Key

Text:
Red text = from class notes
Black text = from case book
Blue text = from additional supplements
Purple text = from Quimbee supplement
Green text = from Chemerinsky
Italic text = quotes from the Constitution
Yellow highlight = important
Blue highlight = unsure of/needs more info
Purple highlight = not tested

Outline:
Light green case name = main case in book (assigned), but primary case on syllabus
Black case name = case in notes of book that was discussed in class

Table of Contents
CONSTITUTIONAL LAW OUTLINE................................................................................................... 4
PART I: THE ROLE OF THE COURTS IN CONSTITUTIONAL INTERPRETATION.................4
JUDICIAL POWER................................................................................................................................. 4
INTRODUCTION: THE CONSTITUTION OF THE UNITED STATES, PP. XXXV-XLIX.............................................4
Interpreting the Constitution.......................................................................................................................... 4
Levels of Review.................................................................................................................................................... 5
The Constitution................................................................................................................................................... 5
THE SUPREME COURT’S AUTHORITY AND ROLE: THE POWER AND LIMITS OF JUDICIAL REVIEW............5
Judicial Review...................................................................................................................................................... 5
The Establishment of Judicial Review (pp. 1-21)....................................................................................6
The Power to Review State Court Judgments (pp. 21-29)..................................................................7
The Adequate and Independent State Grounds Doctrine (pp. 29-)................................................8
The Operation of Judicial Review (pp. 35-47)..........................................................................................9
Courter-Majoritarian Role (pp. 36)............................................................................................................. 9
Limitations on Judicial Review: (pp. 49, 65-66, 98-118, 122-25)....................................................9
The Proper Role of Federal Courts (pp. 65)........................................................................................... 10
The Eleventh Amendment (pp. 122-125)................................................................................................ 12
PART II: ENFORCING THE CONSTITUTIONAL ALLOCATION AND LIMITATION OF
NATIONAL POWER............................................................................................................................ 14
NATIONAL LEGISLATIVE POWERS............................................................................................... 14
THE VALUES AND ENFORCEMENT OF FEDERALISM LIMITS ON NATIONAL LEGISLATIVE POWER (PP.
127-53).................................................................................................................................................................... 14
Federalism............................................................................................................................................................ 14
10th Amendment................................................................................................................................................. 14
Police Power........................................................................................................................................................ 14
THE COMMERCE POWER..................................................................................................................................... 16
General Scope (pp. 153-72)........................................................................................................................... 16

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 Pre-1937 Commerce Clause (pp. 172-81)............................................................................................... 18
New Deal Expansions (pp. 181-91)............................................................................................................ 22
What’s the Law Today? (pp. 191-204)..................................................................................................... 25
External Limits on the Commerce Power imposed by State Autonomy (pp. 204-26).........30
OTHER NATIONAL POWERS: TAXING, SPENDING, TREATIES, WAR-RELATED, FOREIGN AFFAIRS AND
CIVIL RIGHTS (PP. 226-51)............................................................................................................................... 31
Taxing Power...................................................................................................................................................... 31
Spending Power................................................................................................................................................. 32
Treaties, War-related, Foreign Affairs and Civil Rights....................................................................34
HEALTHCARE CASES............................................................................................................................................. 34
FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE.........................35
THE DORMANT COMMERCE CLAUSE (DCC).................................................................................................... 35
Development of the Doctrine (pp. 253-60)............................................................................................. 37
Discrimination against Interstate Commerce (pp. 260-70)............................................................38
Neutral Burdens on Interstate Commerce (pp. 270-83)...................................................................39
Facially Neutral Regulations with Discriminatory Effects (pp. 284-300)................................40
States as “Market Participant” Exception (pp. 300-08)...................................................................43
THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV (PP. 308-17)................................................44
FEDERAL PREEMPTION AND CONSENT: CONGRESS HAS THE FINAL WORD (PP. 317-30).......................46
PART III: SEPARATION OF POWERS............................................................................................ 48
SEPARATION OF POWERS............................................................................................................... 48
INTRODUCTION (PP. 333-34)............................................................................................................................ 48
EXECUTIVE ACTION.............................................................................................................................................. 48
Executive Action: Domestic Affairs (pp. 335-55).................................................................................49
Executive Action: Foreign Affairs (pp. 355-83)....................................................................................50
LEGISLATIVE ACTION AND THE ADMINISTRATIVE STATE:.............................................................................52
General Themes (pp. 383-97)....................................................................................................................... 52
Specific Limitations (pp. 397-413)............................................................................................................. 53
IMMUNITIES AND PRIVILEGES (PP. 413-24)................................................................................................... 54
PART IV: INDIVIDUAL RIGHTS LIMITATIONS ON GOVERNMENT POWER........................56
DUE PROCESS INTRODUCTION............................................................................................................................ 56
PROCEDURAL DUE PROCESS (PP. 425-43)................................................................................ 57
Property................................................................................................................................................................. 57
Liberty.................................................................................................................................................................... 58
Determining the Process That is Due........................................................................................................ 58
SUBSTANTIVE DUE PROCESS......................................................................................................... 58
SUBSTANTIVE DUE PROCESS............................................................................................................................... 58
THE INCORPORATION DOCTRINE (PP. 443-58)............................................................................................. 59
THE RISE AND FALL OF ECONOMIC RIGHTS AS THE SUBSTANCE OF DUE PROCESS (PP. 458-70).......64
THE MODERN REVIVAL: “PRIVACY” RIGHTS (PP. 470-549).......................................................................66
Origins: Contraception (pp. 472-83):........................................................................................................ 67
Abortion (pp. 483-516):.................................................................................................................................. 70
Family Relationships (pp. 516-23)............................................................................................................. 73
The Right to Die (pp. 523-35):..................................................................................................................... 75
Consensual Sexual Choices (pp. 535-49)................................................................................................. 76
Methodology........................................................................................................................................................ 78
THE MODERN REVIVAL: EXCESSIVE PUNITIVE DAMAGES.............................................................................79

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ECONOMIC RIGHTS: THE TAKINGS AND CONTRACTS CLAUSES..........................................80
THE TAKINGS CLAUSE (PP. 551-92)............................................................................................................... 80
The Public Use Requirement (pp. 552-62).............................................................................................. 81
Regulatory Takings: When Does Regulation Become a Taking?..................................................82
Conditional Regulatory Takings (pp.587-92).......................................................................................87
THE CONTRACTS CLAUSE (PP. 593-605)....................................................................................................... 87
EQUAL PROTECTION OF THE LAWS............................................................................................. 88
INTRODUCTION AND LEVELS OF SCRUTINY (PP. 607-12)............................................................................89
Introduction......................................................................................................................................................... 89
Levels of Scrutiny............................................................................................................................................... 90
Over-inclusive/Under-inclusive................................................................................................................... 91
Classifications..................................................................................................................................................... 92
MINIMAL SCRUTINY: THE DEFAULT LEVEL OF REVIEW................................................................................ 93
Means: What is Not Rational? (pp. 612-19)..........................................................................................93
Ends: What Purposes are Not Legitimate? (pp. 620-29)..................................................................95
Same Sex Marriage?......................................................................................................................................... 96
“Enhanced” Minimal Scrutiny: Means? Ends? Both? (pp. 629-40)...............................................97
STRICT SCRUTINY AND SUSPECT CLASSIFICATIONS: RACE AND ETHNICITY...............................................99
Overview (pp. 640-42)..................................................................................................................................... 99
Purposeful Discrimination Required (pp. 642-49)...........................................................................100
Official Racial Segregation (pp. pp. 649-58).......................................................................................104
Affirmative Action.......................................................................................................................................... 106
STRICT SCRUTINY AND SUSPECT CLASSIFICATIONS: LAWFUL RESIDENT ALIENS (PP. 716-19).........114
INTERMEDIATE SCRUTINY: SEX AND ILLEGITIMACY (PP. 720-43)...........................................................114
Gender Discrimination................................................................................................................................. 115
FUNDAMENTAL RIGHTS: STRICT SCRUTINY REVISITED...............................................................................121
Introduction (pp. 743-49)........................................................................................................................... 122
Voting: Denial, Dilution, Gerrymandering (pp. 749-75)................................................................123
Access to Courts (pp. 775-80).................................................................................................................... 127
Penalties on the Right of Interstate Migration (pp. 781-87).......................................................128
CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS...............................129
INTRODUCTION (PP. 1143-44)...................................................................................................................... 129
CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS............................................................129
Coverage: Public or Private Conduct? (pp. 1165-70)......................................................................129
Content: Remedial or Substantive? (pp. 1170-91)...........................................................................130
THE RIGHT TO KEEP AND BEAR ARMS AND THE PROPER INTERPRETATION OF THE
CONSTITUTION................................................................................................................................ 135

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 CONSTITUTIONAL LAW OUTLINE
PART I: THE ROLE OF THE COURTS IN
CONSTITUTIONAL INTERPRETATION

JUDICIAL POWER
Introduction: The Constitution of the United States, pp.
xxxv-xlix
The 3M cases – the cannons of the power of the branches of government under the
Constitution – the three cases where the courts decide who has the power
- Marbury
- Martin v. Hunter
- McCulloch

Interpreting the Constitution

1. The Constitution does not say who should interpret the document
a. But since Marbury it has been held that the federal courts have this
authority
2. Philosopher-king rationale vs. written constitution/textualist (two ends of
the specrum)
a. Critique of philosopher-kings – that’s what we elect the legislature for
3. Three possible answers to the question of who should be the authoritative
interpreter of the Constitution
a. No authoritative interpreter – each branch would have equal
authority to determine the meaning of the constitutional provisions,
and conflicts resolved through political power and compromise
b. Each branch is authoritative in certain areas –
i. This likely best describes the current system of constitutional
interpretation
1. Judiciary has decided certain parts of the Constitution
pose political questions
a. Often challenges to the president’s conduct of
foreign policy
c. The judiciary as the authoritative interpreter
i. Arguably, Marbury v. Madison endorses this approach

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Levels of Review
1. The minimal review is usually for economic, property, business type matters
a. When government regulates those the court typically adopts a
minimal review posture
2. Discrimination is often given the greatest scrutiny
3. Should all rights get the same level of review – i.e., all get minimal?

The Constitution
1. The new federal government was given only a few specifically enumerated
(but very important) powers
2. The presumption created was that unless the federal government could find
authority for its acts in the Constitution, it had not authority to act
3. By contrast, states were presumed to have power to act unless denied by the
Constitution, federal law, or the relevant state constitution
4. Federalists v. Anti-Federalists
a. Federalists prevailed
b. Anti-Federalists really wanted a Bill of Rights which wasn’t initially
included, but many of the state ratification conventions called for a
bill of rights to be added to the Constitution
5. Article II – the Executive Branch
6. Article III – the Judicial Branch
7. Amendments 1-10 – the Bill of Rights
8. 10th Amendment – States Rights
9. Amendments 13-15 – the Civil Rights Amendments
a. 13th Amendment abolished slavery
b. 14th Amendment – Equal Protection Clause – overruled Dred Scott
10. 15th Amendment – protection of voting

The Supreme Court’s Authority and Role: The Power

and Limits of Judicial Review
1. Power over the legislative branch is pretty textual, whereas judicial power
over the executive branch is somewhat muted in its textual support

Judicial Review
1. Judicial review: the process by which courts decide whether actions of
government officials (including legislation) comply with the Constitution
a. The Court has generally tried to exercise judicial review in a fashion
that mediates rather than aggravates the tension between a judicially
enforceable Constitution and representative democracy

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The Establishment of Judicial Review (pp. 1-21)
Marbury v. Madison (pp. 7-13)
1. Rule of Law: The Supreme Court of the United States has the authority to
review federal executive and federal legislative acts to determine whether
they comply with the United States Constitution.
2. Facts
a. Marbury appointed by President Adams. When Jefferson assumed
office he refused to finalize Marbury’s appointment. Marbury brought
action, seeking a writ of mandamus to compel Jefferson’s SOS Madison
to compel him to finalize the appointment
b. Article III: establishes powers and jurisdiction of the judicial branch of
the federal government, comprised of the Supreme Court of the
United States and the lower courts created by Congress
3. Issue: (1) Does Marbury have the right to his judicial appointment? (2) If he
does have a right and that right is violated, does Marbury have a remedy
under United States law? (3) If Marbury is entitled to a remedy, is that
remedy specifically a writ of mandamus as outlined in Section
a. (1) Yes Marbury does have a right to his commission as Justice of the
Peace because he was law- fully appointed to that position by the
President’s act of signing his commission, further enforced by his
confirmation in the Senate.
b. (2) Yes. Madison’s refusal to finalize Marbury’s appointment
interferes with Marbury’s legal title. Marbury is entitled to a remedy
under federal law
c. (3) It depends. Although a writ of mandamus would have been
appropriate, Section 13 of the Judiciary Act of 1789, which authorized
the United States Supreme Court to give such a remedy, is
unconstitutional. The Act allows the Supreme Court to have original
jurisdiction over actions for writs of mandamus. However, this
provision directly conflicts with Article III of the Constitution, which
greatly limits the cases in which the Supreme Court has original
jurisdiction and provides it with appellate jurisdiction in all other
cases. The Act is unconstitutional because it seeks to expand the
Supreme Court’s original jurisdiction and therefore jurisdiction over
Marbury’s claim cannot be exercised.
4. Holding: the SC ruled against Marbury and held that it could not
constitutionally hear the case as a matter of original jurisdiction. The Court
held that although the Judiciary Act of 1789 authorized such jurisdiction, this
provision of the statute was unconstitutional because Congress cannot allow
original jurisdiction beyond the situations enumerated in the Constitution
a. Thus the Court showed that it had ability to review acts of Congress
b. It also showed it’s ability to review executive acts – whether Jefferson
must allow for Marbury’s appointment
5. Cited as authority for the judicial review power of courts

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 6. All of Marbury could have been avoided if the Constitution said that the
courts have judicial review
7. Marbury could be read narrowly as holding only that the Court is the final
arbiter of the meaning of Article III of the Constitution, which defines judicial
power. The specific issue in Marbury, is whether s section of the Judiciary Act
of 1789 is consistent with Article III of the Constitution. Accordingly,
Marbury could be interpreted (consistent with approach that each branch is
authoritative in certain areas of constitutional interpretation) as assigning to
the judiciary only the responsibility of interpreting Article III.
8. Chief Justice Marshall’s reasons why the Court could declare federal laws
unconstitutional
a. Constitution imposes limits on government powers and that these
limits are meaningless unless subject to judicial enforcement
b. It’s inherent to the judicial role to decide the constitutionality of the
laws that it applies

Cooper v. Aaron (1958) (pp. 19-21)

1. Rejected the idea that states, having entered into a compact to form the
Union, retain the right to assert their sovereignty to trump unwanted federal
action
a. Rejected “interposition”
2. Federal courts, as well as the SC, have the authority to review the
constitutionality of state laws and the actions of state officials
3. Facts
a. A federal district court ordered the desegregation of the Little Rock,
Arkansas public schools. The state disobeyed the order, in part based
on fears of violence, and in part based on a claim that it was not bound
to comply with judicial desegregation decrees
i. The Court rejected this position, upholding Marbury

The Power to Review State Court Judgments (pp. 21-29)

1. Supremacy, uniformity, trust
a. Supremacy: when a state law conflicts with federal law, the federal
law rules
i. The Supremacy Clause
b. Uniformity – without a regulatory body, federal law would be
interpreted differently in each state
i. Under Sec. 25 of the Judiciary Act, appellate review of state
courts only for decisions on federal law where the state court
has rejected federal law
1. These are the only cases the SC can hear under this
statute
a. Today the SC can hear state law cases as long as
they implicate federal law
2. Shows that the real concern of Congress is supremacy
and not uniformity

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 2. Although the Constitution does not explicitly say that the SC may review state
court decisions, the Judiciary Act of 1789 provided for SC review of state
court judgments

Martin v. Hunter’s Lessee (pp. 23-27)

1. The one hole in judicial review after Marbury was power over the state
judiciary - Martin v. Hunter addressed this
2. Facts
a. US and England entered into treaty protecting the rights of British
citizens who owned land in the US
b. Two conflicting claims to certain land within VA
i. Martin – inherited land from a Brit
ii. Hunter – VA had taken the land before the treaty came into
effect, thus Martin did not have a valid claim to the land
c. VA Court ruled in favor of Hunter, granting state authority to have
taken the land
3. Issue: Does the Supreme Court have appellate review authority over state
courts?
4. The Court rejected Virginia’s position that its courts’ interpretations were
not subject to federal review regarding federal law
5. Support for the holding:
a. Rejects VA’s separate sovereigns argument
b. The judicial power goes to ALL cases that have federal law in them
c. Issues of uniformity and supremacy
d. State prejudices, state jealousies, and state interests might sometimes
obstruct or control the regular administration of justice if state courts
weren’t subject to the federal courts’ review
6. Upheld the constitutionality of section 25 of the Judiciary Act of 1789 which
empowered the Supreme Court to review certain decisions of the highest
state court which, generally speaking, ruled adversely to some federal right
or claim.
7. Court argued that the Constitution creates a SC and gives Congress discretion
whether to create lower federal courts. But if Congress chose not to establish
lower federal courts, then the SC would be powerless to hear any cases,
except for the few fitting within its original jurisdiction, unless it could
review state court rulings

The Adequate and Independent State Grounds Doctrine (pp.

29-)
Michigan v. Long (1983) pp. 30
1. Holding: if the opinion mentions both state and federal law, the presumption
will be that you acted on federal law unless you clearly state why you acted
on state law

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Adequate and Independent State Ground Doctrine (AISG)
1. “If the state court decision indicates clearly and expressly that it is
alternatively based on bona fide separate, adequate and independent
grounds, we, of course, will not undertake to review the decision”
2. If decided on both state and federal then it is eligible for SC review

Bush v. Gore (2000) pp. 32-34

1. Issue: whether the state court could order a recount or whether the election
laws passed by the legislature should govern
a. AISG type of issue
2. The way Florida’s court and legislature interpret state election laws is a state
issue
3. One of the more controversial applications of AISG

The Operation of Judicial Review (pp. 35-47)

Courter-Majoritarian Role (pp. 36)
Calder v. Bull (1798) pp. 39
1. Justice Chase – philosopher-king end of the spectrum
a. Doesn’t have to be written down in the Constitution, grounded in
nature and social compact theory
2. Justice Iredel – written constitution/textualist
a. If not written in the Constitution, then sorry
b. What’s the point of a written Constitution if you can just go off of it?

Limitations on Judicial Review: (pp. 49, 65-66, 98-118, 122-

25)
1. External controls on judicial power
a. Amendment, appointment, impeachment
b. Congress can withhold jurisdiction from the courts (amount in
controversy limits)
c. Article III – subject matter jurisdiction
d. Self-imposed controls – jurisdiction is limited by Art. II to “cases” or
“controversies”
2. Judicial interpretation of Article III has created crucial doctrines that restrict
access to the federal courts
a. For example, the principles of standing, ripeness, mootness, and the
political question doctrine
3. Political Question Doctrine
4. 11th Amendment: prevents federal court relief against state governments
a. Is a constitutional limit on federal judicial power

Political Question Doctrine

1. Non-justiciable political questions

9
 2. Political questions: issues which the federal courts will not address because
their subject matter is deemed to be not fit for judicial resolution
a. Even though their may be a constitutional violation
3. Self imposed restriction on the SC
4. We first saw this doctrine in Marbury
a. Chief Justice Marshall contrasted political questions with instances
where the individual rights were at stake; the latter, according to the
Court, never could be political questions
5. It is very difficult for a court to apply the Baker criteria to identify what cases
are political questions
a. So can really only be understood where it has been invoked:
i. The republican form of government and the electoral process
ii. Foreign affairs
iii. Congress’s ability to regulate its internal processes
1. Usually is non-justiciable
a. But not in the case of Powell
iv. The process for ratifying constitutional amendments
v. Instances where the federal court cannot shape effective
equitable relief
vi. The impeachment process
6. Usually the conservative members of the court argue in favor of the political
question doctrine
a. Not in Bush v. Gore
7. In Vieth v. Jubelirer (voting case) the Court dismissed a challenge to partisan
gerrymandering and a plurality said that such suits are inherently non-
justiciable political questions

The Proper Role of Federal Courts (pp. 65)

Baker v. Carr (1962) pp. 99-105
1. Issue: Does an equal protection challenge to malapportionment of state
legislatures qualify as a non-justiciable political question?
2. Rule of Law: A challenge to malapportionment of state legislatures brought
under the Equal Protection Clause is not a political question and is thus
justiciable.
a. Holding: challenges to malapportionment are justiciable
3. This case only decides a threshold question: is this case justiciable or is it a
political question?
a. Court: justiciable, because brought under the Equal Protection Clause
4. Lays out six criteria for whether there’s a political question
a. A textually demonstrable commitment of the issue to a coordinate
political department
b. A lack of judicially discoverable and manageable standards for
resolving it
i. The two above are the main two (thought to be driven by the
Constitution, the other four are more prudential

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 c. The impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion
d. The impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government
e. An unusual need for unquestioning adherence to a political decision
already made
f. The potentiality of embarrassment from multifarious
pronouncements by various departments on one question

Powell v. McCormack (1969) pp. 105

1. Issue: Does the House, under Art. I § 5 which says that “each house shall be
the judge of the qualifications of its own members,” have the sole power to
determine who is qualified to be a member?
a. Holding: No, the house can only judge the three qualifications as set
forth in Art. I § 2 cl. 2 (age, citizen, residency)
2. Issue: Can the SC decide this question or is it a nonjudiciable political
question?
a. Holding: Yes, the SC can decide the question because it is not a
political question
3. It is for the court only to decide whether something is a political question
4. Issue: Is a challenge to restrictions on Congressional membership set by the
United States House of Representatives a non-justiciable political question?
5. Rule of Law: A challenge to restrictions on congressional membership set by
the United States House of Representatives is justiciable and not a political
question.
6. Case specifics
a. The Constitution specifically provides that each house of Congress
may, by a vote of two-thirds of its members, expel a member.
However, the Court noted that the issue in Powell was not expulsion;
he was excluded, not expelled
b. Defendants – the House
i. Argued that the Constitution gives Congress the power to
“judge the qualifications of its members”.
ii. But the Court held that the House had discretion only to
determine if a member met the qualifications stated in Art I, §2
– age, citizenship and residence
7. Court’s policy argument for this being justiciable
a. Stressed the importance of allowing people to select their legislators
8. Often, though certainly not always as illustrated in Powell, the Court has held
that congressional judgments pertaining to its internal governance should
not be reviewed by the federal judiciary

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Nixon v. United States (1993) pp. 106-111
1. Issue: Whether the scope of the Senate’s constitutional authority to conduct
impeachment proceedings is a non-justiciable political question incapable of
resolution by the courts.
2. Non-justiciable. Article I, Section 3, Clause 6 of the Constitution gives sole
power to the Senate to try all impeachments. The framers’ use of the word
“sole” is significant in that it is a textually-demonstrable commitment of
complete discretion to the Senate to conduct impeachment proceedings and
to determine the rules by which those proceedings are conducted.
a. Challenges to the impeachment process are nonjusticiable
3. Facts
a. Federal district judge had been convicted of making false statements
to a grand jury
b. Nixon argued that the whole Senate had to sit in on impeachment
hearings, not just a committee
4. Horizontal textual commitment
5. This was a political question that the court could not address
a. Court said the Senate has the sole authority to decide impeachment
cases – Constitution gives complete control over the impeachment
process to Congress
6. Policy reasons for being non-justiciable
a. Judicial review would be inconsistent with system of checks and
balances
i. Impeachment as only legislative check on the judiciary
7. Souter’s concurrence
a. Recognized the potential need for judicial review
b. “If the Senate were to act in a manner seriously threatening the
integrity of its results, convicting, say upon a coin-toss, or upon a
summary determination that an officer of the US was simply a bad
guy, judicial interference might be appropriate”

Bush v. Gore (2000) pp. 116-118

1. The court here declined to view as political questions the issues brought up
in this case
2. Liberal justices argued this was a political question case (usually the
Conservatives are the ones arguing in favor of the political question)

The Eleventh Amendment (pp. 122-125)

1. Sovereign immunity
2. 11th Amendment: prevents federal court relief against state governments
a. Is a constitutional limit on federal judicial power
3. Text based limit on judicial power
4. Basically says you can’t bring a diversity case against the state in federal
court
5. The 11th Amendment basically says you can’t bring a diversity case against
the state in federal court

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 6. Should be read like: “No state may be sued in federal court by any person or
foreign government unless the state consents to the suit or Congress has
clearly and unequivocally abrogated this immunity by exercise of its powers
under section 5 of the 14th Amendment. For purposes of this amendment a
state official is not a state unless the remedy sought against a state official
would require the state to pay compensation for past actions”
7. A citizen of a state could sue his own state in federal court on a federal
question, first established in 1875 when Congress gave the federal courts
general jurisdiction of federal questions
8. The SC has devised three primary mechanisms for circumventing the 11 th
Amendment and allowing federal courts to ensure state compliance with
federal law. The Court has allowed
a. Suits against state officers
b. Permitted states to waive their 11th Amendment immunity and
consent to suit
c. Sanctioned litigation against the states pursuant to statutes adopted
under the 14th Amendment
9. 11th Amendment: Provides states with sovereign immunity which prohibits
federal suits by someone of another state or country for money damages or
equitable relief. However, federal courts do have the authority to enjoin state
officials from violating federal law.

Hans v. Louisiana
1. Facts
a. A citizen of Louisiana sued the state in federal court, alleging that LA
had violated the Constitution’s contract clause
2. The Court concluded that the 11th Amendment was intended to confer upon
the states sovereign immunity from suit in federal court by a citizen of the
defendant state even when the claim is premised upon federal law or the
Constitution
a. Even though the actual amendment only says it’s immune from suit by
citizens of other states and foreign countries
i. In Hans the Court held that it would be “anomalous” to allow
states to be sued by their own citizens
3. The scope of Congress’s section 5 (of 14th Amendment) power is critically
important to determining the extent of 11th Amendment immunity
4. The current court disagrees whether the court in Hans got it right – see
Seminole Tribe of Florida v. Florida

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 PART II: ENFORCING THE CONSTITUTIONAL
ALLOCATION AND LIMITATION OF NATIONAL
POWER

NATIONAL LEGISLATIVE POWERS

The Values and Enforcement of Federalism Limits on
National Legislative Power (pp. 127-53)
1. Most of the issues of judicial review are questions of the horizontal axis, but
we’re now focusing on the vertical axis
2. Congress may act only if there’s express of implied authority to act in the
Constitution
3. Stats may act unless the Constitution prohibits the action
4. Evaluating an act of Congress – always two questions
a. Does Congress have authority under the Constitution to legislate?
b. If so, does the law violate another Constitutional provision or
doctrine, such as by infringing separation of powers or interfering w/
individual liberties?
5. Evaluating constitutionalty of a state law
a. Does the legislation violate the Constitution?

