FEDERAL JUDICIAL POWER (ARTICLE III)

A. Article III serves 7 functions

1. Creates a federal judicial System
2. Vests the judicial power in one supreme Court and in such inferior courts as CG
may...establish
3. Accords life tenure to fed judgesensures independence of federal judiciary
4. State courts subject to electoral reviewmakes fed Cts specially suited to protect
constitutional rts
5. Defines SMJ
6. Allocates cases between SCOTUS and lower fed cts.
7. Jury
8. Defines Treason
B. Judicial Review [of constitutionality of laws]
1. Not express in Article III
a. Cts have claimed authority since earliest days

Marbury v. Madison Authority for Judicial review of CG/POTUS action

Chief Justice Marshall
Facts

John Adams appointed 42 justices of the peach day before Jefferson took office
o Some of the commission letters were not delivered before Jefferson took office
Jefferson ordered the commissions withheld
Marbury didnt get his letter, sued in SCOTUS

Holding
SCt held Judiciary Act of 1789s authorization of jurisdiction was unconstitutional b/c CG
cannot grant original JD to SCOTUS outside enumeration of Art. III
It is emphatically the province and duty of the judicial department to say what the law
is
Federalist 78: The powers of the legislature are defined and limited; and that those limits may
not be mistaken or forgotten, the constitution is written

C. Limits on Federal Judicial Power

1. Article III Scope Definition
a. Justiciability (doctrine from judicial interpretation of Art. III)
i.
Standing
ii.
Ripeness
iii.
Mottness
iv.
Political Question Doctrine
2. SCOTUS held that fed ct may hear matter only when both constitutional and statutory
authorization
3. XI
Ours is a written constitution, it does not make sense to have it written if we are going to
overstep its bounds.

LEGISLATIVE POWER (ART. I)

A. Congressional Power
1. May act only with express or implied constitutional grant
B. Evaluating Constitutionality of CG action
1. Does CG have the authority under Constitution to legislate?
2. If so, does the law violate another constitutional provision or doctrine?
a. e.g. infringing separation of powers, interfering with individual liberties
C. Evaluating Constitutionality of State Law
1. Does the legislation violate the Constitution?
D. Police Power
1. Possessed by the states
2. Allows state and local govts to adopt any law that is not prohibited by the Const.
3. For the betterment of the general welfare, morals, health, and safety
4. Often limited by state const.
5. Neednt I.D. particular source of power to enact law
E. Recent Trends towards limitation of CG power
1. Last 15 years, SCt has limited scope of CG power under Commerce Clause and XIV 5

Interpreting the Constitution

McCulloch v. Maryland Scope of CG Authority
CJ Marshall
Facts

Maryland enacted statute imposing tax on all banks not chartered by MD

o 2nd Bank of U.S. refused to pay state tax

Issues
1. Does Congress have the Const. authority to incorporate a bank absent express
permission from Const.?
2. Does MD have the power to tax an institution created by CG pursuant to its Const.
powers?
Holding
1. Yes Necessary and Proper Clause (Art. I 8)
2. No
Analysis
1. CG Authority4 arguments
a. Historical practice has established the power of CG to create bank
i. Introduced long ago and approved by acquiescence by many
legislatures
ii. Should an unreviewed practice create a presumption of
constitutionality?
1. OWH: That laws may be natural and familiar... ought not to
conclude our judgment upon the question whether the
statutes conflict with the Constitution
2. Does lack of litigation actually mean silence/
acquiescence?
b. The people ratified the constitution, not the states. States ceded power to
the federal government when the Const. was ratified. Implied assent.
c. Impossible to enumerate all possible abilities of CG in Const.
i. Its a constitution, not a statute and should be interpreted
accordingly
ii. Congress may choose any means not prohibited by Const.
1. Major and key expansion of CG power that has allowed
Constitution to endure 19th and 20th centuries
d. Defined Nec/Prop Clause
i. Congress may choose any means not prohibited to carry out express
authority
1. Legit end & within scope of const.-->all means which are
appropriate
2. Or is the Nec/Prop Clause a limit on CG power to adopt
only laws which are truly necessary?
a. Does Necessary mean useful/desirable or
essential/indespensible?
3. Placement of Nec&Prop Clause
a. Art I 8 expands CG Power while 9 limits
2. Constitutionality of MDs Tax
a. The Power to Create includes the Power to preserve
3

i. Power to tax=power to destroy

b. State may not impede the operation or existence of Congressionally
established entity
i. Supremacy Clause
c. Taxing the Fed Gov = taxing citizens of other states
i. lack of political representation

Contrasting Marbury and McCulloch

Different Political Theories
Marbury Heed the Constitutions words closely; observes its limits
(Strict Reading)
McCulloch Read the Constitution Flexibly
(Loose Reading)

Commerce Before 1937

Article I 8 Commerce Clause : The Congress shall have the power . . . to regulate Commerce with
foreign Nations, and among the several States, and within the Indian Tribes . . . .
A. Activist Bench
a. First time the court had aggressively used its power of judicial review to invalidate
federal and state laws
i. ConLaw since 1937 has been a reaction to this era
B. Dual Federalism
a. Federal and State govts are separate sovereigns
i. Each has separate zones of authority
ii. Role of Judiciary: protect the states by interpreting and enforcing Const. to
protect States zone of activaties
b. Embodied in 3 doctrines
i. Court narrowly defined commerce to be only one stage of business
1. This reserved much power to states
ii. Restrictively defined among the several states
1. CG could regulate only when there was substantial effect on
InterComm
th
iii. 10 Amendment reserved a zone of activities to states that even fed law within
scope of commerce clause were unconstitutional if they encroached

Commerce
U.S. v. E.C. Knight Co.
CJ Fuller
Facts
American Sugar Refining Co. purchased refineries in Philly, monopolizing U.S. sugar
refining
Issue
Does the govts use of Sherman Antitrust to stop monopoly overstep authority of
Commerce Clause?
Holding
Yes. Constitution does not allow CG to regulate manufacturing.
Analysis

Narrow view of Commerce held manufacturing to be distinct from commerce

Maintenance and distinction of the police power from commerce power is essential
to the preservation of state autonomy that is necessary in a dual form of govt
We would rather bear the risks and detriments of little federal control than have the
fed govt encroach upon state power
Indirect effect on commerce

Dissent (Harlan)
If CG can regulate interstate commerce, it should also be able to regulate restraints
thereon

Carter v. Carter Coal Co.

J. Sutherland
Facts

CG enacted optional standards of minimum and maximum prices & regulation of

labor
15% tax on all coal, 1.5% tax if in compliance with optional regulations

Issues
1. Are the Tax Provisions constitutional exercise of tax power?
2. Are collective bargaining, wages, hours, and condition provisions within CG
authority?
Holding
1. No. Not a tax, practically operates as a penalty.
2. No.

Analysis

Production, not trade

Slippery slope of encroachment on state power
Local Activities State Regulation

Among the States

Houston E. & W. TX Ry. Co. v. U.S. Expanding the Power of the Commerce Clause
J Hughes
Facts

Houston E&W was charging way more to ship to Shreveport than to Dallas, thus choking
off supplies to Shreveport and driving up their prices
Interstate Commerce Commission ordered company to change discrim pricing

Issue
Is regulation of INTRAstate commerce within the commerce power?
Holding
Yes. Where a carrier is involved in INTER & INTRA, CG can regulate where INTRA
activities hinder/interfere with INTER activities
Analysis
Encourage national unity
o We dont like state legislation that is discriminatory/harmful to other states
Close and substantial relationship to interstate traffic that control is essential to the
security of that traffic

Contrast With
ALA Schechter Poultry Corp. v. U.S.
Facts
NIRA mandated purchase of entire coops
Collective bargaining, prohibited child labor, established 40 hr week
Issue
Within the Commerce Power?
Holding
No.

