the problem lies
 The Family and Other Living Arrangements
d. Michael H. v Gerald D. (1989)
i. Michael and Carol had an extra-marital affair, and had a kid. Michael was very involved
with child, but Carol and Gerald ended up saying that he could no longer see the kid. There
was a CA law that said “The issue of a wife cohabiting with her husband…is conclusively
presumed to be a child of the marriage," unless within two years of the birth, paternity has
been established in another man.” M challenged on procedural DP (right to a claim) and
Substantive DP (constitutionally protected liberty interest in his relationship with his kid)
ii. There’s a fight here between Brennan and Scalia!
iii. Scalia (MAJ): When we are attempting to determine whether to protect or deny
protection to an asserted right, we must look at the most specific level of the tradition!
1. There was no traditional protection for an unmarried father, so there is none here
today
iv. Brennan (DISSENT):
1. The Constitution is alive and MAJORITY is ignoring that
2. Of course if you make something very specific, you’re not going to find the right!
a. Narrow/Specific: unmarried man who fathers a child with a married
woman
b. Broad: parent/Child relationships
3. Tradition is as muddled as liberty, and the plurality pretends that tradition provides
a discernable way to determine it.
4. This isn’t an assimilative, homogenous society, but rather a facilitative, pluralistic
one that must tolerate unfamiliar or even repellant practices of others.

What is the alternative to Scalia's tradition argument?

Brennan surely points out a few problems, but does he actually point out an alternative.
o Common law no longer is the sole source of property or liberty
o Tradition is not irrelevant - certain things run through history - but the DP Clause would be empty if
it did not protect them (TEXTUAL IMPLICATIONS)
 Textual implications within our society >>>> Tradition, fundamental values recognized
by tradition (including legal tradition) (Justice Harlan in Griswold)
 Partially the result of "historical and traditional interests in our society."
 How did we figure things out? We'd look to common law, state law, morals, ethics,
history, etc.
o BUT
 The plurality asked the wrong question. We should be determining if the "concrete
limitation under consideration impermissibly impinges upon one of these more
generalized interests!"
 If this court was required to follow tradition with such specificity in the past, we would
not have contraceptives, freedom from arbitrary transfer, etc.
 p.1165 - APPEAL TO ETHOS: We are a facilitative, pluralistic society, not an assimilated
homogeneous one, and we need to understand other people's traditions and practices
because the same tolerant impulse protects our own idiosyncrasies.

B) TERRY SCHIAVO & The right to DIE

a. Cruzan v. Director, MO Department of Health (1990)
i. 1987 – Bork gets nominated to the SCUSA, and people are horrified by him. Basically,
This was a very political people are thrilled to have the courts handle some “legislating”
decision! The AG of MO ii. Cruzan was in a car accident and ended up in a PVS
thought it would be politically iii. Three Main Holdings:
popular. It wasn’t.
1. Competent adults have a constitutional right to refuse medical care.
IT IS A GOOD IDEA TO a. “The principle that a competent person has a constitutionally protected
HAVE A FORMAL LIVING liberty interest in refusing unwanted medical treatment may be inferred
WILL OR CLEAR AND from prior decisions.
CONVINCING,
INHERENTLY RELIABLE
2. A state may require clear and convincing evidence that a person wanted
EVIDENCE if you want to die treatment terminated before it is cut off
if you’re in a PVS . a. The state has an important interest in protecting life and ensuring that a
person desired the end of treatment before it is suspended, and thus, states
MAY seek to safeguard this choice through heightened evidentiary
requirements