Federalism
1. The whole notion of federalism is that we have two sets of government and
the national government is a government of limited, enumerated power and
the state governments are ones of general, inherent power
a. States have inherent power to govern unless doing something that’s
assigned to the federal government or is prohibited by the
Constitution

10th Amendment
1. “The powers not delegated to the US by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.”
2. Limits some of the Congressional powers under the commerce clause

Police Power
1. Police power: refers to the state power to legislate to protect the health,
safety, morals and general welfare of its citizens
2. State inspection laws, health laws, and laws for regulating transportation and
the internal commerce of a state fall within the state police power and are
not within the power granted to Congress – Gibbons v. Ogden
3. The police power allows state and local governments to adopt any law that is
not prohibited by the Constitution

14
 a. Only state/local governments have police power (Congress only does
in few exceptions – like in District of Columbia)

McCulloch v. Maryland (1819) pp. 133-139, 141-144

1. Issue: (1) Does Congress have implied constitutional power to create a bank?
(2) If so, may individual states tax a federally-created bank?
2. Rule of Law: The Constitution specifically delegates to Congress the power to
tax and spend for the general welfare, and to make such other laws as it
deems necessary and proper to carry out this enumerated power.
Additionally, federal laws are supreme and states may not make laws that
interfere with the federal government’s exercise of its constitutional powers.
3. Held that MD could not tax notes issued by the Bank of the US
4. Looks at what power does Congress have and what power do the states have
5. Issue: (1) can Congress charter a bank? (2) if so, can states tax that bank?
6. Holding:
a. (1) Yes. Congress has the power under the Constitution to
incorporate a bank pursuant to the Necessary and Proper Clause (Art.
I § 8, cl. 18)
i. “Congress shall have the power... to make all law which shall be
necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the
government of the US, or in any department or officer thereof”
ii. It’s a valid means to an end that’s empowered to Congress by
the Constitution
1. Ends must be legitimate and within the scope of the
Constitution
b. (2) No. The State of MD does not have the power to tax an institution
created by Congress pursuant to its powers under the Constitution
7. Facts
a. The MD law required that any bank not chartered by the state pay
either an annual tax on its notes
b. The bank refused to pay the tax and the state sued
8. Broadly construed Congress’s powers and narrowly limited the authority of
state governments to impede the federal government
9. Justice Marshall recognized this case as an ideal opportunity to articulate a
broad vision of federal power, much as he used Marbury to establish the
power of judicial review
a. Argued it was the people who ratified the Constitution, and thus the
people are sovereign, not the states
b. The Court thus rejected the view that the Constitution should be
regarded as a compact of the states and that the states retain ultimate
sovereignty under the Constitution
10. Necessary and Proper Clause
a. Marshall looks to the meaning of the Necessary and Proper Clause.
Article I, §8, concludes by granting Congress the power “to make all
Laws which shall be necessary and proper for carrying into Execution

15
 the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or
Officer thereof”
i. This provision makes clear that Congress may choose any
means, not prohibited by the Constitution, to carry out its
express authority
11. Marshall’s ultimate conclusion is that Congress is not limited only to those
acts specified in the Constitution; Congress my choose any means, not
prohibited by the Constitution, to carry out its lawful authority
12. On taxing the bank
a. The power to create the bank, includes the power to preserve it, and
taxing could destroy it
b. A state tax on the bank of the US was essentially a state tax on those in
other states
i. This is an essential aspect of limits on the ability of states to
put a burden on commerce from other states: It is unfair to
allow a state to regulate those who have no representation in
the state
13. The framework for government articulated in McCulloch continues to this
day
14. Doctrine of Implied Powers

United States v. Comstock (2010 Supplement, pp. 3-14)

1. Both Comstock and McCulloch are about Congress’s power to regulate things
not specifically provided by the Constitution
a. The Necessary and Proper Clause grants Congress power over things
not specifically enumerated in the Constitution
b. Once it’s determined that something is under the power of Congress
then Congress can do whatever it wants to regulate, enumerate that
power

U.S. Term Limits, Inc. v. Thornton (1995) pp. 145-153

1. The court articulated different visions of the 10th Amendment
a. Five justices argued that the 10th Amendment reserved to the states
only powers they possessed before the Constitution was created
b. Four justices contended that the states retained all power not denied
them
i. These four justices’ decision would have done away with
McCulloch

The Commerce Power

General Scope (pp. 153-72)
1. The Commerce Clause: “[The Congress shall have Power] To regulate
Commerce with foreign Nations, and among the several States, and with the
Indian tribes” – Article I, Section 8, Clause 3

16
 a. Congress’s most important power
2. The broad categories of activity that Congress may regulate under its
commerce power
a. The use of the channels of interstate commerce
i. Anything that goes from one state to another is using the
channel of interstate commerce
b. The instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities
i. Instrumentalities: planes, trains, railroads, automobiles, etc.
c. Activities that substantially affect or substantially related to interstate
commerce
i. The emphasis is on the word “affect”
1. Things that don’t go from state to state but have an
“affect” on interstate commerce
ii. The court says we must use the words “substantial affect,”
rather than just “affect”
3. Most SC cases concerning the CC begin their analysis by considering Gibbons
4. The Commerce Clause constitutes the principal domestic power of the
federal government. The interpretation of the Commerce Clause has changed
over time
5. From the late 1837 until 1937 the Court adopted a much narrower
construction of the commerce power and invalidated many federal laws as
exceeding the scope of this authority. Little federal legislation
a. Rejecting Gibbons and finding that the 10th Amendment reserves a
zone of activities for the states
i. Court controlled by conservative Justices deeply opposed to
government economics regulations and in support of laissez-
fair economics
ii. Court also morally conservative
b. Court narrowly defined commerce so as to leave a zone of power to
the states. The Court held that commerce was one stage of business.
Commerce was not phases such as mining, manufacturing, or
production
c. During this era a major aspect of the Court’s approach included the
requirement that there be a direct effect on interstate commerce –
came from interpretation of “among the states”
d. 3 doctrines – all advance dual federalism and all limit the scope of
Congress’s authority under the CC:
i. Narrow definition of commerce
ii. Restrictive interpretation of among the states
iii. Use of state sovereignty as a constraint on congressional
power
6. From 1937 until 1995, not a single federal law was declared
unconstitutional as exceeding the scope of Congress’s commerce power –
upholding Gibbons and broadening the CC’s scope

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 a. The Court’s expansive interpretation of congressional authority was
in part based on a perceived need for a strong national government to
deal with 20th century problems, and in part a reaction to the intense
criticism of the earlier decisions that had sharply limited the scope of
federal powers
b. Economic crisis of the depression made laissez-faire economics seem
untenable
c. FDR won a landslide reelection victory in 1936 and put pressure on
the Court
d. Three decisions overruled the pre-1937 decisions and expansively
defined the scope of Congress’s commerce power
i. NLRB v. Jones & Laughlin Steel Corp (1937)
ii. US v. Darby (1941)
iii. Wickard v. Filburn (1942)
7. But in the last decade the Court has sharply changed course and in several
rulings has limited the scope of Congress’s power under the CC and under
§5 of the 14th Amendment
8. “The Commerce Clause emerged as the Framers' response to the central
problem giving rise to the Constitution itself: the absence of any federal
commerce power under the Articles of Confederation. For the first century of
our history, the primary use of the Clause was to preclude the kind of
discriminatory state legislation that had once been permissible. Then, in
response to rapid industrial development and an increasingly
interdependent national economy, Congress “ushered in a new era of federal
regulation under the commerce power,” beginning with the enactment of the
Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”

Pre-1937 Commerce Clause (pp. 172-81)

Gibbons v. Ogden (1824) pp. 172-174
1. Here, the SC adopted an expansive view of the scope of the commerce clause
2. Issue: May a state regulate interstate commerce within its borders when
Congress also chooses to regulate interstate commerce in the same area?
3. Rule of Law: If a state and Congress both pass conflicting laws regulating
interstate commerce, the federal law governs pursuant to Congress’s
constitutional grant of power to regulate interstate commerce.
4. Facts
a. Ogden (NY) sues Gibbons (NJ) because he had the exclusive right
granted by NY state to operate ferry boats in the NY waters
b. Gibbons argues that he has a federal license and that ought to rule
i. NY can’t interfere with interstate commerce – Gibbons going
from NY to NJ was interstate commerce
5. Holding:
a. Federal law authorizes Gibbons to operate a ferry in NY, thus the NY
granted monopoly was preempted by federal law

18
 b. The New York monopoly was an impermissible restriction on
interstate commerce
6. Court says commerce includes more than “buying and selling” – navigation
and transportation are essential to commerce – and so commerce also
involves transport as well as buying and selling
7. Court looks at the word “among” – “among the several States”
a. Determines “among” doesn’t mean “stop at the border”
b. The word “among” means intermingled with. A thing which is among
others is intermingled with them
c. The court did not choose the broadest possible definition of among
i. Among in dictionaries frequently is “in the midst of” – which
would be regulation of all commerce within the US, even
intrastate – the Court chose “among” which meant Congress
could regulate intrastate commerce if it had an impact on
interstate activity
8. Chief Justice Marshall articulated a broad vision of the Commerce Clause
a. “Commerce” extended beyond navigation to include commercial
intercourse
b. “Regulate” involved the power to prescribe the rule by which
commerce could be governed
c. “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.” Implicitly, it did include commerce
which affected another state even though it did not involved crossing
a state line
i. Of course, much of this discussion was dicta because the facts
of the case clearly involve interstate movement

United States v. E.C. Knight Co (1895) pp. 174

1. Issue: May Congress use its general powers under the Commerce Clause to
regulate a purely local activity?
2. Rule of Law: Congress may not use its general powers under the Commerce
Clause to regulate a purely local activity.
3. Manufacturing is not commerce
4. In Standard Oil Co. of New Jersey v. United States (1911), the Court disavowed
E.C. Knight’s reliance on the distinction between manufacturing and
commerce, declaring that approach “unsound.” However, the Court
continued to focus on the “directness” of the connection between the activity
regulated by Congress and interstate commerce
5. Facts
a. Court held that the Sherman Antitrust Act could not be used to stop a
monopoly in the sugar refining industry because the Constitution did
not allow Congress to regulate manufacturing
b. US government tried to use the Sherman Act to block the Sugar
Refinery from acquiring four competing refineries

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Carter v. Carter Coal Co. (1936) pp. 174
1. Issue: May Congress regulate the production of coal under its Commerce
Clause powers?
2. Rule of Law: Congress may not regulate a purely local act under its
Commerce Clause powers.
3. The Coal Conservation Act authorized coal producers and coal miners to
establish a code setting maximum hours and minimum wages for coal miners
a. A tax was imposed on all producers who failed to abide by the code
b. Carter was a shareholder’s suit to restrain the company from
complying with the code because it was allegedly beyond Congress’s
power to authorize
4. The SC agreed, striking down the act
5. SC’s reasoning
a. The effect of the labor provisions of the act primarily falls upon
production and not upon commerce. Wages and employment relate
to production and not of trade – trade is commerce
b. Majority was saying that production is not commerce because
production is a purely local activity
i. While it may ultimately lead to commerce what’s being
regulated here is production and that’s not commerce amongst
the several states
c. Focus on the word “direct”
d. Invokes McCulloch – “whether the end sought to be attained by an act
of Congress is legitimate is wholly a matter of constitutional power
and not at all of legislative direction”
6. The court looks at it abstractly
a. As an abstract matter, production is not commerce and the effect of
production on commerce is at most indirect and not direct and
therefore Congress has no power to regulate it
7. How you could argue on the government’s behalf
a. Coal is a national commodity
b. This would have an affect on interstate commerce

The Stream of Commerce pp. 177

1. Each point along the way may seem like a local matter, but is really a part of
the stream
2. Since a stream is interstate, than all the points along the way are interstate
and can be regulated
3. This theory was used to distinguish between direct and indirect effects on
interstate commerce (see Schecter Poultry)

Shreveport Rates Case (1914) pp. 176

1. The Protective Principle: the essence of the principle is that intrastate
commerce can be regulated when necessary to protect instrumentalities of
interstate commerce

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 2. The Court upheld an Interstate Commerce Commission order requiring the
affected railroads to charge the same rate for interstate shipments as for
intrastate shipments

Champion v. Ames (The Lottery Case) (1903) pp. 177

1. Issue: Does the trafficking of lottery tickets across state lines constitute
interstate commerce that Congress may prohibit under the Commerce
Clause?
2. Rule of Law: The trafficking of lottery tickets across state lines constitutes
interstate commerce that may be prohibited entirely by Congress under the
Commerce Clause of the Constitution.
3. Example of this era’s conservative Court’s support of laws directed at what
was perceived as sin
4. Congress, through the Federal Lottery Act of 1895, prohibited the interstate
sales of lottery tickets
5. The SC held that trafficking lottery tickets constituted interstate commerce
that could be regulated by the U.S. Congress under the Commerce Clause
6. Here, the SC recognized that Congress’ power to regulate interstate traffic is
plenary. That is, the power is complete in and of itself
a. This wide discretion allowed Congress to regulate traffic as it sees fit,
within Constitutional limits, even to the extent of prohibiting goods, as
here.
7. This plenary power is distinct from the aggregate-impact theories later
espoused in the Shreveport line of cases
8. Champion argued that pretextual use of the commerce power in order to
achieve objectives that are moral or social
a. Important message of this case is that it doesn’t have to be
commercial to constitute interstate commerce

Hammer v. Dagenhart (Child Labor Case) (1918) pp. 179

1. Issue: May Congress regulate the interstate commerce of goods produced in
factories with child labor?
2. Rule of Law: Congress may not use its Commerce Clause power to regulate
child labor in the states as this is a purely local matter.
3. When Congress enacted the Child Labor Act of 1916, banning the interstate
shipment of goods produced by child laborers, it had little doubt that it was
authorized by the CC to do so, but in Hammer the court voided the Act.
4. Court:
a. Unconstitutional because it controlled production
b. CC does not give Congress authority to control the States in their
exercises of the police power over local trade and manufacture
c. “The goods shipped are of themselves harmless. When offered for
shipment, and before transportation begins, the labor of their
production is over, and the mere fact that they were intended for
interstate commerce transportation does not make their production
subject to federal control under the commerce power”

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 5. Contrasted with the Child Labor Case
a. Both federal laws prohibited the shipment of a specified item – goods
made by child labor or lottery tickets – in interstate commerce. In
both Congress was trying to stop intrastate activities: use of child
labor and gambling in lotteries. Yet, in the Child Labor case the Court
declared the federal law unconstitutional, whereas in the Lottery Case
the Court upheld the federal law
6. Hammer was overruled in 1941 in the case of US v. Darby Lumber Co.

Schechter Poultry Corp v. U.S. (1935) pp. 181

1. Issue: May Congress pass regulations relating to in-state poultry trade
activities that only indirectly affect interstate commerce?
2. Rule of Law: Congress may not regulate activities occurring in a state that
have only an indirect effect on interstate commerce.
3. Provides language on national/local – direct/indirect
a. If CC covered all enterprises and transactions with an indirect effect
upon interstate commerce then the Federal government would have
complete control – no control of state’s for domestic affairs
4. Declared a federal law unconstitutional based on an insufficient effect on
interstate commerce
5. This case is in contrast to the Shreveport Rate Cases

New Deal Expansions (pp. 181-91)

1. New standard: Congress could regulate any activity if there was a
substantial effect on interstate commerce
a. Or if the activity, looked at cumulatively across country, had a
substantial effect on commerce – not just one person - Wickard
2. As the New Deal progressed the SC confronted some of the acts of Congress,
believing they went beyond some of the powers of the Commerce Clause
3. The Hammer and Knight cases are major roadblocks to the New Deal
legislation that comes later
4. Court permitted ways that Congress could use the Commerce Clause to
improve the economy for New Deal purposes
5. The New Deal programs in the 1930s increased the controversy regarding
the use of substantive due process to invalidate economic regulation
a. The SC used substantive due process rationales to strike down many
key provisions of the New Deal.
6. NLRB v. Jones & Laughlin, US v. Darby, and Wickard v. Filburn
a. Ended diference between commerce and other stages of business
(mining, manufacturing, production)
b. No longer distinction between direct and indirect effects on interstate
commerce – Congress can regulate any activity with cumulative effect
c. 10th Amendment no longer a limit on congressional power – instead a
federal law would be upheld so long as it was within the scope of
Congress’ power, and the CC was interpreted so broadly that
seemingly any law would meet this requirement

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NLRB v. Jones & Laughlin Steel Corp. (1937) pp. 182-184
1. Issue: May Congress regulate labor relations under its Commerce Clause
power to regulate interstate commerce?
2. Rule of Law: Congress may regulate labor relations under its Commerce
Clause power because labor relations have such a close and substantial
relationship to interstate commerce that their control is essential to protect
that commerce from burdens and obstructions.
3. The Court upheld the National Labor Relations Act of 1935 in a 5-4 decision.
In place of the bright line tests of which E.C. Knight had sought to apply, the
Court suggested that it would proceed on a case by case basis to determine if
the activity Congress was regulating had a close and substantial relationship
to commerce
a. The Court adopted Justice Cardozo’s approach from his dissent in
Carter Coal
4. Court: “Although activities may be intrastate in character when separately
considered, if they have such a close and substantial relation to interstate
commerce that their control is essential or appropriate to protect that
commerce from burdens and obstructions, Congress cannot be denied the
power to exercise that control.”
5. Court strikes down precedent that production is not interstate commerce
6. The Court explained how steel business was part of the stream of commerce
and labor relations within it had a direct effect on commerce
7. Significant change in application of doctrine, no so much of doctrine
8. The dissent here was the majority in the Carter case

Wickard v. Filburn (1943) pp. 185-186

1. Issue: May Congress regulate, under the Commerce Clause, the production of
wheat designed wholly for individual consumption and not for sale in
commerce, interstate or otherwise?
2. Rule of Law: Congress may regulate local activity if that activity exerts a
substantial economic effect on interstate commerce.
3. Aggregation or cumulative effect theory
4. Facts
a. Farmer grew wheat in excess, which violated the Agricultural
Adjustment Act of 1938 – even though it was a minor amount and not
grown for sale but for his cattle. The purpose of the act was the
stabilize the price of wheat in the national market by controlling the
amount of wheat produced
b. Fillburn, farmer, claimed federal law could not constitutionally be
applied because the his wheat was for home consumption and not
part of interstate commerce
c. Wickard – Secretary of Agriculture
5. Court says it doesn’t matter if it is local, indirect or isn’t even commerce if it
exerts a substantial economic effect on interstate commerce that is OK
a. Once an economic measure of the reach of the power granted to
Congress by the CC is accepted, questions of federal power cannot be

23
 decided simply by finding the activity in question to be “production,”
nor can consideration of its economic effects be foreclosed by calling
them “indirect”
6. Court’s rationale
a. Court concedes that it was grown for his own consumption and didn’t
have a direct effect on interstate commerce, but…
b. Look at every aspect of local commerce and aggregate it – aggregation
theory
i. Cumulative effect of all the homegrown/home-consumed
Filburns would account for over 20% of wheat production
c. The aggregation theory
i. “That Filburn’s own contribution to the demand for wheat may
be trivial by itself is not enough to remove him from the scope
of federal regulation where, as here, his contribution, taken
together with that of many others similarly situated, is far from
trivial”
ii. Implies that Congress can have power over anything that when
aggregated/cumulative will produce a harmful result on
interstate commerce
7. Even where particular actor or part of industry doesn’t have direct effect on
interstate commerce, if part of national regulatory scheme, and govt can
show that activities of all similarly situated, then the govt can regulate that
individual even for what’s produced on the farm and doesn’t leave the farm

Perez v. United States (1971) pp. 187

1. Court used aggregate theory
2. If you don’t look at the one person, you look at all the people in his
class/trade, etc., then all of their activity in the aggregate will have an effect
on interstate commerce
3. Perez was locally involved in loan sharking, which is a pastime of organized
crime
a. Organized crime is interstate
b. Thus, loan sharking is interstate
c. And, anyone that loan sharks is interstate
d. “House that Jack Built” argument
4. Example of Congress using its broad CC power to enact federal criminal laws

United States v. Darby (1941) pp. 188-189

1. Issue: May Congress prohibit the shipment of goods in interstate commerce
made by workers in unfair employment conditions and the employment of
such workers in manufacturing goods for interstate commerce?
2. Rule of Law: Congress may regulate the labor standards involved in the
manufacture of goods for interstate commerce and may exclude from
interstate commerce any goods produced under substandard labor
conditions.

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 3. Essentially the Hammer case except its Fair Labor Act instead of child labor –
overruling Hammer
a. The act prohibited the shipment in interstate commerce of goods
made by employees who were paid less than the prescribed minimum
wage.
b. Court upheld the Act – rejecting the view that the 10th Amendment
limits Congress’s powers
4. Court explained that Congress may control production by regulating
shipments in interstate commerce
5. Court spoke repeatedly of “plenary power conferred on Congress by the CC”
6. Court said that basically if it is prohibiting the interstate shipment,
that’s a per se violation of interstate commerce
7. Unanimous decision

Civil Rights Laws & the Commerce Power

1. 1964 Civil Rights Act – Congress enacted this legislation under its commerce
clause power
a. The Act in part, prohibits private employment discrimination based
on race, gender or religion, and forbids discrimination by places of
public accommodation
2. Why not 14th Amendment?
a. Under the §5 of the 14th Amendment Congress could only regulate
government conduct and not private behavior
3. Example of the CC being used for social and moral purposes

Heat of Atlanta Motel Inc. v. U.S. (1964) pp. 190

1. Discrimination by hotels and motels impedes interstate travel
a. Doesn’t matter if it’s a purely local motel
2. Court said it didn’t matter that Congress’s motive was in part moral, many
federal laws, stretching back to the Lottery Case, had been adopted under the
commerce power to remedy moral wrongs

Katzenbach v. McClung (1964) pp. 190

1. Court upheld application of the 1964 Act to a small family-owned restaurant
2. Interstate connections of the restaurant
a. 46% of the meat it purchased came from out of state
b. Discrimination by restaurants cumulatively had an impact on
interstate commerce – Congress found that restaurants in areas that
discriminated sold less goods – Wickard

What’s the Law Today? (pp. 191-204)

1. The modern Commerce Clause jurisprudence followed from Darby and
Wickard and featured extensive deference to Congress

Wickard, Lopez, Morrison and Gonzales v. Raich

1. Wickard and Raich upheld federal statutes

25
 2. Lopez and Morrison narrowed the CC – struck down federal statutes
a. Rule that emerges from Morrison and Lopez on the nature of the
Commerce Clause:
i. Economic and commercial
ii. Aggregation – can’t aggregate where it’s not economic
3. Lopez and the cases which followed it have opened a door to constitutional
challenges that appeared to have been closed almost 60 years ago

United States v. Lopez (1995) pp. 154-167

1. Up to pg. 157 is a synthesis of the Court’s prior rules and holdings in relation
to the commerce clause
2. Issue: May Congress, pursuant to its Commerce Clause powers, pass a law
that prohibits the possession of a gun near a school?
3. Rule of Law: Congress may, under its Commerce Clause powers, regulate
three broad categories of activities:
a. The channels of interstate commerce – Heart of Atlanta Motel
b. The instrumentalities of, or persons or things in, interstate commerce
– Congress’s power to regulate railroads
c. Activities that substantially affect or substantially relate to
interstate commerce
i. Court said it was unclear from case law whether it must
“affect” or “substantially affect” interstate commerce
ii. Rehnquist (majority) chose “substantially affect” because the
more restrictive interpretation of congressional power was
preferable
4. Court here says simple possession of anything does not come within category
#3 of the Commerce Clause – the mere possession is not a commercial or
economic activity
5. Holding: unconstitutional because it was not substantially related to
interstate commerce
a. The possession of a gun in a local school zone is in no sense an
economic activity that might, through repetition elsewhere, have a
substantial effect on interstate commerce
6. Case specifics
a. SC declared unconstitutional a federal law prohibiting a person from
having a firearm within 1,000 feet of a school on the grounds that it
exceeded the limits of the commerce power
7. The majority is saying there’s not a sensible or reasonable connection
between the Commerce Clause and this law – this law is in excess of the
Commerce Clause
a. Congress exceeded its power in this specific regulation
8. Lopez was the first time in nearly 60 years where the Court struck down
a federal law as violating the Commerce Clause
9. Congress’s argument in support of the law:

26
 a. If guns allowed in school then kids might not attend school, then
would not graduate, and then would not contribute to economic
activity
10. Court’s response to Congress’s argument:
a. If the “house that Jack built” argument works then we’re giving a
police power to the national government and saying anything affects
everything
b. To give Congress this power “would require us to conclude that the
Constitution’s enumeration of powers does not presuppose something
not enumerated, and that there never will be a distinction between
what is truly national and what is truly local” – pg. 159
11. Thomas’ concurrence:
a. Without boundaries limiting the Commerce Clause to truly
commercial activity, we give the federal government a blank check to
regulate anything under the guise of the Commerce Clause
b. Wants to take out the “substantial affect” notion
12. Dissent
a. As long as Congress has a rational basis for passing a law than the
Court should not interfere
b. Court overrule 60 years of precedent
c. This was judicial activism
13. How could this statute be fixed to be constitutional? How could Congress re-
enact this statute?
a. Could put in language that relates to interstate commerce
i. Would this satisfy the majority?
1. Yes, would be satisfied by category #1
ii. Congress could say any state that doesn’t make it a crime to
have guns in school would lose education appropriations
iii. Make it a crime to possess or sell a gun on or near a school
iv. Congress could hold hearings and make findings that a gun in
school is bad for education
1. The court said that Congress didn’t even make the
findings to back up its rationale for this statute

U.S. v. Morrison (2000)

1. Issue: May Congress regulate the discriminatory conduct of private actors
under §5 of the Fourteenth Amendment
2. Rule of Law: Under §5 of the Fourteenth Amendment, Congress may only
regulate the discriminatory conduct of state officials, not private actors.

3. Only other case (Lopez) in modern times where court says something is
outside the commerce clause and that Congress has overstepped its authority
a. The Court was split the same as in Lopez
i. Majority: Rehnquist, O’Connor, Scalia, Kennedy, Thomas
ii. Dissent: Stevens, Souter, Ginsburg, Breyer

27
 4. Morrison goes significantly further than Lopez in limiting the scope of
Congress’s CC power by holding that Congress cannot regulate a
noneconomic activity by finding that, looked at cumulatively, it has a
substantial effect on interstate commerce
5. Facts
a. Violence Against Women Act, which authorized victims of gender-
motivated violence to sue their assailants
6. Congress’s argument
a. Violence against women has a substantial affect
b. Gender-motivated violence costs the US economy billions a year and is
a substantial constraint on freedom of travel by women throughout
the country
7. Court’s reasoning
a. Congress was regulating a non-economic activity that has traditionally
been dealt with by state laws
i. Absence of commercial or economic relation
ii. No aggregation except where its been economic or commercial
b. “Congress may not use the Commerce Clause to completely obliterate
the distinction between national and local authority” – pg. 169
c. Rejected Congress’s findings in support of the law
i. Said if upheld then Congress could regulate all violent crimes
ii. Although Congress had made extensive findings that violence
against women impacted the economy, the Court held that the
findings were too attenuated from commerce to support the
legislation
8. Dissent here was basically the same as in Lopez
a. The fact of such a substantial effect is not an issue for the courts, but
for Congress, whose institutional capacity for gathering evidence and
taking testimony far exceeds the judiciary’s
9. How could this be fixed to be Constitutional?
a. Where assailant has traveled across the state line to commit the
violence
b. Could say “violence in the work place”

Gonzales v. Raich (2005) pp. 192-200

1. Issue: May Congress regulate the use and production of homegrown
marijuana?
2. Rule of Law: Congress may regulate the use and production of home-grown
marijuana as this activity, taken in the aggregate, could rationally be seen as
having a substantial economic effect on interstate commerce.
a. Although the state has created an exemption to its state marijuana
laws for medical uses, no such exemption exists to the federal law
3. Holding: stands for the proposition that intrastate production of a
commodity sold in interstate commerce is economic activity and thus
substantial effect can be based on cumulative impact – Wickard

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4. It goes in the opposite direction of Lopez and Morrison and upholds Congress’
law
5. Facts
a. Controlled Substances Act (CSA) prohibits manufacture and use of
marijuana
b. CA law allows cultivation and use of medical marijuana
c. Ps were CA residents using the marijuana for medicinal purposes
th
6. 9 Circuit threw the federal statute out by looking to Lopez and Morrison –
ruling CSA was an invalid use of Congress’ commerce clause powers
7. Court’s reasoning
a. Relies on Wickard
i. “Establishes that Congress can regulate purely intrastate
activity that is not itself ‘commercial,’ in that it is not produced
for sale, if it concludes that failure to regulate that class of
activity would undercut the regulation of the interstate market
in that commodity” – pg. 193
1. The majority implied a market is a market, whether
illegal or not
ii. The court conceded that growing marijuana for personal use is
not a commercial activity necessarily
b. Ok to regulate, even if not a commercial activity, because of the
aggregate theory
8. In light of Lopez and Morrison
a. Congress didn’t change the test for the CC that it followed since Lopez
b. Nor did the Court revisit its holding in Morrison that in regulating
noneconomic activities, substantial effect cannot be based on
cumulative impact
9. How court distinguishes present case from Lopez
a. Says marijuana is an economic good but Lopez’ gun is not
b. Legally homegrown marijuana can’t be distinguished from illegally
harvested marijuana in the criminal market place
c. Larger regulatory scheme here than in Lopez
10. Dissent
a. States as laboratories
b. “The states’ core police powers have always included authority to
define criminal law and to protect the health, safety, and welfare of
their citizens”
c. Majority’s holding is irreconcilable with the court’s decisions in Lopez
and Morrison
11. How would you describe the “substantial affects” notion after reading this
case?
a. It seems now like “rational basis” is the buzz word

29
External Limits on the Commerce Power imposed by State
Autonomy (pp. 204-26)
1. Limits imposed by principles of state autonomy:
a. NY v. US (92), Lopez (95), Seminole Tribe (96), Printz (97), Alden
(99), Morrison (00)
i. Represents six decisions in seven years where the Court said
Congress overstepped
2. Substantive Immunity: areas the federal government can’t poach and the
state can regulate on their own
3. Procedural Immunity: are there ways that the fed govt can’t go about it –
are there process ways that the fed govt can’t go about it?
4. NY Case, Printz case and the two damages cases basically provide immunity
from executive commandeering, judicial commandeering and legislative
commandeering – so it seems like the SC of that era was anxious to create an
area of immunity that Congress could not enter when exercising its
commerce clause (???)

Garcia v. San Antonio Metropolitan Transit (1985) pp. 205-209

1. Issue: May Congress apply the Fair Labor Standards Act to govern the
employment actions of a state municipal transit authority?
2. Rule of Law: Congress’s application of the Fair Labor Standards Act to the
employment actions of a state municipal transit authority is a constitutional
exercise of its Commerce Clause power.
3. The majority rejected this way of carving out state substantive immunity
4. Overruled National League of Cities v. Usery
5. “The Garcia view of procedural immunity is that Congress can use the
commerce power to regulate the states in whatever manner it please, so long
as the regulation is (1) a clear and unequivocal statement of congressional
intent to regulate a state’s sovereign functions and (2) not the product of a
political process as dramatically defective as South Carolina v. Baker
suggests” – pg. 210

New York v. United States (1992) pp. 211-218

1. Issue: May Congress compel states to enact or administer a federal
regulatory program?
2. Rule of Law: Congress may not compel states to enact or administer a federal
regulatory program.
3. Facts
a. Congress gave three incentives/requirements for states to follow
regulations on radioactive waste
4. The court saw this as Congress telling the states how to legislate
a. Viewed it as an imposition on the state’s legislative authority
b. By requiring to pass a law which would then be viewed as a state law,
even though required by Congress, and the citizens of that state would
then blame the state legislature for that law if they didn’t like it

30
 5. 10th Amendment legislative immunity (?)
6. Congress cannot require the state to legislate in a particular way

Printz v. United States (1997) pp. 218-225

1. Federal government can’t make states enforce particular law because it hides
political accountability and encroaches upon state sovereignty
2. Issue: May Congress compel state officials to participate in the
administration of federal programs?
3. Rule of Law: Congress may not compel state officials to participate in the
administration of federal programs.
4. Speaks to the principle that Congress is limited in its ability to require state
executive officials to administer a federal regulatory program
5. The Court struck down a provision of the Brady Bill which required local law
enforcement officials to investigate prospective handgun purchasers.
6. Ct. in Printz applies same principal in New York
a. Federal govt can do it themselves
b. Fed govt can bribe states to do it
c. But fed govt can’t make states do it – it hides political accountability
and encroaches upon states sovereignty
7. What other separation of power issues did the ct. note here?
a. Is a vertical separation of power, but also is a horizontal detraction of
power by Congress from the President
i. Since it is the President whose job it is to enforce federal law
1. Congress has taken that power from the President and
placed it on local officials
8. Makes clear that if Congress wants to do it themselves they can and can
enforce it, but they can’t say the states must enforce it
9. 10th Amendment executive immunity

Other National Powers: Taxing, Spending, Treaties,

War-related, Foreign Affairs and Civil Rights (pp. 226-
51)
Article I, §8 of the Constitution, states that, “Congress shall have Power to lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the
common Defence and general Welfare of the United States; but all Duties, Imposts, and
Excises shall be uniform throughout the United States.”