Analysis

Direct v. Indirect effects on Commerce

o Employment regulations dont have a sufficiently direct effect
Even though most chickens come from out of state, the code isnt regulating the
interstate transactions; rather in state operations only
o Essential distinction in protecting State govt
If fed power reached all things having indirect effect, nothing would be out of reach
Congress may regulate and protect the stream of commerce
o The flow ceased once the chickens arrive in NY, their final resting place

The Power to Regulate Commerce (1937-1991)

A. No longer distinction between Direct and Indirect
a. Look to the cumulative effect even trivial activities if taken in aggregate would effect
InterComm are now regulable
B. CG can now regulate any activity that has a substantial effect on interstate commerce
a. So broad, not 1 law declared unconstitutional as exceeding commerce power
b. Ct. rejects the notion that 10th amendment is a limit on the commerce power
C. Commerce = power to enact all appropriate legislation for its protection and advancement
D. Intrastate activities: close and substantial relation to interstate such that control is essential
E. Companies are now organizing themselves nationally and benefitting from their interstate
status no bitching and moaning then when CG steps in under InterComm
F. The broad definition dichotomy
a. Complex problems of 20th century require authority outside narrow confines of express
grant of Const.
b. BUT that moves away from a core American Principle that the federal govt has limited
powers with most governance left to the states

Regulatory Laws
NLRB v. Jones & Laughlin Steel

!L

Acts which directly burden or obstruct InterComm or its free flow

Beware the slippery slope to centralized govt it is a matter of degree

Wickard v. Filburn
Facts
Quotas set on amount of wheat to be put into InterComm
Filburn produced quota with wheat for sale but grew private stock, exceeding limit
Issues
1. Can CG regulate production of wheat intended for personal use, never to be placed in
InterComm?
2. Can CG regulate trivial local, INTRA activities that have an aggregate effect on
InterComm via Commerce Power?
Holdings
1. Yes.
2. Yes.
Analysis
Filburns contribution may be trivial, but when taken together with all those similarly
situated, it has substantial effect on InterComm
o Aggregate effect

Civil Rights Laws

Heart of Atlanta Motel v. U.S.
Facts
Hotel owner wanted to challenge CG authority to pass Civil Rts Act by refusing to rent to
blacks
Issue
May CG prohibit racial discrimination under Commerce Clause?
Holding
Yes.

Analysis

!L

1. Does CG have a rational basis for finding that racial discrimination by motels
affected commerce?
2. If so, are the means selected to eliminate that evil reasonable and appropriate?
If it is interstate commerce that feels the pinch, it does not matter how local the
operation which applies the squeeze
Does not matter what primary purpose of legislation is

Katzenbach v. McClung
Facts
Restaurant didnt want to have to serve blacks
Issue
Does CG have power under Commerce Clause to regulate local business if ANY part of it
affects InterComm?
Holding
Yes, so longe as the aggregate of activity of that industry has a substantial effect on
Intercomm
Analysis
Ct. focused on interstate connections of the restaurant
o i.e. suppliers, clientele, etc.
Cts. decision was centered on cumulative effect of similarly situated businesses
Obstruction of interstate travel rather than direct commerce

The Power to Regulate Commerce (1991-present)

U.S. v. Lopez (Gun Free School Zones)
CJ Rehnquist
Facts

Illegal to possess firearms in school zone b/c affects educationaffects students

economic futures affects commerce

Issue
1. Does GFSZA exceed authority under Commerce Clause?
2. What categories of activity may congress regulate under Commerce Clause?

Holdings
1. Yes. Too tangential of an effect on InterComm
2. 3 categories of activity CG may regulate under Commerce Clause
a. Use of the channels of InterComm (See HoA Motel)(transportation of
commodity)
b. Instrumentalities of InterComm, even if threat is in INTRA activites (See
Shreveport Rate Case)(
c. Activities having a substantial relation to InterComm (See Jones&Lauhglin)
i. Or substantial effect; can include cumulative class impact
1. Rational Basis for assuming there would be SE

MODERN
TEST

(d.) Persons or things IN INTERCOMM (can be classified under b.)

Analysis
Criminal statute that is not an essential part of a larger economic regulatory scheme
No JD element which would ensure case-by-case analysis of whether the firearm
possession in question actually affects InterComm
Possession of anything is not a commercial activity
o Even through aggregation elsewhere there would be no substantial effect on
any sort of interstate commerce
Blank Check
Does the regulated activity substantially affect InterComm?
How do the different entry points affect the outcome?

Rehnquist (Majority)- trying to reconcile precedent and describe the doctrine

o No substantial effect on InterComm, even through aggregation
Kennedy/OConnor (Concurring)- Federalism v. local control; maintaining state power
o GFSZA upsets the federal balance and is an unconstitutional encroachment into state
police power
Thomas (Concurring)- Original understanding of Const.
o Without boundaries limiting Commerce Clause to Commerce, we give the Federal Govt
a blank check to regulate anything
Souter (Dissent)- Institutional Competence
o The Court is ill-equipped to make the decision; leave it to the legislature
o CG should have plenary power so long as law passes rational basis
Breyer (Dissent)- Who ought to have the power to make these decisions
o CG is well equipped to analyze effects on InterComm

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Gonzales v. Raich (Medical Marijuana)

Stevens
Facts

CA MMJ allowed medicinal use

Sherriff and DEA seized and destroyed plants

Issue
Can CG regulate a homegrown product that may never enter interstate commerce?
Holding
Yes.

!L

Individual analysis of aggregate effect not necessary; rational basis for concluding it
would
Analysis
Precedent (Wickard v. Filburn) has established that CG can regulate purely local
activities that are part of a class of activities with a substantial relation to InterComm
o Part of Natl marijuana market
Distinguish from Lopez: Lopez regulated non-economic activity thus falling outside CGs
power
CG can regulate purely intrastate activity if it concludes that failure to regulate that
class of activity would undercut the regulation of the interstate market in that
commodity.
o Does not require scientific exactitude

Tenth Amendment Revival

The powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people.
New York v. U.S.
OConnor
Facts

CG enacted radioactive waste act to force states to arrange for the disposal of waste
Included:
o Monetary incentive
o Access incenteive states w/o waste sites could be denied access to other
states
o Take title incentive States that did not arrange for disposal of private waste
would have to take state ownership

Issue
1. Violate the 10th Amendment?
2. Does CG have the authority to force a state to adopt a federal regulatory program?
11

Holding
1. Yes
2. No
Analysis
10th Amendment is violated when CG directs states to regulate in a particular field and
way
CG cannot commandeer the state legislative process
Take title = Congressional Coercion
o Monetary incentive was permissible use of spending power
Political Accountability
o State officials may bear brunt of public disapproval while federal officials
mandating remain insulated
States are given 2 choices
Take title and liability of waste
Regulate the disposal according to CG Mandate
o It would be unconstitutional for CG to force one of these options on a state,
therefore unconstitutional to force them to choose one

FEDERAL EXECUTIVE POWER (ART. II)

Debate: does the language intend to grant the POTUS inherent powers not expressly enumerated?

No mention of herein granted, like Art. I POTUS isnt limited to enumerations

OR is the language simply establishing a single executive?

Scope of Inherent Presidential Power (acting without express con/stat auth.)

Youngstown Sheet & Tube Co. v. Sawyer
Facts
Korean war raised demand for steel
Labor disputes resulted in steel strike
Truman authorized Scy of Commerce Sawyer to take possession of Steel industry and
keep it running

12

Issue
Does POTUS have executive power under the Const. or any implied powers from Const.
to authorize seizer of steel mills?
Holding
No.
Analysis
A. POTUS cannot order policy, only suggest
B. 3 Tiers of POTUS POWER
1. Pursuant to express or implied authorization of CG POTUS + CG
2. Absence of CG grant or denial His independent (inherent) powers
Jackson
3. Incompatible with express or implied will of CG POTUS Power-CG Power
Conc
C. 4 Approaches answering when may POTUS act without express Con/Stat Auth?
1. There is no inherent POTUS power; he may only act with express Con/Stat grant
Black
a. Inherent powers are inconsistent with a written Constitution
Maj
establishing a govt of limited powers
2. POTUS has inherent auth. UNLESS he interferes with functioning of another
Douglas
branch or usurps power of another
Conc
a. POTUS impermissible usurped spending power to seize
b. No Con/Stat mention of removing cabinet officers; we allow it
3. POTUS may exercise powers not mentioned in Const. so long as he doesnt
Frankfurter
directly violate Con/Stat
Conc
a. POTUS violated stat. dealing in seizure of private property
4. POTUS has inherent powers that may not be restricted by CG and may act
CJ Vinson
unless he violates Const.
Diss
a. Fed law restricting POTUS power are unconst.