42
 3.
States may prevent family members from terminating treatment for another.
The right to end treatment belongs to each individual, and a state may prevent
someone else from making that decision.
a. DP doesn’t require the state to repose judgment with anyone but the
patient herself – the family might love her, but they’re not entirely
disinterested.
iv. BUT What about…
1. There’s no level of scrutiny involved here, not sure what it could be – dissents
suggest that this is strict scrutiny, intermediate, etc.
2. Does not articulate what is sufficient to constitute clear and convincing proof of a
person’s desire to terminate treatment
3. Does not address the problem of what would happen if a guardian or surrogate is
appointed to make the decision.
b. Schiavio
i. p.2 - Explanation of the case. The Trial judge was the guardian of Terry
Schiavo
1. Based on C&CE, was she in a PVS
2. Given (1), what would she herself want to do?
3. The court said that "yes, there was a PVS; and she would pull the
plug in the situation"
ii. The Florida courts go to some effort to say that a PVS is tricky. PVS's seem
to be awake and have movements - but they're not ALIVE. Doctors who
specialize in this say "you think you're seeing someone be responsive, but
there's no responsiveness.
iii. Item 4 - Congress rushed through legislation granting the parents standing to bring the suit
DE NOVO.
• But nothing to create other substantive rights
• Nothing to construe additional jurisdiction
• No precedent for future legislation
Item 2 - The 11th Cir. Uses the Cruzan case to say "the DP Clause requires that decisions to
remove hydration and nutrition…must be supported by C&CE.
• THAT'S WRONG - Cruzan says MAY BE. Cruzan only says that a
state could, if it wished, require C&CE
• p.8 - even if C&CE was required, FL indeed applied that standard.
 The argument that T.Ct misapplied the C&CE standard isn't
a problem, because there were appeals!
 The US Supreme Court cannot correct errors of state law
unless state law violates federal rights
• Would need the Federal Const. to require a right to
life, and even then…
• It's a stretch to wonder if that detail had actually
been met.
• 8th Amendment only applies to criminal
• Alleged Substantive Due Process issue - parents say that the state is
depriving her of her right to life.
 State action question? This is a problem, anyway. The state
is not trying to affect the result! The State is not taking a position
 This case had more due process than possibly any other case

Item 3 - Plaut v. Spendthrift Farm, Inc.

• SCALIA: History!
• Prior to the Constitution, there was much less distinction between
judiciary and legislature

43

Item 5 – 11th Cir Court of Appeals March 30th 2005 (en banc)
Item 8 - DeLay's a Jerkass
C) Reproductive Choice
a. Roe v. Wade (1973) – fundamental rights under DP & EP
Blackmun discusses strict
scrutiny: "Where certain
fundamental rights are
involved, the court has held
that regulation limiting these
rights may be justified only
by a compelling state
interest…and that legislative
enactments must be
narrowly drawn to express
only the legitimate state
interests at stake"
• If you lost in T.Ct., you could go to the legislature and get a law
passed for you
 Remember - In English Parliament, Law Lords are members
of the house of Lords
• The notion of separation of powers is implicit in the Const; separation
of Article 3 from rest of const.
• p.13 - legislation that reverses a final (completely appealed or expired
appeal) is no good.
 But legislation passed during the process is okay.
• Birch (CONCUR): An act of Congress violates separation of power if
it requires federal courts to exercise their Article II power "in a manner
repugnant to the text, structure, and traditions of Article III."
• Congress can set jurisdictions, but they don't have the power to tell us
what to do, like what method of review to use.
• The fact that this was a law for one person makes it even worse.
Tjoflat (DISSENT)
• DP clause now requires C&CE.
• Uses termination of parental rights and civil commitment
cases as precedent
• There has to be clear and convincing evidence there so apply
it here also
• Wants to impeach judges
• Rhenquist says impeachment because they disagree with the decision
will end the independence of the judiciary.
i. This is easily one of the most controversial cases ever – but when it was first litigated, it
wasn’t! It was a 7-2 decision, even.
ii. FACTS: An unmarried pregnant woman & others brought a class action challenging the
constitutionality of TX criminal abortion laws which prevented or prohibited abortions
except to save the life of the mother.
iii. HELD: Const. protects woman’s right to choose to terminate her pregnancy prior to
viability (when the fetus could survive outside the womb); the government may not
prohibit abortions prior to viability & the government regulations of abortions had to
meet strict scrutiny.
iv. BLACKMUN:
1. looked at history!
2. described development of medical technology to provide safe abortions
3. Focuses on right to privacy
a. “Whether the right to privacy be in the 14th Amendment’s conceptions of
personal liberty and restrictions upon state action or within the 9th’s
reservation of rights to the people, it is broad enough to encompass a
woman’s decision not to terminate her pregnancy.
4. TWO IMPORTANT STATE INTERESTS
a. Protecting the Health of the mother
i. Today interest doesn’t becoming compelling until late
b. Protecting the life of the fetus
i. This interest becomes compelling when the fetus is viable
ii. There’s no “fetus rights” in the Const.
iii. Fetuses are not people under the Constitution
44