Taxing Power
1. General rule: if you can regulate something, then you can tax that thing
2. Broad power of taxation for national purposes
a. Congress is given power to tax to provide for the common defense and
the general welfare. As such Congress has broad power to tax
3. Congress cannot tax in a way which would otherwise violate some
constitutional prohibition (e.g. a tax on newspapers alone)

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Bailey v. Drexel Furniture Co. (Child Labor Tax Case) (1922) pp. 227-
229
1. The Court struck down a federal law regulating movement of goods in
interstate commerce made in factories which used child labor
a. The court concluded that such legislation was a pretext for regulating
productive activity and argued that the only harm occurred in the
producing state, not the receiving state
2. Facts
a. Congress reacted to Hammer v. Dagenhart, the case that struck down
regulation of child labor using the commerce power, by enacting the
Child Labor Tax Law, which imposed on virtually ever employer of a
child under 14 years of age (and on certain employers of children
aged 14 to 16) a federal excise tax of 10 percent of the annual net
profits of the employer. Drexel Furniture paid the tax, then
successfully sued for a refund in the federal district court.
3. Prior to this case the doctrine was that Congress had great liberty to tax what
it wanted, even if it looked like a regulation

United States v. Kahriger (1953) pp. 229-230

1. The Court upheld a tax on bookies even though the statute’s primary
purpose was to regulate the activity, not to generate revenue
a. The tax does raise revenue, thus it’s presumptively valid
2. The question really is: can Congress use its tax power to regulate behavior
that is beyond its powers under the commerce clause
3. Dissent:
a. Court shuts its eye to the true nature of this tax which is an attempt to
regulate conduct in spite of lack of constitutional grant of powers of
congress.
b. This is pretext- trying to punish someone because Congress doesn’t
have the nerve to punish them themselves
c. Congress was trying to tax the bookies out of existence since they
didn’t have a federal law to prosecute the books and local law
enforcement wasn’t prosecuting

Spending Power
1. Prior to 1937, cases held that Congress could not spend for ends it could not
directly achieve. More recently that restriction has been abandoned
2. The General Welfare Clause is a limitation on the power to tax and spend,
not a separate source of Congressional power
3. The Court has held that Congress has broad power to spend funds to
advance the “general welfare” – so long as it does not violate another
constitutional provision
a. Congress is not limited to spending only to achieve the specific
powers granted in Article I of the Constitution

32
United States v. Butler (1936) pp. 232-235
1. Issue: Is the tax imposed on farmers by the Agricultural Adjustment Act a
constitutional exercise of Congress’s taxing and spending power?
2. Rule of Law: Congress may not use its taxing and spending powers to obtain
an unconstitutional result, such as invading the reserved rights of the states
under the Tenth Amendment.
a. Congress has broad power to tax and spend for the general welfare as
long as it does not violate other constitutional provisions
3. Facts
a. Concerned the constitutionality of the Agricultural Adjustment Act of
1933, which sought to stabilize production in agriculture by offering
subsidies to farmers to limit their crops. By restricting supply
Congress sought to ensure a fair price and thus to encourage
agricultural production
4. Example of Congress doing indirectly through the spending power what they
can’t do directly through the commerce power
5. We see the pretextual rule from McCulloch again here
a. “It is an established principle that the attainment of a prohibited end
may not be accomplished under the pretext of the exertion of powers
which are granted” – pg. 234
With the exception of Butler, the court was pretty lax on Congress using the
spending power to achieve what needed to be achieved (see two cases on pg. 236 –
both seemed in jeopardy because of the Butler case but the court still upheld them)

South Dakota v. Dole (1987) pp. 237-241

1. Issue: May Congress withhold federal funds to states that do not comply with
federally-imposed conditions?
2. Rule of Law: The receipt of federal funds may be conditional if the exercise of
the spending power is for the general welfare, the conditions are
unambiguous, the conditions are related to a federal interest in a particular
national project or program, and the conditions do not violate any other
constitutional provisions such as the Tenth Amendment.
3. The Court upheld a federal statute that reduced the amount of federal
highway funds distributed to states that allowed minors to purchase alcohol
(Congress used the funds as incentive for states to raise drinking age). The
Court held that Congress could attach conditions to spending grants subject
to the following requirements:
a. The expenditures had to be for the general welfare
b. Congress had to state conditions clearly
c. Conditions had to relate to the federal interest in the national
program or project
i. This is the major one at play in this case
d. Expenditures could not violate any independent constitutional
requirement
e. The condition cannot become compulsion or coercion
4. Dissent

33
 a. Not sufficient relatedness between the highway program and the
drinking age
b. It is “overinclusive and underinclusive”
i. Not all teens are drunk drivers and not all drunk drivers are
teens

Treaties, War-related, Foreign Affairs and Civil Rights

1. Treaty powers and foreign affairs powers, trumps and replaces competing
local rules and regulations
2. Treaties
a. Can be made by the President if 2/3 of the Senators present concur
b. If there is a conflict between a treaty and a federal statute, the one
adopted last in time controls
c. Treaties cannot violate the Constitution
3. Executive Agreements
a. Congressional approval is not required for executive agreements

Missouri v. Holland (1920) pp. 243-244

1. Suggested that the President and Senate could achieve ends through treaty,
which were beyond the constitutional power of Congress. It seems unlikely
the Court would adhere to this result today
2. The Court rejected the claim that state sovereignty and the 10 th Amendment
limit the scope of the treaty power
3. The Court upheld the constitutionality of a treaty between the US and
England protecting migratory birds
4. Facts
a. Missouri think the treaty violates the 10th Amendment
b. Objects because it views it as local

Woods v. Cloyd W. Miller Co. (1948) pp. 246-247

1. Case was about the power to regulate in aid of war-making
2. The war power allowed a ton of regulations of local matters to help mobilize,
and these powers weren’t really questioned

Healthcare Cases
Thomas More v. Obama (online) – upheld healthcare law
1. Plaintiffs here believe that making you purchase insurance, and fining you if
you don’t, is not a proper exercise of the commerce clause
2. Reasoning
a. The economic decisions that the Act regulates as to how to pay for
health care services have direct and substantial impact on the
interstate health care market
b. Court cites to Wickard and Gonzales, shows that Congress can take
account of some local activity, even if not economic, if in the
aggregate will have some substantial effect on interstate commerce

34
 c. “The SC has consistently rejected claims that individuals who choose
not to engage in commerce thereby place themselves beyond the
reach of the Commerce Clause”
3. Distinguished from Lopez and Morrison
a. Those were regulating non-commercial activities, whereas this is
purely commercial

Commonwealth of Virginia v. Kathleen Sebelius (online) – healthcare

law is unconstitutional
1. Court’s reasoning
a. In Wickard and Gonzales it was voluntary activity, whereas here it was
involuntary placement in the stream of commerce

FEDERAL LIMITS ON STATE REGULATION OF

INTERSTATE COMMERCE
Limits on State and Local Governments
1. Limited by the Constitution’s protections of individual rights
2. Also, the Constitution explicitly identifies a few instances where states may
not act. Article I, §10: “No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of
Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;
… or grant any Title of Nobility”
3. Where Congress has not acted
a. Even though there is no preemption, state and local laws can be
challenged under two principles:
i. The Dormant Commerce Clause (DCC)
ii. The Privileges and Immunities Clause (PIC)

The Dormant Commerce Clause (DCC)

1. DCC: is the principle that state and local laws are unconstitutional if
they place an undue burden on interstate commerce
a. Even in situations where Congress has not acted and its commerce
power lies dormant
2. Under the CC Congress can always preempt state or local regulation of
commerce. Therefore, Congress can invalidate any state or local law that it
deems to place an undue burden on interstate commerce. The crucial issue
with regard to the DCC is whether the judiciary, in the absence of
Congressional action, should invalidate state and local laws because they
place an undue burden on interstate commerce
3. It is not in the Constitution
a. It simply refers to a body of constitutional jurisprudence which sets
parameters for state regulation when Congress has not regulated an
area within the Commerce power

35
4. Justifications for the DCC:
a. Historical argument: framers intended to prevent state laws that
interfered with interstate commerce
b. Economic justification: the economy is better off if state and local laws
impeding interstate commerce are invalidated
c. Political justification: states and their citizens should not be harmed
by laws in other states where they lack political representation
i. In McCulloch – SC invalidated MD’s tax on the US Bank because
it was a tax that would ultimately be borne by those in other
states without representation in MD
5. Arguments against the DCC:
a. It is not in the Constitution like the PIC
b. Constitution gives Congress power to regulate commerce, so Congress
can invalidate state laws that unduly burden interstate commerce
i. Supporters of the DCC say this would be too much work for
Congress to do
6. The DCC does not apply when Congress authorizes state action which would
otherwise be invalid under the strict scrutiny or Pike balancing tests. The CC
is primarily a grant of power to Congress to regulate commerce. The DCC
reflects an inference that as long as Congress is silent it will only allow states
to regulate consistent with those two tests. But Congress may rebut that
inference by authorizing the states to regulate in a manner that would
otherwise be forbidden.
7. The DCC responds in part to concern that state legislatures will favor their
instate constituents over out-of-staters
8. The loser of a dormant commerce clause case has recourse to Congress
a. Thus, whenever the Court decides any dormant commerce clause case
it is essentially deciding who – the state or the regulated person – will
bear the burden of seeking congressional alteration of the Court’s
decision
i. Congressional action may not be easy, so the Court’s decision
as to which party bears the burden is important
b. If the court decides a state regulation violates the DCC, the burden
falls on the state to obtain explicit congressional consent to regulate,
but if it rules that a regulation is valid, the burden falls on the
regulated entity to obtain congressional legislation that will preempt
the state regulation
9. PG. 15 OF THE SUPPLEMENT LOOKS LIKE AN EXAM QUESTION ON THE
DORMANT COMMERCE CLAUSE
a. This is an exam question masquerading as a case
b. Good example of court applying various doctrines we’ve looked at

36
Development of the Doctrine (pp. 253-60)
Cooley v. Board of Wardens (1851) pp. 256-258
1. Cooley held that states could not regulate matters needing a uniform national
approach but could regulate local matters
a. Upheld a PA statute requiring vessels to use a local pilot.
b. Cooley took an intermediate course between those who argued that
the Commerce Clause precluded any state action within its bounds
and those who argued that absent congressional action, states could
regulate without restraint within areas covered by the Commerce
power.
2. The Cooley test: distinction between subject matter that is national, in
which event states laws are invalidated under the DCC, and subject matter
that is local, in which event state laws are allowed
3. Court’s reasoning
a. Regulating pilots was a local matter because of differences among
ports and also because a federal law adopted in 1789 expressly
allowed states to regulate piloting
4. It is an indirect effect, says the court, even though it’s a burden on out-of-
state pilots
a. Pg. 258-259 – direct and indirect
5. Facial discrimination here
6. Problems with Cooley test
a. It allows state regulations, no matter how protectionist or how much
it interferes with interstate commerce, so long as the subject matter is
deemed local
b. There is no clear distinction between what is national, demanding
local regulation, and what is local, requiring diverse regulation

Modern DCC Doctrine

1. Modern DCC doctrine proceeds along two tracks:
a. If a state regulation openly discriminates against interstate
commerce, the regulation is presumed to be invalid
i. The regulation is valid only if the state can prove that it
furthers a legitimate state interest that cannot be achieved by
any less discriminatory means
b. If a state regulation is nondiscriminatory and has only incidental
effects on interstate commerce, it is presumed valid
i. The regulation is void only if the challenger can prove that the
burden imposed on interstate commerce that outweighs the
benefits of the law
2. Whether the benefits of the state law outweigh its burdens on interstate
commerce
a. By definition, such a balancing test gives courts enormous discretion
because it is attempting to weigh and compare two completely

37
 different things: burdens on interstate commerce and the benefits to a
state or local government
3. In applying the balancing test, courts are essentially making Cooley’s
“national” versus “local” distinction. They are asking, more or less, “Does
this state regulation so interfere with the national interest in maintaining a
free flow of interstate commerce that the local benefits of the regulation are
comparatively slight?”
4. Scalia argued that the courts should leave to Congress the “essentially
legislative judgments” of weighing “the governmental interests of a state
against the needs of interstate commerce”
5. Usually states don’t articulate a protectionist purpose on the face of a statute
(facial discrimination) or in legislative history. Where, however, a state
cannot point to a legislative state purpose for the statute or cannot show the
absence of a nondiscriminatory alternative way to achieve its purpose, the
Court infers that the true purpose was protectionist
6. Two exceptions – where laws that otherwise would violate the DCC will be
allowed:
a. Congressional approval
b. The Market Participant Exception

Discrimination against Interstate Commerce (pp. 260-70)

1. Strict scrutiny if facial discrimination
a. They are presumed invalid and are upheld only if the state can prove
that they serve a legitimate purpose that cannot be achieved in any
less discriminatory way
b. Strict scrutiny is applied where the state seeks simply to protect the
economic interests of its citizens at the expense of outsiders. When
the court detects such economic protectionism, the state statute is
deemed per se invalid

Philadelphia v. New Jersey (1978) pp. 261-264

1. A barrier at the board to interstate garbage is an improper means under the
DCC – this is almost a per se violation of the DCC
2. Facts
a. NJ law that kept landfills in the state exclusively for NJ’s use by
preventing the importation of any wastes from out of state
3. NJ’s argument for preventing out-of-state garbage from coming in
a. Law was designed to protect the state’s environment and not its
economy and that its substantial benefits outweigh its slight burden
on interstate commerce
4. Court held that the law violated the principle of nondiscrimination
a. “Whatever NJ’s ultimate purpose, it may not be accomplished by
discriminating against articles of commerce coming form outside the
state unless there is some reason, apart from their origin, to treat
them differently”

38
 5. Here, the court expansively declared that, “all objects of interstate trade
merit CC protection”

Maine v. Taylor pp. 264

1. This is somewhat of an exception. Here, the court upheld Maine’s absolute
ban on the importation of bait fish
a. The court upheld the law because it concluded that there was no less
discriminatory way to prevent these threats and protect Maine’s
fragile fisheries
i. No satisfactory way to inspect shipments of live baitfish for
parasites or commingled species that do not exist in Maine
2. Maine’s ban on the importation of live baitfish serves legitimate local
purposes that could not adequately be served by available nondiscriminatory
alternatives

Neutral Burdens on Interstate Commerce (pp. 270-83)

1. This is where it doesn’t look like an effort to discriminate against interstate
commerce – non-facially discriminatory
a. If the state statute does not discriminate against commerce on its face,
it is measured against a more lenient balancing test
2. The court balances the law’s burdens on interstate commerce against its
benefits. The law will be found unconstitutional if the court decides that the
burdens from the law exceed its benefits
a. Elaborated in the Pike v. Bruch Church (1970) balancing test: “Where
the statute regulates even-handedly to effectuate a legitimate local
public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local
benefits”
3. The inquiry is very much fact dependent
a. The test has been criticized for being unpredictable and arbitrary

Southern Pacific Co. v. Arizona (1945) pp. 271-273

1. Issue: Whether the Arizona law restricting the length of trains passing
through its borders was an unconstitutional limitation on interstate
commerce.
2. Rule of Law: In the absence of congressional legislation, when a state law
purports to place equal burdens on interstate and intrastate commerce, but
the practical effect of the state’s regulation places a greater burden on
interstate economic interests, the judiciary may balance the relative burden
on the interests and strike down the state law.
3. The Court expressly articulated a balancing test when it said: “Hence the
matters for ultimate determination here are the nature and extent of the
burden which the state regulation of interstate trains, adopted as a safety
measure, imposes on interstate commerce, and whether the relative weights

39
 of the state and national interests involved are such [as to make the law
permissible]”
4. The Court declared unconstitutional a state law that limited train lengths to
14 passenger or 70 freight cars
a. The Court decided that the burdens on interstate transportation were
greater than the safety benefit to the state from its law
b. Enforcement of the law in Arizona will result in impairment of
efficient railroad operation because the railroads are subjected to
regulation which is not uniform in its application
5. Case is best understood as reflecting the Court’s conclusion that the Arizona
law put a substantial burden on commerce, but did little to enhance safety

Kassel v. Consolidated Freightways Corp. (1981) pp. 273-280

1. Discusses different approaches to dealing with cases where there is a neutral
burden on interstate commerce
2. The Court declared unconstitutional an Iowa law banning 65-foot double
trailers
3. Reasoning
a. The Court weighed the “asserted safety purpose against the degree of
interference with interstate commerce”
b. The state failed to present persuasive evidence that 65-foot doubles
are less safe than 55-foot singles
c. The law substantially burdens interstate commerce by forcing these
trucks to avoid Iowa or to detach the trailers and ship them

Facially Neutral Regulations with Discriminatory Effects

(pp. 284-300)
1. Sometimes courts will use strict scrutiny, other times they will use a
balancing test – it’s not always clear which will be used
a. Strict Scrutiny
i. When the discriminatory effect is particularly severe
ii. When the discriminatory effect is combined with some
evidence of a discriminatory purpose
iii. Such laws would be presumed void, and the burden would be
on the state to prove that there was no less discriminatory
alternative that would accomplish the state’s legitimate
objective
b. But discriminatory effects are so burdensome to commerce that they
always “grossly outweigh” local benefits unless the benefits are only
achievable with the discriminatory effect (apart from which party
bears the burden of proof, is this any different from strict scrutiny?)

Dean Milk Co. v. Madison (1951) pp. 284-286

1. Facially neutral

40
 2. Issue: Is a statute unconstitutional if it places an excessive burden on
interstate commerce?
3. Rule of Law: A state statute that discriminates against interstate commerce
will be held invalid if there are other less-discriminatory means by which the
state legislature can accomplish its objective.
4. Facts
a. The Court considered a city’s ordinance that required that all milk
sold in the city had to be pasteurized within five miles of the city. The
law prevented milk that was pasteurized in other states from being
sold in the city, but it also precluded milk that was pasteurized in
other parts of that state from being sold in the city.
5. The Court concluded that the law was discriminatory against out-of-staters.
a. The city erected an economic barrier protecting the major local
industry against competition from without the State – plainly
discriminating against interstate commerce
b. The Court said it was irrelevant that the law also discriminated
against in-staters

Hunt v. Washington State Apple Advertising Commission (1977) pp. 287-289

1. Issue: Whether the North Carolina statute violates the Commerce Clause
even though it does not facially discriminate against interstate commerce.
2. Rule of Law: A facially neutral statute still violates the Commerce Clause if it
discriminates against interstate commerce in practice.
3. The Court found discrimination based on the disparate impact of a law
against out-of-staters
4. Facts
a. NC law required all closed containers of apples sold or shipped into
the state bear a particular sticker reading: “no grade other than the
applicable U.S. grade or standard”
b. Facially neutral in that all applies sold in state – whether produced in
state or out of state – had to comply
5. Court invalidated
a. Discriminatory because of its effect on the sale of Washington apples
i. Washington had a system for grading apples that was different
from and more stringent than the federal standard
ii. NC’s statute strips Washington apple industry from the
competitive and economic advantages it has earned for itself
through its expensive inspection and grading system
iii. By prohibiting Washington growers from marketing apples
under their State’s grades, the statute has a leveling effect
which insidiously operates to the advantage of local apple
producers
6. Speaks to the standard that: a law is likely to be found discriminatory if it
imposes costs on out-of-staters that in-staters would not have to bear

41
Exxon Corp v. Governor of Maryland (1978) pp. 289-291
1. Issue: Whether the Maryland statute violates the Commerce Clause because
it discriminates against interstate commerce.
2. Rule of Law: A facially neutral statute may be held valid even if, in practical
effect, it has a disparate impact on some interstate business.
3. Facts
a. MD law prohibited a producer or refiner of petroleum products from
operating a retail service station within the state
b. Since virtually all petroleum products sold in MD were produced and
refined out of state, the law meant that these out-of-state oil
companies could not own service stations in MD – greatly benefiting
local businesses
4. The Court found the state law was not discriminatory even though it greatly
harmed out-of-state oil companies and favored local businesses
5. Court’s reasoning
a. The act creates no barriers against interstate independent dealers
b. Does not prohibit the flow of interstate goods, place added costs upon
them, or distinguish between in-state and out-of-state companies in
the retail market
c. The absence of these factors fully distinguishes this case from those in
which a State has been found to have discriminated against interstate
commerce
6. Case speaks to the standard that: a law is likely to be discriminatory if its
effect is to exclude virtually all out-of-staters from a particular state market,
but not if it only excludes one group of out-of-staters
a. Only out-of-state petroleum producers and refiners were kept from
operating in the state; other out-of-staters could own service stations
in the state
7. Hunt v. Washington State Apple and Exxon Corp
a. Hunt – disparate impact against out-of-staters was sufficient for
finding a law discriminatory
b. Exxon – proof of discriminatory impact, even with evidence of a
protectionist purpose, was insufficient for the Court to deem the law
discriminatory
c. Reconciling the two
i. They don’t disagree as to the legal standard: All of the cases
indicate that proof of discriminatory impact is sufficient for a
facially neutral law to be deemed discriminatory
ii. The cases turn not on differences about the rule but on the
Court’s appraisal of the particular facts and its assessment of
whether there was discrimination

H.P. Hood & Sons v. DuMond (1949) pp. 291-294

1. Issue: Whether, in the absence of congressional action, the Court may
invalidate New York state laws that deny additional facilities to acquire and

42
 ship milk in interstate commerce on the grounds that those state laws unduly
burden interstate commerce.
2. Rule of Law: Under its dormant Commerce Clause powers, the judiciary, in
the absence of congressional action, may invalidate state and local laws that
place an undue burden on interstate commerce.
3. The Court here said the central purpose of the DCC is to prevent protectionist
legislation
4. Facts
a. New York law that prevented a company from constructing an
additional depot for receiving milk
b. The effect of the law was to keep more milk for in-staters at the
expense of those in Massachusets
5. The Court declared the law unconstitutional as violating the DCC because
there was not a permissible nonprotectionist purpose for it

Family Winemakers of California v. Jenkins (2010 Supplement, pp. 15-

22)
West Lynn Creamery, Inc. v. Healy (1994) pp. 295-298
1. Issue: Whether a pricing order that imposes a tax on all fluid milk sold to
Massachusetts retailers and distributes the entire revenue from the tax to
Massachusetts’s dairy farmers unconstitutionally discriminates against
interstate commerce.
2. Rule of Law: A regulation violates the Commerce Clause if the combination of
a tax and subsidy discriminates against interstate commerce, even if each
component would be constitutional if separated.

States as “Market Participant” Exception (pp. 300-08)

1. Market participant exception: provides that a state may favor its own
citizens in dealing with government-owned business and in receiving
benefits from government programs
a. In other words, if the state is literally a participant in the market, such
as with a state owned business, and not a regulator, the DCC does not
apply
2. Market participant exception (MPE)
a. Is an exception to the dormant market clause
b. When the state acts as a market participant, i.e. a buyer or seller of
goods or services, rather than as a market regulator, the DCC does not
apply
i. In other words, the state, as a market participant, may choose
to favor its own citizens (DCC doesn’t apply)
3. While it may not violate the DCC, might still violate PIC or EPC

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South-Central Timber Development, Inc. v. Wunnicke (1984) pp. 300-
305
1. Rule: state businesses may favor in-state purchasers, but they may not attach
conditions to a sale that discriminate against interstate commerce
a. This is a limit on the scope of the MPE
2. Where the government is involved in the market, rules which favor in-state
people seem to be immune from invalidation
a. But, the state can only favor its own citizens in the market in which it
participates
3. Case
a. The Court struck down an Alaska law that required all who bought
timber from the state to also process it in state.
i. Alaska could favor its own in selling the timber, but could not
impose regulations which discriminated in favor of its own
citizens regarding conduct in a downstream market
b. Thus, the Court drew a distinction between the ability of a state to
prefer its own citizens in the initial disposition of goods when it is a
market participant and a state’s attachment of restrictions on
dispositions subsequent to the goods coming to rest in private hands
4. The court here said that the way it was chosen will not be allowed by the DCC
and will not fit within the MPE
a. Big issue was whether the MPE applied – since it doesn’t then it’s a
traditional dormant commerce clause case

The Privileges and Immunities Clause of Article IV (pp.

308-17)
1. Privileges and Immunities Clause (PIC): “The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the several States” –
Article IV
a. The Clause basically precludes a state from treating out-of-staters
worse than instaters with respect to privileges and immunities
2. PIC: interpreted by the SC as limiting the ability of states to discriminate
against out-of-staters with regard to constitutional rights or important
economic activities
a. Almost all of the recent SC cases applying PIC have involved
challenges to state and local laws that discriminate against out-of-
staters with regard to their ability to earn a livelihood
3. If no economic discrimination nor discrimination with regard to
constitutional rights, then there is not a violation of the PIC
4. Laws that discriminate against out-of-staters can be challenged under the
EPC of the 14th Amendment or the DCC as well
5. PIC: activities which are “sufficiently basic to the livelihood of the nation” –
primarily is to protect constitutional rights and economic activities
a. Protection by the government

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 b. Enjoyment of life and liberty
c. Right to acquire and possess property
d. Right to pursue happiness and safety
e. Right to earn a livelihood (majority of the cases under the PIC)
i. Violation of PIC if state excludes out-of-staters from practicing
a trade or profession, or charges a discriminatory license fee,
or mandates that a preference be given to in-staters for
employment
f. Right to police and fire protection when out of state
g. Right to medical care
h. Right to engage in political speech and religious worship
6. A state may only discriminate against out-of-staters regarding a Privilege and
Immunity if it has a substantial reason for the difference in treatment and if
discrimination against nonresidents bears a substantial relationship to the
state’s objectives
7. Is like a second-cousin to the DCC and EPC
8. PIC and EPC
a. Generally, there is no need to use the PIC to protect constitutionally
guaranteed rights
b. Example:
i. If a state were to prevent out-of-staters from engaging in
religious worship, a challenge certainly could be brought under
the PIC.
ii. But in reality the suit would be brought under the 1st
Amendment as applied to the states through the 14th
Amendment
9. The PIC resembles the DCC (both used to challenge state and local laws that
discriminate against out-of-staters), but there are some important
differences:
a. The PIC only applies to individual citizens, not to corporations
b. The PIC only addresses discriminatory measures
i. It does not have a test parallel to the Pike balancing test
c. PIC only protects privileges and immunities
d. The Market Participant Exception does not apply to the PIC
e. Congressional approval does not excuse a law that violates the PIC
10. 5 important distinctions that mark the differences between the coverage,
doctrines and test between the PIC and the DCC – (bottom of pg. 308)
a. One big one is that corporations aren’t considered to be citizens for
purposes of the PIC but may bring commerce clause challenges
11.Two basic questions when a challenge is brought under the PIC:
a. Has the state discriminated against out-of-staters with regards to
privileges and immunities that it accords its own citizens?
i. Consider the meaning of privileges and immunities
b. If there is such discrimination, is there a sufficient justification for the
discrimination?

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 i. PIC is not absolute, but strong protection with regard to
fundamental rights and important economic activities
12. A state may discriminate against out-of-staters with regard to PIC only
if the discrimination is “substantially related” to a “substantial state
interest”
a. Thus far, the Court has not found that any law meets this rigorous test

United Building & Construction Trades Council v. City of Camden

(1984) pp. 309-314
1. Primarily a PIC case
2. Facts
a. Camden enacted law requiring at least 40% of all employees of
contractors on city construction jobs must be Camden residents
i. Similar to White v. Mass – an MPE case
1. This case is different from White because the basic issue
is one of the PIC
3. Camden’s argument
a. Redress the extreme economic depression of Camden
b. Made a facial argument as to why the PIC doesn’t apply
i. Camden is a city not a state – arguing the PIC only protects
against state discrimination based on state citizenship
4. Court’s reasoning
a. In all states the cities are creatures of the state and in this case the city
was authorized by the state to do it
b. If you live in Camden, then you have to be a citizen of NJ, so it’s still
discriminatory
c. “The right to a common calling (ordinary occupation) is one of the
most fundamental of those privileges protected by the PIC”
5. Rules from this case
a. PIC applies to local as well as state-wide discrimination
b. PIC protects the right to work in a private setting
c. The contrary decision in the White case was based on the CC/MPE and
this doesn’t trump the horizontal bar in the PIC
6. The court remanded it to the lower court to determine whether there is a
substantial reason for the state to discriminate against outsiders

Federal Preemption and Consent: Congress has the

final word (pp. 317-30)
1. Preemption is not limited to the exercise of the commerce power
2. Because of the supremacy clause, if there is a conflict between federal law
and state or local law, the latter is deemed preempted
3. Courts must decide what is preempted, and this inevitably is an inquiry into
congressional intent – statutory interpretation
a. The problem is that Congress’s intent is frequently unclear
4. Express preemption

46
 a. Where Congress says the following types of state laws are preempted
b. In some way Congress tells states to get out, they are in charge
5. Implied preemption – implied by a clear congressional intent to preempt
state or local law
a. Question of statutory interpretation
b. Has two sub-parts
i. Field preemption: Congress wants to regulate the entire field
– they don’t want hindrance or help from state or locals – they
are saying it’s just their turf
ii. Conflict preemption: occurs in one of two ways and is less
sweeping
1. When compliance with both state and federal law is
literally impossible
2. When a state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress
6. Who are the biggest pushers of preemption? – Businesses, because its easiest
to control one legislature than 50
7. Difficulty with preemption is in deciding whether a particular state or local
law is preempted by a specific federal statute or regulation

Gade v. National Solid Wastes Management Association (1992) pp. 319-

325
1. Good example of an exercise of what’s preempted and what is not
2. Ultimate conclusion here is preemption
3. Issue: whether the federal Occupational Safety and Health Act of 1970, and
federal regulations promulgated pursuant to it, preempted an Illinois law
that protected the health and safety of workers who handled hazardous
waste
a. Both the federal and state regulations required training of hazardous
waste operators, an exam, refresher courses, and fines for violations
4. Holding:
a. Court found the Illinois law preempted by state law
i. Even though they both were virtually the same
5. Reasoning:
a. Congress created a system where states could have their regulations
approved by the federal Occupational Safety and Health
Administration and then their regulations would replace federal law.
b. This evidenced a desire by Congress that there be only one set, either
federal or state, of occupational safety and health standards
6. In Gade the Court summarized the tests for preemption
a. “Preemption may be either express or implied, and is compelled
whether Congress’ command is explicitly stated in the statute’s
language or implicitly contained in its structure and purpose”
i. Then discusses the two types of implied preemption

47
 7. “Under the Supremacy Clause, from which our pre-emption doctrine is
derived, ‘any state law, however clearly within a State’s acknowledged
power, which interferes with or is contrary to federal law, must yield’”

Wyeth v. Levine pp. 22 (Supplement)

1. Good example of the court pendulum swinging away from the presumption
for preemption and against preemption
2. Facts
a. Woman sues drug company for failure to issue warning
b. Government argues that failure to warn was preempted because the
FDA said it’s a kosher label – says the state can’t come along with a
state law that has a higher standard for the company
3. Court says not preempted because no conflict between state and federal law

PART III: SEPARATION OF POWERS

SEPARATION OF POWERS
Introduction (pp. 333-34)
1. Horizontal – focus is on which government can do it
a. “Judicial Power” and “National Legislative Power” were horizontal,
“State Regulation” was vertical
2. Reasons for separation of powers
a. Protect the individual rights
i. Makes it hard for government power to aggregate in one place
and then be used against the people
b. Provides checks and balances
3. Grandisement: concern once branch has pulled too much power towards
itself – a power grab
4. Encroachment: this is a power poaching instead of a power grab

Executive Action
1. Executive Power – Art. II: “The executive power shall be vested in a President
of the United States…”
a. Some construe Presidential power broadly, others argue for a
narrower definition
i. The debate turns to some extent on whether the vesting clause
in Article II is seen as conferring powers or as simply
conferring a title on the person who possesses the powers set
forth elsewhere in Article II
b. Unenumerated authority (broad power): Since Article II does not
limit the president to powers “herein granted,” (like it does for

48
 Congress) it is argued that the president has authority not specifically
delineated in the Constitution
c. Enumerated authority (limited): The other argument is that the
president has no powers that are not enumerated in Article II and,
indeed, such unenumerated authority would be inconsistent with a
Constitution creating a government of limited authority
2. Typically president can do what he wants unless the Constitution or
Congress has said to do otherwise
3. Question of executive power
a. What is the extent of it?
b. When can Congress limit it?
c. When does the Court limit it or when does it let Congress limit it?