Which Approach we choose depends on our view of appropriate scope of POTUS power and how best to
check it

How would the outcome differ in a given case depending on approach chosen?

Constitutional Problems of the Administrative State

Non-Delegation Doctrine
CG May not delegate its legislative powers to an administrative agency
Politically accountable CG must make policy choices

13

Panama Refining Co. v. Ryan

Facts
CG delegated power to POTUS to prohibit transpo of foreign petroleum, among others
Issue
Was the delegation of power to POTUS unconstitutional?
Holding
Yes
Analysis
Power being delegated was legislative
o No intelligible principle
No check on POTUS discretion
***NOTE this has not been overruled, but would be decided differently today

Demise of the Non-Delegation Doctrine

Whitman v. American Trucking Ct. unanimously upheld EPA CAA regulations
Schechter and Panama, both 1935, were the only SCOTUS strike down of delegation

Legislative Veto
INS v. Chadha(Legislative Veto = Unconstitutional)
CJ Burger
Facts

Executive granted stay on Chadhas deportation, among others

CG legislatively vetoed, reinstated deportation order

Issue
Is a one house Veto Constitutional?
Holding
No.
Analysis
A. Majority
1. Bicameralism and presentment are crucial
2. Changing legal rights, duties, or relations of a person is an Art. I action
3. Leg Veto is defense of power already possessed
Not aggrandizement
B. Powell, Concurring
1. CG is adjudicating facts of a case, that is judicial
C. White Dissenting
14

1.
2.
3.
4.

Leg Veto is a very practical tool and makes things convenient

Check on legislative power already delegated
Vetoing is not writing new law
CG can bicamerally approve by acquiescence, POTUS approves through Atty Gen

POTUS Power Over Foreign Policy

Separation of Powers & Foreign Policy
U.S. v. Curtiss-Wright Export Corp.
Facts
CG passed resolution allowing POTUS to stop sales of arms to countries involved in the
Chaco border dispute
C-W was convicted of selling arms to Bolivia in violation of Executive Order
Issue
May CG delegate law-making authority it POTUS in matters of foreign affairs?
Holding
Yes, POTUS has broad authority to conduct foreign affairs
Analysis
Fundamental difference between domestic and foreign policy
o Power differs in origin and nature
States bestowed power to legislate domestically upon fed govt in ratification
o Foreign power is inherently federal
Practicality
o POTUS is representative of USA
o POTUS possesses knowledge unavailable to CG
Subsequent criticisms of reasoning
If all foreign power is inherent, Const. would not need to mention it
o Detailed enumeration in Const. rebuts notion that POTUS is all powerful in
foreign arena

Treaties and Executive Agreements

Anything that can be done by treaty can be done by executive agreement, except without Senate
approval
Dames & Moore v. Regan
Facts
President Carter froze Iranian assets in USA during hostage crisis

15

As part of release, executive agreement terminated legal claims against Iran and
transferred all Iranian assets back

Issue
Does POTUS have the authority to transfer Iranian assets and void legal claims?
Holding
Yes
Analysis
Congress has implicitly approved of the practice of claim settlement by Executive
agreement

POTUS Power & War on Terror

Habeas Corpus demands that a prisoner be taken before the court, and that the custodian present
proof of authority, allowing the court to determine whether the custodian has lawful authority to detain
the person

Art. I 9 Cl. 2
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.
Boumediene v. Bush
Kennedy
Facts

P was Bosnian national detained at Guantanamo

Guantanamo lease gave Cuba ultimate sovereignty over the land
o U.S. exercises complete JD control

Issues
1. Do Guantanamo prisoners have habeas corpus, even though they are non-citizens
detained outside our borders?
Holding
Yes.
Analysis
IF CG is going to suspend HC, detainees must be afforded a meaningful substitute
opportunity to demonstrate he is being held erroneously
System must have ability to correct errors, objectively judge evidence, & consider
exculpatory evidence
Relevant factors in extending the suspension clause extraterritorially
o Citizenship status & adequacy of its finding

16

o Nature of apprehension & detention sites

o Practical obstacles
To deny HC b/c Cuba retains ultimate sovereignty would write the gove a blank check
to govern with no legal constraint

LIMITS ON STATE REGULATORY & TAXING POWER

Preemption
The search for CG intent

Express Preemption
1. Do the words actually preempt?
2. If so, what is the scope of the preemption?
Lorillard Tobacco Co. v. Reilly (Cigarette signs)
Facts
Attny General of Mass promulgated regulations governing advertising and sale of all
tobacco
Fed Statute expressly prohibited state law with respect to the advertising or promotion
of cigarettes the package of which are labeled in conformity with fed law
Issue
Is there express preemption even though Fed law talks about cigarettes only and refers
to labels on the package?
Holding
Yes.
Analysis
State police powers are not to be superseded unless clear and manifest purpose of CG
CG purpose was to establish uniform labeling and advertising to ensure promulgation of
knowledge
CG legislated or chose not to in every area covered by state regs, therefore no room for
concurrent legislation
Dissent (Stevens)
Precedent requires narrow construction of preemption provisions
o If ambiguous, discounted
[different view of CG intent]

17

Implied Preemption
A. 3 Types of conflict preemption
1. Field Preemption
i. Fed scheme is so pervasive, there is no room for state law
2. Conflict Preemption
i. State and Fed law are mutually exclusive
ii. OR Federal Standard was intended to be the only standard
3. Impedance Preemption
i. Compliance with state statute impedes achievement of federal
objective/purpose
B. Was the federal standard meant to be the standard?
C. OR Was a loose federal standard enacted leaving room for states to enact stricter
requirements?

Conflict Preemption
Florida Lime & Avocado Growers v. Paul
Facts
Avocados are certified mature under federal regulation but dont meet CAs stricter
regulations of 8% oil
Issue
Is there conflict preemption?
Holding
No.
As long as the standards may coexist and there is not clear and manifest evidence of CG
intent of a single standard, no preemption

Impedance Preemption
Pacific Gas & Electric Co. v. State Energy Commission
Facts
State law requiring proof of adequate storage/disposal facilities for nuclear waste
before a plant can go up
Issue
Is there preemption?
Holding
No.

18

Analysis
Congress has left sufficient authority in the states to allow the development of nuclear
power to be slowed or even stopped for economic reasons
Institutional competence
o Not role of cts, if CG doesnt like it they need to legislate to re-appropriate
authority

Dormant Commerce Clause

A. Definition
1. Principle that state and local laws are unconstitutional if they place an undue burden on
InterComm.
B. Derivation
1. Inferred from Art. I 8 power to regulate commerce among the states
C. Main Questions
1. If CG has legislated, does the federal law preempt?
2. If CG hasnt legislated, does the state/local law excessively burden commerce among
the states?
a. i.e. if CGs commerce power is lying dormant, state and local law still may not
unduly impede InterComm
b. Commerce clause puts inherent power in Ct to limit state authority
D. Commerce Clause has two distinct functions
1. Authorization for CG action (+)
2. Limit state and local regulation (-)
E. Relation to other Constitutional provisions
1. If state/local govt discriminates against out-of-staters with regard to fundamental right
or important economic activities privileges and immunities challenge (Art. IV 2)
could also be made
F. Justifications For
1. Historical
a. Framers intended to prevent state laws that interfered with InterComm
2. Economic
a. Economy is better off without impedance
3. Political
a. States and their citizens should not be harmed by states in which they lack
political representation
G. Arguments Against
1. Textual Framers couldve included it if it is so important
a. exercise of judicial power w/o textual basis