Bonus Reasoning!
Forcing women to carry a child to term
may force upon her a distressful life and
future. Psychological harm may be
imminent, taxing on mental and physical
health. There’s distress for everyone
regarding an unwanted child. Forcing
women against her will to carry a child
will obviously impose enormous physical
and psychological burdens.
b. Planned Parenthood v. Casey (1992)
i. PA had 5 restrictions on abortion: The woman had to have informed consent; a 24 hour
waiting period; parental consent for minors; except for certain conditions, a married woman
had to notify husband; and strict requirements for reporting & record keeping.
ii. Part I: Do these regulations infringe some kind of fundamental right & what is std. of
review?
Note that Stevens
would have
overruled
everything.
iv. Historically, abortion was available
5. The TRIMESTER DISTINCTION: The woman has a fundamental right to
decide to terminate a pregnancy and the government has a compelling interest.
These are balanced through strict scrutiny. The state’s interest in protecting life
grows as the pregnancy progresses
a. First Trimester – NO Compelling state interest
b. Second Trimester – State may regulate abortion procedures because
it has a compelling interest in protecting the woman’s health
c. Third trimester – state can prohibit abortion unless necessary to
preserve the life or health of the mother.
6. THIS IS NOT AN ABSOLUTE RIGHT
a. It must be balanced against the other considerations, such as protecting
“prenatal life”
b. Strict scrutiny must be used.
7. GENERAL RULE: Where fundamental rights are involved, regulations
limiting these rights may be justified only by a compelling state interest and
legislative enactments must be narrowly drawn to express only legitimate state
interests at stake.
8. DISSENT – this should have been up to the legislature.
1. JOINT OPINION (Very rare)
a. Essential holding of Roe affirmed & amended
i. Right to choose is a right to privacy under the DP clause
ii. Viability marks the point where the state’s interest is compelling
in protecting life
b. Family & reproductive autonomy are fundamental rights which are
protected even thought they are not mentioned in the text of the
Constitution, were not intended by the framers, and are not part of the
tradition at the most specific level of abstraction
c. BUT! The right to abortion is constitutionally protected because of the
importance of choice and the intrusion in forcing a woman to remain
pregnant against her will.
i. The liberty of the woman is at stake in a sense unique to the
human condition and so unique to the law. A pregnant woman’s
suffering is too intimate and personal for the state to insist,
without more, upon its own vision of the woman’s role
ii. “The destiny of the woman must be shaped by her own
conception of her spiritual imperatives and place in society
d. Ethos changes – medical advances and such are evidence of this!
i. DISSENT – evidence of change of ethos is a higher standard.
2. Trimester Distinction OVERRULED (except for 3d trimester)
a. A state regulation of abortion is unconstitutional if it places an
UNDUE BURDEN on access to abortion
i. If “undue burden” found, there is a conclusion that a state
regulation has the purpose/effect of placing a substantial obstacle
in the path of a woman seeking an abortion to a non-viable fetus.
b. The burden of proof is on the challenger to show that the state
law/regulation imposes an “undue burden’ on challenger’s fundamental
right.
c. How do the PA regulations stack up?
i. informed consent - OKAY
1. not an undue burden
45
THIS IS NOT EP analysis!!