Executive Action: Domestic Affairs (pp. 335-55)

Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case) (1952)
pp. 335-345
1. President “seized” major steel mills in the US, turned to Sec. of Commerce to
implement this
a. Seized them because employees were planning a strike during the
middle of war
2. Question was does the President have the power to do this without explicit
permission from Congress
3. Issue: Whether the President of the United States is acting within his
constitutional executive powers when issuing a lawmaking order directing
the Secretary of Commerce to take possession of and operate most of the
nation’s steel mills.
4. Rule of Law: The President of the United States may not engage in lawmaking
activity absent an express authorization from Congress or the text of the
Constitution.
5. SC declared the seizure of the steel mills unconstitutional by a 6 to 3 margin
a. 7 different opinions
6. Justice Black wrote opinion (5 concurrences) – not all members of majority
shared same opinion
a. Reasoned that Truman was engaged in lawmaking rather than law
enforcing and accordingly had overstepped the bounds of his office
7. Dissent
a. Argued for a broad Presidential power to exercise emergency powers
8. Jackson’s Concurrence – considered most significant opinion in the case
a. Separated three circumstances:
i. (1) When the President acts with congressional support
1. President’s powers are greatest here
ii. (2) When he acts against congressional silence
iii. (3) When he acts at odds with Congress
1. Weakest here

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 b. Since Congress didn’t authorize this action, Jackson viewed the steel
seizure as falling in the last category and accordingly representing a
weak exercise of Presidential power
9. Four different approaches to the question of when President may act without
express constitutional or statutory authority are identified in the case:
a. There is no inherent presidential power – may act only if there is
express constitutional or statutory authority
b. The president has inherent authority unless the president interferes
with the functioning of another branch of the government or usurps
the powers of another branch
i. This approach allows the courts to invalidate presidential
actions that interfere with the other branches of government
c. The president may exercise powers not mentioned in the Constitution
so long as the president does not violate a statute of the Constitution
i. This approach sees it as Congress’s responsibility to act to stop
presidential infringements
d. The president has inherent powers that may not be restricted by
Congress and may act unless the Constitution is violated
i. Broadest authority under this approach
10. All four of these approaches have support in Youngstown and some support
in other cases
a. No SC case definitively makes one of these approaches correct and the
others wrong

NOTES MISSING FROM 4/16 CLASS – THIS WAS THE PILC FAIR pg.
345-373
Morrison v. Olson (1988) pp. 346-349, 351-354
1. Issue: Whether Morrison is a principal officer of the federal government such
that her appointment and removal by an entity other than the President
constitutes a violation of executive powers under the Constitution.
2. Rule of Law: The Constitution grants sole authority to the President to
appoint and remove principal officers of the federal government, but permits
appointment and removal of inferior officers—defined as such by their more
limited executive functions—by the President, heads of departments, or the
judiciary.
3. No constitutional provision addresses the removal power

Executive Action: Foreign Affairs (pp. 355-83)

1. The foreign affairs power is divided between the President and Congress but
in practice the President has exercise the dominant role
2. The President’s power to receive and dispatch ambassadors implicitly
suggests a power to recognize foreign governments
a. This has been used to justify the idea that the President rightly speaks
for the U.S. in foreign policy

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 3. Executive Agreements
a. Executive agreements with other countries have largely replaced
treaties as the method of entering into agreements with other
countries. With or without legislative sanction, they are binding
international agreements

U.S. v. Curtis-Wright Export Corp. (1936) pp. 356-358

1. Issue: Whether an otherwise unconstitutional delegation of legislative power
to the executive may nevertheless be sustained on the ground that its
exclusive goal is to provide relief in a foreign conflict.
2. Whether: An otherwise unconstitutional delegation of legislative power to
the executive may nevertheless be sustained on the ground that its exclusive
goal is to provide relief in a foreign conflict.
3. This case stands for the idea that the President can exercise broad power in
foreign affairs and is often relied upon by Presidents to support claims to
sweeping executive power in foreign policy. This interpretation rests largely
on dicta in Justice Sutherland’s opinion. In fact, Congress had authorized the
action President Roosevelt had taken
4. This case is to be contrasted against the Steel Seizure case where the
President’s domestic actions during war were limited

Dames & Moore v. Regan (1981) pp. 359-363

1. Issue: May the President settle the claims of United States citizens against a
foreign government through an executive order?
2. Rule of Law: The President has authority to settle claims through executive
orders where the settlement of claims is necessary for the resolution of a
major policy dispute between the United States and another country and
where Congress acquiesces to the President’s action.
3. This case upheld the executive agreements resolving the Iran hostage
situation which suspended American claims pending in American courts and
required that they be presented to an Iran-United States Claims Tribunal
a. Showed that domestically the President’s agreements with other
countries are binding

The Prize Cases (1983) pp. 363-364

The War Powers Resolution pp. 365-366
1. The War Powers Resolution sought to regulate exercise of the President’s
power to commit troops to battle by limiting the President’s ability to
commit troops for more than 60 days without congressional authorization
and by introducing some features designed to promote accountability
a. Others claim that the measure was unconstitutional in abdicating to
the President Congress’ power to declare war

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Ex parte Quirin (1942) pp. 370
Rasul v. Bush (2004) pp. 370
1. In Rasul v. Bush (2004), the Court held that statutory claims of habeas corpus
jurisdiction extend to foreign nationals imprisoned by the United States at
Guantanamo Bay. Later, Congress eliminated the statutory right to bring a
writ of habeas corpus.

Johnson v. Eisentrager (1950) pp. 370

2. The Court denied the writ to enemy aliens captured outside U.S. territory,
who were tried and convicted by a military tribunal for offenses committed
outside the United States and who were at all times imprisoned outside the
United States. In light of Eisentrager, three factors are relevant in
determining the scope of the Suspension Clause with respect to detainees:
(1) the citizenship and status of the detainee and the adequacy of the process
that deter- mines the status; (2) the nature of the sites where apprehension
and then detention took place; and (3) the practical obstacles inherent in
resolving the prisoner’s entitlement to the writ.

Hamdi v. Rumsfeld (2004) pp. 372

1. Rule of Law: United States citizens held in the United States as enemy
combatants must be given a meaningful opportunity to contest the factual
basis for that detention before a neutral decision-maker.

Hamdan v. Rumsfeld (2006) pp. 373-377

1. Executive agreements – executive branch creating treatises with other
countries without getting authorization from Congress
a. Seeing these happen more
b. They can get replaced by more formal treatises

Legislative Action and the Administrative State:

General Themes (pp. 383-97)
1. Veto power
a. Most significant legislative power the President possesses
b. President cannot veto only part of a bill – Clinton
2. Appointing Power
a. The Constitution empowers the President to appoint federal officers
with the Senate’s advice and consent.
i. Congress can create offices and define their qualifications but
cannot appoint person to hold offices
b. Congress can vest the appointment of “inferior officers” in the
President, the courts of law or heads of department. Whether
someone is an inferior officer may turn on whether he/she is subject
to removal or supervision by a superior, or the nature of his/her
duties, jurisdiction and tenure.

52
 c. The Constitution allows at least some interbranch appointments. –
Morrison v. Olson
3. Removal
a. Not expressly in Constitution, but is an inherent executive power
b. More recently, the Court has held that although Congress cannot claim
for itself power to remove an officer charged with executing the laws,
it can restrict the President’s power to remove that officer at least so
long as the restriction does not compromise the President’s ability to
fulfill the constitutional duties of the office.

Mistretta v. United States (1989) pp. 383-392

1. Facts
a. US Sentencing Commission – has been placed in the judicial branch
i. An “independent commission” within the judicial branch
1. So then why “independent”?
ii. Judges couldn’t agree on the sentences for most crimes so they
set up this commission that created sentencing guidelines
which federal judges would then have to follow
2. Grandisement argument
a. The judicial branch was given too much power by Congress
3. Encroachment
a. Limiting the judge’s ability to do their job
4. Holding: it is OK for Congress to delegate legislative power (sentencing
guidelines) to the executive/judicial branch

Morrison v. Olson (1988) pp. 392-397

1. Issue: Whether Morrison is a principal officer of the federal government such
that her appointment and removal by an entity other than the President
constitutes a violation of executive powers under the Constitution.
2. Rule of Law: The Constitution grants sole authority to the President to
appoint and remove principal officers of the federal government, but permits
appointment and removal of inferior officers—defined as such by their more
limited executive functions—by the President, heads of departments, or the
judiciary.
3. More recently, the Court has held that although Congress cannot claim for
itself power to remove an officer charged with executing the laws, it can
restrict the President’s power to remove that officer at least so long as the
restriction does not compromise the President’s ability to fulfill the
constitutional duties of the office.

Specific Limitations (pp. 397-413)

4. Legislative veto
a. The Court previously held unconstitutional the legislative veto feature
which Congress has incorporated in numerous pieces of legislation
which allows one or both houses to delegate power to the executive

53
 branch while retaining some control over executive action – INS v.
Chadha
5. Line-item Veto
a. Clinton v. City of New York
6. Impeachment
a. The President, as well as the Vice President and other civil officers of
the United States can be impeached and removed for treason, bribery
and other high crimes and misdemeanors.
i. Can be impeached but not removed
7. Separation of Powers
a. At times the Court has used a formalistic approach which envisions
the functions of the federal government as being strictly divided
between the three institutions of the federal government. At other
times, the Court has adopted a more functionalistic approach which
allows adjustments so long as they do not involve a usurpation by one
branch of the powers assigned to another, so long as no one branch
aggrandizes its powers at the expense of another, and so long as the
ability of a branch to discharge its functions is not compromised.

Immigration and Naturalization Service v. Chadha (1983) pp. 399-406

1. Legislative veto
a. The court found it to be unconstitutional
2. Issue: Whether §244(c)(2) of the Immigration and Nationality Act, which
permits one house of Congress to unilaterally override an executive action, is
constitutional.
3. Rule of Law: Legislation providing Congress with a veto over an action of the
executive branch does not meet the constitutional requirements of
presentment and bicameralism.

President Clinton v. City of New York (1998) pp. 407-413

1. Issue: Whether the President’s vetoing action under the Line Item Veto Act is
a constitutional exercise of executive power
2. Rule of Law: The Constitution does not permit the president to repeal or
amend laws without the approval of both houses of Congress.
3. The President cannot veto only part of a bill. Accordingly, the court ruled the
Line Item Veto Act unconstitutional in this case. Congress can overturn such
a veto by a majority vote of both houses
4. Dissent
a. Says Majority didn’t consider practical benefits for a line-item veto
b. The budget process has changed with the growth of government over
200 years

Immunities and Privileges (pp. 413-24)

1. Immunities and privileges – the final theme of separation of powers
a. Privilege – is not to testify or reveal particular information or material

54
 b. Executive immunities – immunity basically means immunity suit from
legal action
2. Is the President immune from liability for actions relating his Presidential
duties?
a. Yes
i. Nixon v. Fitzgerald
b. But not regarding claims arising out of events which preceded his
tenure in office – Clinton v. Jones
3. The only immunity Presidents have from damage suits is the Fitzgerald
immunity
4. The President has absolute immunity from liability for actions relation to his
Presidential duties, Nixon v. Fitzgerald (1982), but not regarding claims
arising out of events that preceded his tenure in office, Clinton v. Jones
(1997).
5. Accountability
a. President can be sued as a defendant
b. The President can claim executive privilege with respect to
conversations and papers but that claim will not necessarily prevail –
Nixon – didn’t prevail because of the needs of the criminal justice
system

President Clinton v. Paula Jones (1997) pp. 416-420

1. Issue: Does the Constitution protect the President from suits based on
conduct occurring before he assumes the Presidency?
2. Rule of Law: The Constitution does not grant the President immunity from
civil litigation involving actions committed before he entered office.

United States v. President Nixon (1974) pp. 421-423

1. Issue: Whether communications of the President are entitled to a generalized
absolute privilege from discovery in a court of law.
2. Rule of Law: Presidential communications are not entitled to an absolute
privilege in a court of law based on a generalized interest in confidentiality,
and such communications are discoverable when demonstrably relevant in a
criminal trial.
3. Nixon argued that it was for the executive to determine the scope of
executive privilege
a. The Court rejected this – relied on Marbury
4. Stands for the fact that the President can be sued as a defendant
a. The Court here held that the President’s generalized claim to the
confidentiality of his papers will not prevail over the needs of the
criminal justice system for evidence
i. Court suggested that a claim based on national security or for
Presidential papers in a civil case might be treated differently
5. Executive Privileges and Immunities

55
 a. The President can claim executive privilege with respect to
conversations and papers but that claim will not necessarily prevail –
Nixon

PART IV: INDIVIDUAL RIGHTS LIMITATIONS ON

GOVERNMENT POWER
Due Process Introduction
1. Due process holds the government subservient to the law of the land
protecting individual persons from the state.
a. Due process as a restraint on all three powers of the federal
government
i. Includes making sure the legislature passes a fair law
2. Two due process clauses in the Constitution
a. 5th Amendment – you interpret it as barring the federal government
i. Government must give you due process if they want to take
away your life, liberty or property
b. Substantive due process
i. Fair laws with valid objectives
ii. Also substantive due process has come to cover rights beyond
just life, liberty and property
3. Substantive Due Process: protection of liberty and safeguard of due process
of law have been interpreted in substantive ways
a. Liberty has been more than just not going to jail
b. Due process of law is more than just the procedure
4. Procedural Due Process: the procedures that the government must follow
before it deprives a person of life, liberty, or property
5. Substantive Due Process: asks whether the government has an adequate
reason or taking away a person’s life, liberty or property
a. Looks to whether there is a sufficient justification for the
government’s action
b. Whether there is such a justification depends very much on the level
of scrutiny used
i. If a law is in an area where only rational basis review is
applied, substantive due process is met so long as the law is
rationally related to a legitimate government purpose
ii. But if it is in an area where strict scrutiny is used such as for
protecting fundamental rights, then the government will meet
substantive due process only if it can prove that the law is
necessary to achieve a compelling government purpose
6. Can distinguish between procedural and substantive due process based on
the remedy sought

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 a. If the P is seeking to have a government action declared
unconstitutional as violating a constitutional right, substantive due
process is involved.
b. But when a person or a group is seeking to have a government action
declared unconstitutional because of the lack of adequate safeguards,
such as notice and a hearing, procedural due process is the issue
7. If no denial of life, liberty, or property, then the government does not have to
provide procedural or substantive due process
8. What are the interests protected by due process – 3 approaches taken by the
court over time
a. The privilege approach – the government benefits are privileges and
not rights
b. The approach represented by Goldberg v. Kelly
i. Social welfare benefits are vital – can’t live or survive without
them, so when something threatens your existence than that is
like liberty
1. So when government takes away liberty or property
interest it must be subject to due process
c. You get the benefits that the government has put out there for you
i. Perry v. Sindermann – pg. 432
9. Types of liberties – pg. 460
10. The substance of the law can be questioned under due process
a. An infamous example of this is the Dred Scott case
11. Property interest/property right

Procedural Due Process (pp. 425-43)

Procedural Due Process can be broken down into three basic questions:
1. Has there been a deprivation;
2. Of life, liberty, or property;
3. Without due process of law?

Property
Cleveland Board of Education v. Loudermill (1984) pp. 432-434
1. Once it is determined that the Due Process Clause applies, “the question
remains what process is due”
2. Court said when there is a property interest, the Constitution – and not the
state law – determines the procedures to be followed

57
Liberty
Determining the Process That is Due
Matthews v. Eldridge (1976) pp. 438-441
1. Lays out a 3-factor balancing test
a. Private interest
b. Public interest (burden imposed on government)
c. Risk of erroneous decisions – this is the lynchpin factor
i. Is the procedure it’s asking for likely to prevent a mistake from
being made and is the government’s action likely to make a
wrong decision?
2. Issue: Whether the Due Process Clause of the Fifth Amendment requires the
recipient be afforded an opportunity for an evidentiary hearing prior to the
termination of Social Security disability benefit payments.
3. Rule of Law: Procedural due process is satisfied by administrative
proceedings, even those not as extensive as a full evidentiary hearing, for the
termination of disability benefits under the Social Security Act.

Substantive Due Process

Equal Protection = “why me?”
Due Process = “is it fair?”

1. Federal Constitutional rights are available only against the government (from
federal to municipal)
a. A lot of rights we have are not Constitutional rights – such as
employment rights

Rational review test

Strict scrutiny – instead of the challenger having to prove the law is rationally
related to a purpose, the government here must prove that the law is necessary for a
government objective
1. Government must prove the law is substantially related to achieving
government interests

Substantive Due Process

1. The core of substantive due process is the idea that some laws invade life,
liberty, or property in such a fashion that they cannot be considered valid
law

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 2. Substantive Due Process is the concept that there are certain rights so
fundamental to our traditions of justice that, no matter what procedural
guarantees government affords, government cannot abridge those rights
a. The basis of substantive due process has generally been the “liberty”
clause of the 14th Amendment (i.e., government would be violating a
person’s liberty despite the procedural guarantees afforded)
i. Requires a broad reading of the word “liberty” in the Due
Process Clause of the 5th and 14th Amendments
3. Substantive due process means two things:
a. It means a definition of liberty that goes beyond not going to jail
b. Due process of law looked like a fair hearing
i. Court expanded both of these notions to have substantive
connotations
4. Calder v. Bull (pg. 444) illustrates the polar positions on this issue
5. Is there a middle ground between what’s explicitly protected by the
Constitution and what is not?
6. Idea that substantive due process should be used to protect fundamental,
unenumerated rights
7. What courts really mean by substantive due process is about what are deep
traditions are they aren’t really looking at public preferences but rather
which states have laws and statutes, etc.
a. See family rights cases, Moore v. City of East Cleveland and Griswold,
etc.

The Incorporation Doctrine (pp. 443-58)

1. Bill of Rights = first 10 Amendments
2. Perhaps the most enduring monument of substantive due process is the
incorporation doctrine, by which most of the substantive guarantees of the
Bill of Rights have been “incorporated” into the Fourteenth Amendment’s
due process clause and thus made applicable to the states
3. The Incorporation Controversy addresses the issue of whether the 14 th
Amendment incorporates the protections of the Bill of Rights to make them
applicable against the states
a. Before the adoption of the 14th Amendment in 1868, the SC held in
Barron v. Mayor of Baltimore (1833) that the protections found in the
Bill of Rights were not applicable against the states.
b. The 14th Amendment reopened the door for the argument that the Bill
of Rights should also be applied against the states
c. The SC first addressed this argument in the Slaughter-House Cases
(1872).
i. The majority’s decision in Slaughter-House is still good law
today.
d. The PIC of the 14th Amendment remains essentially written out of the
Constitution by Slaughter-House
e. Saenz v. Roe revived the PIC of the 14th Amendment

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 4. The SC’s use of selective incorporation
5. Five provisions of the Bill of Rights have never been incorporated and do not
apply to state and local governments. Of importance:
a. 2nd Amendment “right to bear arms” is not incorporated
i. So the Court has upheld state and local gun laws
b. The 5th Amendment right to a grand jury indictment in criminal cases
is not incorporated
i. Thus, states need not use grand juries and can choose
alternatives such as preliminary hearings and prosecutorial
informations
c. 7th Amendment right to jury trial in civil cases is not incorporated
i. States therefore can eliminate juries in some or even all civil
suits without violating the Constitution
d. Has never ruled whether the prohibition of excessive fines in the 8 th
Amendment is incorporated
6. Technically, the Bill of Rights still applies directly only to the federal
government; Barren v. Mayor & City Council of Baltimore never has been
expressly overruled. Therefore, whenever a case involves a state or
local violation of a Bill of Rights provision, to be precise it involves that
provision as applied to the states through the due process clause of the
14th Amendment

Barron v. Mayor & City Council of Baltimore (1833) pp. 445-446

1. Issue: Whether the Takings Clause of the Fifth Amendment operated as a
restriction on the Baltimore City government.
2. Rule of Law: The Bill of Rights, specifically the Fifth Amendment’s guarantee
that government takings for public use require just compensation, are only
restrictions on the federal government and not state or local governments.
3. Holding: the Bill of Rights was a restriction of federal actions, not state
and local conduct
4. Facts
a. Barron sued the city for taking his property without just
compensation in violation of the 5th Amendment
5. Court’s reasoning
a. The Framers did not say the Bill of Rights applies to the states – if they
wanted this to be the case they would have made it clear
b. Counter-argument:
i. Some provisions of the Bill of Rights, such as the takings clause,
do not limit themselves only to the federal government
1. 5th Amendment begins “no person shall,” and concludes,
“nor shall private property be taken for public use,
without just compensation”
2. The 1st Amendment, in contrast, begins, “Congress shall
make no law”

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 ii. If the Bill of Rights applies only to the federal government, the
obvious concern is that state and local governments then are
free to infringe even the most precious liberties
1. Majority’s response: each state established a
constitution for itself, and in that constitution, provided
such limitations and restrictions on the power of its
particular government
6. At the time Barron was almost certainly decided correctly
a. But today it is troubling that state and local governments were
free to violate basic constitutional rights
7. No specific direction that the Bill of Rights only applies to the Federal
Government
a. But the court said it only applies to the Federal Government because
i. Worry is that the Federal Government has the excessive power
ii. Most states have their own bill of rights
iii. Aren’t worried that states would mess with federal Bill of
Rights
8. Bill of Rights doesn’t apply to state or local government

14th Amendment
1. 14th Amendment declares: “No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States”
a. It was thought that this provision applied the Bill of Rights to the
states
i. This is very disputed
b. Privileges and immunities were already part of the Constitution in
Article IV, §2, which prevents a state from denying citizens of other
states the privileges and immunities it accords its own citizens

Slaughter-House Cases (1873) pp. 447-452

1. First SC case to interpret the 14th Amendment
2. Issue: Whether the Louisiana statute creating a slaughterhouse monopoly
violated the Thirteenth and Fourteenth Amendments to the United States
Constitution.
3. Rule of Law: The Thirteenth Amendment solely prohibits slavery as
experienced by Africans in the United States before the Civil War, and the
Fourteenth Amendment (which is largely geared towards the protections of
emancipated slaves and African Americans) only protects rights guaranteed
by the United States and not individual states.
4. Invalidated the argument that the provisions of the Bill of Rights are the basic
“privileges” and “immunities” possessed by all citizens”
5. Facts
a. Because of a huge surplus of cattle in Texas, the Louisiana legislature
gave a monopoly in the slaughterhouse business to one company. The
law required that the company allow any person to slaughter animals
in the slaughterhouse for a fixed fee

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 b. Several butchers brought suit challenging the grant of the monopoly –
argued that the state law impermissibly violated their right to practice
their trade
c. The butchers invoked many of the provisions of the recently adopted
constitutional amendments
6. The Court said that the purpose of the 13th and 14th Amendments was solely
to protect former slaves
a. Giving a very narrow reading
7. Slippery slope argument
a. To federalize all of the good life rights would be to federalize almost
everything – says the majority
8. Two separate questions: do you get fundamental rights from the 14 th
Amendment and do you get the Bill of Rights from the 14th Amendment?
9. The dissent here found the right to work was fundamental right and one that
must be found in one of the three clauses or all three of the clauses of the
14th Amendment
10. Importance of Slaughter-House
a. Court’s first interpretation of the Civil War Amendments, which
applied against the states
b. Court refused to redistribute power away from the states and toward
the federal government
c. The opinion narrowly construed the Due Process, Equal Protection,
and Privileges and Immunities Clauses of the 14th Amendment
d. Many different opinions from the justices here
11. Most of the decision has since been reversed, and the Court has much more
liberally construed the 14th Amendment
12. Slaughter-House and privileges or immunities of the 14th Amendment
13. Except for the privileges or immunities clause, all of the other restrictive
interpretations of the 14th Amendment in the Slaughter-House Cases were
subsequently overruled
a. The SC’s extremely narrow interpretation of the privileges or
immunities clause of the 14th Amendment never has been expressly
overruled and has precluded the use of that provision to apply the Bill
of Rights
b. Slaughter-House Cases interpreted the PIC of the 14th Amendment in a
manner to rob it of all meaning
i. As it defined the privileges and immunities as things that had
already existed prior to the adoption of the 14th Amendment
14. The privileges or immunities clause was rendered a nullity by the
Slaughter-House Cases, and it has been ever since

Saenz v. Roe pp. 454

1. Essentially for the first time in American history, the SC used the PIC of
the 14th Amendment to invalidate a state law
2. California made it difficult for newcomers to get social welfare benefits that
long-term citizens of the state received – court found this unconstitutional

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 a. Court revived the Privileges and Immunities Clause here somewhat in
its holding
3. The right to travel is three kinds of rights
a. The right to come and go
b. The right to be treated well in another state
c. The right to be treated equally if you decide to stay and live in that
state
4. California’s argument
a. Justified in restricting welfare benefits for new residents to avoid CA
being a magnet for those moving to the state solely to collect its higher
welfare benefits
5. Majority’s rejection of this argument
a. Empirical evidence shows the number is quite small – not enough to
justify a burden on those who had no such motive
b. CA has represented to the Court that the legislation was not enacted
for any such reason
c. Even if it were, such a purpose would be unequivocally impermissible
6. Dissent (only two)
a. Rehnquist and Thomas
b. Each lamented the revival of the privileges or immunities clause as a
basis for protecting rights
7. Justice Thomas really likes the PIC here – says it should have a broad
application but says its not for the right to get social welfare benefits
8. Scalia, one of the Court’s foremost opponents to protecting nontextual
constitutional rights, voted with the majority

The Black-Frankfurter Arguments – pg. 457

1. Frankfurter won the battle, Black won the war
2. Justice Black argues that the Fourteenth Amendment is a total incorporation
of only the enumerated Bill of Rights.
3. Justice Frankfurter argues for selective incorporation
a. Not limited to the enumerated rights
b. Incorporates some rights, not all rights
c. Not limited to the Bill of Rights

The right to bear arms pp. 29 (Supplement)

1. This is the last incorporation issue
2. Whether the 2nd Amendment applies to the individual states
3. 2nd Amendment now being incorporated through the 14 th Amendment via the
Due Process Clause

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The Rise and Fall of Economic Rights as the Substance
of Due Process (pp. 458-70)
Allgeyer v. Louisiana (1897) pp. 459
1. Issue: Whether a Louisiana law which effectively prohibited the contracting
of Louisiana citizens with foreign corporations violated the Due Process
Clause of the Fourteenth Amendment.
2. Rule of Law: The freedoms protected by the Due Process Clause of the
Fourteenth Amendment include economic freedoms and prohibit a state
from preventing its citizens from contracting with foreign insurance
companies to insure property located within the state.
3. Defined liberty in a very broad way
a. “Embraces the rights of the citizen to be free in the enjoyment of all
his faculties; to be free to use them in all lawful ways; to live and work
where he will; to earn his livelihood by any lawful calling; to pursue
any livelihood or avocation, and for that purpose to enter into all
contracts which may be proper, necessary and essential to his
carrying out to a successful conclusion the proposes above
mentioned” – pg. 460
b. Where did these notions come from?
i. Courts as philosopher kings – looking to natural law theory –
Locke, Socrates, etc.
ii. But these are also things that England’s court protected, not
necessarily through Constitution but through law of the land
1. Liberty now embeds them in the Constitution

Lochner v. New York (1905) pp. 460-464

1. The liberty to contract
2. Rule of Law: A state may not regulate the working hours mutually agreed
upon by employers and employees as this violates their Fourteenth
Amendment right to contract freely under the Due Process Clause.
3. Facts
a. NY passed law to limit the hours that baker could work
4. Issue: does the law’s restrictions on working hours deprive the boss and
baker of liberty?
5. Holding: Yes – interfered with freedom of contract and didn’t serve valid
police power
a. Court says this law is an unreasonable exercise of police power
i. Limiting hours of work for bakers had no relationship to public
health
b. Allgeyer
i. The right to contract for your labor is protected as liberty
under the Constitution
c. Says liberty is not absolute

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 i. It’s subject to the reasonable exercise of the police power,
which requires:
1. Pursuit of proper ends
2. Proper means to those ends
ii. It can be restrained if the legislature acted with due process of
law/acted with reasonable exercises of the police power
iii. Liberty includes the right to contract for your livelihood
iv. Liberty includes the right to earn your living
d. The court says the NY law fails the means test
i. Doesn’t think limiting the hour of work for the baker will have
an effect on the baker’s health
1. Questions how you can argue that they can work 10
hours but not 10.5 hours
e. Court says they must intervene and protect individual rights
6. Fearing legislative invasion into all aspects of private life, the Court used
substantive due process to prevent legislatures from enacting laws that drew
lines, with respect to an individual’s freedom, that the Court considered
arbitrary
7. Is reminiscent of McCulloch
a. “The law has to serve proper ends”
b. It’s a pretexual label on the grounds of health when it’s really
supposed to reduce the disparity in wealth between bosses and
workers
i. “The act is not, within any fair meaning of the term, a health
law, but is an illegal interference with the rights of individuals,
both employers and employees, to make contracts regarding
labor upon such terms as they may think best, or which they
may agree upon with the other parties to such contracts” – pg.
462
8. Dissent
a. If reasonable people could differ about this legislation, than it is up to
the legislature
i. Focus here is on the means
ii. This is one of the major arguments against Lochner
9. Most people think Lochner was wrong

The Lochner Era

1. If it was regulating money it looked like wealth and the court would strike it
down, if it looked like health than the court would uphold it – pg. 468
2. Criticisms of the Lochner era
a. Critics argue that the decisions during this era were wrong, because
the government should be able to regulate to achieve many other
goals, including protecting workers, consumers and the public
generally
b. Court allowed maximum hour laws for women, but not minimum
wage laws

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 c. It permitted maximum hour laws for coal minors and manufacturing
workers, but not for bakers
d. Judicial activism

Demise of the Lochner Era

1. Many of the same reasons that were also changing things in regards to the CC
a. Abandonment of laissez-faire
b. Need for more government regulations
2. Abandonment of the substantive due process principles of Lochner
3. Since 1937, not one law has been declared unconstitutional by the SC as
violating economic substantive due process
4. Protection of economic rights since 1937 has come under two specific
constitutional provisions: the contracts clause of Article I, §10 and the
takings clause of the Fifth Amendment

United States v. Carolene Products (1938)

3. Issue: Whether the rational basis test is the appropriate judicial review for
congressional legislation of common commercial products.
4. Rule of Law: Congressional legislation of common commercial products will
be scrutinized under a rational basis test.
5. Court introduced new standard:
a. Presume that any law that regulates business is constitutional
i. The Court would defer to the government and uphold laws
so long as they were reasonable
ii. But this deference would not extend to laws interfering with
fundamental rights or discriminating against discrete and
insular minorities
b. The burden of showing otherwise is on the challenger of that law –
meaning the government doesn’t have to rush in to defend it
c. Unless the challenger can prove that the law has no rational basis,
the law is sustained
6. Lochner had strong review of laws, here it is exceedingly minimal
7. This was a post-New Deal case
a. At first the court tried reining in the New Deal legislation – then when
Roosevelt threatened to put more justices on the court, they reversed
ways
b. The Court would curtail its scrutiny of economic rights and expand its
scrutiny of more “personal” rights.

The Modern Revival: “Privacy” Rights (pp. 470-549)

1. These are pure Lochner and Allgeyer substantive rights cases applied to
family rights
a. Saying the family makes the decisions about how family life should be
and not that of the state
2. Big question: are the courts the best institutions to resolve issues of life,
death and infinity or should it be up to the voting process and legislature?

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Skinner v. Oklahoma (1942) pp. 470
1. Issue: Whether a statute that allows for the forced sterilization of persons
deemed to be “habitual criminals” violates the Equal Protection Clause of the
Fourteenth Amendment.
2. Rule of Law: A state law requiring forced sterilization of criminals convicted
of crimes of moral turpitude unconstitutionally infringes on the fundamental
rights of marriage and procreation and thus violates the Equal Protection
Clause of the Fourteenth Amendment.
3. Established right to procreate as a basic liberty/fundamental right
4. Facts
a. State had a statute that people who have been convicted of a crime
three times would be sterilized
i. But only certain crimes got this treatment, white collar crimes
did not
5. Issue: Whether a statute that allows for the forced sterilization of persons
deemed to be “habitual criminals” violates the Equal Protection Clause of the
Fourteenth Amendment.
6. Rule of Law: A state law requiring forced sterilization of criminals convicted
of crimes of moral turpitude unconstitutionally infringes on the fundamental
rights of marriage and procreation and thus violates the Equal Protection
Clause of the Fourteenth Amendment.