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2. Institutional Competence
a. CG can invalidate state law if it unduly burdens not job of unelected judiciary
H. What is the scope of the DCC?
1. Should cts be aggressive in striking down laws?
2. OR should the Cts adopt posture of deference, only invalidate in extreme case?
H.P. Hood & Sons v. DuMond
Jackson
Facts

P applied for license for another milk plant

DuMond denied under NY law saying he may if he is unsatisfied that issue would serve
the public interest and not cause destructive competition in saturated market

Issue
Can a restriction imposed under state law be valid if its statutory purpose and practical
effect would be to curtail the volume of interstate commerce for the benefit of local
economic interests?
Holding
No.
Analysis
State cant burden volume put into InterComm to further its own economic interests

Cooley v. Port of Philadelphia

Holding and Rule
States have certain powers to effect interstate commerce
That which is local in nature and does not require a uniform rule is State
CG does not have ultimate and exclusive domain

Modern Approach
A. Balancing Approach case by case means ends analysis
1. Benefits of the law v. burden imposed on InterComm
B. Relevant Factors
1. Burden on InterComm
2. Whether there is discrimination between INTER & INTRA
C. Lax Test (Burden Test) Pike v. Bruce Church Inc.
1. Is the burden on InterComm not excessive in relation to putative local interest?
2. Could the interest be promoted as well w/ less impact on InterComm?
1. Other Considerations
i.
Does the Govt have a legitimate ends in mind? NOT protectionism

20

ii.
Are the regulations reasonably adapted to ends sought?
iii.
Even-handed regulation?
iv.
Only incidental/insignificant effects on InterComm?
3. Presumption in favor of law
D. Strict Test (Discrimination Test) Hunt v. Washington State Apple Advertising Commn
1. Importatant State purpose
Never been
2. No less restrictive (Less discriminatory) means necessary to achieve important
basis

interest
3. Presumption against virtual per se rule of invalidity
South Carolina State Highway Dept. v. Barnwell Bros.
Facts
SC passed law prohibiting trucks with gross weigh >20,000 and width >90in.
o 90% of trucks did not meet 90 in. requirement
Issue
Under what circumstances will a state highway regulation be valid in light of Commerce
Clause?
Holding
So long as it discriminates equally between INTER and INTRA commerce AND rational
basis for law
Analysis
Burden Test
No discrimination
Police Powersafety, health, morals (deference)
Are regulations reasonably adapted to the ends sought?
o Ct. doesnt judge merits, only the reasonableness
Lets not substitute judicial judgment for that of the legislature

Contrast With
Southern Pacific Co. v. Arizona EX REL. Sullivan
Stone
Facts

AZ limited number of railroad cars per train as safety measure

Issue
Are the benefits of the state law outweighed by burdens on InterComm?
Holding
Yes.

21

Analysis
Burden Test
When the regulation of matters of local concern is local in character and effect, and its
impact on the national commerce does not seriously interfere with its operation, and
the consequent incentive to deal with them nationally is slight, such regulation has been
generally held to be within state authority
Straight up Balance Test burden on InterComm v. State Interest (ends sought)
Wickard v. Filburn Tragedy of the commons; if were going to have standards they
need to be national
Ct. found huge burden, little benefit
o No reasonable relation to ends sought

Determining Whether Law is Discriminatory

Philadelphia v. New Jersey (Facially Discriminatory)
Facts
NJ law prohibited importation of waste from outside state
to protect the quality of the environment of NJ
Issue
Violate DCC?
Holding
Yes
Analysis
Protectionism measures can be unconstitutional for their means as well as their ends
No matter the purpose of a statute, it may not be accomplished through discriminating
against articles of out-of-state commerce

United Haulers Assn v. Oneida-Herkimer (Facially Discrimnatory)

Facts
State passed law requiring waste taken to central dump site
o No matter how far a trip for garbage companies
Issue
Does an ordinance requiring deliver to public facility impose a substantial burden on
InterComm?
Holding
No

22

Analysis
Favored waste disposal facilities were publicly operated; established in interest of antitrust and organized crime prevention unrelated to protectionism
Traditional Public Function
Treating all private companies equally
Declared non-discriminatory
o Ct. goes on to balance

Non-Discriminatory Laws Burdening InterComm

Ct. finds non-discriminatory Balancing Test

o Burdens v. Benefits

Pike v. Bruce Church, Inc. (Cantaloupes)

Issue
Can a non-discriminatory law impede interstate commerce?
Holding
Yes.

Burden
Test

Analysis
Balancing Test
o Where a non-discriminatory law effectuates a legitimate local interest and its
effects on InterComm are only incidental, it will be upheld unless the burden
imposed on InterComm is clearly excessive in relation to supposed local
benefits

Consolidated Freightways Corp. v. Kassel

Facts
P had 65 ft doubles
Iowa banned trucks more than 60 feet
Issue
Was Iowas regulation burden on InterComm?
Holding
Yes.
Analysis
Balancing Test
o Only marginal safety benefits
o Huge burden on InterComm

23

Dissent (Rehnquist)
PA and NJ both on I-80 ban 65 foot doubles
17 states + DC in all
State safety measures are afforded strong presumption of validity
Ct. is not in the business of making public policy; constitutionally delegated to state legs
Balancing Test performed is wrong
1. Is the state law a rational safety measure?
2. If so, sensitive consideration of the safety purpose in relation to the burden
i.
So long as the safety measures are not pretext for
protectionism/discrim (determined by balancing test)
ii.
If valid safety regulation uphold

Market Participant Exception

A. Defined
1. State may favor its own citizens in dealing with govt owned business and in receiving
benefits from govt programs
a. i.e. where the state is an actual participant
B. Still susceptible to privileges and immunities challenges under equal protection
C. States are free to participate and operate in a free market
D. Limitation
1. State businesses may favor in-state purchasers, but they may not attach conditions to a
sale that discriminate against InterComm
South-Central Timber Dev. v. Commner DNR Alaska (Defining the Scope of MPE)
White
Facts

AL required buyers of Alaskan timber to have it processed in Alaska before it is

exportable

Issue
Under MPE, may a state impose requirement on down-stream market participants?
Holding
No.
Analysis
MPE is limited to the specific market in which the state is a participant
Unless market is narrowly defined, the exception will swallow the rule
Distinction once the goods come to rest in private hands

24

Privileges & Immunities (Art. IV 2)

Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several states
A. SCOTUS Interpretation
1. Limits the ability of states to discriminate against out-of-staters with regard to
fundamental rights (Constitutional) or important economic activities
B. Scope
1. Discrimination against citizens of other states is a prerequisite for application
2. Limited to US citizens (not corporations)
C. Relationship to DCC
1. Both can be used to challenge state and local laws that discriminate
a. mutually reinforcing relationship
2. Differences
a. P&I ONLY discrim laws
b. DCC discrim OR burdensome
c. Corporations and Aliens can sue under DCC, NOT P&I
d. DCC has exceptions
i.
Congressional approval of state law
ii.
CG has acted
iii.
MKT participant
D. Relationship to Other Constitutional Provisions
1. Distinguish from privileges OR immunities clause of XIV
a. No state shall make or enforce a law which shall abridge the privileges or
immunities of citizens of the US
E.

Analysis
1. Has the state discriminated against out-of-staters with regard to privileges and
immunities that it accords to its own citizens?
a. Must be substantial reason and a substantial relation to that reason
i.
Judged by availability of less discriminatory means
2. If so, is there a sufficient justification for the discrimination?
a. Strong presumption against discriminatory laws

What are the Privileges and Immunities of Citizenship?