EP says “must have the intent

purpose of placing an undue
burden on women”
ii. 24 hour waiting period - OKAY
Abortion says: “Whether the iii. parental consent for minors – OKAY w/ 1 parent & judicial
state regulation has Intent/effect bypass.
of placing undue burden on iv. a married woman had to notify husband – NO GOOD
choice. v. strict requirements for reporting & record keeping. – OKAY
iii. Part 2: Stare Decisis
1. JOINT OPINION
a. “The essential holding of Roe should be retained and once again
affirmed
b. When the court decides an intensely powerful controversy and we
know that after we decide there are going to be people who resist, the
court must be very firm because if not, the authority/legitimacy of the
court is undermined.
c. UNLESS THERE’S A GOOD REASON.
d. EX:Brown, West Coast Hotel

D) SEXUAL ORIENTATION
a. Bowers v. Hardwick (1986)
i. SC rules that the right to privacy under the Const. does not include a right for consenting
adults to engage in homosexual oral/anal sexual activity.
1. FRAMING: White frames this as “Whether Const…protects..sodomy…?”

b. Romer v. Evans (1996)

i. SC determined that a voter referendum that modified the CO Constitution was
unconstitutional. The referendum had forcibly overruled laws that prohibited discrimination
on sexual orientation.
1. This is the first case where the SCUSA invalidated discrimination based on sexual
orientation
2. THIS IS RATIONAL BASIS. It’s very strange that the Court struck down, it’s
minimal scrutiny!
3. How do we characterize this kind of law?
a. Proponents of the amendment: this places gay people above the standard
rights that normally people would have. There's no discrimination because
taking away those ordinances just restores things to equality
b. Justice Kennedy sees it differently: the Amendment imposes a special
disability on those persons. We find nothing special in the protections
Amendment 2 withholds. These are the protections nearly everyone has!
i. Baseline is the FAIR market. Norm is anti-discrimination law!
ii. Kind of a geneva convention for what can happen in the political
process
c. Scalia (DISSENT): I got nothin' against gay people, but they have to do it
through politics.
i. The NORM is the unregulated competition
ii. The right to be gay is not fundamental – so Rational basis Test
1. The Amendment fails – it has the peculiar property of not “creating equality” but
imposing a broad and undifferentiated disability on a single group.
a. INVALID & EXCEPTIONAL LEGISLATION
2. Its sheer breadth is so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but HATRED toward the class it
affects
a. It lacks a rational relationship to legit state interests
c. Lawrence v. TX (2003)
i. TX had a statute that criminalized homosexual conduct and was directly aimed at gays. SC
comes back and says “Bowers was a BAD decision”
ii. Bowers framed the issue as bad and immoral from the start.
iii. “This is about the liberty to make intimate decisions – does the legislative majority’s view
of the morality of a practice make it the right decision?

46
 1. No, the fact that the more people say so doesn’t make it right
2. The State cannot demean existence or control destiny by making private sexual
relations a crime.
3. legislating on morality alone is not enough to support Constitutionality

Framework for thinking about fundamental rights cases (in light of Lawrence):
1. Is there a fundamental [or "important"] right?
i. Original/traditionalism vs. "evolving tradition" (more general principles)
2. If yes to (1), has the constitutional right been "infringed" by some state action?
{TRIGGER}
i. Raising costs?
ii. "undue burden"?
3. If yes to (2), is there a sufficient justification for the government action?
i. "compelling interest?"
ii. If no, then unconstitutional.
4. Even if yes to (3), is the means sufficiently related to the purpose?
i. This is the narrowly tailored part of the law
ii. Are the particular means in this statute closely related enough to the