Origins: Contraception (pp. 472-83):

Griswold v. Connecticut (1965) pp. 472-479
1. Rule of Law: An implied “right of privacy” exists within the Bill of Rights that
prohibits a state from preventing married couples from using contraception.
2. This case is for rights, what McCulloch was for power
3. Facts
a. Law making use of contraceptives illegal
i. Rather than regulating their manufacture or sale
b. In order to prosecute the crime, one of the people in the couple would
need to testify that they used contraceptives
4. Issue: under constitutional law, does the Constitution protect the right to
marital privacy against state restrictions on a couple’s ability to be counseled
in the use of contraceptives?
5. Specific Holding: Yes. The Connecticut statute conflicts with the exercise of
this right and is therefore null and void
6. General Holding: there is a privacy right in the Constitution and it protects
married couples and their right to intimacy
7. Justice Douglas (majority)
a. Refused to rely explicitly on substantive due process analysis,
asserting that the Court does nto sit as a “super-legislature” to review
legislation on social and economic matters

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 b. Instead, Douglas argued that “specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that
help give themlife and substance
8. Though the Constitution does not explicitly protect a general right to privacy,
the various guarantees within the Bill of Rights create penumbras or zones
that establish a right to privacy. Together, the First, Third, Fourth, and Ninth
Amendments, create a new constitutional right, the right to privacy in marital
relations
9. What’s in the zone of privacy that is being created?
a. Use of contraceptives by married couples
10. Justice Goldberg’s concurrence
a. Relies on the 9th Amendment to say why it is covered
i. Used the 9th Amendment to support his position that the 14th
Amendment DPC protected a fundamental right to “marital
privacy”
ii. In finding a right of marital privacy, Goldberg looked to “the
traditions and [collective] conscience of our people” to
determine whether the principle was “so rooted [there]… as to
be ranked as fundamental”
11. Justice Harlan’s concurrence
a. Says to look at our societal traditions
12. Justice White’s concurrence
a. Feels this is a due process violation of the 14th Amendment
13. Justice Black’s dissent
a. Says his job is not to look at this law, his job is to look at the
Constitution and see if there’s anything in there that invalidates this
law and he sees nothing
14. Justice Stewart’s dissent
a. This is asking us to do Lochner and we don’t do Lochner anymore
i. Some scholars viewed this decision as a return to the
substantive due process analysis disavowed by the Court in the
post-Lochner era
15. Dissent in general
a. There is no constitutional right to privacy

Michael H. v. Gerald D. (1989) pp. 480

1. The court found that an adulterous father has no fundamental liberty interest
in creating or maintaining a parental relationship with a child born into
another’s marriage
2. Man was claiming his natural right to be father, irrespective of it happening
through an adulterous affair
3. The court here looks to tradition
a. Scalia, joined by Rehnquist, said that the Court should recognize a
liberty interest only if there is a tradition of providing protection,
when the tradition is stated at the most specific level of abstraction

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 i. Said that such specificity was necessary because general
traditions provide such imprecise guidance, they permit judges
to dictate rather than discern society’s views
4. Brennan objected to this narrow definition of liberty
a. Father have a fundamental interest in their children and this is
sufficient for a liberty interest
5. The dispute between Brennan and Scalia was over how the Court should go
about interpreting the meaning of “liberty”
6. Issue: Whether a statute that prevents a possible biological father from
establishing his paternity of a child after two years since the child’s birth
violates the Due Process Clause of the Fourteenth Amendment.
7. Rule of Law: The right of a potential natural father to assert parental rights
over a child born into a woman’s existing marriage with another man is not
traditionally recognized in historical jurisprudence and is thus not a
fundamental right protected by the Due Process Clause of the Fourteenth
Amendment.
8. The SC held that a state could create an irrebuttable presumption that a
married woman’s husband is the father of her child.
9. The Court refused to recognize any parental rights for a biological father
even though he had lived with the mother and the child for almost a year and
a half. The Court said that the biological father had no right to a hearing to
determine paternity and could be denied all parental rights, including
visitation
10. It should be noted that the court has additionally not recognized a liberty
interest for foster families

Eisenstadt v. Baird (1972) pp. 482

1. Issue: Whether a state statute that permits the giving of contraceptives to
married persons and not to unmarried persons violates the Equal Protection
Clause of the Fourteenth Amendment.
2. Rule of Law: Under the Equal Protection Clause of the Fourteenth Amend-
ment, a state may not outlaw distribution of contraception to un- married
persons.
3. Established the right of unmarried people to possess contraception on the
same basis as married couples and, by implication, the right of unmarried
couples to engage in potentially nonprocreative sexual intercourse
4. Is an EPC case
5. Facts
a. Contraceptives were handed out to single people only – which is what
he was prosecuted for
6. Therefore the right of privacy is not for the married couple but for the
individuals of the couple
a. “It is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child” –
pg. 483

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 7. Takes the rights out of the marital context and makes them individual rights

The 9th Amendment

1. 9th Amendment: “The enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the people.”

Abortion (pp. 483-516):

1. These cases show the Court’s modern substantive due process jurisprudence

Roe v. Wade (1973) pp. 483-487

1. Rule of Law: The constitutional right of privacy encompasses a woman’s right
to an abortion. However, abortions may be regulated by a state after the first
trimester of pregnancy and may be completely prohibited after the point of
“viability” of a fetus unless necessary to preserve the health of the mother.
2. Right of abortion a constitutional right within the realm of privacy for
matters of pro-creating
a. Strict scrutiny if government invades that right
3. The Court held that a woman’s right to an abortion fell within the right to
privacy (recognized in Griswold) protected by the 14th Amendment
4. Texas’s argument
a. The fetus is a “person” within the language and meaning of the 14th
Amendment
i. Court says Constitution does not define “person”
1. And since abortions were far freer when the 14th
Amendment was adopted, the word “person” doesn’t
include unborn fetuses
5. Court’s decision process
a. Begins by looking at history – shows that bans on abortions weren’t
always part of American history
b. Looks to the state’s interest
i. Safety of patient
ii. Human life
6. Stewart’s concurring opinion
a. Dissented in Griswold but joins majority here
i. Once we crossed from married to single in Eisenstadt this
becomes an easy case
7. Rehnquist’s dissent
a. Not supposed to use substantive due process – they did it in Lochner
and the conventional wisdom is that was wrong
i. Just like Lochner shouldn’t recognize an enumerated right to
economic liberty, Roe shouldn’t recognize an enumerated right
to abortion
1. Compelling interest standard turns court into super
legislature
b. Should be played out in the legislature rather than the court
8. Why should this be decided by the judiciary and not the legislature?

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 a. Protect the minority, rather than the legislature that does not reflect
the minority interests
9. Why wasn’t this written more like a women’s rights case?
a. Don’t want to imply a bias by the legislature who passed the law
they’re invalidating
b. Court hadn’t really gotten into EPC cases between men and women at
this time – these cases came later

Planned Parenthood v. Casey (1992) pp. 493-507

1. Rule of Law: A state abortion regulation places an undue burden on a
woman’s right to an abortion and is invalid if its purpose or effect is to place
a substantial obstacle in the path of a woman seeking an abortion before the
fetus attains viability.
2. Majority formally adopted an “undue burden” standard, while reaffirming the
essential meaning of Roe
a. In so doing, the majority rejected the heightened “strict scrutiny”
standard to state regulation of abortion
3. Structure of decision
a. First portion – liberty
i. Takes liberty beyond the procreational choices and to human
choices
ii. “At the hear of liberty is the right to define one’s own concept
of existence, of meaning, of the universe, and of the mystery of
human life” – pg. 494
1. This passage later appears in Lawrence v. Texas
iii. Woman’s choice
b. Second portion – stare decisis
i. Let the decision stand in Roe
ii. “To overrule under fire in the absence of the most compelling
reason to reexamine a watershed decision would subvert the
Court’s legitimacy beyond any serious question” – pg. 496
4. Undue burden test
a. Under this standard, a provision of law is invalid if its purpose or
effect is to place a substantial obstacle in the path of a woman seeking
an abortion before the fetus attains viability
b. State can regulate up to the viability line so long as these regulations
are not an undue burden
i. An undue burden = a substantial obstacle
ii. Pre-viability = the woman has the right to an abortion without
an undue burden from the state
5. Applying under burden test to the statute – court upheld 3 of the 4
challenged provisions
a. 24-hour waiting period – yes
b. Informed consent – yes
c. Parental consent – yes

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 i. But exceptions for medical emergencies and allowed “judicial
bypass”
d. Spousal notification/agreement – no
i. But other recording measures allowed

Casey’s adherence to Roe

1. Adheres to Roe’s essential holding which has three parts
a. (1) A recognition of the right of the woman to choose to have an
abortion before viability and to obtain it without undue interference
from the state
i. Before viability, the State’s interests are not strong enough to
support a prohibition of abortion
b. (2) A confirmation of the state’s power to restrict abortions after fetal
viability, if the law contains exceptions for pregnancies which
endanger a woman’s life
c. (3) Principle that the state has legitimate interests from the outset of
the pregnancy in protecting the health of the woman and the life of
the fetus that may become a child
2. Constitutional protection of the woman’s decision to terminate her
pregnancy derives from the Due Process Clause

Stenberg v. Carhart pp. 507

1. Applied the undue-burden standard in striking down a Nebraska law that
made it a crime to perform an abortion by means of delivering a “substantial
portion” of a living fetus into the birth canal, unless necessary to save the life
of the pregnant woman

Gonzales v. Carhart (2007) pp. 508-515

1. Rule of Law: Congress may ban a specific type of partial-birth abortion pro-
vided its restrictions on the practice are narrow and clear and the ban does
not constitute an undue burden on a woman’s right to an abortion.
2. In 2003, Congress passed the Partial Birth Abortion Act. Signed by President
Bush, it bans all "partial-birth abortions”
3. Issue: does a ban on intact D&X abortions on living fetuses threaten a
woman’s right to have an abortion, as defined in Roe?
4. Holding: the Supreme Court held that the Partial Birth Abortion Act does not
threaten a woman’s right to abortion under Roe. Upholds the Partial Birth
Abortion Act
5. Court
a. The Partial Birth Abortion Act would be unconstitutional "if its
purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before a fetus attains viability."
i. As per Roe v. Wade, women have the right to an abortion at
any point of previability.
b. Why is this not found to be an undue burden (though it is in
Stenberg?)

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 i. They differed to Congress’ findings, which found that this
procedure is never really necessary to the life of the pregnant
woman
6. Congress gains power to regulate the way abortions are performed through
the Commerce Clause
a. The Act provides that anyone who “in or affecting interstate or foreign
commerce, knowingly performs a partial-birth abortion and thereby
kills a human fetus shall be fined… or imprisoned not more than 2
years, or both” But the woman being operated on cant be prosecuted
– pg. 510
7. Ginsburg’s dissent
a. Notions of morality can’t trump individual rights – Lawrence

Family Relationships (pp. 516-23)

Harlan excerpt from Poe v. Ullman (that is within Griswold and is looked at in Moore
v. City of East Cleveland when court says how we must understand the Court’s
function under the Due Process Clause) - pg. 476
1. “It is not the particular enumeration of rights in the first eight Amendments
which spells out the reach of Fourteenth Amendment due process, but rather
[those] rights ‘which [are] fundamental; which belong to the citizens of all
free governments’ for the ‘purposes of securing which men enter into
society’”
2. There’s no formula for due process
a. It has represented the balance which our Nation, built upon postulates
of respect for the liberty of the individual, has struck between that
liberty and the demands of organized society. That balance is the
balance struck by this country, having regard to what history teaches
are the traditions from which it developed as well as the traditions
from which it broke. That tradition is a living thing
Speaking about the Connecticut statute…
3. Since the statute abridges important fundamental liberties protected by the
14th Amendment, it will not do to urge in justification of that abridgement
simply that the statute is rationally related to the effectuation of a proper
state purpose. A close scrutiny and stronger justification than that are
required

The right to determine how to raise your children

1. Does the Constitution protect the right of parents to determine how to raise
their children?
a. Yes, to a limited extent
b. Pierce and Meyer
i. Pure Lochner cases
1. Libertarian
c. Where in the Constitution does this come from?

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 i. Substantive due process – finding that liberty has a substantive
definition and content to it and finding that due process has a
substantive and not just procedural process to it
2. Court doesn’t really have a clear line for determining how any of the family
rights cases will be decided
a. However usually parents have rights above non-marital parents and
non-martial parents usually have heightened rights if they’ve acted
like the parents

Moore v. City of East Cleveland (1977) pp. 517-519

1. Rule of Law: The right of related family members to live together is
fundamental and protected by the Due Process Clause, and necessarily
encompasses a broader definition of “family” than just members of the
nuclear family.
2. Invalidated zoning ordinance that restricted dwellings to single families
(narrowly defined)
3. Facts
a. City didn’t want extended families in the neighborhood – they
associated that with less stable neighborhoods
4. Justice Powell is quite candid about the substance and says that the limit of
substantive due process is tradition
5. Extended families, like nuclear families are protected by the Constitution
6. The ruling is outside of the text – using only tradition as a guide
a. When looking at rights – looks at the text and then at tradition,
American civilization recognizes extended families co-habitating
7. Justice White’s dissent
a. This is a perfect example of being in treacherous territory when going
outside the text
i. Look at what is required by a system of ordered liberty

Troxel v. Grainville pp. 520

1. Issue: Whether a Washington statute that permits any person to petition a
superior court for visitation rights at any time, and permits the court to grant
such visitation if it is in the best interest of the child, violates the Due Process
Clause protections of a parent’s right to rear his or her child.
2. Rule of Law: Under the Due Process Clause, a state court may not grant
visitation rights to a person, even when doing so would be in a child’s best
interest, if those visitation rights are opposed by the child’s parent because
doing so interferes with the parent’s fundamental liberty interest in rearing
his or her child.
3. State can’t infringe on parents right to exclude children from seeing
grandparents (as long as they are fit parents)
4. Here Oregon put the thumb on the scale of the grandparents, even though the
mother is a fit parent
a. Instead of granting the parent the right to decide who the child lives
with, the court could

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 5. The gay rights community is particularly attracted to this case
a. Because of non-biological parents
b. Also, if one of the gay parents

Loving v. Virginia (1967) pp. 522

1. Interracial marriage
2. Issue: Whether a Virginia statutory scheme adopted to pre- vent marriages
between persons solely on the basis of racial classification violates the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
3. Rule of Law: A state may not restrict marriages between persons solely on
the basis of race under the Equal Protection and Due Process Clauses of the
Fourteenth Amendment.

Zablocki v. Redhail (1978) pp. 522

1. Issue: Whether a statute that prevents certain residents from marrying
without first obtaining a court order granting permission to marry violates
the Equal Protection Clause of the Fourteenth Amendment.
2. Rule of Law: The right to marry is a fundamental right, and any legislative
attempts by a state to limit that right are unconstitutional unless they are
narrowly-tailored to the accomplishment of an important governmental
purpose.
3. State law not allowing you to marry if you’re behind on child-support
payments
a. Man argues for fundamental right to marry
b. He wins – the court says it’s fundamental – subject to strict scrutiny
4. State must have a very strong reason for withholding marriage
a. Court says by withholding marriage here it would just lead to more
illegitimate children and having to pay child support for them

The Right to Die (pp. 523-35):

1. Is the right to die a Constitutional right?
a. No

Cruzan v. Director, Missouri Department of Health (1990) pp. 524-528

1. Rule of Law: A competent person has a constitutionally-protected right to re-
fuse life-sustaining medical care under the Due Process Clause. If rendered
incompetent, a state may require clear and convincing evidence of that
person’s wishes to have life-sustaining medical care stopped before actually
agreeing to terminate such care.
2. The Court recognized not a “right to die” but a constitutional right to “refuse
life-saving hydration and nutrition”
3. Facts
a. Woman persisted for 7 years on a feeding tube in a vegetative state
with no hope of recovery

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 4. Court concludes that the procedural hoop (clear and convincing evidence
that the ill would want the life support removed) does not take away due
process
5. Stands for the proposition that when the state puts protections on the right
to die the court will look at it in modest ways

Washington v. Glucksberg (1997) pp. 529-533

1. Rule of Law: The right to physician-assisted suicide is not a constitutionally-
protected liberty interest under the Due Process Clause of the Fourteenth
Amendment.
2. Court held that Washington’s prohibition against assisted suicide didn’t
violate the DPC of the 14th Amendment
3. Facts
a. Here they don’t want the plug pulled but a needle put in, which the
court says is very different
b. She’d kill herself but she’s immobile so wants physician’s help
4. Court won’t recognize a right of physician assisted suicide
a. Court looks to tradition
i. Everything they look at speaks to them that doctors shouldn’t
kill their patients – it is against medical ethics
5. Court says: our established method of substantive-due-process analysis has
two primary features:
a. First, we have regularly observed that the Due Process Clause
specially protects those fundamental rights and liberties which are,
objectively, “deeply rooted in this Nation’s history and tradition”
(Moore) and “implicit in the concept of ordered liberty,” such that
“neither liberty nor justice would exist if they were sacrificed”
b. Second, we have required in substantive-due-process cases a “careful
description” of the asserted fundamental liberty interest. Our nation’s
history, legal traditions and practices thus provide the crucial
guideposts for responsible decision making that direct and restrain
our exposition of the Due Process Clause

Vacco v. Quill pp. 533

1. NY allowed the removing of life sustaining devices (Cruzan) but not assisted
suicide (Glucksberg) – and this was claimed to violate equal protection
a. The SC said no, there are historical, traditional and medical
differences between the two, permitting the state to allow one but not
the other

What rights have been protected under liberty by the court? What methodology has
the court used to address this? How has the court fashioned rules of law to
determine whether the state can infringe rights in this are or not?

Consensual Sexual Choices (pp. 535-49)

1. Is sex a fundamental right?

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 2. Sex falls within the zone of privacy protected by the 14 th Amendment

Bowers v. Hardwick (1986) pp. 535

1. The Court upheld a Georgia statute prohibiting private, consensual sodomy
between both homosexual and heterosexual couples.
a. The Bowers Court’s reliance on historical traditions prohibiting
homosexual activity

What happened between Hardwick and Lawrence?

1. Two things happened that strengthen the claim of privacy here
a. “Sweet mystery of life” language in Casey about liberty
i. Good language for Gay rights advocates
b. Romer v. Evans – case of Colorado referendum – if group wants to
pursue their rights by getting a city to pass a gay discrimination
ordinance they’d have to go to the state
2. Societal terrain had changed substantially
a. Gay rights more recognized – businesses, universities, some local
governments

Lawrence v. Texas (2003) pp. 536-546

1. Rule of Law: The constitutional right to privacy protects a right to engage in
private consensual homosexual activity including oral-genital or anal-genital
contact.
2. Basically a do-over of Hardwick
3. Facts
a. Sodomy law only applied to homosexuals
4. The Court struck down the statute as it does not further a “legitimate state
interest which can justify its intrusion into the personal and private life of the
individual”
5. In our tradition the state is not omnipresent in the home
a. Liberty includes an autonomy of self
6. Very broad, capacious definition of liberty is given here
a. Uses definition of liberty from Allgeyer
i. “To be free in the enjoyment of all his faculties…”
7. How the court dismantles/overrules Bowers v. Hardwick
a. Said Hardwick got the history and tradition wrong
i. The Bowers Court’s reliance on historical traditions prohibiting
homosexual activity was largely overstated
b. The central holding of Bowers demeaned the lives of homosexual
persons. Petitioners were adults at the time of the alleged offense.
Their conduct was in private and consensual. Petitioners were
entitled to respect for their private lives
c. Ruling that homosexual sodomy is unconstitutional is in effect the
same as ruling that homosexual rela- tionships are themselves
unconstitutional. Such a determination would impinge upon the

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 fundamental right of homosexuals to en- gage in intimate personal
and familial relationships.
8. The government must respect your private choices – pg. 540
a. The Court said: Increasing legal and social acceptance of homosexual
behavior and the right to privacy in consensual conduct between
adults. The Court’s recent decisions in cases such as Planned
Parenthood v. Casey (1992) and Romer v. Evans (1996) further
evidence such a trend. The “right of privacy” announced in these
decisions and de- rived from the Bill of Rights encompasses the right
of consenting adults to engage in homosexual activity.
9. The court looks to other states
a. The Court noted that the reasoning and holding of Bowers had been
rejected in other nations, and there was no showing that the US
governmental interest was more legitimate or urgent
b. Most states that currently had laws prohibiting homosexual conduct
largely admitted a lack of prosecution of individuals for engaging in
such conduct.
10. What level of scrutiny did the court use during this case?
11. A lot of the language is gay rights specific but it also applies to heterosexual
couples
a. Is it a gay rights case or a sexual privacy case?
12. What was the state’s interest for having such a law?
13. Times change and the law must change to reflect the current beliefs
a. Majority talks about the “Living Constitution” – pg. 540
14. Justice O’Connor’s concurrence:
a. TX law invalidates the law under the EPC
i. Moral disapproval does not satisfy denying equal protection
15. Justice Scalia
a. You haven’t identified it as a fundamental right
b. It’s been de facto given intermediate scrutiny
c. Pg. 544 – gives a list of things now out the window because of this law

Methodology
McDonald v. City of Chicago (2010 Supplement, pp. 30-38)
1. Court held that the right to bear arms is a sufficiently important liberty
interest
2. Answer the objective question: is right to bear arms part of DPC?
a. Yes it is
3. Justice Steven’s dissent
a. Talks about putting a substantive definition into liberty
b. Talks about Cardozo’s “ordered liberty” test
c. Attacks the conservative approach to “traditions”
i. Saying that you don’t get restraints on the justices by looking
to tradition

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 d. Due Process Clause safeguards the ability to independently define
one’s identity, individual’s right to make certain unusually important
decisions that will affect his own, or his family’s destiny, and the right
to be respect as a human being – pg. 32
i. But where does this come from?
4. Justice Scalia (concurring)
a. Says the Stevens approach does not limit the court in anyway
b. Has real animus towards the reference to what other countries do
c. Pg. 38 – says history is not a perfect way but it’s the best way we’ve
got and is certainly better than Stevens’ approach
i. Say it’s much less subjective
ii. But why’s the strict textualist/conservative relying on history?
5. Bottom line is 4 justices using Due Process – saying the right to bear arms is
deeply rooted in our traditions

The Modern Revival: Excessive Punitive Damages

BMW of North America, Inc. v. Gore, pp. 39 (Supplement)
1. Issue: Whether a state trial court’s award of $2 million in punitive damages
to a purchaser of a pre-delivery damaged car violates the Due Process Clause
of the Fourteenth Amendment.
2. Rule of Law: A state’s assessment of “grossly excessive” punitive damages
against a defendant violates substantive due process.
3. Issue before the Supreme Court – whether punitive damages that are grossly
excessive violate Due Process
4. Majority gives a three part test to determine whether an award is grossly
excessive
a. Degree of reprehensibility
i. State may not assess punitive damages for unlawful conduct
that occurs outside its jurisdiction (?)
b. Ratio
i. If more than four times the amount of compensatory damages
than it’s pushing it
c. Sanctions for comparable misconduct
i. Allows the court to look to penalties in similar cases
5. Another example of substantive due process – substance of jury’s
determination

Phillip Morris, USA v. Williams (2010 Supplement, pp. 39-50)

1. Justice Thomas (dissent): the Constitution does not constrain the size of
punitive damages awards

Note #2 on pg. 49-50 of Supplement

Is he accurately describing the rules in the cases?

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 ECONOMIC RIGHTS: THE TAKINGS AND
CONTRACTS CLAUSES
1. With respect to the CC and the TC, the SC has watered down these two
through various doctrines
a. Issue: should the court complete the dilution of those rights so that
when any economic claim comes before the court you have a one size
fits all standard?
2. The Fifth Amendment’s guarantee against taking without just compensation
was one of the earliest constitutional protections of economic rights
incorporated into the 14th Amendment
a. The 5th Amendment does not prohibit government takings of
property, but only requires just compensation

The Takings Clause (pp. 551-92)

1. Takings Clause: [found in Fifth Amendment] Requires that just compensation
be paid to the owner of private property taken for public use.
2. Applies to federal, state and local
3. There’s been more action on the Takings Clause (TC) then the Contracts
Clause (CC)
4. The TC applies to all types of property – tangible or intangible – and applies
to executive and legislative actions that effect a taking
5. Four basic features of the TC
a. Is it property?
b. Is it being taken?
c. Is it being taken for public use?
i. The public use requirement ensures that government
compulsion is used only to secure public benefits
ii. When a taking is acknowledged, the major constitutional issue
presented is determining whether an acknowledged and fully
compensated taking is for public use
d. If so, are you provided just compensation?
i. This is the least covered feature of the 4
6. Bulldozer taking = extended the runway at La Guardia, needed to condemn
some property to do so
7. Regulatory taking = statutes or laws that would limit what you can do to
your house or land (other than a nuisance abatement)
a. Sometimes the government denies it has taken property, claiming it
has merely regulated property. When that occurs, the constitutional
issue is to determine when a regulation of property is so extensive
that it amounts to a de facto taking of property
8. A major difference between the substantive due process protection of
economic liberties and the takings clause is that substantive due process was
far more wide-ranging: it permitted courts to void statutes because the
statutory objectives were thought to be illegitimate. Regulatory takings

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 jurisprudence, by contrast, does not concern itself with the legitimacy of the
state’s regulatory objectives; it merely examines the means by which those
objectives are sought to be attained
9. Judicial actions of the state can also amount to a taking
a. Pg. 51-52 of the Supplement

The Public Use Requirement (pp. 552-62)

1. Court should generally presume an impermissible private purpose when
a. Transfers are so suspicious
b. Procedures employed are prone to abuse
c. Purported benefits are trivial or implausible
2. Public Use Clause: [found in Fifth Amendment] Expressly authorizes eminent
domain in matters that positively impact the general public.

Hawaii Housing Authority v. Midkiff (1984) pp. 552-555

1. Issue: Whether the “public use” requirement of the Takings Clause of the
Fifth Amendment prohibits a state from taking, with just compensation, title
in real property from private lessors and transferring it to private lessees for
the purpose of reducing the concentration of ownership of private property.
2. Rule of Law: A state may use the eminent domain process to take property
that is heavily concentrated in the hands of a few private landowners and
redistribute it among the general population of private individuals.
3. Land could be seized and distributed in order to cure land oligopoly (broad
conception of “public use”)
4. The court used a minimal standard of review
a. Rationally related to a legitimate government interest
5. Main argument of the people who did not want their land taken even though
they were being compensated at the fair market value
a. Looses out on what the property interest would be tomorrow
b. They also say that what’s happening here is not for “public use”
6. “Public Use” = used by the public
a. Either owned by the public or open to the public
b. Justice O’Connor’s definition: a public use is anything within the police
power (which basically means anything)
i. Extremely broad interpretation of what public use is and
therefore a broad allowance for taking property
c. The test is a “conceivable public purpose”
7. The court took a one-size fits all approach here

Kelo v. City of New London (1984) pp. 555-561

1. Issue: Whether a state’s exercise of its eminent domain authority to condemn
private property and sell it to private developers for the purpose of creating
new jobs and increasing tax revenues violated the “public use” requirement
of the Fifth Amendment.
2. Rule of Law: A state’s use of eminent domain to condemn property from
private individuals and redistribute it to other private individuals consti-

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 tutes a “public use” under the Fifth Amendment if it is rationally related to a
conceivable public purpose.
3. Facts
a. City approved development plan to revitalize city which had economic
problems. Were going to use eminent domain to get property from
those unwilling to sell and would compensate them
4. A tea party like case
5. The court rejected rigid formulas and scrutiny
6. Court said this plan unquestionably serves a public interest
a. Since they couldn’t have categories against economic development,
development not open to use in the public, etc. – they are going to
defer to the city
7. When legislature’s purpose is legitimate and its means are not irrational,
takings are not to be taken up by the federal courts – are going to defer to the
zoning boards that exist
8. Dissent – O’Connor (wrote majority in Hawaii Housing Authority)
a. The purpose of giving more stringent review is to look out for the
weak and vulnerable
b. The weak and powerless will be bulldozed by the developers
9. Why would the liberal justices grant this power to the developers?
a. The local zoning czars would know what’s better for everybody then
the people affected
b. Permitting minimal judicial scrutiny of zoning work would ultimately
benefit more communities and people
10. Legislative reaction to Kelo
a. In the wake of Kelo virtually every state has considered changes to its
limits on eminent domain
b. Bills introduced in Congress to have some effect on the outcome of
Kelo
i. But can the Congress by statute change the Takings Clause?
c. Many civil rights groups upset

Regulatory Takings: When Does Regulation Become a

Taking?
1. Regulatory takings: the government shows up with a law or statute that
restricts what you can do to your house (mine underneath your house, add a
second floor, etc.)
a. The opposite of a bulldozer taking
2. To the extent that regulations diminish the value of property, they could be
deemed takings requiring just compensation
a. But the court has been reluctant to find regulatory takings
3. Court applies 3 categorical rules to assess whether a regulation is a de facto
taking

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 a. There is no taking, no matter what the economic impact of the
regulation, if government regulation of property merely abates a
common law nuisance
b. A taking has occurred when government regulations produce a
permanent physical occupation of private property, no matter how
slight
c. A taking has occurred when government regulations (other than
nuisance abatement) leave the owner with no economically viable use
of his or her property
4. Outside of these three limited rules are balancing situations
a. Classic weighing of the public benefit and the homeowner
5. Condition cases
a. Nolan and Dolan – the government requires something of you that
would be a taking
i. Nolan – no connection between providing public access to the
beach and the development ban’s goal of protecting sight lines
ii. Dolan – to expand store would have to give easement for flood
plain and bike path
1. Nexus was found, but not strong enough
2. No reason for flood plain to be public
3. No reason for bike path

Early Approaches (pp. 563-67)

Pennsylvania Coal Co. v. Mahon (1992) pp. 563-565
1. Issue: Whether a state regulatory act constitutes a taking under the Fifth and
Fourteenth Amendments if a serious diminution in the value of the property
results from the alleged taking.
2. Rule of Law: A state regulatory act constitutes a taking requiring the payment
of just compensation under the Fifth and Fourteenth Amendments if a
serious diminution in the value of the property results from the alleged
taking.
3. Facts
a. Kohler Act – said you can’t continue mining rights if it will result in
damage to the housing above it
4. Question: is this is a taking of their property requiring the government to pay
for it?
5. Justice Holmes
a. Pg. 564 – lays out a test for when the balance favors the property
owner
6. Justice Brandeis
a. Proper exercise of the police power
b. Reciprocity of advantage
i. If you live in a residential area where everyone’s house is
equally limited in height, then all are the same and everyone

83
 benefits – your property rights take a little of a hit but so do
everyone else’s
1. The majority said there is no such opportunity here as
not everyone is effected
7. Prior to this case it was generally thought that the Takings Clause reached
only a “direct appropriation” of property, or the functional equivalent of a
“practical ouster of [the owner’s] possession”

Keystone Bituminous Coal Assoc. v. DeBenedictis (1987) pp. 566

1. The Court found a modern version of the Kohler Act not to be a taking
a. PA’s Subsistence Act required sufficient coal to be left in place to
support the surface
b. Only a small piece of the pie is taken, as the coal company has several
coal properties

Miller v. Schoene (1928) pp. 566-567

1. Balancing case that rivals Keystone Bituminous
2. Facts
a. VA law required removal of all red cedar trees within two miles of an
apple orchard whenever it was determined that the cedars hosted
“cedar rust” fungus, a parasite that inflicted no damage whatever to
the cedars but would ruin apple orchards located within two miles of
cedars harboring the fungus
3. Owners of cedar trees were compensated for the cutting of the trees but
were denied compensation for the taking of the trees
4. Court said it was ok for VA to favor one bunch of property owners against
another
a. The apple business was an important industry for the state – creating
a preponderate public interest
5. But why didn’t the coal case come out the same way?
a. Maybe the rust from the cedar trees is considered a nuisance

The Categorical Approach (pp. 568-76)

1. Lucas and Loretto

Lucas v. South Carolina Coastal Council (1992) pp. 568-575

1. Issue: Whether the complete destruction of economic value of private
property by a state regulation constitutes a taking of private property for a
public use under the Fifth and Fourteenth Amendments and requires the
payment of just compensation.
2. Rule of Law: A state regulation that completely deprives private property of
all its economic value constitutes a taking under the Fifth and Fourteenth
Amendments that requires the payment of just compensation to the property
owner, unless the economic activity prevented by the regulation is not part of
the owner’s initial title or property rights when acquiring the property.
3. Complete destruction of all economically beneficial use