A. The clause protects interests which are fundamental; which belong, of right, to the citizens of
all free governments. They may be comprehended under the following general heads:
1. Protection by the Govt
2. Enjoyment of life and liberty
3. The right to acquire and possess property of every kind,
4. And to pursue and obtain happiness and safety;
a. Subject nevertheless to such restraints as the government may prescribe for
the general good of the whole
25

!L

B. Recent Developments
1. The clause applies only with respect to those privileges and immunities bearing upon
the vitality of the Nation as a single entity.
a. Basic to the well-being of the nation
2. Is the interest sufficiently fundamental to the promotion of interstate harmony?
Toomer v. Witsell
Facts
Toomer and other out-of-state commercial fisherman challenged SC law that chaged
$2,500 to oosers and $25 to isers
Issue
Can a state discriminate to conserve natural resources?
Holding
No.

Analysis
Is there substantial reason for discrimination?
Does the degree of discrimination bear a substantial relation to that substantial reason?
Unless non-citizens constitute a peculiar source of the evil trying to be warded off,
unconstitutional
One of the privileges. . . OOSers can do business on terms of substantial equality with
ISers

United Building & Const. v. Mayor & City Council of Camden

Rehnquist
Facts

Ordinance reqd 40% of workers on city-funded projects be city residents

Issue
Violate P&I?
Holding
Yes.
Analysis
Pursuit of common calling is one of the MOST fundamental of privileges
2 part test
o Discrimination burdens a fundamental privilege (right to earn a living)
o No substantial reason for discriminating

26

Lester Baldwin v. Fish and Game Commission of MT

Rehnquist
Facts

MT law required higher fees for hunting for OOSers

Baldwin was recreational hunter

Holding
No violation of P&I

!L

Analysis
Recreational elk hunting is neither a constitutional right nor an important economic
activity
NOT means of livelihood
Equality of access is not basic to the maintenance or well-being of the union

What is sufficient grounds for discrimination?

A. P&I is not absolute
1. A state may discriminate against OOSers in regard to all if there is substantial reason
and the discrimination bears a substantial relationship to the state objective
a. Are there less restrictive means?

SCt. Of New Hampshire v. Piper

Powell
Facts

Only NH lawyers were allowed to practice in NH

Issue
Is the practice of law a fundamental right and protected by P&I?
Holding
Yes.
Analysis
State argued nonresidents less likely to know rules, act ethical, be available, and do local
pro bono
Ct. individually discredited each claim as means chosen do not bear necessary
relationship to the States objective
o i.e. this rule doesnt actually solve the problem the state claims to have

27

THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF

CIVIL RIGHTS & LIBERTIES
Application of Bill of Rights to the States

Rejection Pre-Civil War

Barron v. Mayor & C. Council of Balitmore
BoR is a restriction of Federal action, not state/local conduct (CJ Marshall)
o Faith in State Consts.

Slaughter-House Cases

A. 14th amendment passed after civil war applied BoR to States Privileges OR Immunities
1. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the US.
2. Derived from framers intent in drafting XIV

Butchers benevolent Assn. of New Orleans v. Crescent City Livestock Landing

Miller
Facts

LA law gave monopoly over New Orleans slaughterhouse business to Crescent City

Issue
Do XIII and XIV make the BoR applicable to the states?
Holding
No Privileges OR Immunities clause protects natl citizenry not state
Analysis
XIV was meant to protect the negro

Revival of Privileges OR Immunities Clause

Saenz v. Roe
Stevens
Facts

CA enacted law limiting welfare benefits for citizens of <12 mos.

Resident would receive amount they got in their last state

Issue
Violate Privileges OR Immunities of XIV?

28

Holding
Yes
Analysis
Denies the right to travel by denying a newly arrived citizen the same privs/immuns
enjoyed by other citizens
Rights to travel is a fundamental right
Number of people gaming the system is so small so as not to justify burden on the rest
o People gaming the system wasnt the motivation for the law anyway

DUE PROCESS & PROTECTION OF FUNDAMENTAL RIGHTS

Economic Substantive Due Process
A. Economic Liberties
1. Constitutional rights concerning the ability to enter into and enforce Ks; pursue trade,
property
B. Lochner Era
1. Freedom of contract was a basic right under Due Process Clause
2. Aggressive protection of economic rights under due process clause
a. e.g. state minimum wage, max hours, etc. declared unconstitutional as violating
XIV, interfering with contract
3. Ct. used federalism to limit the ability of CG to regulate the economy
a. Narrowly defined CGs scope under commerce clause and found that 10th
reserved zone of authority to the states
C. Post 1937
1. Great deference to govt economic regulations
2. Ct. imposed few limits on CG authority to regulate economy

Lochner Era

1. Freedom of K was a right protected by DP of 5th and 14th

2. Govt could interfere with freedom to K only to serve valid police purpose of protecting public
health, safety, morals
3. Judiciary will carefully Scrutinize legislation to ensure means serve the ends

Lochner v. New York

Facts
NY labor law prohibited bakery employees from working for more than 60 hours/wk or
10/day

29

Issue
What is the test for determining whether legislation seeking to restrict right to contract
invalid under DP of XIV?
Holding
Is the law:
1.
2.

fair, reasonable and appropriate exercise of the police power, OR

unreasonable, unneccesary and arbitrary interference with the right of the
individual to contract?

Analysis
Means must be directly related to the ends
Ends must be appropriate and legitimate
Means End analysis
Must serve valid police purpose
o Protect public safety, health, or morals
Where do we draw the line for the police power (so not to become supreme state
sovereignty)?

Coppage v. Kansas
Facts
Kansas law prohibited employers from making jobs conditioned upon no unionization
Issue
Can a state prevent an employer from conditioning employment on non-unionization?
Holding
No.
Analysis
Freedom to contract includes stipulating no unions
NOT legitimate exercise of police power to equalize bargaining power
o No inherent right to join union

Nebbia v. New York (Moving Away from Lochner)

Facts
NY statute fixed min/max prices for milk
NY claimed if milk prices dropped, threaten supply and quality of milk
Issue
Does the statute violate due process rights?

30

Holding
No
Analysis
Promoting public welfare

The End of Lochner

The end of laissez-faire jurisprudence
Economic Due Process has been practically unavailable to challenge govt economic and social
welfare
Rational Basis Review
West Coast Hotel v. Parrish
Facts
WA instituted minimum wage for women and minors
Issue
Is fixing minimum wages a constitutional limitation on freedom to contract?
Holding
Yes
Analysis
Constitutional where such restriction protected community, health and safety, or
vulnerable groups
Freedom to contract is not express in constitution; no longer fund. rt.
regulation which is reasonable in relation to its subject and is adopted in the interests
of the community is due process
No longer is the state limited to health, safety, morals
Govt can now regulate to serve any legitimate purpose
o Deference so long as reasonable

U.S. v. Carolene Products

Facts
Fed Law prohibited shipping milk with any fat other than milk fat in InterComm
Holding
No violation of 5th DP
Analysis
Sufficient evidence to support claim of danger to public health
Rational Basis Review

31

Footnote 4
A. Introduced idea of levels of scrutiny
1. Rational Basis for economic legislation
B. Heightened Scrutiny for legislation that:
1. Facially violates Constitution
2. Attempts to distort or rig political process
3. Discriminates against minorities, particularly politically underrepresented

Williamson v. Lee Optical

Facts
OK law prohibited any person not a licensed optometrist or ophthalmologist from fitting
lenses
o Qualified Opticians were excluded
Issue
Does OK law violate Due Process by arbitrarily interfering with opticians right to conduct
business?
Holding
No
Analysis
Law is not least restrictive means, but it passes Rational Basis
Institutional Competence
o It is not the job of the Ct. to substitute its judgment
o It is enough that there is evil @ hand and rational solution
BMW of North America v. Gore
Facts
Gore was awarded actual damages of $4k plus $2m in punitive
Issue
Does award of $2m in punitive to the purchaser of a single car exceed constitutional
limit?
Holding
Yes. Grossly excessive
Analysis
Measured by
o Degree of reprehensibility of the act (Moral Culpability)
o Ratio compared to actual harm suffered
o As compared to similar cases; civil or criminal financial penalties

32

State Farm v. Campbell

Issue
Is an award of $145m in punitive with compensatory of $1m excessively in violation of
DP of 14th?
Holding
Yes.
Analysis
Generally punitive should be <10x compensatory
o BMW analysis
Punitive damages were calculated on national culpability of SF
o A state cannot punish a D for conduct that may have been lawful where it
occurred
Punitive damages didnt bear relation to Campbells harm
Cts. Cannot adjudicate merits of other parties hypothetical claims under
Reprehensibility prong

Philip Morris USA v. Williams

14th Due Process bars punitive damages for harm caused to individuals not named in litigation

FUNDAMENTAL RIGHTS UNDER DUE PROCESS AND EQUAL

PROTECTION
Current Supreme Court doctrine prohibits the judiciary from using the Due Process
Clause instead of an applicable specific constitutional provision when one is
available

Fundamental Rights Analysis & Non-Economic Rights (Unenumerated)

A. Right Protected by Due Process
1. Is the govts interference justified by a sufficient purpose?
2. DP aims to protect individuals against majoritarian policy enactments which exceed the
limits of governmental authority
i. Protects rights so rooted in traditions and conscience of our people
B. Right Protected by Equal Protection
1. Is the govts discrimination as to who can exercise the right justified by a sufficient
purpose?
C. Ninth Amendment
1. Provides justification for the court to protect non-textual rights

SEE Griswold
Concurrence Infra.