iv. ANIMOSITY & STIGMA

Desuetude - A pattern
of non-enforcement.
The law has fallen into
abeyance and is only
enforced in a sporadic d. Goodridge v. Department of Public Health (p. 324 supp) MA – 2003
and rare matter.
People may not be
aware that something
is a crime
Advantage of saying
"this law is desuetude"
means that it gets
thrown back to the
legislature - if they're
really into it, you
better enforce it
But then it will be an
Equal Protection
problem?
1. "When sexuality finds overt expression in intimate conduct with another person,
the conduct can be but one element in a personal bond that is more enduring."
2. Just because there’s a tradition of condemning something doesn’t mean that it is
right. The question is whether the majority may impose the power of the state.
3. RULE: The SCUSA may strike down laws when they believe the purpose of
the law is nothing but an express purpose of animosity and negativity.
a. THIS IS RATIONAL BASIS
i. This was the case that said that the Mass.Const. needed to have freedom of marriage for gay
couples!
ii. The DISSENT says that this represents a great step forward - but that it tortures the Rational
Basis test and attacks the constitution.
1. THE DISSENT supports gay marriage, but doesn't agree with the outcome of the
decision!
iii. There's a very dramatic moment in the history of this that Rosenblatt likes to note.
1. Back around Bowers, (p.1258), it was a 5-4 decision. Justice Powell originally
voted to strike DOWN the law, but then joined the majority. After his retirement,
he was quoted as saying that he regretted the concurrence - but when he cast the
vote, he had never met a homosexual.
a. HE DiDN'T KNOW - Many of his clerks were gay
b. But none of them came out to tell him

FREEDOM OF SPEECH

In England there remains an established church to this day.

In 1791, the BoR only applied to the federal government. States were free to do as they wanted.
• The first amendment was unclear when created.
• There was a historical controversy:

47
 • In English law, back around 1700, there were two ways that the english government
controlled speech/press:
 Prior restraint = censorship.
 Seditious libel (criminal prosecution)
• Libel is injurious statements of someone's reputation
• There can be a private civil suit for libel - it's a tort
• In England, there can also be a criminal suit for libel against the
government
• So seditious libel is a statement that injured the reputation of the
government, the king, the church, etc.
• The idea was that parliament (& the king) were the pinnacle of
English law and they were the
• Under seditious libel, truth was not a defense - in fact, truth was
EVEN WORSE
• So the framers intended to stop the federal government (and likely the states) from prosecuting
seditious libel.

The Alien and Sedition Act

"If any person shall write, print, utter or publish…any false, scandalous and malicious writing or writings against
the government of the US, or either house of Congress of the US, or the Preseident of the US with intent to defame
the said government…"

• Note that TRUTH was a defense & the burden was on the D.

• The Adams administration used this to vigorously silence dissent and arrest Jeffersonian
Republicans.

• KY and VA resolutions: Madison and Jefferson have these passed attacking the Alien and
Sedition act as being OBVIOUSLY unconstitutional.
• Madison distinguishes the English law from the American

• There was also an Alien Act that allowed the President to deport anyone he wants…this
obviously has immediate relevance to our own time.

The Supreme Court doesn't actually hear a free speech case until 1918. Until that time there was extensive limitation of
freedom of speech
• There wasn't a recognition of freedom of speech as an EFFECTIVELY PROTECTED part of
our criminal law until around the end of WWI

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
++++++++++++++++++++

p.378 - World War I

The US enters the War in 1917, and it was interesting.
• Espionage Act of 1917 & 1918
• Prohibited speech "inciting insubordination in the military and naval forces of the
US or the refusal of service in the Armed Forces"
• Debs v. US - Holmes: "The jury were most carefully instructed that the could not find
the defendant guilty for advocacy of any of his opinions unless the words used had as their
natural tendency and reasonably probable effect to obstruct the recruiting service, etc., and
unless the D had the specific intent to do so in his mind."
 A LOT SPEECH CAN BE PUNISHED BY THIS
• EXAMPLE: The background in WWI was that it was a terribly tragic and horrific war.
 The British Army had 60,000 wounded and dead on the first day of the war
 BUT: Could the public be told? Could the press let their people know?