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 4. Facts
a. State wanted an unspoiled sea shore
5. Court said there are two discrete categories of regulatory action as
compensable (remedied with compensation) without case-specific inquiry
into the public interest advanced in support of the restraint
a. (1) Permanent physical occupation
i. Regulations that compel the property owner to suffer a
physical “invasion” of his property
1. In general, no matter how minute the intrusion and no
matter how weighty the public purpose behind it, the
court has required compensation
b. (2) Destruction of all economically viable use
i. Regulations that destroy all economically viable use of private
property and that are not abatements of public or private
nuisances are takings per se
1. The takings clause is violated when land-use regulation
“does not substantially advance legitimate state
interests or denies an owner economically viable use of
his land”
ii. Exception
1. The court thinks it may resist compensation if the
owner’s estate shows that the proscribed use interests
were not part of his title to begin with
c. In both categories the property owner carries the burden of proof
6. Court notes the denominator problem
7. Government’s justification – it serves the public interest
8. Nuisance
a. Court says the government can take away all the value of the property
if going to abate a public nuisance
b. Nuisance is typically looked at as something that a neighbor could
protest and take legal action for

The Balancing Approach (pp. 577-86)

1. Balancing
a. Penn Central comes in
b. Harm to property owner, what’s the public interest in doing so?

Loretto v. Teleprompter Manhattan CATV Corp. (1982) pp. 575

1. SC held that it was a taking
a. Permanent and physical occupation
2. Modest occupation, the width of a telecommunications cable running
through an apartment
3. State made law saying all apartment building owners must allow for such
installation, the government would give $1 each year for the inconvenience
4. A permanent physical occupation caused by the government is basically a per
se taking

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Penn Central Transportation Co. v. New York City (1978) pp. 577-579
1. Issue: Whether the Landmarks Preservation Law as applied to Penn Central
constitutes a taking for public use of the company’s property that requires
the payment of just compensation under the Fifth and Fourteenth
Amendments.
2. Rule of Law: In determining whether a state regulation constitutes a taking
under the Fifth and Fourteenth Amendments, courts should consider the
economic impact of the regulation on the owner, the extent to which the
regulation has interfered with the owner’s reasonable investment-backed
expectations and the character of the government action involved in the
regulation.
3. Balancing approach
4. Penn Central claimed that the Commission’s refusal to permit development
above Grand Central constituted a taking. The Court ruled that the landmark
regulations were not a taking
a. Everyone in the city benefits from the landmark designation of a
building
5. In prior cases it has been established that when there is a taking for the
public’s benefits, then the public will pay for the taking

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency

(2002) pp. 580-585
1. Issue: Whether a moratorium on development imposed during the process of
devising a comprehensive land-use plan constitutes a per se taking of
property requiring compensation under the Takings Clause of the United
States Constitution.
2. Rule of Law: A temporary moratorium on development imposed for the
purpose of developing a comprehensive land-use plan does not constitute a
per se taking of property for public use requiring the payment of just
compensation under the Fifth Amendment.
3. Facts
a. Moratorium on development around the basin of the lake while the
question of development is being studied
b. Developers and owners of property went to court claiming it ws a
regulatory taking
4. The majority said this was a temporary taking and thus the developers
should not be compensated, as it was just for a limited period of time
a. Temporary so that the preservation committee could determine how
to keep Tahoe beautiful
5. The court said you can’t cut the property into different time zones
6. The dissenters say it was actually a 6 year moratorium and that thus they
should be compensated
a. “The temporary denial of all viable use of land for six years is a taking”
b. Dissent relies on Lucas

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 c. “I would hold that regulations prohibiting all productive uses of
property are subject to Lucas’ per se rule, regardless of whether the
property so burdened retains theoretical useful life and value if, and
when, the ‘temporary’ moratorium is lifted”

Conditional Regulatory Takings (pp.587-92)

1. In this area the court has scrutinized zoning more than others

Nollan v. California Coastal Commission (1987) pp. 587-589

1. Facts
a. Nollan wanted to demolish his small, dilapidated beachfront cottage
and replace it with a larger residence in keeping with the
neighborhood. The CA Coastal Commission wouldn’t grant a permit
unless he recorded an easement permitting the public to cross his
beachfront so as to move more easily btwn public beach areas to the
north and south of Nollan’s property. Nollan contended the condition
was a taking
2. They want Nollan to address something that is caused by what he wants to
do
3. The Court held that conditioning a building permit on a landowner’s grant of
a public easement across his land constituted a taking. The Court found that
the government had not established a nexus between a legitimate
governmental objective of nondevelopment and the means of exacting the
easement

Dolan v. City of Tigard (1994) pp. 589-592

1. Issue: Whether the city’s conditions for granting a permit were so
disconnected from a state interest as to constitute a taking of property
requiring payment of just compensation under the Fifth and Fourteenth
Amendments.
2. Rule of Law: A government regulation seeking to exact an individual’s
property from a proposed development constitutes a taking, requiring
payment of just compensation unless the exaction is roughly proportional to
the impact of the proposed development on the regulatory interest.

The Contracts Clause (pp. 593-605)

1. Contracts Clause of Article I, Section 10 – which bars states from impairing
contractual obligations
a. “No State shall…pass any…law impairing the obligation of contracts”
2. Applies only if a state or local law interferes with a contract

Home Building & Loan Association v. Blaisdell (1934) pp. 594-597

1. Contracts clause is not an absolute utterly unqualified restriction of the
State’s protective power

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 2. Court is of the opinion that the Minnesota statute as here applied does not
violate the contracts clause

United States Trust Co. v. New Jersey (1977) pp. 598-601

1. Conflicts of interest here
a. The state is impairing its own contract
2. Issue: Whether a state statute that repeals a previous contractual obligation
with bondholders not to use toll funds to improve railroad transit violates
the Contract Clause of the Constitution.
3. Rule of law: The impairment of a contract between a state and private
bondholders may only be upheld if it is both reasonable and necessary to
serve an important public purpose.

Allied Structural Steel Co. v. Spannhaus (1978) pp. 601-603

1. How’s it different from the Trust v. New Jersey case?
2. Issue: Whether the application of pension funding charges to a company
under Minnesota’s Private Pension Benefits Protect Act violates the Contract
Clause of the United States Constitution.
3. Rule of Law: A state may not pass legislation that retroactively and
significantly affects the contractual obligation of an employer to provide a
pension plan for its employees.

Energy Reserves Group, Inc. v. Kansas Power & Light Co. (1983) pp.
603-604)
1. Issue: Whether a state law that regulates the price of natural gas sold at
wellhead in the intrastate market violates the Contract Clause of the United
States Constitution.
2. Rule of Law: In times of economic emergency or other exigent circumstances,
states may constitutionally impose increased limitations on the freedom to
contract if those limitations help address the emergency.
3. Court applied a two-tiered inquiry
a. Whether state operated a substantial impairment of the contractual
relationship
i. Arguably there has been
b. Is there significant or legitimate public purpose
i. And if so is an adjustment of responsibilities reasonable?

EQUAL PROTECTION OF THE LAWS

Equal Protection Clause: “All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any

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person within its jurisdiction the equal protection of the laws.” – Sec. 1 of the 14th
Amendment

Introduction and Levels of Scrutiny (pp. 607-12)

Introduction
1. “Why me?” is the constant question
2. EPC of the 14th Amendment was designed to impose upon the states a duty to
prohibit legislative classifications and administrative behavior that
discriminated against particular groups in the distribution of certain
fundamental rights
3. All EP issues can be broken down into three questions:
a. What is the classification?
i. How is the government distinguishing amongst people?
ii. Same laws are facially discriminatory
iii. Others are facially neutral but have a disparate impact
1. Insufficient to prove a racial or gender classification
2. If facially neutral, demonstrating a race or gender
classification requires proof that there is a
discriminatory purpose behind the law
b. What is the appropriate level of scrutiny?
c. Does the government meet the level of scrutiny?
i. The Court evaluates both the law’s ends and its means
1. Strict scrutiny – end must be compelling
2. Intermediate scrutiny – end has to be important
3. Rational basis/minimum scrutiny – legitimate purpose
ii. Focus on under-inclusive/over-inclusive
1. The fact that a law is underinclusive and/or
overinclusive does not mean that it is sure to be
invalidated – just used to evaluate the fit between the
government’s ends and means
2. Strict scrutiny – close fit
a. Means is necessary – the least restrictive
alternative
4. When law treats people differently but makes no purpose for the law doing
so
a. We’re once again in the land of means and ends – like substantive due
process
i. But here we’re a little more concerned on the means
5. The legitimacy of ends can change with time
a. Some ends viewed as valid in the mid-1900s, are no longer viewed as
permissible ends (women, blacks)
6. Is there a good fit between means and ends?
7. State has come to mean any local government as well
a. Limits state and local government equally

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 8. Also limits the federal law – why is this a problem?
a. It’s under the 14th Amendment
b. Bowling v. Sharp – court had to bring the EPC into the 5th Amendment
to limit federal government
9. Discrimination between newcomers and out-of-staters is also in equal
protection
a. Seen it in the DCC and PIC
b. Designed to give protection to the outsider
c. So when looking for solutions to a problem you would want to canvas
all three of them (some wouldn’t apply for certain situations)

Levels of Scrutiny
1. All EPC cases pose the same basic question: is the government’s
classification justified by a sufficient purpose?
2. Minimal scrutiny
a. Rational basis test
b. Default rule – if not strict or intermediate scrutiny
c. Classifications
i.
d. Law is upheld if it is rationally related to a legitimate
government purpose
i. Govt’s objective need not be compelling or important
ii. The means chosen only need be a rational way to
accomplish the end
e. Most cases will be addressed with this bottom tier
f. Must show there’s no rational basis with any legitimate government
interest
g. Law is assumed valid and burden is on challenger (plaintiff)
i. It’s enormously deferential to the government
h. Burden
i. Can show its not legitimate – which is hard to do
ii. Or fail to show that it’s not but show that the justification does
not rationally relate
i. As long as there’s rational relationship between classification and
government goal that’s enough to satisfy minimal scrutiny
3. Strict Scrutiny:
a. Top-tier – everything is reversed from the rational basis review – the
law is assumed invalid
b. Classifications
i. Race or national origin
ii. Sometimes alienage
c. Law is upheld if it is proved necessary to achieve a compelling
government purpose
i. Government must show that is cannot achieve its objective
through less discriminatory alternatives

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 d. Laws which impact negatively what has been identified as a
fundamental interest protected by equal protection
e. Government has burden of proof
i. Must show the classification is to serve a compelling
government interest
ii. Difficult for a government to win these cases
4. Important distinction between “rationally related” v. “necessary”
5. Intermediate Scrutiny:
a. Middle Tier
b. A law is upheld if it is substantially related to an important
government purpose
i. Government purpose need not be “compelling,” but it must
characterize objective as “important” government purpose
c. Government has burden of proof
d. Classification must substantially advance an important
government interest/purpose
e. The means used need not be necessary, but must have a
“substantial relationship” to the end being sought
f. Classifications
i. Gender
ii. Illegitimate children
6. Some cases don’t fit this three-tiered model
7. The history of discrimination against the group is relevant to the Court
in determining the level of scrutiny
a. As is the ability of the group to protect itself
8. Part of the task is to look at the objectives of classification – figure out
whether the means of the classification have a good fit with the objectives
9. Some special interest group can get a law passed making it easier for them
and harder for their competitors – once this happens under minimal
standard of review there’s not going to be relief from the court

Over-inclusive/Under-inclusive
1. Over-inclusive
a. Those which regulate more than you need to in order to achieve the
objective
b. People here say, “I’m not part of the problem, why am I part of the
solution?”
2. Under-inclusive
a. Regulate less than you need to achieve the objective
b. These people would say, “yes, I cause a problem, but so do they, why
aren’t they included?”
3. Sometimes the courts seem to be more concerned with laws that over-
regulate
a. But when they under-regulate there’s usually someone being picked
on

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Classifications
1. Some get a closer look than others
a. For instance mandatory retirement ages for police officers would not
b. But a law against women being police officers would probably get a
closer look
2. Three types of legislative classifications that might be suitable for heightened
scrutiny
a. (1) Those that are in facial conflict with specific rights guaranteed by
the Constitution
b. (2) Those that inhibit the democratic process – the fundamental rights
strand of equal protection jurisprudence prohibits discrimination
with respect to certain fundamental rights
i. Voting rights
ii. Travel
iii. Access to the judicial process
iv. Reflects the theme, first articulated in McCulloch v. Maryland,
that the courts have a heightened role in protecting the
democratic process from structural distortions
c. (3) Those that classify on the basis of race, religion, or membership in
any other “discrete and insular” minority – the suspect class strand of
equal protection jurisprudence prohibits government discrimination
against groups of people based on race, national origin, gender,
alienage, illegitimacy and certain other criteria
i. Rooted in a union of concerns about democratic process, the
historical reasons for equal protection, and the perception that
such classifications are rarely germane to any legitimate
government objective
ii. Age discrimination is not protected by the EPC
3. The Court often considers the ability of the group to protect itself
through the political process
4. What about economic minorities – why do they not get such protection?
a. The opticians case
b. They don’t have a stigma, haven’t been used to disadvantage people
5. Is identifiable an important characteristic?
a. It used to be that they’d have to have the identity to be picked on
6. Every now and then the court will apply minimum scrutiny in a way that
knocks out classification – see pg. 629
a. Court is saying legislature has told the goal, but after looking at the
classification it makes no sense (no relationship between the two)
i. Don’t have to give heightened review but just say no rational
relationship

Minimal Scrutiny: the default level of review

- Means: is there a rational relationship between the means and the ends?

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Minimal Scrutiny: The Default Level of Review
Means: What is Not Rational? (pp. 612-19)
Railway Express Agency, Inc. v. New York (1949) pp. 612-614
1. Issue: Whether New York’s regulation of advertising on business vehicles
violates the Equal Protection Clause of the Constitution.
2. Rule of Law: A state law that is substantially under-inclusive does not
necessarily violate the Equal Protection Clause because a state may conclude
rationally to address a public problem in phases.
3. Facts
a. REA sold space on the exterior sides of trucks for advertising
b. Talking about a made-up legislative purpose here
4. The Court was not troubled by the fact that the City prohibited certain signs
on vehicles but allowed others
a. Government can address a problem one step at a time – so it could
start by just outlawing the advertisements on the REA trucks and
other trucks that weren’t advertising their own business
b. The Court said that equal protection does not require the eradication
of all evils of the same sort
5. On the EPC claim, Justice Douglas concluded that even if the City’s opinion
that the classification reduced traffic hazards was incorrect, it “does not
contain the kind of discrimination against which the EPC affords protection”
6. Justice Jackson’s concurrence
a. Even on the minimal tear you must show a relationship between the
means and the ends

Williamson v. Lee Optical Co. (1955) pp. 614

1. Issue: Whether an Oklahoma state law prohibiting the fitting of lenses by an
optician without prescriptive authority from a licensed optometrist or
ophthalmologist in the state violates the Fourteenth Amendment.
2. Rule of Law: A state may regulate a business if its legislature determines
there is a particular health and safety problem at hand and that the
regulation in question is a rational way to correct the problem.
3. Facts
a. Oklahoma statute that prohibited opticians from duplicating or fitting
lenses without a prescription from an optometrist or ophthalmologist
b. Opticians are the least educated of eye specialists
4. Why did Oklahoma want to restrict opticians?
a. The word “may” appears very often in the case
b. They were likely trying to give the eye doctors another referral, more
business (probably these eye doctors, more educated then the
opticians, lobbied the legislature)
5. Opticians get minimal review

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 a. Court willing to accept any plausible reason as the goal of the law, and
any means that would achieve this hypothesized goal
b. Said: “the day is gone when the Court uses the DPC to strike down
state laws regulatory of business and industrial conditions, because
they may be unwise, improvident, or out of harmony with a particular
school of thought
6. The Court stated “the law need not be in every respect logically consistent
with its aim to be constitutional. It is enough that there is an evil at hand for
correction, and that it might be thought that the particular legislative
measure was a rational way to correct it.”
a. This also became the current standard of judicial review for economic
regulation

New York City Transit Authority v. Beazer (1979) pp. 615

1. Minimal review
2. Upheld ban on methadone users from being hired
3. The court upheld the law under minimal scrutiny, finding that the “no drugs”
policy is supported by the legitimate inference that so long as a treatment
program (or other drug us) continues, a degree of uncertainty persists

United States Railroad Retirement Board v. Fritz (1980) pp. 616-619

1. Issue: Whether the Railroad Retirement Act’s classification of some
employees as eligible to receive windfall benefits while some were ineligible
was arbitrary and not rationally related to a legitimate state purpose.
2. Rule of Law: Under rational basis review, Congress’ actual purpose behind a
law is irrelevant and the law must be upheld as not violating the Fifth
Amendment if any state of facts may reasonably be conceived to justify its
discrimination.
3. Focuses on the ends – the ends to what Congress was pursuing
4. Facts
a. If in the system more than 25 years than you could double-dip no
matter what
b. If no more than 10 years you couldn’t double dip
c. The question was those between the two – could they double dip into
both benefit plans
i. If you’re still employed or have a connection with the Rail Road
industry when the law was passed then you could
5. Rational review with bite – a little more teeth then the bottom review
a. Requires more of a determination of what the actual goals were
b. Isn’t at the level of strict scrutiny
c. Doesn’t look for a rational relationship (not crazy) but a reasonable
relationship
6. Majority (Rehnquist)
a. The reasons were plausible
b. The language of the statute was clear – Congress intended what it
enacted

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 c. Said the purpose of the law was that some people would get windfalls
an others wouldn’t
d. Said they won’t require that Congress tell them what it’s purpose was
7. Dissent
a. Gave a different purpose to what Congress implemented
i. The means and ends were not related
b. The test is rationally related to a legitimate stated purpose
i. Said this formula needs something
c. The law undercuts vested interests that the law was supposed to
uphold
i. So no rational basis
8. “The majority’s very deferential version of minimal scrutiny assumes that, at
least with respect to economic legislation, there is no reason to interfere with
the outcomes produced by the tug-of-war of politics. The ‘actual purpose’
version proposed by Justice Brennan assumes that the political process
cannot be trusted always to be free of defects” – pg. 619

Ends: What Purposes are Not Legitimate? (pp. 620-29)

United States Department of Agriculture v. Moreno (1973) pp. 620-621
1. This case is cited for the fact that when the purpose seems to be to harm a
certain group than it’s viewed as an improper purpose
2. Issue: Whether a law which terminated food stamp benefits for a class of
persons comprised of unrelated people living in the same households
violated the Due Process Clause of the Fifth Amendment.
3. Rule of Law: A state regulation that arbitrarily creates two classes of persons
and deprives one class of government benefits violates the Equal Protection
Clause and Due Process Clause of the Fifth Amendment because it is based on
a mere legislative preference for one class that is not rationally related to a
legitimate state purpose.
4. Intention of act
a. To alleviate hunger
b. To prevent hippy communes from receiving benefits (probably wasn’t
all of Congress)
c. Court focuses on stated purpose of the act – to alleviate hunger, help
the farmers
5. By redefining households it does not help to further the goal, it seems to
retard the goal rather than advance. If this were a plain rational relationship
case then you'd say that there's no rational relationship. But the court says
it's not convinced that the stated goal is the actual goal.
6. It’s tough to tell whether this is just an unreasonable relationship case (in
which case it would be available in Fritz and other cases) or if it’s a
reasonable relationship for hostile purposes

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Romer v. Evans (1996) pp. 621-627
1. Issue: Whether Amendment 2 to the Colorado Constitution which prohibited
state and local governments from enacting anti-discriminatory legislation to
protect homosexual persons violated the Equal Protection Clause of the
Fourteenth Amendment.
2. Rule of Law: A state law that neither burdens a fundamental right nor targets
a suspect class of persons will be upheld under the Equal Protection Clause of
the Fourteenth Amendment if it bears a rational relation to a legitimate state
purpose
3. Is this a heightened minimum review case or an animus heightened review
case?
4. Facts
a. The Colorado State constitutional amendment that the Court struck
down here not only repealed local ordinances prohibiting
discrimination against homosexual persons but also prohibited all
future “legislative, executive, or judicial action at any level of state or
local government designed to protect” these individuals
b. If you’re seeking protections set out, you can’t get them through your
local legislature, or state legislature, can only get them through the
people of the state
i. Not a case where sexual orientation is viewed as a suspect or
semi-suspect classification
ii. Purports to be an animus case
5. Rejecting Colorado’s argument that the amendment simply put homosexuals
in the same position as all other persons, the Court stated that Amendment 2
placed homosexuals in a class by themselves, depriving only them of
protection against discrimination
6. If we’re at the bottom tie of review here, we’re not asking for a compelling
objective, we’re asking for a legitimate objective
a. CO’s objective: to protect personal and religious objections to
homosexuality
7. Court says this is pure equal protection because homosexuals aren’t able to
gain rights through local or state legislatures the way that other groups are in
this situation – they’d have to lobby the citizenry/entire state
8. Dissent (conservatives)
a. Majority is taking sides in a culture war
b. Fear of gays having too much political power
c. Opposition to homosexuality is not as bad as that to race or religion
9. The Constitution demands neutrality in the law and bans “classes among
citizens” – Plessy

Same Sex Marriage?

1. Romer + Lawrence + Loving = right of same sex marriage?
a. Principle from Romer = can’t single out gays or lesbians for different
treatment without a stronger reason

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 i. Can’t have separate legislation
b. Lawrence = can’t infringe upon the intimate rights of people
c. Loving = marriage is a fundamental right
i. Right to marry person you love can’t be taken away except for
a compelling reason

“Enhanced” Minimal Scrutiny: Means? Ends? Both? (pp.

629-40)
City of Cleburne, Texas v. Cleburne Living Center (1985) pp. 630-633
1. Issue: Whether a city’s denial of a permit for a group home for mentally
disabled persons violated the Equal Protection Clause of the Fourteenth
Amendment, and whether the review of such a denial required intermediate
scrutiny.
2. Rule of Law: The mentally disabled are not a quasi-suspect class, and thus
any legislative regulations affecting their rights are subject to rational basis
review and not intermediate scrutiny.
3. Facts
a. Cleburne City required permit for the mentally challenged but they
didn’t require this permit for other group living situations
i. Incredibly under-inclusive law – only group home that was
required a permit
4. Court says minimal scrutiny
a. A strong argument was made saying laws discriminating against
mentally retarded require at least intermediate scrutiny like laws
based on gender
5. To withstand equal protection review, legislation that distinguishes between
the mentally retarded and others must be rationally related to a legitimate
governmental purpose
a. Court points out that if we’d give higher scrutiny to laws that treat
mentally retarded differently, then we might be doing harm by
discouraging legislatures from being helpful
6. End that city claimed it was serving:
a. Feared high school students across the street would harass the
mentally challenged
b. That flood waters in the area could pose a problem
7. Court said no rational basis for the law even if some of these ends are
legitimate
8. The court wont let private prejudice rule public action
9. Court: “The short of it is that requiring the permit in this case appears to us
to rest on an irrational prejudice against the mentally retarded”
a. So, this is not just plain old rational relationship – it’s rational
relationship with some animus going on
i. A little bit like a Romer or Moreno case

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 10. Marshall, Brennan, Blackmun (concurrence in judgment in part and
dissenting in part)
a. They say this is clearly heightened review
b. You could not look so closely at the means or the end if it’s not
heightened review
11. Despite holding that mentally retarded individuals were not a quasi-suspect
class, the Court struck down the challenged law because it did not pass the
required rationality test
12. “The general rule of equal protection is that legislation is presumed to be
valid and will be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest. When social or economic
legislation is at issue equal protection allows the states wide latitude, and the
Constitution presumes that even improvident decisions will eventually be
rectified by the democratic process. The general rule gives way, however,
when a statute classifies by race, alienage, or national origin. These factors
are so seldom relevant to the achievement of any legitimate state interest
that laws grounded in such considerations are deemed to reflect prejudice
and antipathy – a view that those in the burdened class are not as worthy or
deserving as others. For these reasons and because such discrimination is
unlikely to be soon rectified by a legislative means, these laws are subjected
to strict scrutiny. Similar oversight by the courts is due when state laws
impinge on personal rights protected by the Constitution. Legislative
classifications based on gender also call for a heightened standard of review.
That factor generally provides no sensible ground for differential treatment…
But where individuals in the group affected by a law have distinguishing
characteristics relevant to interests the state has the authority to implement,
the courts have been very reluctant to scrutinize closely legislative choices as
to whether, how, and to what extent those interests should be pursued. In
such cases, equal protection requires only a rational means to serve
legitimate end.” – pg. 630

Plyler v. Doe (1982) pp. 634-639

1. Issue: Whether a state may constitutionally deny free public education to
undocumented school-age children when that state provides such education
to children who are citizens of the United States or legally admitted aliens.
2. Rule of Law: A state legislative classification that denies public education to
undocumented school-age children violates the Equal Protection Clause of
the Constitution unless the classification furthers a substantial goal of the
state.
3. Violation of EPC
4. Facts
a. TX legislation aimed to deny undocumented children from receiving
free public education
5. Does the court treat this as a suspect classification? – No

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 a. Because the parents of the children do not get protection because
undocumented – how can you say someone violating the law can be
treated as a suspect classification
b. But arguably a semi-suspect classification because they did not violate
the law, only their parents violated
6. Court’s reasoning
a. Education, while not a fundamental right, is still very important
i. So here there is a semi suspect classification used to take away
a semi-fundamental right
7. Standard of review
a. Looks to see if the interest of the state is a substantial interest
i. Substantial interest is a new formula
ii. It is not strictly speaking intermediate scrutiny, but
functionally it looks like intermediate scrutiny
b. “Note that the Court required the classification to be rationally related
to a substantial, rather than simply a legitimate, state interest and
effectively shifted to TX the burden of proof on this issue. This was
not intermediate scrutiny, which would have obliged TX to prove that
its statutory classification was substantially related to an important
state interest” – pg. 639
8. Dissent
a. Not a case for higher review
b. TX’s policy may be unwise but it’s not in violation of EPC

Idea that if it’s questionable, the tie goes to the government

1. Minnesota v. Clover Leaf Creamery – state outlawed plastic containers for
milk and required paper only

Strict Scrutiny and Suspect Classifications: Race and

Ethnicity
Overview (pp. 640-42)
1. When you have strict scrutiny the formula changes – the law that classifies
based on race or ethnicity has to meet a compelling interest standard
a. Why are they subject to strict scrutiny?
i. Kinds of traits in history that go with race or ethnic status were
traits used to harm people
ii. In the past a lack of access to political power to correct the
wrongs that discrimination has put on groups and therefore
the law is steeping in
2. Strict scrutiny required for any racial or ethnic qualifications
3. Race and ethnicity
a. Race = who we are genetically – appearance – what you are
b. Ethnicity/national origin = where you come from
c. The two are not interchangeable

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 4. Alienage = what country you’re a citizen of
a. If you are a citizen of US then you’re not an alien
5. 3 positions about treating people differently based on race
a. The government should never do it
i. Couldn’t implement something like affirmative action
ii. Race can be used by the government to help historically
disadvantaged people
b. The government can take race into account to achieve affirmative
action
c. In between the above two: Korematsu v. U.S. – compelling interest test
i. The government can’t use race or ethnicity to harm people
unless it has a very good reason to do so
ii. Would be tough to justify affirmative action under this

Korematsu v. U.S. (1944) pp. 641

1. Facts
a. Internment camp
b. Government lied to SC to justify the threat of espionage
c. Germans and others we were at war with who were living in the
country weren’t put into internment camps
2. Issue: Whether Civilian Exclusion Order No. 34, an Executive Order requiring
Japanese Americans to relocate to internment camps during World War II,
was constitutional.
3. Rule of Law: State laws restricting the rights of persons based on race are
subject to strict scrutiny and will only be upheld if they further a “pressing
public necessity.”
4. Court: “All legal restrictions which curtail the civil rights of a single racial
group are immediately suspect. That is not to say that all such restrictions
are unconstitutional. It is to say that courts must subject them to the most
rigid scrutiny. Pressing public necessity may sometimes justify the existence
of such restrictions; racial antagonism never can”
a. Ironically, the Court concluded that the “pressing public necessity” of
preventing espionage by those of Japanese ancestry justified
deference to the military authorities’ judgment that wholesale
exclusion was necessary

Purposeful Discrimination Required (pp. 642-49)

Strauder v. West Virginia (1879) pp. 642
1. Rule: if a classification directly employs the suspect criterion, intentional
discrimination is revealed on the fact of the statute, and no further inquiry is
necessary to determine that the classification is suspect
2. Facts
a. A West Virginia jury, limited by law to adult white males, convicted
Strauder, a black man, of murder.
3. The court ruled that the facially discriminatory law violated equal protection

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 4. Would lead to the fact that you can’t discriminate based on race for voting
registration purposes
5. Loving v. Virginia (1967)
a. A variation of the facially discriminatory classification is found here
b. The court ruled that the Virginia law banning interracial marriage
serves no legitimate purpose and the law rests solely upon
distinctions drawn according to race

Yick Wo v. Hopkins (1886) pp. 643

1. Facially neutral laws nevertheless violate the EPC if they are administered in
a racially discriminatory manner
2. Is an example of a neutral classification applied in a discriminatory fashion.
a. A facially neutral classification (one that classifies on a non-suspect
basis) that is actually applied on a suspect basis is treated as a suspect
classification, but the party challenging the classification has the
burden of proving its suspect application
3. Facts
a. SF prohibited operation of laundries in wooden buildings, all but 10
of SF’s 320 laundries were barred from further operations and
Chinese persons operated 75% of city’s laundries, virtually all in
wooden structures. 240 Chinese persons operating buildings were
arrested, while 80-odd laundries operated by Europeans were left
unmolested.
4. The law was being enforced racially – even though not discriminatory on its
face – it was being applied with an evil eye and an uneven hand
5. The Court invalidated the ordinance because SF had no justification for its
invidiously discriminatory application of a facially neutral law

Gomillion v. Lightfoot (1960) pp. 643

1. Is an example of neutral classifications motivated by discrimination that
produce a discriminatory effect
a. A facially neutral classification that is adopted solely because of an
invidiously discriminatory motive and that produces the intended
effect is treated as a suspect classification
2. Facts
a. Tuskegee, Alabama redrew its boundaries from a square to an
“uncouth twenty-eight sided figure.” About 99 percent of the black
voters were allegedly eliminated from Tuskegee, while not a single
white voter was removed
3. Court found the legislation to be solely concerned with segregating white and
black voters
a. Statistics alone here make out a prima facie case
4. In Gomillion v. Lightfoot (1960), the Court held that in the absence of an
invidious purpose, a state is constitutionally free to redraw its political
boundaries in any manner it chooses. However, a voting district violates the
Fourteenth Amendment’s Equal Protection Clause if the state’s purpose in

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 drawing the voting district is to minimize invidiously the voting potential of
racial or ethnic minorities. To prove such a purpose, a plaintiff bears a high
burden of proving that the disputed plan is conceived or operated as a
purposeful device to further racial discrimination.