33

Framework for Analyzing Fundamental Rights

A. 4 Issues to address
1. Is there a Fundamental Right?
a. Debate if these are only those enumerated in Const.
b. Fundamental Right govt must meet Strict Scrutiny
c. Non-Fundamental Right Rational Basis
2. Is that Fundamental Right Infringed?
a. Ct. considers the directness and substantiality of the interference
i.
Govt demanding that someone forgo a const. rt. To receive benefits
directly and substantially interferes
3. Is there a Sufficient Justification for the Govt Infringement of a Right?
a. Fundament requires compelling interest
b. Non-Fundamental Legitimate purpose
4. Is the Means Sufficiently Related to the Ends?
a. FundamentalNo less restrictive means
i.
Govt burden to show
b. Non-fundamentalReasonable approach
i.
1 step at a time
ii.
Burden on petitioner

Right to Custody of Ones Child

Michael H v. Gerald D (What is fundamental?)
Facts
Carole and Gerald were married
Carole had affair with Michael
o Child
Issue
Does CA law conclusively presuming issue of a cohabitated married couple to be theirs
violate fundamental right of true father to custody?
Holding
No

What is a
fundamental
right?

Analysis
Due process rights need to be ones that have traditionally been recognized
o Custody/Access to adulterous bastard children is not
Leave the decision to the states
Stagnant view of Constitution
Dissent (Brennan)
Plurality unduly inserts traditional into Fund. Rt. Analysis
o What counts as traditional?

34

Scores of precedent recognize and protect rights as fundamental that were not
considered traditional at time of review
Constitution Lives
We must accept other peoples practices in our diverse society even though we dont
agree with them because we want ours protected; tolerance begets tolerance
o Birth control, corporal punishment, etc.

Right to Control Upbringing of Ones Children

Meyer v. Nebraska
Facts
P convicted for teach a child German under NE statute that outlawed teach of foreign
languages to students <8th grade
Issue
Does the statute infring on liberty guaranteed by XIV?
Holding
Yes.
Analysis
Infringes liberty interest without reasonably relating to any of the legitimate ends
claimed
Statute would lose on ANY level of scrutiny

Troxel v. Granville (Grandparents Rights)

Pluarality; OConnor
Facts

Parents of deceased father sued for extended visitation rights to granddaughter

WA statute allowed any person to petititon for visitation

Issue
Does WA statute infringe XIV Substantive Due Process?
Holding
Yes
Analysis
Statute as applied gave no special weight to Mothers determination of what is best
Mother was fit
Visitation hadnt been ended entirely
Kennedy
Possible First Amendment Rights violation
35

Procreation and Contraceptives

Skinner v. Oklahoma
Facts
Skinner sentenced to involuntary sterilization under OK habitual criminal act
Issue
Was involuntary sterilization violation of EP XIV? i.e. is the right to procreate a
fundamental one
Holding
Yes.
Analysis
OK offers no proof of biological inheritability
Sterilization should be strict scrutiny b/c of dangers to society

P
R
I
V
A
C
Y

Griswold v. Connecticut
Facts
Contraceptive Ban even for married couples
o to prevent illicit relations
Issue
Does the Constitution provide a privacy right for married couples?
Holding
Yes.
Analysis
Right to privacy is a fundamental right
o Not under DP, though
Privacy is implicit in many of the specific provisions of the BoR
o 1st(Freedom of expression), 3rd(protecting homes from quartering), 4th(security
against unreasonable search), 5th
o BoR has Penumbras & Emanations, various guarantees create zones of privacy
Penumbra rationale since been discarded
Would we let pigs into the bedroom?
Concurrence (Goldberg)
9th amendment was specifically enacted to guarantee that BoR was not the only ones
guaranteed to citizens
Privacy is so fundamental and deep-rooted in our society, especially marital privacy
o Ignoring this would mean giving no effect to the text of the 9th
Marbury all clauses need be given effect

36

Present
Approach

Basing ones reasoning that right of privacy doesnt exist on lack of textual enumeration
runs directly counter to 9th
o Need different reasoning
th
5 /14th liberty protections are not limited to language of the first 8 amendments
In deciding whether a right is fundamental, judges look not inwardly but to the
collective conscience to determine whether a principle is so rooted there as to be
ranked as fundamental

Concurrence (Harlan)
Violates 14th DP implicit concept of liberty Use Due Process Clause as a basis for
various unenumerated privacy rights; fuck penumbras
Concurrence (White)
Banning contraceptives for married couples is not related to purported state interest of
preventing illicit relations
Dissent (Black)
No general right to privacy. Not the Cts job to re-interpret const. to keep it relevant to
the times

Eisenstaedt v. Baird
Facts
Lecturer busted for distributing contraceptive info and pussy foam
MA law prohibited contraceptives by singles
Holding
No rational ground for different treatment of married and unmarried persons
Analysis
No rational relation to proffered objective of deterring premarital sex
Broader view of privacy: all persons enjoy the liberty to make intimate decisions free
from govt intervention

Right to Abortion
Roe v. Wade
Blackmun
Facts

TX law made it a crime to obtain abortion except on medical advice to save mothers life

Issues
1. Do abortion laws criminalizing all abortions violate Const.?
2. Does XIV DP protect right to privacy, including abortion?
3. Are there circumstances where a state may enact laws prohibiting abortion?

37

Holding
1. Yes. Laws that dont consider the stage of pregnancy and other interests violate XIV DP
2. Yes. XIV DP protects privacy, including abortion
3. Yes. State cannot compltetly deny; but the state has legitimate interests in protecting
woman and potentially human life

Compelling
Interests
Begins

Analysis
First Trimester
o Judgment of the doctor
o Less women die from early abortions than child birth
Second Trimester
o States may promote their interests in mothers health by regulating abortion
procedures similarly to other medical procedures
Third Trimester viability
o States may promote their interests in potentially human life by regulating or
prohibiting abortionexcept when necessary to preserve life/health of mother
Ct. considered relevant risk rates
There is a fundamental right to privacy
o 14th personal liberty and restrictions upon state action OR
o 9th amendments reservation of rights to the people
Right to privacy is not absolute
o Must be balanced against state interests of maternal/potential life
Questions
o What is the value of human life?
o Do we treat all life as equal?
o Do different contexts give rise to different valuations?