48
 • In the US and the UK, the answer was "No, the press was not allowed
to tell the people what was really going on."
• Dulce Et Decorum Est (written in 1917 and published posthumously
in 1921) is a poem written by English poet and World War I soldier Wilfred
Owen. The work's horrifying imagery has made it one of the most popular
condemnations of war ever written.
• Dulce et decorum est pro patria mori - it is great and
glorious to die for one's country
• Owen says that "You shouldn't tell this lie if you have seen
what I have seen."
• The Incitement Approach
• Judge Learned Hand - "If we're going to protect the First Amendment, we should only
prevent incitement."
• After Debs, Holmes begins to dissent, and starts to say that speech can only be
punished if there is a CLEAR AND PRESENT DANGER when it is very closely related in
time to the danger the government can punish"
 Under a narrow version of this test, Owen's poem cannot be prosecuted.
• INCITEMENT TEST: is the speaker explicitly advocating the violation of law? If not,
you MAY NOT punish them.
 This was originally overruled…

READING: NY Times v. Sullivan

An ad was put in the Times protesting police excesses and such in Alabama. The Police Commissioner sues the
NY times for Libel, claiming that this advertisement charges the police with illegal, unconstitutional, and false
statements in the Advertisement.
• He alleged that certain kinds of speech are libel per se, and if it's libel per se, any kind
of statement that isn't totally true, the jury can find damages & punitives

SCUSA says
• First Amendment protects false speech that injures a government official's reputation
• The central meaning of the first amendment is revealed in the reaction to the Sedition
Act
 The broad consensus that the Act, because of the restraint it imposed upon
criticism of government public officials, was inconsistent with the First Amendment.
 RULE: The constitutional guarantees require, we think, a federal rule
that prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement was
made with ' actual malice' - that is, with knowledge that it was false or with
reckless disregard or whether it was false or not.
 So having a high burden of proof on the D chills speech - you won't talk unless
you can prove everything is true.

p.386 - Brandenburg v. Ohio

The Supreme court creates modern law: A combination of CLEAR & PRESENT DANGER and
INCITEMENT TEST:

"the Constitutional guarantees of free speech and free press do not permit a State to forbid or procribe advocacy of
the use of force or of law violation except where such advocacy is directed to inciting or producing imminent
lawless action and likely to incide or produce such action…"The mere abstract teaching…of the moral propriety or
even moral necessity for a resort to force and violence, is not the same a preparing a group for violent action and
steeling it to such action." A statute which fails to draw this distinction impermissibly…sweeps within its
condemnation speech which our Constitution has immunized from governmental control… Statutes affecting the
right of assembly, like those touching freedom of speech, must observe the established distinctions between mere
advocacy and incitement to imminent lawless action…"

This is the current law about advocacy of illegal activity:

49
If we are to punish speech advocating illegal activity, the state must be able to show:
• Incitement (speech directed at producing imminent lawless action); and
• The speech is likely to produce imminent lawless action

This is a very formalist test - it actually looks at the express form of the words.

Why is the court so protective of Free Speech?

• The court is reacting to the excesses of the post-war period
• McCarthyism
• The Johnson & Nixon administrations were engaged in a covert anti-free
speech activities
• Had FBI Infiltrated civil rights and anti-war movements
• Tried to force splits in the organizations
• Also make groups act violently (so that they could arrest
them)
• "The COINTELPRO" - really about trying to stop political
movements
• How did they find out? Anti-war activists in PA broke into the FBI
office in Media, PA and stole 1000s of documents
• That's the only way we know about it!
• Similar activities were being operated by the army, the CIA (clearly
illegal)
• Nixon had the IRS auditing his political enemies
• Formed his own unit - the Plumbers - who came up with the
whole Watergate thing

Doe v. Ashcroft (DC from So DC of NY) - One of the provisions of PATRIOT ACT allows the FBI to get
records without any judicial interaction
• Can't even tell anyone about it - National Security Letter
• Judge held that National security letters violate the constitution

We've come a long way from where we used to be, but we still need to protect our liberties, especially post 9/11

50