Washington v. Davis (1976) pp. 643-645

1. Issue: Whether the test used by the Washington, D.C. police department to
screen new employees violates the Fifth Amendment Due Process Clause.
2. Rule of Law: A state-sponsored racial classification violates the equal
protection provisions in the Fifth Amendment’s Due Process Clause only if it
is shown to have both a disproportionate impact on a particular race and is
motivated by invidious racial discrimination.
3. This case was about statistics and how they reflect on the government’s
purpose
a. Problem here: how do you should discrimination when it’s not
apparent on the fact?
4. Facts
a. A large amount of blacks were not passing a test to become a police
officer – four times as many blacks as whites failed and thus weren’t
hired
b. Govt’s argument: they needed to higher officers with stong written
and verbal communications skills
5. Statistics alone not enough – must have purposeful discrimination
a. Lower court: statistics alone are enough to show purposeful race
discrimination, making out a case for equal protection violation
b. Higher court said the disproportionate statistics are relevant but not
enough
i. What make an equal protection violation is purposeful
discrimination
ii. In Yick Woo and Gomillion disparate statistics are enough to
make out a prima facie case, court says that except in those
exceptional cases, statistics alone aren’t enough to make a
prima facie case
iii. “Disproportionate impact is not irrelevant, but it is not the sole
touchstone of an invidious racial discrimination forbidden by
the Constitution. Standing alone, it does not trigger the rule
that racial classifications are to be subjected to the strictest
scrutiny and are justifiable only by the weightiest of
considerations” – pg. 644
6. “The differentiating factor between de jure segregation and so-called de facto
segregation is purpose or intent to segregate” – pg. 644
7. Court also said that the police dept was taking additional measurements to:
racial composition was changing (more blacks) in the force and they had a
hiring program to increase racial diversity

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Arlington Heights v. Metropolitan Housing Development Corp (1977) pp. 645
1. Issue: Whether the Village’s denial of a zoning reclassification permit for a
racially-integrated multi-family dwelling violates the Equal Protection Clause
of the Fourteenth Amendment.
2. Rule of Law: A state-sponsored racial classification will not be held to violate
the Equal Protection Clause of the Fourteenth Amendment unless a plaintiff
shows that the law is motivated by a discriminatory purpose and has a
discriminatory impact.
3. Facts
a. MHDC planned to build a racially-integrated complex featuring nearly
two hundred townhouse units marketed to law and moderate income
tenants
b. The village denied the permit request, and MHDC brought suit in
federal court alleging denial of the permit was racially discriminatory
and violated the 14th Amendment and Fair Housing Act
4. What do you have to show to prove the disparate impact here was intended?
a. You start with the numbers – if no disparate impact than no
discrimination
b. Then you look at the historical background of the case and specific
sequence of events
c. The decision making process itself – hearings, legislative history, etc. –
anything within the documents that refers to race or racial
undertones
5. “Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not
determinative, and the Court must look to other evidence. The historical
background of the decision is one evidentiary source, particularly if it reveals
a series of official actions taken for invidious purposes. The specific
sequence of events leading up to the challenged decision also may shed some
light on the decision makers’ purposes” – pg. 646
6. Housing and Zoning
a. Under Arlington a P need only show that discrimination was a
motivating factor in the decision, not the sole or even the dominant or
primary factor. Impact was seldom sufficient, standing alone, to
establish discriminatory intent, but disparate impact was an
important starting point

Personnel Administrator v. Feeney (1979) pp. 647

1. Issue: Whether a state veteran’s preference law discriminates against women
in violation of the Equal Protection Clause of the Fourteenth Amendment.
2. Rule of Law: To prove that a state actor violates the Equal Protection Clause
by enacting legislation with a discriminatory purpose, a plaintiff must show
that the decision-maker selected or reaffirmed a particular course of action
at least in part because of, not merely in spite of, its adverse effects upon an
identifiable group.
3. The court said the law was passed despite that it hurt women, but not inspite
of the fact that it hurt women

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 4. The Court upheld the Massachusetts Veterans Preferance Statute requiring
all veterans who qualified for state civil service positions had to be
considered for appointment ahead of qualifying non-veterans
a. Women applicants for civil service jobs alleged that the statute
favored men because they historically had served in the military in far
greater numbers than women.
5. Feeney illustrates the effect of the intentional discrimination requirement in
the gender context

Batson v. Kentucky (1986) pp. 648

1. Discusses the process for determining if a jury selection is racially biased
2. The court said at some point the trial court must interfere if it detects a
pattern
a. At that point the prosecutor must show that there was some non-
racial reason for it’s discrimination in the jury selection
b. The burden of proof shifts to the govt. – the prosecutor
3. The Court held that race-based peremptory challenges violated the EPC.
They not only harmed the D, but also undermined public confidence in the
criminal justice system
4. Detailed explanation of how this method of picking a jury to discriminate is
proven and prevented on pg. 48 of Lexis Outline

Official Racial Segregation (pp. pp. 649-58)

1. The Road to Brown
a. Plessy = separate but equal
2. They chose to bring suit in Topeka, Kansas because by all objective
measurements, the education was basically equal in dollar amounts (even
money spent on facilities for both black and white schools)
a. Goal was to end separate but equal by showing that separate could
never be equal
i. If completely equal but separate schools, then what’s the
problem?
1. Stigma
2. Giving black children a sense of inferiority

Brown v. Board of Education (Brown I) (1954) pp. 651-652

1. Issue: Whether the segregation of children in public schools solely on the
basis of race, even though the physical facilities and other tangible factors are
equal, deprives the children of the minority group of educational
opportunities in violation of the Equal Protection Clause of the Fourteenth
Amendment.
2. Rule of Law: Separate educational facilities based on racial classifications are
inherently unequal and violate the Equal Protection Clause of the Fourteenth
Amendment.
3. 9-0 decision

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 4. If it’s only a right to be free from segregation, that’s different than the right to
an integrated education

Green v. County School Board (1968) pp. 654

1. Facts
a. To remedy its prior deliberate racial segregation a school district with
two schools, approximately equal numbers of black and white
students, and little residential racial segregation adopted a freedom-
of-choice plan that permitted students to chose which school to attend
b. After 3 years the formerly all-black school was still all black and the
formerly all-white school was about 85% white
2. Court invalidated a “freedom-of-choice” plan – said county must develop a
unitary system following Brown
a. Said we’re not interested in the process but interested in the results
3. Court assumes that today’s segregation is still the result of yesterday’s
a. If you haven’t integrated than you haven’t righted the wrong

Swann v. Charlotte-Mecklenburg Board of Education (1971) pp. 654

1. Issue: Whether busing is included in the scope of the duties of school
authorities under the Supreme Court’s mandate in Brown v. Board of
Education to eliminate racially separate public schools established and
maintained by state action.
2. Rule of Law: As part of a state-wide plan to desegregate schools, state boards
of education are required to consider the use of racial quotas, rearrangement
of school districts, and busing as practical ways to facilitate desegregation.
3. The watershed school desegregation remedy case
4. Problem: many blacks on one side of residential area and whites on another
5. Solution: busing
6. Issue was many parents, from both races, didn’t want their children to have
to be bused away from their homes
7. Court said when segregation in the past, race-conscious remedies are
permissible
a. Affirmative obligation to take affirmative action to remedy when
segregation occurred in past
i. Busing of pupils is a legitimate tool for school desegregation
ii. The Court also suggested gerrymandering or clustering of
attendance zones as one remedy for correcting past
discriminations

Keyes v. School District No. 1 (1973) pp. 655

1. Off the book segregated actions could speak as loudly as those in the
codes/laws - almost like de facto, not quite, but certainly not de jure
2. De facto segregation violated the EPC only when it was produced by
intentionally invidious discrimination. Where no statutory dual system of
segregated schools has ever existed, plaintiffs must prove not only that
segregated schooling exists but also that it was brought about or maintained

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 by intentional state action. But proof of this deliberate wrongdoing as to any
part of a school system creates a presumption that other segregated
schooling within the system is not adventitious. The school system then has
the burden of proving that other segregated schools within the system are
not also the result of intentionally segregative actions. To sustain that
burden of proof, school officials must show either (1) that segregative intent
was not among the factors that motivated their actions or (2) that its past
segregative acts did not create or contribute to the current segregated
condition of the core city schools
3. Lightened the burden of proving discriminatory intent
a. The geographic presumption of Keyes allowed a finding of system-
wide discrimination from a finding of intentional discrimination in a
small segment of a school district
i. Presumptions like this and in other cases eroded the
intentional discrimination requirement in school
desegregation cases
4. Even though some of these cases lightened the burden of proving
discriminatory intent, simply proving discriminatory effect or impact was not
sufficient

Affirmative Action
First Views (pp. 658-66)
Regents of University of CA v. Bakke (1978) pp. 658-665
1. Required that government-imposed racial classifications must be “narrowly
tailored to further compelling governmental interests”
a. The compelling interest here was the diverse student body
2. No racial balancing here
a. No trying to find a specified percentage of a particular ethnic group,
which the court says would be unconstitutional
b. Says quotas wouldn’t be narrowly tailored
3. What argument is taken away?
a. They are not remedying their own wrongdoing – the school did not do
racial wrong in the past
i. Can’t remedy because no discrimination on their behalf
4. Two holdings to this case:
a. Bakke wins
b. Whether they could use race as part of the selection
i. Court said affirmative action is not unconstitutional if properly
applied. Taking race into account by admissions is
constitutional
5. Four of the justices argued that the school can’t get money under Title 6 by
doing this affirmative action
a. Title 6 – any institution that receives federal funds can’t discriminate

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 6. Laws designed to harm racial minorities must be subject to strict scrutiny,
but those that harm white majorities shouldn’t be subject to strict majority
a. Powell argued, “how do we determine who is in the white majority?”
i. The majority is made up of several sub-groups, some of whom
may be first generation Americans or Jews who have been
prejudiced against
7. This case really brings up the argument of who gets strict scrutiny applied to
them – which groups?
a. Almost all groups have been discriminated against, so how do you
differentiate?
8. Government can take account of race as a plus – if it’s a factor and not a
primary consideration
9. Bakke’s impact
a. Bakke laid down the general principals, but the following principles
that applied them weren’t education cases – which created a problem
because Bakke was based on an academic diversity theory – a diverse
student body gives better results, but no one had said this about the
work place, which is what the following cases dealt with

Wygant v. Jackson Board of Education (1986) pp. 665

1. Facts
a. Taking steps to hire minority teachers
b. They normally had a seniority system for dismissing, but were not
doing that. When times were tough financially they laid off senior
white teachers and kept less senior minority teachers
2. Raised question as to how to judge racially based government action
3. Strict scrutiny was applied here
4. The court held that the racially preferential layoffs violated equal protection
but could not form a majority as to the reasons. The plurality opinion
applied strict scrutiny and concluded that “societal discrimination alone is
not sufficient to justify a racial classification.”

General Principles (pp. 666-679)

1. Contractor cases
a. Can’t use the academic diversity rational for these cases
b. Can’t argue there will be different perspectives or it will be done
better because of diversity

Fullilove v. Klutznick (1980) pp. 666

1. The Court held that a congressional program requiring that 10% of certain
federal construction grants be awarded to minority contractors did not
violate equal protection, because Congress was entitled to deference
concerning its conclusion that the federal government’s “traditional
procurement practices, when applied to minority businesses, could
perpetuate the effects of past discrimination.” But Fullilove did not say

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 precisely what standard of review it was using to reach this conclusion and
expressly disclaimed adoption of either the Powell or Brennan view in Bakke
2. Court did not say what standard of review, just said a federal program would
be valid and focused on Congress’s spending rights
3. What clash is raised between Bakke and Fullilove?

City of Richmond v. J.A. Croson Co. (1989) pp. 666-673

1. Issue: Whether a city may constitutionally use a set-aside plan requiring
prime contractors to give thirty percent of their business to minority-
controlled subcontractors.
2. Rule of Law: Without evidence of past particular race-based discrimination, a
city may not enact a plan to provide a race-based set-aside to exclusively
promote minority business enterprises, as this does not constitute narrowly-
tailored means geared towards accomplishing a compelling state purpose.
3. For the first time a majority of the Court applied a compelling state interest
test to affirmative action cases
4. The court was very deferential to Congress, they also said it’s a spending
program, Congress has a lot of authority to do things when spending money
5. Strict Scrutiny
a. Fullilove didn’t give strict scrutiny even though it was dealing with a
suspect class
b. So why is this looked at through the prism of strict scrutiny?
i. This is a 14th Amendment case, state or city government, acting
on the basis of race, which necessitates strict scrutiny
ii. Direct application of 14th Amendment here
1. The state and local governments were so not trusted
with equal protection that the 14th Amendment needed
to be written
c. This case says strict scrutiny for both state and local government
i. Which leads to the argument – then what about federal?
6. Court said it was too rigid a use of race
7. The plurality offered guidance regarding what steps state and local
governments had to follow in formulating appropriate plans. Findings
necessary to underpin an affirmative action plan included:
a. Direct evidence that nonminority contractors had systematically
excluded minority contractors
b. Significant statistical differences between the number of qualified
minority contractors available an interested in performing a
particular service and the number actually doing work; or
c. Individual instances of discrimination supported by statistical proof.
Individual instances standing alone support individual remedies
rather than an affirmative action plan
8. Scalia
a. Refused to join an opinion that he thought was too much of a
compromise

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 9. Case is important because it puts down, at least for the plurality, strict
scrutiny of state and local racial classifications
a. A state or local subdivision of government has the authority to
eradicate the effects of private discrimination within its own
legislative jurisdiction, as long as it identifies such discrimination with
sufficient particularity so as not to run afoul of the 14th Amendment.
Here, strict scrutiny is the appropriate standard of review to judge the
constitutionality of the City’s actions in attempting to remedy past
discrimination. To pass strict scrutiny, the City must demonstrate
that is used narrowly-tailored means to accomplish a compelling state
interest

Adarand Contractors, Inc. v. Pena (1995) pp. 674-678

1. Facts
a. Federal government gives monetary incentive to select a minority
business subcontractor
b. The regulatory standard for the minorities is “socially and
economically disadvantaged person”
i. But then there is a further definition presuming that these
people would be racial minorities
c. This is a race neutral standard informed by a presumption
2. This case is confronted by Metro Broadcasting v. FCC, and it strikes down that
holding
a. Metro Broadcasting v. FCC
i. Federal government can engage in affirmative action for a
remedial purpose
ii. Applies intermediate scrutiny
b. How does the plurality resolve the clash here?
i. Strikes down Metro and upholds Croson
3. Court applies three general propositions to equal protection cases that deal
with construction and the federal government
a. Skepticism
b. Consistency
c. Congruency
4. Plurality says any person subject to any different racial discrimination, from
any level of government, can rely on strict scrutiny
5. Court’s rational: equal protection is right of individual not to be treated
differently, without a strict scrutiny type of justification
a. It’s a personal right
6. The case wants to avoid another Korematsu here
7. Justice Thomas
a. Thomas’ first affirmative action case
b. Agrees with strict scrutiny
i. But sees harm in these affirmative action programs
c. Racial paternalism – as pernicious as any form of discrimination

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 d. These programs stamp minorities with a bade of inferiority and may
cause them to develop dependencies or to adopt an attitude that they
are ‘entitled’ to preferences
8. This case kept the door open for both government agencies to
develop/revise programs like this, as long as they had some justification in
proving discriminatory action in their community

Ricci v. DeStefano pp. 55 of Supplement

Race and Admission to Public Universities (pp. 679-708)

1. The ultimate goal is that race will no longer be relevant
a. Are we moving towards that goal or further away with affirmative
action?
2. Why did the same court that upheld the program in Grutter invalidate a
similar program in Gratz?

Grutter v. Bollinger (2003) pp. 680-693

1. What Powell said in Bakke is essentially what was said in Grutter
2. Strict scrutiny is the standard of review here
3. Issue: Whether the use of race as a factor in student admissions is unlawful
under the Equal Protection Clause of the Fourteenth Amendment.
4. Rule of Law: Consideration of race as a factor in admissions by a state law
school does not violate the Fourteenth Amendment because supporting
student body diversity is a compelling state interest; however, the school
must demonstrate it previously made a serious, good faith consideration of
workable, race-neutral alternatives to achieve the sought-after racial
diversity.
5. More diversity in education will lead to more diversity in the workforce and
amongst leaders of our society
6. Strict scrutiny is the standard to use for both affirmative and negative race
conscious actions by the government
7. Majority
a. Convinced admissions officers are acting holistically in each case – no
one factor is dominant
i. Thus the court accepted the university’s argument
b. Diversity is critically important for law schools
c. Diversity is important as an end in itself and as a means
i. Both classroom/campus diversity and improving the
workforce – making life after school more diverse
ii. Extends to post-graduation life – creating diversity in society
d. The establishment is in support of affirmative action
i. Many businesses are in support of affirmative action believing
it’s good for business
ii. This is likely why O’Connor ruled with the majority here
8. Dissent
a. Rehnquist says that they’re running a quota system here

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 b. So many decisions are being made behind the admission’s office
closed doors
9. Justice Thomas
a. The law school’s admissions policy is inherently elitist and not
effective in remedying the past effects of discrimination on minorities
b. Doesn’t want the advancement of African-Americans to be considered
to be brought to that level by affirmative action
c. Thought one reason why many people defended affirmative action
was to allow for legacy admits to continue – elitism

Gratz v. Bollinger (2003) pp. 693-696

1. Issue: Whether racial preferences in undergraduate admissions violates the
Equal Protection Clause of the Fourteenth Amendment.
2. Rule of Law: A university admissions policy that automatically gives
preference to minority students on the basis of race, without additional
individualized consideration, violates the Equal Protection Clause of the
Fourteenth Amendment.
3. Facts
a. 20 points are given to an applicant who is a minority – maximum
score for an applicant is 150, 100 guarantees admission
4. Majority
a. Not narrowly tailored
b. Must be an individual determination
c. This program uses race too much – it’s too rigid
5. By distributing 20 points to an applicant based on his race, Michigan
undergrad made race a decisive factor “for virtually every minimally
qualified underrepresented minority applicant”
6. Justice O’Connor switched sides here from Grutter
7. Dissent
a. A plus is a plus – whether given a number or not
b. Lets be honest and transparent about the role of diversity in the
admissions process of else schools will just camouflage the process to
achieve improved diversity
i. The admissions offices will do it anyway/covertly

Johnson v. California (2005) pp. 697

1. Issue: Whether strict scrutiny is the appropriate standard of review for
policies involving racial classifications in state prisons.
2. Rule of Law: All racial classifications made by the government, including
those involving prison policies, are subject to strict scrutiny by the courts.
3. Use of race by government in prisons
4. Facts
a. CA law put people in cells with only those of their own race to avoid
racial violence in prison
i. Relied on Turner

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 ii. Turner – governments may burden the constitutionally
fundamental rights of prisoners when the burdens imposed are
‘reasonably related to legitimate penological interests’
5. Court invalidated the CA law
a. “We apply strict scrutiny to all racial classifications… it is possible that
prison officials will breed further hostility among prisoners, reinforce
racial and ethnic divisions” – pg. 698
b. The court didn’t say preventing a race riot is not a compelling interest
– they just said you can’t do it this way
i. The court though isn’t convinced it will prevent race riots –
thinks it could even trigger race riots
6. The wardens of the prison were asking the court to trust them
a. The court did not defer to the wardens
b. But the court does rely on the instincts of those in the admissions
offices – why?
i. Does it have to do with the nature of the positions?
ii. Perhaps its because the prisons are segregating while the
admissions officers are working to promote diversity

Seattle & Louisville School Board Cases (2007) pp. 698-709

1. Background
a. Difference between the lower school cases and Grantz, Grutter type of
cases
i. Alito replaced O’Connor
1. Changed the balance
ii. The middle justice on this issue is now Kennedy – who partly
joins the majority and partly writes his own concurrence –
straddler
b. If Grutter came back to the court today after the K-12 cases, would it
still come out the same way?
2. Facts
a. Seattle
i. Did not previously have de jure segregation
b. Louisville
i. Formerly segregated
ii. Remedied it and it was now falling into de facto segregation
c. Schools were becoming segregated not by actions of the government,
but by housing patterns, etc. – so school districts sought a solution
d. School programs
i. Balancing
ii. Attempting to achieve diversity – like Univ of Michigan
iii. City doesn’t want any school to depart too much from the
demographics of the district
1. But they defined it as white and non-white
3. Seattle

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 a. Issue: Whether public school districts that have never operated legally
segregated schools are permitted to assign students to particular
schools solely on the basis of race in order to achieve racial
integration.
b. Rule of Law: Public schools may not assign students to schools solely
on the basis of race for the purpose of achieving racial integration,
although the use of narrowly-tailored, race-conscious objectives to
achieve general diversity in schools is permissible.
4. The battle in this case is how to apply Brown v. Board of Education
a. Pg. 703 – who is on the right side of Brown
b. Can’t assign children to a school based on their race
5. Majority
a. Sees it as students being denied or admitted to public schools based
solely on their race in order for the districts to achieve balance
b. Said it’s not affirmative action, it’s individually based
c. Quota system
d. Racial balancing is not a compelling interest – top of pg. 701
i. “Allowing racial balancing as a compelling end in itself would
‘effectively assure that race will always be relevant in
American life’”
6. Dissent
a. Wants to defer to local government officials/school boards
b. Can use race conscious criteria when it’s to keep races together,
rather than when it’s to keep them apart
c. Brown wasn’t just about ending segregation but was about achieving
integration
d. Race consciousness can be used to achieve integration

Race and the Political Process (pp. 708-16)

1. Where did we see this before where a hurdle was put in front of civil rights
legislation? – Romer
2. “When the political process is altered in a manner that does not explicitly use
race but has a racially disparate impact, the problem is essentially identical
to other disparate impact cases” – pg. 708

Hunter v. Erickson (1969) pp. 709-710

Washington v. Seattle School District (1982) pp. 710-714
1. When the political process or the decision making mechanism used to
address racially conscious legislation – and only such legislation – is singled
out for peculiar and disadvantageous treatment, the governmental action
plainly “rests on ‘distinctions based on race’” – pg. 712

Strict Scrutiny and Suspect Classifications: Lawful

Resident Aliens (pp. 716-19)
1. Alienage: someone not a citizen of the U.S.

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 2. Is a classification which within itself has two or three different standards of
review
3. What is it about alienage?
a. Its not immutable and not identifiable
4. The Court generally only scrutinizes discrimination against resident aliens
but not discrimination against illegal aliens.
5. The Court subjects discrimination against aliens by state or local government
bodies to far more rigorous scrutiny than it applies to discrimination against
aliens by the federal government

Sugarman v. Dougall (1973) pp. 716-718

1. Facts
a. Civil service employees
2. If it’s working for government, then the court said citizenship is not a proper
measure
3. The court is saying there are two levels of scrutiny
a. For government jobs of a ministerial level – then strict scrutiny
b. For government jobs that carry out the political community – lesser
level of scrutiny
i. For example the head of the school-board
4. Rules
a. Certain kinds of discrimination against lawful aliens are subject to
strict scrutiny
b. Higher levels of workforce are subject to less scrutiny/intermediate
scrutiny
i. Teachers, law enforcement, local leaders, etc.
5. Third tier of alienage discrimination
a. When federal government discriminates against aliens than it gets
minimal review
i. Because the federal government is in charge of immigration
and nationality

Intermediate Scrutiny: Sex and Illegitimacy (pp. 720-

43)
1. It was articulated and invented with sex/gender discrimination
2. Is gender ever relevant or should we never allow gender?
a. Perhaps frisks by the opposite sex
i. But we’d never allow someone to say they’re more comfortable
with a black or white person frisking them
3. Classifications based on race, ethnicity, gender or sex are subject to a higher
form of review, rather than the typical rational basis
4. Gender
a. Classifications on gender must be substantially related to achieve that
directive

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Gender Discrimination
1. Key issue: what standard of review
a. There’s 3 tiers that most acknowledge
i. Strict at top
ii. Intermediate at middle
iii. Rational at bottom
b. Sex discrimination was a battle of what level of scrutiny
i. Should it be like race – “suspect classification”
ii. Are there more legit differences based on sex then there are
based on race?
iii. Are there situations where the differences are such that law
can take account of them?
2. Court fashioned a middle tier standard of scrutiny in the gender area

Reed v. Reed (1971) pp. 720

1. Heightened scrutiny
2. The law said that if two people were equally entitled to administer a state,
than a preference would got to the male – this was challenged by a female
3. State’s reason for this: theory that the woman would likely be married
4. The court said not reasonable here – in a estate situation you’ll always have a
judicial proceeding – if the brother and sister are going to dispute over who
gets to administer, there will already be a hearing anyway, so the hearing
could make the decision as to who is the better administrator
5. Rational basis review

Frontiero v. Richardson (1973) pp. 721

1. Issue: Whether a female armed services member may claim her spouse as a
dependent for the purposes of obtaining increased quarters allowances and
medical and dental benefits on an equal footing with male armed services
members.
2. Rule of Law: All governmental classifications based on gender are subject to
strict scrutiny review.
3. Facts
a. Military men could automatically claim wife as dependent
b. But military women had to prove that their husband was dependent
4. It was this case where the argument over the level of scrutiny broke into the
open
a. Four justices led by Justice Brennan, argued for treating sex as a
suspect classification, thus triggering strict scrutiny. To support this
conclusion, Justice Brennan relied on a “long and unfortunate history
of sex discrimination” and the fact that “sex, like race and national
origin, is an immutable characteristic [that] frequently bears no
relationship to ability to perform or contribute to society” – pg. 720

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Post-Frontiero
1. After Frontiero the court started to strike down sex classifications rooted in
what the court described as “archaic and overbroad” generalizations about
sex roles
2. Cases where women’s economic need was the critical aspect of the law were
not upheld
a. These were largely struck down primarily on a rational basis level
3. The court still upheld some gender lines
a. Widows surviving their husbands who had died would get an
automatic tax exemption in FL (even if they were independently
wealthy women)
b. Court upheld it because widows have greater problems than
widowers
i. Why’d it uphold this generalization despite the earlier cases?
1. Said it’s compensatory – women are more needy
ii. This furthered women stereotypes

Craig v. Boren (1976) pp. 721-724

1. Issue: Whether a statute that denies the sale of alcohol to in- dividuals of the
same age based solely on gender violates the Equal Protection Clause of the
Fourteenth Amendment.
2. Rule of Law: A governmental regulation involving gender discrimination is
constitutional if it is substantially related to the achievement of an important
government purpose.
3. Important women’s rights issues being addressed in this case
4. Facts
a. .18% of women caught for DUI, and 2% of men
b. Oklahoma statute that prohibited the sale of 3.2% beer to males under
the age of 21 and to females under age 18
5. The Court applied a middle tier standard: to survive scrutiny, a gender
classification “must serve important governmental objectives and must be
substantially related to achievement of those objectives”
6. So to say “young male = drunk drivers” is a gross overstatement
7. Also, can’t hold 100% of men accountable for 2% of their population’s
actions
8. “Proving broad sociological propositions by statistics is a dubios business,
and one that inevitably is in tension with the normative philosophy that
underlies equal protection” – pg. 722
9. Dissent: finds it’s to be a close fit because they said men were 10X as likely to
be arrested
10. Important point: establishment of intermediate scrutiny with language on pg.
721 – “Arachic and overbroad generalizations concerning the financial
position of servicewomen and working women could not justify use of a
gender line in determining eligibility for certain governmental entitlements.
Similarly, increasingly outdated misconceptions concerning the role of

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 females in the home rather than in the marketplace and world of ideas were
rejected as loose-fitting characterizations…”
a. The application of that to reject statistical differences btwn men and
women
11. So what would the Oklahoma legislature do once this was struck down?
a. Lower the drinking age for men to 18 or raise the drinking age for
women to 21 – so that both men and women are allowed to buy beer
at the same age
12. Key adjectives that the formula depends on
a. Interest must be “important” and classification must bare a
“substantial” or close relationship to achieving those interests

Mississippi University for Women v. Hogan (1982) pp. 725

1. Issue: Whether a state statute that excludes males from en- rolling in a state-
sponsored professional nursing school violates the Equal Protection Clause
of the Fourteenth Amendment.
2. Rule of Law: A state statute that discriminates on the basis of gender may be
unconstitutional if the statutory objective itself reflects archaic and
stereotypical notions relating to gender.
3. Facts
a. Women’s only nursing school
b. Man brought suit
4. State said the purpose was to provide more jobs for women
5. Court said the actual purpose was discriminatory
a. State wanted to further push stereotype of women being nurses and
men being doctors
b. “Although Mississippi asserted that its policy substantially served an
important state goal of compensating for discrimination against
women in public education, the Court held that ‘although the state
recited a benign, compensatory purpose,’ it failed to establish that the
alleged objective is the actual purpose underlying the discriminatory
classification”

Michael M. v. Superior Court of Sonoma County (1981) pp. 725-728

1. Issue: Whether California’s statutory rape law violates the Equal Protection
Clause of the Fourteenth Amendment.
2. Rule of Law: A state statutory rape law that discriminates against males does
not violate the Equal Protection Clause because it deters males from
engaging in sexual behavior that might lead to illegitimate pregnancies.
3. Facts
a. CA statutory rape law
b. Men who commit consensual sex with a woman under 18, but if two
are married then it’s fine
4. State’s rational: state has an interest in preventing teenage pregnancies – this
would be a deterrent, harsh form of birth control

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 a. Court believes this to be the purpose (Conservatives are in the
majority)
b. Since no deterrent for the men (since they can’t get pregnant), this
law would be the deterrent for men
5. Dissent: this law was just aimed at trying to protect women’s chastity
a. Justice Stevens: the bigger deterrent should be STDs for both sexes,
also said to put them both in jail for the crime
i. “The paramount interest in evenhanded enforcement of the
law. A rule that authorizes punishment of only one of two
equally guilty wrongdoers violates the essence of the
constitutional requirement that the sovereign must govern
impartiality” – pg. 728
6. If the court had said otherwise and struck down this CA law, what would the
CA state legislature do?
a. Probably wouldn’t have said put them both in jail
b. If you want the crime to fit the purpose (deterring teenage pregnancy)
then you’d make it a crime to impregnate a woman

Roskter v. Goldberg (1981) pp. 728-730

1. Issue: Whether the Military Selective Service Act, which requires the
registration for the draft of males and not females, violates the Fifth
Amendment to the Constitution.
2. Rule of Law: A congressional act that requires men and not women to
register for a military draft does not violate the Fifth Amendment to the
Constitution because women cannot statutorily participate in combat and
thus are not similarly situated as men.
3. The administrative burdens are way overstated
4. Challengers did not challenge women from combat duties
5. What reasons persuaded the court that this was a valid sex discrimination?
a. Deference of the military and Congress
6. Justice Marshall’s dissent
a. Government has shown what it has to show – that a gender neutral
rule would be less effective for the military
7. Intermediate scrutiny applied
8. This is a policy argument, based largely on biological arguments

J.E.B. v. Alabama (1994) pp. 731

1. State wanted paternity decided for child support purposes
2. Men were kicked off jury by prosecutor because he thought men would be
more sympathetic to men

United States v. Virginia (1996) pp. 732-741

1. Intermediate scrutiny with “bite” – exceedingly persuasive justification
2. VMI’s argument as to why women were excluded:
a. Enhances education to have a place where only men can go (much like
how there’s women only schools)