Planned Parenthood v. Casey (Moving from a rule to a standard)

OConnor
Facts

PA law required notification of the husband prior to abortion

Issue
Does spousal notification requirement place an undue burden on woman seeking
abortion in violation of Const.?
Holding
Yes
Analysis
Overruled trimester approach
o Held on to viability distinction, though

38

Regulation of abortions prior to viability should be allowed unless there is an undue

burden on access
Constitutional Protection derives from 14th Due Process
State can persuadenot coerce
Reaffirms 14th liberty

Concurrence (Blackmun)
Impinges right to bodily integrity
Impinges right to privacy
Conscripting womans body into involuntary servitude of the state
Sexist under EP

Gonzales v. Carhart (Partial Birth Abortion)

Facts
Federal law prohibited certain types of partial birth abortions
Issue
Is ban on certain types of abortions ok?
Holding
Constitutional on its face; open to as applied challenges
Analysis
Extreme devaluation of human life
State interest in protecting fetal life
Dissent (Ginsburg)
Blurs the line clearly drawn in Casey v. PPdoesnt take precedent seriously
No health exception for mother
Is it appropriate to substitute Ct./CG judgment for medical judgment?

Sexual Orientation
Lawrence v. Texas
Facts
TX law made homo activity deviate sexual behavior
Issue
Does statute criminalizing sex violate 14th Due Process?
Holding
Yes

39

Analysis
Liberty protects person from unwarranted govt intrusions
Liberty presumes autonomy of self
Reaffirms right to privacy
No legitimate state interest proffered

Voting Rights
Crawford v. Marion Cnty. Election Bd.
Facts
Law required photo ID to vote
Issue
Is requiring an I.D. an unconstitutional burden on right to vote?
Holding

No
Analysis
State interest preventing voter fraud
Politics can be present, but if theyre the only reason, strike down
If a nondiscriminatory law is supported by valid neutral justifications, those
justifications are good enough, even if partisan politics are present
Dissent (Souter)
State may not burden the right to vote by invoking abstract interests
o We want particular factual showing of threats to an interest proffered
o We want those threats to outweigh the particular impediments proposed

Reynolds v. Sims
Facts
Alabama voting districts based on 63 year old data
Issue
Does AL apportionment of electorate violate equal protection?
Holding
Yes
Analysis
Vote dilution deprives some people of equal protection

40

EQUAL PROTECTION
Is the Govts classification justified by a sufficient purpose?
Fed action 5th Amendment
State Action 14th Amendment
A. Framework
1. What is the classification?
a. Facially
b. OR discriminatory impact
i.
To prove gender or race classification, it must be show that
discrimination is the purpose of the law
i. Because of not merely in spite of
1. Burden of proving purpose on challenger
a. Issue decided before scrutiny level is assigned
2. What is the Appropriate Level of Scrutiny?
a. Strict Scrutiny Race/Natl Origin/ religion (Alienage IF done by states)
i.
Necessary to achieve a compelling govt interest
1. Must proffer actual reasons
Suspect
2. Compelling int. must be actual motive
Classification
ii.
Means narrowly tailored to achieve end
1. No less discriminatory means
2. Cant be one step at a time
iii.
Govt has burden of proof as to elements (i) and (ii)
b. Intermediate Scrutiny Gender Classification/ Bastard Kids
i.
Important Govt Interest
Quasi1. Must proffer actual reasons
Suspect
2. Important Interest must be actual motive
Classification
ii.
Means Substantially Related (neednt be necessary)
1. Cannot be one step at a time
iii.
Govt has burden of proof of showing important interest and
substantially related means
c. Rational Basis with Bite
i.
Disadvantaged group is a sympathetic one
ii.
Individual interest affected is especially strong
1. e.g. homos not recognized as a class for heightened scrutiny
but may be deserving
d. Rational Basis age, disability, wealth, politics, felony status (Alienage IF done
by CG)
i.
Legitimate state interest
1. Hypothetical reasoning is ok
ii.
Rational means
41

1. Can be one step at a time towards the ends

iii.
Challenger has burden of proof
iv.
Sliding scale of complete deference to substantial rigor
v.
Uses: Law neither burdens a fundamental right nor targets a suspect
class
3. Does the Govt Action Meet the Level of Scrutiny?
a. MeansEnds Test
b. Is the law underinclusive/overinclusive?
i.
Not decisive
B. Heightened scrutiny
1. Suspect Class Criteria
a. Immutable characteristics
b. Ability to protect itself
c. Political representation
d. History of discrimination
e. How the factor bears on ability to contribute to society
f. Visibility of distinguishing characteristic
2. Arguments Against
a. Sliding Scale (Rational Basis with Bite?)
i.
Constitutional and social importance of the interest adversely affected
ii.
Unfairness of the basis on which the classification was drawn
b. Tiers are decisive
c. Examples
i.
Romer v. Evans RB with bite
ii.
Grutter v. Bollinger Unusual deference to Mich. Pussified strict
scrutiny
Romer v. Evans
Facts
CO voters adopted state Const. precluding govt from adopting measures that would
make homos a protected class
Issue
Violation of EP?
Holding
Yes
Analysis
Amendment relegates homos as a solitary class and withdraws legal protections from
them and only them
A law making it more difficult for one group of citizens to seek assistance from the govt
than another is a denial of the equal protection
Means so broad in relation to end they cannot be credited

42

Railway Express Agency v. NY

Facts
NY law prohibited advertising on vehicles
Holding
EP not violated
Analysis
If the classification was related to the purpose for which it was made, no violation

Race Discrimination
A. Justifications for Strict Scrutiny
1. Primary purpose of 14th to protect blacks
2. Long history of discrimination makes it very likely that classifications will be based on
stereotypes
3. Political powerlessness
Dred Scott v. Sandford
Arguable first exercise of judicial review since Marbury v. Madison to declare act of CG unconst.
Facts

Moved from slave state (MO) to free state (IL)

Analysis
Slaves are not citizens under original meaning of Const. or Declaration

Korematsu v. United States

Facts
All Japs were put in concentration camps
Issue
Was it within the power of CG/Exec to intern Japs?
Holding
Yes.
Analysis
Compelling state interest (preventing espionage, invasion, sabotage)
definite close relationship MeansEnds
o Immediate, imminent, and impending danger
Could not reject finding by military that this was necessary
Not about race; military issue
(OverinclusiveAll Japs & Underinclusive not all spies)

43

Dissent (Murphy)
RACISM
Racial discrimination in any form has no justifiable part in a democratic way of life
No evidence of immediate, imminent, impending public danger
No reasonable relation between group of characteristics of Japs and dangers of
invasion, sabotage, espionage
o Italians and Germans not treated similarly

Loving v. Virginia
Facts
Felony for interracial marriage
Holding
Equal Protection violation

!L

Analysis
No purpose for law independent of those based on arbitrary and invidious racial
discrimination
o Clear b/c only interracials involving whites were felonious

Racial Segregation
Plessy v. Ferguson
Facts
Plessy was 7/8 white; tried to sit in all white train car
Holding
States can constitutionally enact legislation requiring separate but equal?
Analysis
Separation does not imply inferiority

Brown v. Board 1
Issue
Is race segregation in schools ok?
Holding
No
Analysis
Separate but equal is never equal
Education is a right that need be made available to all on equal terms
o Important step in protecting ability to enjoy all civil rights
44

What is the role of education in American life today?

o Education in 1954 is just as important as the rights in the minds of the framers
were upon adoption of 14th
Generates feelings of inferiority causing lasting impacts

Johnson v. CA
Holding
ALL race classifications must meet strict scrutiny
Analysis
Strict Scrutiny should be a searching review

Brown v. Board 2
Facts
Defining manner in which relief of Brown 1 will be accorded
Analysis
Cts. Will require schools make a prompt and reasonable start toward full compliance
Schools should act accordingly to ensure students are admitted on racially
nondiscriminatory basis with all deliberate speed

Identifying Racially Discriminatory Laws

Proof of Discriminatory Purpose
Washington v. Davis
Facts
Test 21 failed by many more blacks
Issue
Is proof of disproportionate impact sufficient to establish unconstitutional racial
classification?
Holding
No

!L

Analysis
Purpose may be inferred from totality of circumstances
EP protects people, not classes
o that other blacks also failed does not demonstrate that any individual was
denied equal protection
45

Rational Basis
o So long as neutral on face and law (not classification) rationally serves govt
purpose
Disproportionate impact absent showing of purpose would invalidate taxes, welfare,
regulatory laws, licensing
Do we seek equal treatment or equal results?