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 i. Court rejected this
b. Admitting women would ruin the program – weren’t fit for the tough,
boot-camp like program
3. Issue: Whether the VMI’s policy of excluding women from admission denies
women equal protection of the laws, and, if so, whether the creation of an
alternative school for women is the proper remedy for this denial.
4. Rule of Law: All governmental gender classifications must be substantially
related to an important government purpose that can be demonstrated by
the government if it offers an exceedingly persuasive justification for the
classification
5. “Exceedingly persuasive justification” – is this the new test?
a. Hogan – which affirmed intermediate scrutiny
i. Important and substantially related
b. Is this intermediate scrutiny hyped up or a higher scrutiny?
6. If one woman can qualify and do it – then excluding all women is not justified
under intermediate scrutiny
7. Majority says it is intermediate scrutiny for any governmental gender
classification
a. This standard requires the government to provide an exceedingly
persuasive justification for policies that discriminate against women.
i. Virginia has not shown an exceedingly persuasive justification
for excluding all women from VMI’s leadership training
8. Did the court articulate the typical standard or a new standard?
9. What standard did the court apply?
10. Scalia
a. Said the court was actually applying strict scrutiny even though the
majority was saying it was an intermediate formula
b. Why’d he say the court was using a strict scrutiny formula?
i. He says the new test is now “exceedingly persuasive
justification” (EPJ) which is a different way of saying strict
scrutiny
1. This standard comes from Hogan – where the court said
gender lines are subject to intermediate scrutiny and
the govt has a EPJ burden to meet that test
ii. If it’s not strict scrutiny as articulated it surely is by the way it’s
applied
c. “More specifically, it is my view that ‘when a practice not expressly
prohibited by the text of the Bill of Rights bears the endorsement of a
long tradition of open, widespread, and unchallenged use that dates
back to the beginning of the Republic, we have no proper basis for
striking it down’” – pg. 738
i. Two of his major themes again show up in this quote
1. Wants an explicit prohibition
2. American traditions must be protected
d. Says gender shouldn’t get anything but rational basis scrutiny

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 i. Women aren’t a discreet minority – they have plenty of access
to the legislature
11. The court gave great deference to the academics in Grutter – so some of the
critics of this case ask why the VMI educators didn’t get this same deference
12. Is this decision the death nail of single sex education?
a. The majority says it is not
b. Scalia would say it is – public education will not be allowed to be
single sex and that private ones that receive federal funding also
would not under this opinion

Nguyen v. Immigration and Naturalization Service (2001) pp. 741

1. Court’s most recent statement on gender discrimination
2. Issue: Whether a statutory scheme that imposes different requirements for a
child’s acquisition of United States citizenship depending upon whether the
citizen parent is the mother or the father violates the Equal Protection
Clause.
3. Rule of Law: When a child born overseas and out of wedlock to unmarried
parents consisting of a United States citizen and non-citizen seeks United
States citizenship, governmental gender classifications that require more
stringent proof of citizen parents’ paternity than maternity are constitutional
based on the inherent biological differences between men and women.
4. Why is Nguyen challenging the determination that he’s not an American
Citizen?
a. Did some bad things and is deportable if he’s not a citizen of the U.S.
5. Citizenship of child is different depending on mother or father’s citizenship
a. If your mom is a citizen then you are
i. Moms are closer to the kids at birth and in formative years
6. The court says it is not an EPC violation
7. The court uses intermediate scrutiny here
a. Congress rationally chose to impose these requirements on
unmarried men and not unmarried women due to the significant
biological differences existing between men and women and the
resulting differences between mothers’ and fathers’ respective
relationships to potential citizens at birth.
8. Dissent (O’Connor and Ginsburg – the two women on the court)
a. Thought there were too many stereotypes and not enough DNA
testing
i. Men travel more out of the country (especially in war) and they
may conceive of children while abroad

Illegitimate Children
1. Prior to 1968, statutes that discriminated on the basis of illegitimate birth
were subjected to minimal scrutiny and were upheld
2. Today, statutes that classify on the basis of illegitimate birth are subjected to
intermediate scrutiny

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 a. For such laws to be valid the state must prove that the classification is
“substantially related to an important governmental objective” – pg.
743
b. Illegitimacy is a quasi-suspect classification, thus intermediate
scrutiny

Fundamental Rights: Strict Scrutiny Revisited

1. Easier to think of it as “fundamental interests” rather than “rights”
a. You don’t have a constitutional right to vote it turns out
i. The Constitution doesn’t protect the right to vote
b. Court says voting is so important that it’s a fundamental interest
i. Doesn’t mean the government has to give it to you
ii. But if they give the right to anyone then the laws drawn about
who gets the right to vote and who doesn’t is subject to strict
scrutiny
2. Court has a lot of discretion to say what’s a fundamental interest and what
isn’t
3. Turns out that voting is a fundamental interest but education is not
a. Voting under strict scrutiny but determinations about education
spending are not subject to anything even remotely close to strict
scrutiny
4. Substantive equal protection – conveys the idea that the court is using the
EPC substantively to decide what interests, even though not technically
rights, are so important to be provided (?)
5. At least substantive due process clause gave us the word “liberty” – but
there’s nothing like this in the EPC
6. In all of these cases, just using the EPC, the court has required strict scrutiny
a. Is this a proper function of the EPC or is the EPC just supposed to
guard against more pernicious discrimination
7. Four areas we look at to see whether those classifications receive stricter
scrutiny – in these areas we look to see if the interests are “fundamental”
a. Education
b. Voting
c. Access to the courts
d. The rights of newcomers
8. Equal protection for the poor
a. The Court has not regarded the poor as a discrete and insular
minority. Accordingly, laws differentiating on the basis of wealth are
not subject to heightened scrutiny. Affording heightened scrutiny to
laws that distinguish on the basis of wealth would call into question a
wide range of social programs.

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Introduction (pp. 743-49)
San Antonio Independent School District v. Rodriguez (1973) pp. 744-
749
1. Two EPC issues on the table here:
a. Is wealth a suspect classification when govt makes wealth difference
between whether or not you get something
i. Argument here is that wealth like race is a suspect
classification
b. Whether education is a fundamental interest – so that who gets some
or who gets more may be based on wealth or some other criteria
2. Facts
a. Property taxes go to schools
b. Wealthier neighborhoods get more money to their schools – so these
schools are better of than those in less affluent neighborhoods
3. Issue: Whether a system of financing public education based on property
taxes that results in significant disparities in funding among school districts
violates the Fourteenth Amendment rights of children attending schools in
less-affluent districts.
4. Rule of Law: Education is not recognized as a fundamental right under the
Fourteenth Amendment to the Constitution, and thus a state regulation
impacting the right to education should be analyzed under rational basis
review to determine if it bears a rational relationship to a legitimate state
purpose
5. The lower court had subjected the funding system to strict scrutiny, finding
that wealth was a suspect classification and that education was a
fundamental right. The Supreme Court rejected both conclusions
a. The court noted that equality of education could not be precisely
determined, and therefore could only be implemented in the most
relative sense
b. The Court feared that accepting appellee’s fundamental rights
argument would require the Court to find an infinite number of
fundamental rights based on the same rationale
i. For example, it might be that those who do not have adequate
food and clothing are the least effective at utilizing their free
speech and voting rights. Therefore, food and clothing would
have to be recognized as fundamental constitutional rights.
6. Why shouldn’t wealth be viewed as a suspect classification?
7. Pg. 746 – movement for courts to rule that poverty did deprive you of rights –
should be treated as a suspect classification like race
a. Welfare rights cases
8. Idea of making education a fundamental right – strongest arguments for this
a. Education is linked directly with being a good citizen
9. Court says where something as fundamental as welfare assistance they did
not say it’s a fundamental interest requiring strict scrutiny

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 a. – pg. 746
b. Court is saying they don’t want to do substantive EPC
10. Court says we need to figure out if a right to education is implicitly or
explicitly guaranteed by the Constitution – if so then they’ll protect it – but
they don’t want to make it up on their own, it must be in the Constitution
11. Court – we must ask if the distinction (in property taxes) is rationally related
to a legitimate state purpose
a. The court says it is rationally related

Voting: Denial, Dilution, Gerrymandering (pp. 749-75)

1. Denial – someone denied the opportunity to vote
2. Dilution – the impact of the vote has been diluted or disregarded – perhaps
by gerrymandering or perhaps by political or racial gerrymandering
a. The weight of your vote and your impact as a constituent is different if
you’re in a district that’s 1/10th the size of another district
b. These districts may be perfectly square, not necessarily
gerrymandered
c. Prison based gerrymandering
3. Gerrymandering
a. Independent redistricting commission – takes the politicians out of
the picture – less likely to have political gerrymandering
4. The Constitution originally left to the states the power to determine who
could vote
a. States originally limited it to free, white male property owners
i. The only way this changed was by repeatedly amending the
constitution (5 Amendments have to do with this)
1. The most well known is the 15th Amendment
a. Also 19th, 24th, 26th
5. By 1960s the Court said the right to vote was constitutionally fundamental
6. Voting, though not guaranteed by the Constitution, has been held as the most
fundamental interest
a. Strict scrutiny applied
7. School board elections
a. Can’t be excluded by not being a property owner in the district or not
having kids in that school district
8. Once the court hands down a decision, then other litigants with similar
concern will come to the court about the same issue, so there was a mass of
voting rights cases that came up
9. Special purpose election
a. Something so specialized about this government unit and the effect it
has on certain peoples that it’s ok to limit the vote to those who own
property there
10. In using the EPC the court is making judgments as to which government units
can be limited to particular people or to all
11. Disenfranchising felons is like disenfranchising minorities – because a large
portion of felons are minorities

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 12. Citizenship in voting
a. If everyone is required to be a citizen to vote then should they all be
required proof of citizenship in order to vote?
b. You prove citizenship with passport or birth certificate

Harper v. Virginia State Board of Elections (1966) pp. 750

1. Facts
a. VA had a poll tax
b. Which was outlawed by the Court in 1964 – why was it still
happening?
i. The anti-poll tax amendment only dealt with federal elections
2. The Court invalidated a state-sponsored poll tax, finding the provision
“invidiously discriminated” against certain low-income voters unable to pay
the tax.
3. Issue: Whether Virginia’s requirement of a poll tax on every resident of the
state over the age of twenty-one violated the Equal Protection Clause of the
Fourteenth Amendment.
4. Rule of Law: Poll taxes in all elections are unconstitutional as a denial of
equal protection of the laws
5. Court
a. While the right to vote in state elections is not expressly mentioned in
the Constitution, such a right may be inferred from the First
Amendment right of expression and thus should not be limited by a
tax or fee.
b. Right to vote is part of the 1st Amendment’s penumbra
c. Just as a state cannot constitutionally deny the right to a vote to a
person based on his or her race, a state also cannot impose a fee on a
person that has the effect of disqualifying a person from voting.
6. Close and strict scrutiny for the right to vote
7. Dissent
a. Thought a poll tax was okay
i. Doesn’t facially discriminate
b. If you don’t care enough to pony up $1.50 to vote then maybe you
shouldn’t be able to have that right

Kramer v. Union Free School District (1969) pp. 751

1. Issue: Whether a state law requiring property ownership as a prerequisite
for voting in a school district election violated the Equal Protection Clause of
the Fourteenth Amendment.
2. Rule of Law: A state statute that denies the right to vote in school district
elections to residents who do not own real property within the school district
violates the Equal Protection Clause of the Fourteenth Amendment unless
the exclusion of these residents is necessary to further compelling state
interests.
3. Why are age, citizenship and residency proper restrictions to voting?
a. Why can’t kids vote – they are the closest ones to the school’s issues

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 b. Residency – what about people in the town next door affected by the
kids education?

Crawford v. Marion County Election Board (2008) pp. 754-758

1. Issue: Whether an Indiana statute requiring photo identification for all voters
unduly burdens the right to vote for Indiana citizens.
2. Rule of Law: A state statute requiring photo identification as a prerequisite
for voting is not unconstitutional.
3. Facts
a. Could get the ID for free at the DMV
b. Safety valve was to vote provisionally
4. Justice Stevens, Roberts, Kennedy – uphold the voter ID statute
a. Balancing approach – state’s justifications for the burden imposed by
its rule vs. the asserted injury to the right to vote
b. State’s interest
i. Voters confidence in democracy
ii. Voter fraud
iii. Administrative purposes – because the of dead people on the
voter lists
c. They argue it’s a facial challenge – saying the law may be improper,
but for the most part is ok because 99% of the people have IDs
5. Scalia, Thomas and Alito’s concurrence
a. We shouldn’t even be giving it the balancing review that the majority
gives it
b. Should just say it’s a law that’s not invidious on its face
i. Election law should be viewed no differently unless there is a
clear prevention from the ballot box
c. They wanted a more minimal approach
6. Dissent
a. Want a more significant review
b. Burdens outweigh the benefits
c. There is zero evidence that in person voter fraud exists
d. They see this as a modern poll tax

Reynolds v. Sims (1964) pp. 759-761

1. Issue: Whether Alabama’s failure to reapportion itself every ten years and
the resulting inequalities of legislative representation among counties
throughout the state violate the Equal Protection Clause of the Fourteenth
Amendment.
2. Rule of Law: The Equal Protection Clause requires the seats in a bicameral
state legislature to be apportioned on a population basis that equally weights
one vote for every one person residing in a state legislative district.
3. Typical malapportion issue

Bush v. Gore (2000) pp. 762-764

1. Using different standards to count the votes in each county

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 2. The literal counting of the votes was not uniform across Florida

Davis v. Bandemer (1986) pp. 765-767

1. In order to succeed on the EPC claim the Ps were required to prove both
intentional discrimination against an identifiable political group and an
actual discriminatory effect on that group
2. Issue over whether this was a justiciable question
3. “Unconstitutional discrimination occurs only when the electoral system is
arranged in a manner that will consistently degrade a voter’s or a group of
voters’ influence on the political process as a whole. An equal protection
violation may be found only where the electoral system substantially
disadvantages certain voters in their opportunity to influence the political
process effectively. Such a finding of unconstitutionality must be supported
by evidence of continued frustration of the will of a majority of the voters or
effective denial to a minority of voters of a fair chance to influence the
political process” – pg. 766

Vieth v. Jubelirer (2004) pp. 767

1. Issue: Does the issue of political gerrymandering constitute a nonjusticiable
political question incapable of adjudication by the courts?
2. Rule of law: The issue of political gerrymandering represents a nonjusticiable
political question incapable of adjudication by the courts.
3. Holding (Scalia): Yes. In Baker v. Carr (1962), the Court laid out six
independent tests in descending order of importance and certainty, for
determining whether an issue is a nonjusticiable political question. At issue
in the present case is the second test: focusing on whether there is a lack of
judicially discoverable and manageable standards for resolving the issue.
Examining eighteen years of jurisprudence on political gerrymandering
reveals a lack of judicial standards for clearly resolving the issue, and
therefore, the issue at bar represents a nonjusticiable political question.
4. Justice Souter’s Dissent
a. The holding in Davis v. Bandemer (1986) should be affirmed and
political gerrymandering should be ruled a justiciable issue.

Shaw v. Reno (1993) pp. 770-773

1. Why would republicans want to create a lot of majority-minority districts?
The DOJ at this time was under republican control
a. Wanted to concentrate the Democrats making the other districts less
competitive
2. Can’t create a district if the primary purpose was to create a racial district
3. Court concludes that a “Plaintiff challenging a reapportionment statute under
equal protection may state a claim by alleging that the legislation, though
race-neutral on its face, rationally cannot be understood as anything other
than an effort to separate voters into different districts on the basis of race,
and that the separation lacks sufficient justification” – pg. 772
4. The majority said this is like apartheid

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 a. Districts are being drawn simply because of the way they look, not
because of how they may vote
5. The proponents of this said that is creates more black legislatures
6. The Ps are white – what’s their claims
a. The races of the Congressmen won’t represent that of the constituents
(but this wasn’t primary issue)
b. Court was concerned with something more ephemeral – that you
were being put into an electoral district because of your race
7. Protecting incumbents is a valid state interest

Access to Courts (pp. 775-80)

1. The analytical structure is that there is no independent right to every aspect
of the judicial process
2. At a certain point states weren’t required to have appeals courts
a. Even now some of the smaller, less populated states only have trial
courts and supreme courts – nothing in the middle
3. Civil litigation
a. Interests are less sharply revealed because you won’t go to jail in civil
cases
b. EPC will be vigilant when liberty is at stake, but when property or
other things are at stake then EPC will be less important

Griffin v. Illinois (1956) pp. 775

1. Court invalidated a state law denying persons convicted of a crime full
appellate review unless they were able to pay for a transcript of the trial
proceedings should be overruled.
a. Griffin recognized the right to appeal in criminal cases without
foreclosure from a state fee structure.
2. Griffin was being denied a fundamental aspect of criminal justice system
because he could not afford to pay for another trial
3. This is similar to Rodriguez (education case)
a. If access is based on wealth then strict scrutiny must be applied

Boddie v. Connecticut (1971) pp. 777

1. Rule of Law: The Due Process Clause of the Fourteenth Amendment prohibits
a state from denying, solely on the basis of inability to pay, access to its
courts to indigent individuals who seek in good faith judicial dissolution of
their marriages.

M.L.B. v. S.L.J. (1996) pp. 777-780

1. Facts
a. Like the Griffin case, if you want appeal, fine, but you need money for
the transcript
b. Woman didn’t have money for this and therefore the court would take
her children away from her

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 2. Court said this would be in violation of the EPC and procedural and
substantive due process
a. Substantive due process because of taking the children away
b. Court said taking away children is almost worse or worse then going
to jail
i. It’s a civil case but the consequence here would be just as bad
as in a criminal case
ii. Fundamental rights of parental relationship
3. Very similar to Boddie v. CT
4. Dissent
a. She had due process – she was never deprived of it
b. Due process doesn’t require an appeal
5. Rule of Law: Under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, a state may not condition appeals from trial court
decrees terminating parental rights on the affected parent’s ability to pay
record preparation fees.

Penalties on the Right of Interstate Migration (pp. 781-87)

1. Unless you can prove that someone who shows up and says “here I am, I’m
here forever” is lying, then you have to treat them the same as anyone else in
your state

Saenz v. Roe (1999) pp. 783-787

1. Issue: Whether the California statute limiting the availability of welfare
benefits to families residing in the state for less than twelve months was an
unconstitutional violation of the Privileges and Immunities Clause.
2. Rule of Law: The Privileges and Immunities Clause protects the right to travel
by allowing citizens to move freely between states, securing the right to
equal treatment in all states when visiting, and securing the rights of new
citizens to be treated the same as long-term citizens living within the state.
3. The Court struck down as against the right to travel a CA statute that denied
new residents the same level of welfare benefits available to those who had
been CA citizens for more than 12 months
4. Rebranding of the right to travel
a. Previously it had been a “wanderer” – wandering throughout the
different parts of the Constitution
i. PIC, CC, EPC, and as part of the structure of the federal
government (structure federal government with many states
gives you right to travel)
5. 3 rights to travel
a. The right to come and go
i. Cites some CA cases
b. The right to be treated well when you are temporarily/visiting that
state
i. PIC – Art. 4 Sec. 2
c. The right to be treated equally if you decide to stay

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 i. Citizenship clauses
ii. 14th Amendment has provisions that guarantee people are
citizens of the state and the US

CONGRESSIONAL POWER TO ENFORCE

CONSTITUTIONAL RIGHTS
Introduction (pp. 1143-44)
1. Times when people who aren’t the government are still subject to
Constitutional limitations according to the Court
a. Where the private entity is performing a public function
i. Where a company owned town people would be arrested for
trespassing when handing out leaflets in the town
ii. The Court said this is an example of the company acting like
the government (running the town) and denying a
constitutional right
b. Where there is an inter relationship between private and the
government such that the private’s actions could be taken as that of
the government
i. Public parking lot that wanted a coffee shop inside, leased the
coffee shop to a company that discriminated based on race
ii. Court said when private party discriminates and the
government is the landlord, then it’s like government action
c. Where the government has encouraged or coerced the private action.
2. Court said requiring English literacy as a voting requirement wasn’t
outlawed by EP
3. How can Congress change what the Court intends the Constitution to mean?
4. If legislation has the effect of discrimination, not just the purpose of
discrimination, then Congress can outlaw or restrict that practice

Congressional Power to Enforce Constitutional Rights

Coverage: Public or Private Conduct? (pp. 1165-70)
1. Outside of the 13th Amendment support: pg. 1169-1170 deal with situations
where Congress has tried to reach private individuals who engage in various
forms of civil rights deprivation
a. If the private person is somehow in cahoots with the government
(such as local sheriffs tipping off people on civil rights movement
members actions) it can be reached under the 14th Amendment

Civil Rights Cases (1883) pp. 1166-1168

1. Issue: Whether Congress acted constitutionally in passing the Civil Rights Act
to prohibit discrimination by individuals

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 2. Rule of Law: Under the Equal Protection Clause of the Fourteenth
Amendment, Congress may only prohibit discrimination by state actors, not
private individuals.
3. This case did for the EPC what Slaughter House did for PIC (namely nothing)
a. Very narrow interpretation of EPC
4. Federal Civil Rights Act of 1875
a. Laws challenging racial discrimination in public accommodations
5. What’s wrong with telling public accommodators who they can admit?
a. Court first talked about the 14th Amendment – no state shall deprive
anyone of equal protection
i. And this is private action, private action is not state action
ii. Court said it is therefore not a violation of the EPC – may be
bad or in violation of local law but not in violation of the EPC
which only protects against the government
b. Why didn’t Congress use the CC?
i. Interstate commerce didn’t really exist at this time
ii. Didn’t have the mindset that what happened in a local hotel or
restaurant had to do with interstate commerce
iii. Court says that if Congress said a railroad that went from one
state to another couldn’t discriminate on race than that may be
protected under the CC
c. If the state or local laws affirmatively authorize the discrimination
than maybe that might be a finding of state action, but where it’s
simply an innkeeper who doesn’t want to serve based on race, than
that’s not the government
6. Why could you get private discrimination banned under the 13th Amendment
but not under the 14th Amendment?
a. Because 13th Amendment doesn’t include any state action limitation
i. 14th and 15th Amendments use the language of “state” but the
13th Amendment has no state action requirement
b. At this time the 13th Amendment was the one place where you could
attack private discrimination
i. But the court said it must be equivalent to slavery

Jones v. Alfred H. Mayer (1968) pp. 1168

1. Very important case
2. Deals with housing – private transactions
3. The Court said it includes buying, selling, renting of property and this is
justified by the 13th Amendment
a. This says that the stingy interpretation of the 13th Amendment under
the Civil Rights Cases has been expanded

Content: Remedial or Substantive? (pp. 1170-91)

1. The Court says Congress’ power is to remedy clear violations and to head off
likely violations (prophylactics) but it cannot declare new
substantive/constitutional rights

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 2. Remedial approach: Congress uses its power to remedy existing violations
3. Substantive approach: Congress says approaches have potential to be
abusive such that they can be in violation

Katzenbach v. Morgan (1966) pp. 1172-1174

1. Rule of Law: Congress may pass legislation to enforce the Equal Protection
Clause of the Fourteenth Amendment even when the legislation conflicts
with state law.
2. New York’s argument:
a. You can’t impose this on us
b. Enforcing the EPC means remedying the declared violations of the
EPC
3. Congress
a. Saying they are outlawing something constitutional itself because it
believes it can lead to a violation
b. Congress is not declaring it unconstitutional, Congress is saying it’s in
violation of federal law
4. Court says this is proper enforcement of legislation by Congress
a. 1st rationale:
b. 2nd rationale: as long as Congress could perceive a basis it could go
ahead and do so
i. Congress could perceive that the literacy requirement is a
direct violation of the EPC
1. Which would be a contradiction as to the Court’s
interpretation
a. Marbury v. Madison
ii. If Congress perceives that the requirement is itself a violation,
even though the court has said it is not, is that enforcement or
Congress implementing a new meaning?
5. Court upheld the displacement of the requirement on both grounds
6. Court says as long as we can perceive a basis for Congress to do this then
Congress gets the nod
a. Extremely deferential to Congress
7. Justice Harlan’s dissent – pg. 1173
a. Giving up power of review under Marbury

City of Boerne v. Flores (1997) pp. 1175-1179

1. Held that Congress could not expand the substantive sweep of the Civil
Rights Amendments. In Boerne, the Court held that the Religious Freedom
Restoration Act extended beyond Congress’ power because it revised the
constitutional norm rather than simply providing a remedy for an existing
norm. The court reasserted that Marbury empowered the Court to define the
substantive scope of the Constitution
2. Issue: May Congress enact a law under §5 of the 14th Amendment that limits
state power to inhibit the free exercise of religion?

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3. Rule of Law: Section 5 of the Fourteenth Amendment provides Congress with
remedial powers only and, when upholding a constitutional right, Congress
may only enforce legislation that utilizes means proportional to achieving
that legislative purpose.
4. Congruence and proportionality test (C&P)
5. Religious freedom = strict judicial scrutiny
6. Overrules the Smith case
7. Clear effort to overrule a SC decision – goes against Marbury
a. Can Congress pass a statute, which has an effect of overruling or
displacing a SC decision?
8. Issue: could Congress go against what court said on religious freedom
a. Argument that it could: Congress said this is like a prophylactic rule
i. It’s remedial
ii. Intentional discrimination requires strict scrutiny
9. Difference between remedial and substantive
10. Court:
a. If it’s beyond remedial than Congress is declaring substantive rights
b. Court draws line between remedial and substantive
i. Congress can do remedial but not substantive
11. The Court says Congress’ power is:
a. To remedy clear violations
b. To head off likely violations – prohylactics
c. But can’t declare new substantive/constitutional rights
12. Some rights are strong – going down to weaker rights (just a way of looking
at this – not very important – Professor just made it up)
a. Same with wrongs and remedies
i. But for remedies it would go more from strong remedies to
weak/focused remedies
b. The right to be free from non-purposeful negative affects from
religion are weak
i. Don’t have strong rights
ii. Here the right is kind of weak
c. There was no evidence of wrongs here – so that was pretty weak
d. The remedy was a very strong remedy – applied to every federal, state
and local government
e. The “right” and “wrong” factors are congruent
f. The link between “wrong” and “remedy” is about proportionality
13. Thus, the court comes to the conclusion that the sweeping measures of this is
crossing a line – illegitimate – substantive redefinition of rights
14. “If Congress could define its own powers by altering the 14th Amendment’s
meaning, no longer would the Constitution be ‘superior paramount law,
unchangeable by ordinary means. It would be on a level with ordinary
legislative acts, and, like other acts, alterable when the legislature shall
please to alter it. Marbury v. Madison…” - pg. 1177

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Kimel v. Florida Board of Regents (2000) pp. 1180
1. Age discrimination case
2. Court says they view this as the bottom tier – it’s a minimal equal protection
problem
a. The right here is a weak, not strong right

Hypothetical on pg. 1181

Professor’s Hypothetical
1. Say Congress passes a law against incinerators – private or public – is this a
violation?
a. Garcia – you can regulate state governments, but may be problems if
only regulating the states
b. Commerce Power
c. Can states be subject to general regulation under the commerce
clause?
i. Yes says Garcia
d. Garcia – even if including the state in the bouquet of this regulation
that’s ok – they can’t get off from regulations just because they are
states
e. If you’re acting just against the states then you’re in the Boerne v.
Flores type situation

Board of Trustees of the University of Alabama v. Garrett (2001) pp.

1182-1185
1. This is a Boerne case
2. Bottom of pg. 1182
a. Linkage between 11th Amendment and 14th Amendment
3. In the Smokestack case, it is not viewed as being a problem unless you’re
asking for monetary damages
4. If there’s a provision for monetary damages against the state, no matter what
the context, we’d have to run this formula (right, wrong, remedy)
5. Court
a. Right to be free from employment disability – not that strong
i. Cleburne is the closest case to this
ii. Laws that treat people whoa re disabled aren’t as strictly
viewed
b. Battle over where the “wrong” lever was – was it strong or weak?
i. Based on the real world
c. The remedy was very strong because it required states to spend
money
i. Based on the statute
d. The levers (right, wrong, remedy) line up in such a way that majority
concludes it does not pass the test of C&P
e. A lot of deference to Congress here

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Nevada Department of Human Resources v. Hibbs (2003) pp. 1186-
1189
1. Recent case where the court shifts directions
2. The Court upheld Congress’ law
3. Has C&P been changed or are the rights and wrongs stronger and the remedy
more targeted?
4. Facts
a. FMLA – required employers, including state government, to grant up
to 12 weeks unpaid leave annually to permit an employee to care for a
serious health condition in an employee’s spouse, child or parent
b. Congress thought there’d be discrimination – women most likely to
case for these relatives and thus employers would be less likely to hire
women
i. Lack of family leave will encourage sex discrimination in
government employment
5. Is it unconstitutional for government not to allow for family leave?
a. No
b. Here you have a requirement nobody would say is constitutionally
required
6. Congress’ argument
a. Says they are requiring something that the Constitution doesn’t
require to protect against something that the Constitution does
require
7. Majority (Rehnquist)
a. Linkage between sex discrimination and family leave
b. The remedy is proportional to the wrong and to the right
i. The remedy is proportional to the wrong and to the right
1. The remedy is a targeted remedy that will head-off
violations
c. Conclusion that this meets C&P
8. Dissent
a. Kennedy – who wrote the majority opinion in Boerne
b. Feels that this has become a new substantive right

Tennessee v. Lane (2004) pp. 1189

1. Issue: the Court was confronted with the question of whether Title II of the
Americans with Disabilities Act was a valid use of §5 of the 14 th Amendment
to abrogate state sovereign immunity
2. Where the remedy is concerned the court says this is about whether
Congress can require people with disabilities access to the courts
3. The dissent says that this case is only about access to the courts, but the
majority opinion has lowered the remedy lever
a. The majority has narrowed the statute – has made it C&P
4. The majority would say the right here is a stronger right – it’s not about the
mentally disabled

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 a. The wrong is strong
5. Hibbs and Lane
a. Looks like the Court is allowing more flexibility in maneuvering these
levers then was the case in Boerne

THE RIGHT TO KEEP AND BEAR ARMS AND THE

PROPER INTERPRETATION OF THE
CONSTITUTION
2nd Amendment
1. Right to possess a gun at home for self defense
2. The preamble led a lot of people to think it was just a militia right
a. Designed to keep federal government from states people in case they
needed to fight against a tyrannical federal government

District of Columbia v. Heller (2008) pp. 1193-1213

1. Issue: Does a law prohibiting the possession of usable hand- guns in the
home violate the Second Amendment to the United States Constitution?
2. Rule of Law: Subject to certain safety limitations, the Second Amendment to
the United States Constitution creates an individual right to keep and bear
arms apart from any military purpose.
3. Issues and facts
a. The law at issue was that DC made it almost impossible to possess a
handgun at home
i. Hunters could if kept disassembled
4. Scalia says to look at the operative part of the 2nd Amendment provision
a. Means individual right to bear arms, even if just in home for self
defense
b. This is in response to those who argue the 2nd Amendment is only
supposed to apply to the right to militia
5. Court said now that we’ve recognized a strong, inherent right of self-defense
they find this law that restricts this right is unconstitutional
a. Didn’t say the right to self-defense was fundamental
6. 2nd Amendment protected a strong but limited right – the court now
recognizing that right
a. First time Court said this
7. Stevens Dissent
a. Says Scalia got the history wrong – how it’s interpreted/viewed
8. Breyer’s Dissent
a. Standard of review isn’t strict scrutiny – must be some kind of
intermediate scrutiny
b. Court should have done the balancing – would have come to the
conclusion that even if individual right and not just militia right, it’s
still outbalanced by the harms and risks

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Post-Script to Heller
1. Pg. 99 of Supplement – McDonald
a. The right to bear arms as part of the 14th Amendment
2. Justice Thomas – PIC
a. We should change course, recognize that the Bill of Rights falls under
the PIC, including the 2nd Amendment – this is what was intended by
the framers of the 14th Amendment
3. Right to bear arms against state and local government

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