McCleskey v. Kemp
Facts
Blacks more likely to get death penalty
Issue
Does GAs death penalty, which is given to blacks much more often, violate EP by
treating the races differently?
Holding
No.
Analysis
Corollary of as applied rule:
o If a statute is shown to have purposeful discrimination it must also show to have
actual discriminatory effect
Knowledge and awareness of discriminatory impact not enough
o Legislature MUST have selected or reaffirmed course of action at least in part
because of, not merely in spite of, adverse effects on identifiable group

Arlington Heights v. Housing Development

Analysis
Discriminatory motivation need only be PART of reasoning
Establishing Discriminatory Purpose
o Historical Background
o Departure from normal procedure
o Substantive Departures (going against furthering a proffered objective)
o Legislative history
Contemporaneous statements in meetings, reports, etc.
o Sequence of events leading up to applied discrimination

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Affirmative Action

Grutter v. Bollinger
Analysis
Flexibility/individual analysisrace wasnt practically decisive (?)
Are classifications benging/remedial or illegitimate/stereotypical?
Strict Scrutiny is not strict in theory, but fatal in fact
Narrow tailoring assures that the means chosen fit the goal so closely that there is little
or no possibility that the motive for the classification was illegitimate racial
stereotyping
o Cannot unduly harm members of ANY racial group
Even remedial
Considered workable race-neutral classifications
Dissent (Scalia)
B+ in plays well with others?
Not the schools job to teach life lessons
Majority offers no bright lines of permissibility
Dissent (Thomas)
Const. does not tolerate institutional devotion to racial discrimination
Not Strict Scrutiny
Educational benefits are the ends, diversity the means
Other top law schools have succeeded in diversity without discrimination

Gratz v. Bollinger
Facts
Students needed 100 points to guarantee admission
o 20 point bonus to minorities
Holding
Violation of EP
Analysis
Minorities practically compete on a another level, separate from whites
No individual analysis/ flexibility

Gender Classification
A. Intermediate Scrutiny Justifications
1. Not framers of XIV intent
2. Biological differences between men and women make it more likely justified
3. Political Majority and lack of isolation such to be considered so discrete
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Frontiero v. Richardson
Facts
Female Air Force wanted benefits for husband
Issue
Does a statute offering different spousal benefit based on gender violate EP?
Holding
Yes
Analysis
Typical Factors
o History of discrimination
o Immutable characteristic
o etc.
No purpose other than administrative convenience

Craig v. Boren
Facts
Different drinking ages for girls and boys
Holding
Violation of EP
Analysis
No connection between the mean s and ends (traffic safety)
o Dont closely serve to achieve objective

United States v. Virginia (VMI)

Holding
Violation of EP

!L

Analysis
Must be exceedingly persuasive justification for gender classification
Gender classification can be used remedially (economically)
Dissent (Scalia)
Ct. applied strict scrutiny

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When is it Discrimination?
Geduldig v. Aiello
Analysis
Distinction is pregnant and non-pregnant; one group is exclusively female but other is
male and female
o Not gender classification
o Men and women benefit fiscally from current set up
Rational Basis Review
o One step at a time

Benefiting Women
Orr v. Orr
Facts

Alimony made husbands but not wives pay

Holding
EP violation, means not substantially related
Analysis
State interests are well served under gender neutral classifications
State is already holding individualized hearings to determine need
o Dont need to use gender as proxy as well
No additional burden on state to reform system to include men
Laws CANNOT consider stereotypes

MS Univ. for Hwomen v. Hogan

Facts
Focker couldnt get in to womens college
Holding
Violates EP

!L

Analysis
Analyzing gender classifications must be done free of fixed notions concerning roles
and abilities of males/females.
Remedial reasoning must be grounded such that intentional and direct assistance to
members of a disproportionately burdened class
o Women in nursing are not burdened
No showing of limitation of opportunities
Perpetuates stereotype of womens work
Even if compensatory ends were important, no substantial relation

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Upholding Stereotypes that Benefit Women

Michael M v. Superior Court of Sonoma
Facts
Any sex with female <18 is statutory rape
Sex with young man not illegal
Holding
No EP violation
Analysis
Ct. recognized inherent physical and psychological differences between teen boys and
girls
Legislature is acting to punish the actor who suffers few of the consequences of sex
Pregnancy is enough deterrence/punishment for girlsneednt tack on legal cons.
o Equalizing deterrence
Takes steps to help prevent teenage pregnancy
o Important interest substantially related, satisfied

THE STATE ACTION REQUIREMENT

A. Policy Behind State Action
1. It preserves a zone of private autonomy
a. Perhaps balance freedom to infringe v. freedom of interference
2. Enhances federalism by preserving zone of state sovereignty
a. Police power to structure interactions between individuals
United States v. Stanley
Facts
No blacks allowed at hotel
Issue
Does the 14th prohibit discrimination by private citizens?
Holding
No. 14th only prohibits state action

Marsh v. Alabama (Corp. Town)

Issue
Is the Constitution applicable to privately owned towns?
Holding
Yes.

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Analysis
Town acts like a govt body
Private town is not like private home
Benefitting from being open to the public; must accept burdens with benefits

Jackson v. Metropolitan Edison Co.

Facts
Private utilities company terminated service for nonpayment
o Procedural Due Process Claim
Private Co. held certificate of public convenience from PA Public Util. Commission
Holding
Not state action
Analysis
Although there was monopoly, that is not dispositive
State approved did not favor or encourage a decision

Shelley v. Kraemer
Facts
Black family bought house
o Restrictive covenant barred blacks from property
Court upheld covenant
Issue
Does state court action enforcing a private agreement constitute state action?
Holding
Yes

Lugar v. Edmondson Oil Co.

Facts
Lugar owed Edmondson money
Edmondson had sheriff attach Lugars real property to the lawsuit to prevent disposal
Issue
Property seizure constitutes State action?
Holding
Yes. Private partys joint participation with state officials in seizure of property is
sufficient to say state action
Analysis
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1. Has the deprivation resulted from the exercise of a right or privilege having its source in
state authority?
2. May the private party actor appropriately be characterized as state actor?
a. Party charged must be state official, acting together with or getting significant
assistance from a state official, or have his conduct otherwise attributable to the
state
i. Invoking aid of state actors

Edmonson v. Leesville Concrete Co.

Facts
Black man sued employer
Employer used 2 challenges to remove blacks from jury
Issue
State action for private attny to use voire dire in discriminate way?
Holding
Yes.
Analysis
1. Did the deprivation result from exercise of priviliege deriving from state authority?
2. State Actor?
a. How much did the party rely on assistance and benefits of govt?
b. Is the actor performing a traditional govt function?
In jury selection, govt is the one actually doing the excluding
Substantial assistance from govt
Govt function
State action is present when private parties make extensive use of state procedures
assisted by state officials

Norwood v. Harrison (MS textbooks)

Issue
Does a state funded program benefitting all schools equally constitute state action
where some schools are segregated?
Holding
Yes.
Analysis
Tangible, financial assitence
Intent does not matter; subsidizing discrimination

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States constitutional obligation requires it to steer clear, not only of operating the dual
system of racially segregated schools, but also of giving significant aid to institutions
that practice racial or other invidious discrimination

Rendell-Baker v. Kohn
Facts
Private school fired petitioner
Rule
Private conduct is not state action simply because private entity serves a public function

Blum v. Yaretsky
Facts
Medicaid is footing Blums nursing home bill
Nursing home moved Blum to lower level of care/supervision
Rule
Private entity decisions are not state action simply because the state reacts to the
decision
Analysis
Medicaid provided no weight, encouragement, or influence onto the process

Reitman v. Mulkey
Facts
Citizens voted in amendment to State Const. preventing any future limitation on private
ability to discriminate in housing
Issue
Citizen passes referendum state action?
Holding
Yes
Analysis
Not just a repeal, intends to authorize racial discrimination
Section significantly encourages and involves the State in private discriminations
26 changed the status of the law and makes the state a partner in discrimination
State action b/c those who discriminate now do so under express const. authority

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